Plaintiff-appellant Michael Eugene Gibson, on behalf of the decedent, Eugene Gibson, brought suit under 42 U.S.C. Sec. 1983 against the City of Chicago and several members of the Chicago Police Department. The decedent was shot and killed by Officer Arthur Novit shortly after Novit had been placed on the Department's medical roll as mentally unfit for duty. Mr. Gibson appeals a grant of summary judgment in favor of the City of Chicago, the Acting Superintendent of Police, and certain Chicago police officers. He also appeals the dismissal of his claim against Officer Novit and the dismissal of his pendent state law wrongful death claim. For the following reasons, we affirm the dismissal of the section 1983 claim against Novit and the grants of summary judgment for Acting Superintendent O'Grady and Officers Marowally and Gray on the cover-up claim. However, we reverse as premature the grants of summary judgment in favor of the City and O'Grady in his official capacity on the municipal liability claim, and reverse the grant of summary judgment in favor of O'Grady in his individual capacity on the supervisory liability claim.

* BACKGROUND

Between 1980 and the end of 1982, Chicago police officer Arthur Novit was the subject of several public complaints alleging that he had used excessive force in the performance of his duties. In response to these complaints, the Chicago Police Department ordered Officer Novit to undergo a psychological evaluation. The evaluation revealed that Novit suffered from atypical impulse control disorder, a condition that frequently drove Novit to use excessive force when carrying out his police duties. On March 3, 1983, in response to this diagnosis, the Department placed Novit on the medical roll (i.e., medical leave status) and declared him mentally unfit for duty. While on the medical roll, Novit continued to receive his full salary and benefits. The Department also issued Novit a written order that prohibited him from carrying his gun or any other deadly weapon and directed him not to "exercise the power of arrest or any other police power."1 The order also commanded Novit to turn in his shield, star, and police identification card. Below the terms of the order was a signature line for Novit's acknowledgment. Although Novit refused to sign the acknowledgment,2 two other officers signed the signature blanks provided for witnesses.

Although Officer Novit did surrender his star, shield, and identification card, the Department made no attempt to recover Novit's service revolver or the ammunition it had issued to him.3 The Department also took no disciplinary action against Novit for his failure to sign the acknowledgment on the order. On June 19, 1983, approximately three months after being placed on the medical roll, Officer Novit encountered Eugene Gibson in the neighborhood where both men lived.4 For reasons unexplained on the record, Novit identified himself as a police officer, drew his gun, informed Gibson that he was under arrest, and then fatally shot Gibson in the chest.

The initial police reports of the incident, prepared by Officers Marowally and Gray, concluded that Novit had been the victim of an aggravated assault and that his shooting of Gibson was, therefore, a justifiable homicide. However, a subsequent investigation by the Office of Professional Standards (OPS), determined that Novit shot Gibson without justification and violated two Department rules: one that prohibits an officer from disobeying a "lawful order or directive," and another that "requires a police officer to make oral and written reports whenever he discharges a firearm." Gibson v. City of Chicago, 701 F. Supp. 666, 667 & n. 1 (N.D.Ill.1988).

On June 22, 1983, Acting Superintendent of Police James O'Grady suspended Novit for thirty days for violation of Department rules and filed charges with the Chicago Police Board seeking Novit's discharge. Novit, however, tendered his resignation from the police force. In response to Novit's resignation, O'Grady had the departmental charges dropped. As of the time of the filing of the district court opinion, Novit had not been charged criminally in the matter.

Michael Eugene Gibson, individually and as special administrator for the estate of his father, Eugene Gibson, brought suit under 42 U.S.C. Sec. 1983 against the City of Chicago, Officers Novit, Marowally, Gray, and Acting Superintendent O'Grady.5 The complaint alleged that Novit, acting in his capacity as a police officer and under color of state law, shot and killed Eugene Gibson without probable cause and deprived Gibson of his constitutional rights, including the right to due process of law. R.1 at 8, p 46. The complaint further alleged that defendants Marowally and Gray filed false police reports in an effort to cover up Novit's misconduct, and that defendant O'Grady also took action to cover up Novit's misconduct. R.1 at 6, pp 32, 33, and 37. Finally, the complaint asserted that Acting Superintendent O'Grady and the City of Chicago had failed to promulgate adequate procedures to deal with the recovery of firearms and ammunition issued to police officers who had been placed on medical leave due to mental unfitness. R.1 at pp 40-41. These inadequate procedures, according to the complaint, constituted "deliberate indifference indicating reckless disregard" for the rights of the decedent and the other citizens of Chicago. R.1 at 7-8, p 42. Gibson also asserted a pendent state wrongful death claim against Novit.

a. motion to dismiss

Defendants O'Grady, Marowally, Gray, and the City moved under Fed.R.Civ.P. 12(b)(6) to dismiss the section 1983 complaint for failure to state a claim. In denying the motion to dismiss, the district court stated that

[t]he motion to dismiss turns, primarily, on the City defendants' contention that Novit's actions on the night in question were not "under color of state law" as that phrase is used in 42 U.S.C. Sec. 1983. In support of this argument, they assert that, in connection with his medical leave status, Novit was expressly barred from carrying a firearm or exercising the power of arrest. They also claim he was required to surrender his badge and police identification card. Novit's service revolver, they observe, was the personal property of the officer and not subject to department control.

These claims all go beyond the facts stated in the complaint. Thus, while the court believes the City defendants may have a good defense should these facts prove to be true, it must nevertheless deny the motion to dismiss. The arguments may be raised again in the form of a summary judgment motion after the parties have had the opportunity to conduct discovery on the issue.

R.28 at 2.

Subsequent to its denial of the defendants' motion to dismiss, the district court limited discovery to the color of law issue. R.29; R.41 at 2. The case later was transferred to a different judge, and the parties were given time to conduct discovery on the color of law issue. After the close of discovery, both the plaintiff and all defendants except Officer Novit moved for summary judgment.6

b. dismissal of Novit on the color of law issue

In evaluating the other defendants' motion for summary judgment, the district court first considered whether Novit acted under color of state law when he shot Gibson. Although the defendants conceded that Novit was an employee of the Chicago Police Department when he shot Gibson, the district court concluded that Novit did not act under color of law because the Department's March 3 order divested him of all power and authority to act as a police officer. 701 F. Supp. at 670-71. Thus, reasoned the court, Novit possessed no police authority to misuse, and therefore was not acting as a policeman when he shot Gibson:

The Department ordered Novit not to exercise any police authority. For all intents and purposes Novit was dispossessed of all power: authority that cannot be translated into action is no authority at all. Lacking any authority to act as a police officer, Novit was not acting "under color of" State law when he shot Gibson.

Id. at 670-71 (emphasis in original). Because the district court concluded that Novit had not acted under color of state law, and because action under color of state law is a jurisdictional prerequisite to a section 1983 claim, see Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir.1978), overruled on other grounds, Polk County v. Dodson, 454 U.S. 312, 321, 102 S. Ct. 445, 451, 70 L. Ed. 2d 509 (1981), the district court dismissed Gibson's claim against Novit for lack of subject matter jurisdiction.

c. summary judgment for the City on the municipal liability

claim

Having concluded that Officer Novit did not act under color of law when he shot and killed Gibson, the district court turned to the City's motion for summary judgment on the municipal liability claim. As a threshold matter, Mr. Gibson objected to the consideration of summary judgment on any ground other than the color of law issue. Because the court, after denying the defendants' motion to dismiss, had limited discovery to the color of law issue,7 Gibson contended that a grant of summary judgment on any other issue would be tantamount to granting a motion to dismiss--a motion that already had been denied.8 The district court made no mention of the discovery stay issue in its discussion of the municipal liability and the other remaining claims.

With regard to the municipal liability claim, the court first concluded that Mr. Gibson had no excessive force claim against the City because excessive force claims are analyzed under fourth amendment principles and, since Novit was not acting under color of state law, Gibson was never "seized" within the meaning of the fourth amendment. Gibson, 701 F. Supp. at 671. As for any substantive due process claim against the City for deprivation of life, the court concluded that, while the City may have been negligent in failing to recover Novit's gun and ammunition or to notify the "proper authorities," the due process clause does not afford relief for even gross governmental negligence, but only for reckless or intentional deprivations. Id. at 671-72. The court also considered and rejected the possibility that the City had a constitutional "duty to protect" the decedent, or that a "special relationship" between the City and the decedent existed so as to impose such a duty. Id. at 672.

Alternatively, the district court held that even if the City owed the decedent some duty of care, Mr. Gibson's section 1983 claim against the City was precluded because of a failure to "adduce[ ] evidence sufficient to allow a rational factfinder to conclude that the alleged Department policies were the motivating force behind Gibson's death." Id. at 673. The court further stated that, even assuming the inaction alleged by the plaintiff could be considered a "policy," such inaction must be the product of conscious decisionmaking or conduct that tacitly authorizes unconstitutional conduct by subordinates in order to subject the City to liability. Id. Additionally, the court noted, such a policy cannot be inferred from a single, isolated incident without proof that the incident was caused by an existing, unconstitutional policy. Id.

Finally, even assuming that the plaintiff alleged the existence of a municipal policy, the court noted that the plaintiff had failed to satisfy the additional prerequisites to liability in cases of municipal inaction: a direct causal link between the municipal conduct and the injury, as evidenced by proof of an " 'extremely high degree' of municipal culpability." Id. at 674 (quoting Jones v. City of Chicago, 787 F.2d 200, 205 (7th Cir.1986); Lenard v. Argento, 699 F.2d 874, 885 (7th Cir.), cert. denied, 464 U.S. 815, 104 S. Ct. 69, 78 L. Ed. 2d 84 (1983)). For these reasons, the district court concluded that the City's motion for summary judgment should be granted.9

d. summary judgment for O'Grady on the supervisory liability

claim

The district court also granted summary judgment to Acting Superintendent O'Grady in his individual capacity on the supervisory liability claim. The district court concluded that, because supervisory liability is derivative, and because neither Novit nor any other subordinate had deprived Gibson of his constitutional rights, supervisory liability could not be imposed on Acting Superintendent O'Grady. Id. at 674-75. Moreover, the district court concluded that, even if Novit had been acting under color of law, Mr. Gibson failed to make the required showing that O'Grady was involved personally in the alleged deprivation. Because Mr. Gibson had alleged that O'Grady's inaction was the cause of the alleged constitutional deprivation, he had to show the same high degree of culpability as required in the municipal liability context. In this respect, the court explained, Mr. Gibson's claim against O'Grady was deficient. Id. at 675.

e. summary judgment for Officers Marowally and Gray

The district court also granted defendants Marowally and Gray summary judgment on the "cover-up" claim against them in their individual capacities. The court reasoned that the plaintiff was seeking to hold Officers Marowally and Gray liable for "conspiring to deprive Gibson of his constitutional rights in violation of sec. 1983," id. at 675, based on their filing of allegedly false police reports in order to cover up Officer Novit's misconduct. Id. The district court concluded that this claim could not stand because the plaintiff's case lacked a prerequisite to conspiracy liability under section 1983--"an actual deprivation of the plaintiff's constitutional rights." Id.

A. Dismissal of Novit on the Color of Law Issue

Novit's mere status as a policeman does not render all of his acts under color of state law. "[A]cts committed by a police officer even while on duty and in uniform are not under color of state law unless they are in some way 'related to the performance of police duties.' " Briscoe v. LaHue, 663 F.2d 713, 721 n. 4 (7th Cir.1981) (quoting Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D.Pa.1968)), aff'd, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983).10 Likewise, a mere assertion that one is a state officer does not necessarily mean that one acts under color of state law. Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir.1976).11 1] Moreover, "whether or not a police officer is off-duty does not resolve the question of whether he or she acted under color of state law." Layne v. Sampley, 627 F.2d 12, 13 (6th Cir.1980); see also Greco v. Guss, 775 F.2d 161, 168-69 (7th Cir.1985) (collecting cases).

Thus, the essential inquiry becomes whether Mr. Gibson has created a triable issue of fact concerning whether Novit's actions related in some way to the performance of a police duty. See Layne, 627 F.2d at 13 (suggesting that the issue of whether a person acted under color of state law may present a jury question if there remain " 'unanswered questions of fact regarding the proper characterization of the actions' ") (quoting Rowe v. Tennessee, 609 F.2d 259, 265 (6th Cir.1979)). In this case, there are no dispositive facts in dispute. Instead, the question of whether Novit acted under color of law turns primarily on the legal effect of the March 3 order that directed Novit not to carry a weapon or exercise any police powers. If, as the defendants contend, the order "stripped" Novit of authority to perform any police duties, his act of shooting Gibson could not have been related to the performance of a police duty.

The defendants argue that, upon Novit's receipt of the March 3 order, his status became equivalent to that of a suspended officer who is stripped of all power to perform police duties. This position finds some support in Bauer v. City of Chicago, 137 Ill.App.3d 228, 91 Ill. Dec. 863, 484 N.E.2d 422 (1985), in which an officer temporarily suspended from the Chicago police force for disciplinary reasons was involved in a fatal shooting. The question before the court in Bauer was whether the City of Chicago could be held vicariously liable for the acts of the officer under respondeat superior (the court did not address the plaintiff's section 1983 claim because the plaintiff waived it on appeal). Id. 91 Ill.Dec. at 866-69, 484 N.E.2d at 425-28. Under Police Department regulations and general orders, a suspended officer receives no pay, is exempted from the general regulation that requires an officer to be on duty twenty-four hours a day for purposes of responding to emergencies, and is required not to carry a firearm while on suspension. Id. 91 Ill.Dec. at 866-67, 484 N.E.2d at 425-26. Given these restrictions, the court concluded that "suspension" meant that an officer's status was that of temporary withdrawal from employment, that a suspended officer was prohibited from engaging in police action, and that the suspended officer, therefore, could not have been acting within the scope of his employment even if he did engage in direct police action. Id.

The Bauer court also concluded that the Police Department's general order that exempts a suspended officer from the general obligation to be on duty twenty-four hours a day strips the suspended officer of all power and authority to engage in direct police actions: "[a] suspended officer has only the same rights and obligations in preventing and stopping the commission of crime as any private citizen." Id. 91 Ill.Dec. at 867, 484 N.E.2d at 426. See generally Spencer v. Lee, 864 F.2d 1376, 1380 (7th Cir.1989) (en banc) (citizens' arrests are not under color of state law), cert. denied, --- U.S. ----, 110 S. Ct. 1317, 108 L. Ed. 2d 493 (1990). By contrast to the general order relied upon in Bauer to conclude that an officer was stripped of power, in this case we have a specific order issued to Novit not to exercise any police power. Thus, in some respects, the facts before us present a stronger case than in Bauer for concluding that the March 3 order stripped Novit of all power to perform police duties.

In support of his argument, the plaintiff cites Davis v. Murphy, 559 F.2d 1098 (7th Cir.1977), but we find this case distinguishable. In Davis, two off-duty police officers were held to have acted under color of state law when they initiated an altercation with five black citizens that culminated in the arrest of the citizens. The incident began when the off-duty officers shouted racial epithets at the citizens who were driving behind the officers. Id. at 1100. The situation escalated, and, when the off-duty officers exited their car, they identified themselves as police officers, carried their guns and badges, and effectively were on duty pursuant to Milwaukee Police Department regulations that officers were "to be always subject to duty." Id. at 1101. This court concluded, based on this evidence, that the officers were acting under color of law. Id.

Here, by contrast to the regulation in Davis that required officers always to be on duty, Officer Novit expressly had been ordered not to perform any police duties. Thus, he lacked the power or authority to perform police duties. While it remains true that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law," United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941) (emphasis supplied), one cannot misuse power that one no longer possesses. Mr. Gibson responds to this criticism by pointing to language in some of the cases that speak of acting under "pretense" of law. Mr. Gibson argues that this "pretense" language indicates that "the color of law requirement is met if the person whose conduct is being considered pretended to act as a police officer even though he was not in fact so acting." Appellant's Br. at 15-16 (citing Williams v. United States, 179 F.2d 656, 661 (5th Cir.1950), aff'd, 341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774 (1951); Crews v. United States, 160 F.2d 746, 750 (5th Cir.1947)). While it is no doubt true that an officer who, motivated by personal animus, misuses his lawfully possessed authority to injure the plaintiff may be found to be acting under color or "pretense" of law, Screws v. United States, 325 U.S. 91, 111, 65 S. Ct. 1031, 1040, 89 L. Ed. 1495 (1945), we have found no authority for expanding this concept of "pretense" of law to encompass the actions of an official who possessed absolutely no authority to act but nonetheless assumed the position of an imposter in pretending that he did. In fact, Screws, the case most often cited as the fount of the "pretense" language, makes abundantly clear the distinction between, on the one hand, the misuse of power under pretense of law and, on the other, the actions of an officer who has no authority whatsoever to act. Id. In responding to criticism that the "misuse of power" formulation for "under color of law" was too broad and in contravention of Congress' true intent that "under color of law" should "include only action taken by officials pursuant to state law," the Court responded:

But those statements [regarding Congress' perceived intent] in their context are inconclusive on the precise problem involved in the Classic case and in the present case. We are not dealing here with a case where an officer not authorized to act nevertheless takes action. Here the state officers were authorized to make an arrest and to take such steps as were necessary to make the arrest effective. They acted without authority only in the sense that they used excessive force in making the arrest effective. It is clear that under "color" of law means under "pretense" of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line or overstep it. If, as suggested, the statute was designed to embrace only action which the State in fact authorized, the words "under color of any law" were hardly apt words to express the idea.

Id. (emphasis supplied). Thus, Screws made clear that it was not addressing the situation of an official who was stripped completely of authority to act; such a situation does not constitute action under "pretense" of law.12

We, therefore, conclude that the district court correctly held that Officer Novit did not act under color of state law and that the section 1983 claim against Novit properly was dismissed.13

B. Grants of Summary Judgment for the City and the Remaining Defendants

Initially, we must stress the unusual posture in which we confront this claim. Discovery in this case has been limited exclusively to the issue of whether Officer Novit acted under color of law. This limitation on discovery would impose no impediment to the grant of summary judgment on the municipal liability claim if the determination of whether Novit acted under color of law were dispositive of the municipal liability claim. See Korf v. Ball State Univ., 726 F.2d 1222, 1230 (7th Cir.1984) (limitation on discovery before grant of summary judgment is appropriate if desired discovery is irrelevant to disposition of plaintiff's claim). However, our conclusion that Officer Novit did not act under color of state law does not permit summary judgment on the municipal liability claim. Mr. Gibson has alleged a municipal policy of inadequate procedures regarding the recovery of a deadly weapon and ammunition from an officer placed on medical leave as mentally unfit for duty. He also has alleged that the failure to promulgate adequate procedures constituted "deliberate indifference" to the rights of the decedent and was the cause of the decedent's death in deprivation of his constitutional rights. See R.1 at 7-8, pp 41-46. On a municipal liability claim, the City policy itself must cause the constitutional deprivation.15 Therefore, the municipality itself is the state actor and its action in maintaining the alleged policy at issue supplies the "color of law" requirement under Sec. 1983. In short, under this theory of liability, Gibson contends that the City's policy of allowing a deranged police officer to retain his service revolver and bullets is the state action that deprived him of his life.16 Consequently, the City is not entitled to summary judgment on the ground that Novit did not act under color of state law.

Although no discovery had been allowed with respect to Gibson's municipal liability claim, the district court nevertheless granted the City summary judgment on the claim. Consequently, the district court assessed the claim under summary judgment standards rather than on the standards applicable to judgment on the pleadings under Fed.R.Civ.P. 12(b)(6). In DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir.1988), where no discovery had been taken, we held that the district court's grant of summary judgment on only the pleadings amounted to a Rule 12(b)(6) dismissal and that the court's failure to follow the standards governing Rule 12(b)(6) dismissals was error. Thus, our review of Mr. Gibson's municipal liability and remaining claims must be limited to a determination of whether these claims properly were allowed to survive the defendants' earlier motions to dismiss under Rule 12(b)(6).17

"The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Triad Assocs., Inc. v. Chicago Hous. Authority, 892 F.2d 583, 586 (7th Cir.1989). In reviewing a motion to dismiss under Rule 12(b)(6), "we must accept as true all the plaintiff's well-pleaded factual allegations and the inferences reasonably drawn from them. We shall affirm the dismissal only if the plaintiff has failed to allege any set of facts upon which relief may be granted." Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir.1990) (citations omitted).

As noted above, Mr. Gibson has alleged a municipal "policy" of inadequate procedures regarding the recovery of a deadly weapon and ammunition from officers placed on medical leave as mentally unfit for duty.18 He also has alleged that the City's failure to promulgate adequate procedures to recover weapons and ammunition from officers it knew were mentally unfit for duty constituted "deliberate indifference" to the rights of the decedent and was the cause of the decedent's death in deprivation of his constitutional rights. See City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 1204-05, 103 L. Ed. 2d 412 (1989). Such inadequacies may be said to constitute a "policy" for which the City is responsible if "the need for more or different [procedures] is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id. 109 S.Ct. at 1205. Given the standard under which we must review Mr. Gibson's claims at this point in the litigation, and under the particular facts of this case, we believe that Mr. Gibson has pleaded sufficient facts to survive the defendants' motion to dismiss.19

We, however, offer no opinion on the underlying merits of Mr. Gibson's municipal liability claim. It is well established that the requirements for municipal liability based on policies of "inadequacy" are rigorous. As noted in City of Canton, municipalities may be held liable for "inadequate" policies "only where the failure ... amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id. 109 S.Ct. at 1204; cf. Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir.1985) (for purposes of the eighth amendment's prohibition on cruel and unusual punishment, the "deliberate indifference" standard of culpability means either "deliberateness," or "recklessness" in the criminal law sense--both terms imply the defendants' knowledge of the risk of deprivation), cert. denied, 479 U.S. 816, 107 S. Ct. 71, 93 L. Ed. 2d 28 (1986). See also City of Canton, 109 S. Ct. at 1208 (O'Connor, J., concurring in part and dissenting in part) ("Where ... a claim of municipal liability is predicated upon a failure to act, the requisite degree of fault must be shown by proof of a background of events and circumstances which establish that the 'policy of inaction' is the functional equivalent of a decision by the city itself to violate the Constitution.").20 Perhaps Mr. Gibson will not be able to show that the City's "inadequate" policies constituted "deliberate indifference" as required in order to impose municipal liability, but, on these facts, we conclude that he must at least be given the opportunity to conduct discovery on the issue. After such an opportunity has been afforded on remand, the City may move for summary judgment on this issue.

2. The supervisory liability claim against O'Grady in his individual capacity

We conclude that the district court's grant of summary judgment on this claim also was premature. As noted above, Mr. Gibson was precluded from conducting discovery on any issue other than color of law; thus, the supervisory liability claim against O'Grady before us is, in effect, in the form of a motion to dismiss--a motion denied earlier by the district court.

This claim against O'Grady stands on similar ground to the municipal liability claim. In order to hold O'Grady liable as a supervisor, Mr. Gibson must prove O'Grady's personal involvement in the wrongful conduct, which, in a case alleging a failure to detect and prevent a subordinate's misconduct, means that the supervisor must act at least with deliberate indifference toward the misconduct. See Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir.1988). Although Mr. Gibson has alleged that O'Grady acted with deliberate indifference in failing to promulgate adequate procedures for the recovery of deadly weapons from a mentally unfit officer, he has not had an opportunity to conduct discovery on that issue. We express no opinion on the underlying merits of this claim. We conclude only that summary judgment on the claim at this stage of the litigation was inappropriate.

3. The cover-up claims against O'Grady, Marowally, and Gray

The victims of a cover-up are the decedent's survivors, not the decedent himself. Bell v. City of Milwaukee, 746 F.2d 1205, 1264 (7th Cir.1984). Thus, Mr. Gibson's allegations that the decedent's constitutional rights were violated will not support his cover-up claim against O'Grady, Marowally, and Gray. Mr. Gibson's complaint alleges only in the vaguest terms that Marowally and Gray filed false police reports "in an effort to cover-up police misconduct committed by Defendant NOVIT," and "in order to protect Defendant Novit from civil and/or criminal liability." R.1 at 6, pp 37-38. Similarly, he alleges that O'Grady took action "to curtail any further investigation of Defendant NOVIT and the possible bringing of further charges, civil or criminal, against him." Id. at p 33. Mr. Gibson does not, however, allege any concrete injury to the decedent's survivors resulting from these alleged cover-up activities. See Bell, 746 F.2d at 1261 (explaining that a cover-up can interfere with a decedent's survivors' due process right of access to the courts). Even assuming that Mr. Gibson sufficiently has alleged that the initial police reports filed by Officers Marowally and Gray were intentionally false and inaccurate, the subsequent investigation by the OPS concluded that Novit's shooting was unjustifiable. Mr. Gibson has alleged no injury to himself or the decedent's other survivors resulting from the delay between the time the initial police reports were filed and the filing of the OPS report.21 We conclude that Mr. Gibson has pleaded no facts that would entitle him to a finding that the acts of Marowally or Gray denied him access to the courts or could causally contribute to his failure in this litigation.22

Similarly, Mr. Gibson's cover-up claim against O'Grady must be dismissed. The facts alleged show that O'Grady, far from attempting to cover up any misconduct, initiated disciplinary proceedings against Novit after the OPS report concluded that Novit had violated departmental rules and wrongfully had shot the decedent. Moreover, Mr. Gibson alleges no injury to the decedent's survivors as a result of O'Grady's alleged misconduct.23

For the foregoing reasons, the dismissal of Officer Novit is affirmed. The grants of summary judgment in favor of the City and O'Grady on the municipal liability claim are reversed, as is the grant of summary judgment for O'Grady in his individual capacity on the supervisory liability claim. The grants of summary judgment in favor of O'Grady, Marowally, and Gray on the cover-up claims are affirmed.