Swanigan v. City of Chicago

Filing 94

Enter MEMORANDUM, OPINION AND ORDER: Because the Amended Complaint has not sufficiently alleged the plausibility of a constitutional injury and for the reasons explained above, the Defendants motion to dismiss the Plaintiffs Monell claims 83 is granted with prejudice. Civil case terminated. Signed by the Honorable Virginia M. Kendall on 2/12/2016.Mailed notice(tsa, )

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Rashad B. Swanigan
Plaintiff,
v.
City of Chicago
Defendant.

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No. 08 C 4780
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Plaintiff Rashad B. Swanigan sued the Defendant, the City of Chicago, alleging that its
officers violated Mr. Swanigan’s constitutional rights by unlawfully arresting and detaining him
on August 22, 2006. The Plaintiff sought and won a $60,000 jury verdict on his unlawful
detention claim in Swanigan v. Trotter et al, 1:07-cv-04749 (“Swanigan I”). Following that case
and a remand from the Court of Appeals, the Court lifted the stay on this Monell action. Plaintiff
advances three Monell claims, alleging that his constitutional rights were violated by the
Defendant’s “Hold Past Court Call” policy, unduly suggestive line-up policy, and “Clear Closed”
policy under 42 U.S.C. § 1983. See Monell v. Department of Social Services of City of New
York, 436 U.S. 658, 690 (1978) (local governments may be sued for constitutional deprivations
caused by governmental custom). Plaintiff alleges that the Defendant’s policies, which he claims
caused him to be unlawfully arrested and detained, forced him to participate in line-ups both
related and unrelated to his alleged crime, and caused him to be currently listed in police
documents as the perpetrator of a crime he did not commit, directly causing his constitutional
rights to be infringed. Defendant has moved to dismiss the Monell claims on a variety of
grounds, including that Plaintiff has failed to allege a constitutional deprivation. After accepting

all well-pleaded allegations in the Amended Complaint as true and drawing all reasonable
inferences in Plaintiff’s favor, the Court nevertheless finds that Plaintiff has failed to allege
sufficient facts to maintain his claims. As such, and for the reasons discussed herein, the Court
grants Defendant’s motion to dismiss with prejudice.
BACKGROUND
This Court takes the following allegations from the Amended Complaint and treats them
as true for the purposes of the Defendant’s motion. 1 See Gillard v. Proven Methods Seminars,
LLC, 388 F. App’x 549, 550 (7th Cir. 2010).
On August 22, 2006, in the late afternoon, Officers Robert Trotter and Thomas
Muehlfelder observed Plaintiff at Labe Bank in Chicago, Illinois. (Dkt. 75 at ¶¶ 9-12.) Thinking
that the Plaintiff fit the description of the man that had been dubbed the “hard hat bandit,” the
officers approached the Plaintiff, inquired if he was trying to the rob Labe Bank, placed him in
handcuffs, and searched his vehicle. (Id. at ¶¶ 15-16.) When the Plaintiff was unable to provide
proof of insurance and several hard hats were found in the car, the officers took the Plaintiff to
the police station. (Id. at ¶¶ 24-25.)
Three to four hours after arriving at the police station, Plaintiff was given a “Hold Past
Court Call” designation with the purpose of providing detectives time to conduct an investigation
in relation to the “hard hat bandit” case. (Id. at ¶¶ 36, 38.) Due to the “Hold,” the Plaintiff was
kept in custody for nearly 50 hours, during which time the Plaintiff was interrogated regarding
1

The parties disagree on whether the Court may take judicial notice of facts contained within Swanigan I. While the
general rule is that “a court simply examines the allegations in the complaint to determine whether they pass
muster,” there exists a “narrow exception to this rule to permit a district court to take judicial notice of matters of
public record without converting a motion for failure to state a claim into a motion for summary judgment.” Gen.
Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997) (collecting cases). A court may
take “judicial notice of an adjudicative fact that is both ‘not subject to reasonable dispute’ and either 1) ‘generally
known within the territorial jurisdiction of the trial court’ or 2) ‘capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.’” Id. at 1081. As such, and at the Defendant’s
request, see Dkt. 83 at 2 n. 1, the Court takes judicial notice of the facts contained within its decision from Swanigan
I.

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the “hard hat bandit” case and placed in numerous line-ups. (Id. at ¶¶ 38, 41, 42, 45.) Although
the Plaintiff was initially identified by four witnesses as the hard hat bandit, the assistant state’s
attorney, finding the identifications lacking due to deficiencies in the line-ups, refused to approve
the charges and released the Plaintiff from custody after 50+ hours of incarceration. (Id. at ¶¶
42, 47, 50.) Approximately one month after the Plaintiff’s release, the hard hat bandit case was
officially closed. (Id. at ¶ 53.) The police case report was changed to the “Cleared Closed”
designation, and currently lists the Plaintiff as the “offender” in the “hard hat bandit” case. (Id.
at ¶ 54.)
Plaintiff brought a case against the individual police officers claiming false arrest and
unlawful detention. See Swanigan I. During the litigation, Plaintiff filed the present Monell
count, which was stayed pending resolution of Swanigan I. See Swanigan v. City of Chicago,
775 F.3d 956, 957 (7th Cir. 2015). The Swanigan I jury found against Plaintiff on his false arrest
claim, but found for him on his unlawful detention claim, awarding him $60,000. (Dkt. No. 75
at ¶¶ 62, 63.) Following the verdict, the Plaintiff moved to lift the stay on this Monell count.
Swanigan, 775 F.3d at 958. In seeking to lift the stay, Plaintiff stated that he intended to file an
amended complaint to narrow the issues in his complaint consistent with the jury verdict and
seek additional monetary, declaratory, and injunctive relief. Id. The Defendant opposed the
motion, arguing that the “Certification of Entry of Judgment,” under which the Defendant agreed
to the entry of judgment against it on the Monell count if the Swanigan I jury found for Plaintiff,
would require the Court to dismiss the Monell count for lack of a justiciable case or controversy.
Id. The Court denied the motion to lift the stay and dismissed the case on mootness standing
grounds. Id. at 958-959. The Seventh Circuit vacated and remanded the judgment, holding that
although it had “no doubt that [Plaintiff’s] Monell claim face[d] jurisdictional and substantive

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legal barriers,” this Court could only consider those issues after Plaintiff was allowed to amend
his complaint. Id. at 963. Following that ruling, this Court lifted the stay on the present action.
(Dkt. No. 74.)
LEGAL STANDARD
Federal rule of Civil Procedure 12(b)(1) allow dismissal for “lack of jurisdiction over the
subject matter” of claims asserted in the Amended Complaint. FED.R.CIV.P. 12(b)(1). A Court
lacks subject matter jurisdiction where there is no case or controversy. See J.N.S., Inc. v. State of
Ind., 712 F.2d 303, 305 (7th Cir. 1983) (further stating that “federal courts…do not render
advisory opinions) (citing Aetna Life Insurance Co. v. Hawroth, 300 U.S. 227, 239 (1937)). “For
adjudication of constitutional issues ‘concrete legal issues, presented in actual cases, not
abstractions’ are requisite.” Golden v. Zwickler, 394 U.S. 103, 108 (1969) (quoting United
Public Workers of American (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947)). In analyzing a motion
under Rule 12(b)(1), this Court “accepts that the allegations in the amended complaint are true,
but may weigh evidence submitted by the parties to determine whether jurisdiction exists.” See,
e.g., Radha Geismann, M.D., P.C. v. Allscripts Healthcare Sols., Inc., 764 F. Supp. 2d 957, 959
(N.D. Ill. 2011).
A complaint must contain sufficient factual matter to state a claim to relief that is
plausible on its face to survive a 12(b)(6) challenge. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A claim is plausible on its face when the complaint contains factual content that supports a
reasonable inference that the defendant is liable for the harm. Id. The complaint should be
dismissed only if the plaintiffs would not be entitled to relief under any set of facts that could be
proved consistent with the allegations. See Visiting Nurses Ass’n of Southwestern Indiana, Inc.
v. Shalala, 213 F.3d 352, 354 (7th Cir. 2000). In making the plausibility determination, the

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Court relies on its “judicial experience and common sense.” McCauley v. City of Chicago, 671
F.3d 611, 616 (7th Cir. 2011) (quoting Iqbal, 129 S.Ct. at 1950). For purposes of this motion,
this Court accepts all well-pleaded allegations in the complaint as true and draws all reasonable
inferences in the non-movant’s favor. See Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir.
2013).
Where challenges pursuant to both 12(b)(1) and 12(b)(6) are presented, it is customary
that the 12(b)(1) issue be addressed first. See, e.g., Oliphant v. Bradley, No. 91 C 3055, 1992
WL 153637, at *4 (N.D. Ill. Feb. 20, 1992).
DISCUSSION
To establish liability against the Defendant under Monell, Plaintiff must show that: (1) he
suffered a deprivation of a federal right; (2) as a result of either an express municipal policy,
widespread custom, or deliberate act of a decision-maker; which (3) was the proximate cause of
his injury. See Ovadal v. City of Madison, Wisconsin, 416 F.3d 531, 535 (7th Cir. 2005); Board
of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[I]t is not enough
for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The
plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the
“moving force” behind the injury alleged.); see also Thomas v. Cook County Sheriff’s Dept., 604
F.3d 293, 306 (7th Cir. 2009) (“the premise behind a § 1983 action against a government body is
‘the allegation that official policy is responsible for the deprivation of rights.’”) (emphasis in
original). In addition, in order for his Monell claims to succeed, Plaintiff must show that he
suffered a constitutional injury. See, e.g., Hunt ex rel. Chiovari v. Dart, 754 F. Supp. 2d 962,
974 (N.D. Ill. 2010).
The Court addresses each of Plaintiff’s claims in order.

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A.

Count I – “Hold Past Court Call” Policy and Practice
In Count I of the Amended Complaint, Plaintiff alleges that, due to the Defendant’s

“Hold Past Court Call” policy, he was arrested and held in violation of his Fourth Amendment
rights. (Dkt. No. 75 at 12-17.) Plaintiff’s position is that the Defendant’s policy enabled the
officers to unjustifiably arrest and detain him, therefore robbing him of his Fourth Amendment
substantive due process rights without any fear of repercussion and without any reasonable
suspicion. Finally, Plaintiff also clarifies that he is suing the Defendant for the “initial arrest and
detention,” which he alleges “extends not only to his detention for an unreasonable period of
time, but to the fact that plaintiff was arrested at all and was detained” until the “Hold” was
placed on him. (Dkt. No. 75 at ¶ 100.)
The Defendant makes a number of counterarguments in its briefing. The Court addresses
each below, in turn.
1.

False Arrest

First, the Defendant argues that because the Swanigan I jury found that there was no false
arrest, i.e. that no federal deprivation occurred, granting Plaintiff’s Monell claim here would
create an inconsistent verdict. The Court agrees. Where the jury has explicitly decided that the
Plaintiff was not deprived of a federal right, i.e. the officers did not falsely arrest the Plaintiff as
they were found to have probable cause, Plaintiff’s contention that the Defendant’s Hold policy
might have authorized unconstitutional arrest is “quite beside the point.” City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986) (also holding that in an action of damages, as is the case here,
“neither Monell [], nor any other of our cases authorizes the award of damages against a
municipal corporation based on the actions of one of its officers when in fact the jury has
concluded that the officer inflicted no constitutional harm.”); see also Swanigan v. City of

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Chicago, 775 F.3d 953, 962 (7th Cir. 2015) (“If the plaintiff fails to prove a violation of his
constitutional rights in his claim against the individual defendants, there will be no viable Monell
claim based on the same allegations.”). Plaintiff’s reliance on Thomas v. Cook Cty. Sheriff's
Dep't, 588 F.3d 445, 449 (7th Cir. 2009) opinion amended and superseded on denial of reh'g,
604 F.3d 293 (7th Cir. 2010), to counter this conclusion is factually inapposite. (Dkt. No. 89 at
5.) In that case, the Court held that the City could have been held liable, even though its
offending officers were not, because the jury’s verdict did not foreclose the possibility that the
plaintiff’s medical needs were not met due to city’s policies. See Thomas, 604 F.3d at 305. The
same issue does not exist in this case. Here, the jury found that Plaintiff’s arrest occurred
without any constitutional violation. A ruling here granting Plaintiff’s Monell claim would be
inconsistent with the jury’s ruling, in violation of Thomas. Id. The Court’s finding on this issue
is bolstered by the fact that Plaintiff, aside from advancing unsupported assertions, fails to
provide any facts or argument supporting its position that a verdict finding the Defendant liable
in this case could in fact be consistent with the verdict in Swanigan I.
Second, Defendant contends that Plaintiff has failed to state sufficient facts to show the
Defendant’s arrest was “caused” by the Hold policy. (Dkt. No. 83 at 6.) The Court agrees. To
succeed in its Monell claim, the Plaintiff must show that the Defendant’s Hold policy was the
“moving force” behind his constitutional injury, see Bryan County, 520 U.S. at 407-08, meaning
that Plaintiff must set forth allegations creating a plausible link between the polices and the
deprivation of his rights. See Thomas, 604 F.3d at 306. Construing the facts and all reasonable
inferences in the Plaintiff’s favor, the Plaintiff has nevertheless failed to meet this requirement.
Plaintiff’s Amended Complaint is rife with bare assertions that his unconstitutional arrest was
due to the Hold policy. (See, e.g., Dkt. No. 75 at ¶¶ 13, 96.) In an attempt to lend plausibility to

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his position, Plaintiff cites other cases in which the courts have addressed the Hold policy and
declared it unconstitutional. (Dkt. No. 75 at ¶¶ 94-95.) Though those cases do address the
legality of the policy, none of them provide support of Plaintiff’s contention that the policy is
indeed the moving force behind the Plaintiff’s arrest in this case, or false arrests in general.
Based on facts in the Amended Complaint, this Court does not find it even plausible that the
officers, because of the Hold policy, decided to arrest the Plaintiff. As such, the Court finds that
the Amended Complaint fails to state a claim for municipal liability, and dismisses Count I as it
relates to the false arrest issue. 2
2.

Unreasonable Detention

Defendant presents numerous responses to Plaintiff’s dual contentions that he must be
compensated both for the “three or four hours” prior to the “Hold” designation being placed
upon him and for the hours that he was unreasonably detained under the “Hold.” (Dkt. No. 75 at
¶ 100.)
The Court first turns to the period during which the Plaintiff was allegedly unreasonably
detained under the “Hold” designation.

In regards to compensatory damages, Defendant

contends that because Plaintiff has already received compensation for the unlawful detention
claim in Swanigan I, his current Monell claim is no longer an actual case or controversy and
therefore should be dismissed on 12(b)(1) grounds. (Dkt. No. 83 at 5.) Where a party has
already been monetarily compensated for a violation of its constitutional rights, as is the case
here for the unreasonable detention period after the Hold designation was constituted, the party is
“not entitled to recover any additional compensatory damages from the [Defendant] because of
their Monell claim.” See, e.g., Elrod v. City of Chicago, No. 06 C 2505, 2007 WL 3241352, at

2

As the Plaintiff has failed to state a claim, the Court need not address the Plaintiff’s requests for injunctive or
declaratory relief as related to the false arrest claim.

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*3 (N.D. Ill. Nov. 1, 2007) (emphasis in original). Plaintiff fails to cite any authority to the
contrary.
In regards to injunctive relief for the period of time that Defendant was detained under
the Hold designation, Defendant argues that the Plaintiff lacks standing. A plaintiff must have
standing “separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). A party seeking injunctive relief has standing if
“(1) [the party is] under threat of an actual and imminent injury in fact; (2) there is a causal
relation between that injury and the conduct to be enjoined; and (3) it is likely, rather than
speculative or hypothetical, that a favorable judicial decision will prevent or redress that injury.”
Schirmer v. Nagode, 621 F.3d 581, 585 (7th Cir. 2010). As such, the Plaintiff must demonstrate
a “personal stake in the outcome” and that he is in “immediate danger of sustaining a direct
injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1980).
Plaintiff fails to meet these requirements. As in Lyons, the Plaintiff must be able to make
the “incredible assertion” that police officers in Chicago always unreasonably detain arrestees
pursuant to the Hold policy or that the Defendant has authorized its officers to act in such a
manner. Id. at 106. Plaintiff’s support for either assertion is lacking. While Plaintiff cites to a
study by the ACLU of Illinois as evidence that he is more likely to be stopped than other
citizens, see Dkt. No. 89 at 8, as Defendant has correctly pointed out, the study does not support
the position that the Plaintiff is in immediate danger of being unreasonably detained because of
the Hold policy. Similarly, while Plaintiff does reference the fact that the Hold policy is written
and allegedly authorizes police officers to act in an unconstitutional manner, he fails to indicate
why he “might realistically be threatened by police officers who acted within the strictures of the
[Defendant’s] policy.” Lyons, 461 U.S. at 106.

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Further, Plaintiff’s citation to Honig v. Doe is unpersuasive as, in that case, the Supreme
Court granted standing precisely because, given the facts of that case, “respondent would be
faced with a real and substantial threat” by various school districts’ policies. 484 U.S. 305, 322
(1998) (emphasis added). In that case, in which students sought injunctive relief to bar school
districts from continually suspending them for misbehavior related to their handicaps, the Court
found that, given representations by the State Superintendent of Public Instruction and other
evidence supporting the likelihood that the students would be subjected to harm, a substantial
threat existed. Id. Here, however, Plaintiff has failed to provide sufficient facts supporting such
a finding. Likewise, Plaintiff’s reference to Count III, regarding the “Clear Closed” policy, does
little to add to the substantial threat analysis. Plaintiff alleges that because he is labelled as the
perpetrator of the “hard hat bandit” case in still-available police files, he is more likely to again
be subjected to an unreasonable detention due to the Hold policy. (Dkt. No. 89 at 8.) This
speculative allegation falls “far short of the allegations that would be necessary to establish a
case or controversy between these parties.” Lyon, 461 U.S. at 106. As such, the Court concludes
that the Plaintiff does not have standing to bring this suit for injunctive relief, and dismisses this
element of the action.
Turning to the hours prior to the Hold being placed, the Court holds that Plaintiff fails to
plead sufficient facts plausibly linking the Hold policy to him being held for three or four hours
before the Hold policy was even “placed on him.” (Dkt. No. 75 at ¶ 100.) As discussed above in
relation to the false arrest claim, none of the facts in Plaintiff’s Amended Complaint illustrate
that a “causal nexus between [the Plaintiff’s] injury,” in this instance the prior 3-4 hours of
detention, and the Hold policy, is plausible. Palmquist v. Selvik, 111 F.3d 1332, 1344 (7th Cir.
1997). Plaintiff’s Amended Complaint states that the “purpose of the ‘Hold Past Court Call’ was

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to enable the detectives to conduct an investigation and gather evidence against plaintiff for a
series of bank robberies and restaurant robberies…” (Dkt. No. 75 at ¶ 37.) Nowhere in the
Amended Complaint, however, are there facts to indicate that another purpose of the Hold policy
was to enable the officers to detain the Plaintiff for 3-4 hours before the Hold designation was
even applied.

As discussed above, even if the 3-4 hours were deemed to be part of the

unreasonable detention as a whole, which is not how the Amended Complaint reads, then the
claim is nevertheless dismissed on 12(b)(1) grounds. Therefore, Plaintiff has failed to plead
sufficient facts to support his contention that his prior detention was somehow caused by the
Hold policy. Therefore, this aspect of the claim is dismissed.
In addition, as both parties have recognized, a claim for declaratory relief by itself is
insufficient to maintain an actual case or controversy. See, e.g., Parker v. Banner, 479 F. Supp.
2d 827, 834 (N.D. Ill. 2007). Further, Plaintiff’s request for attorney’s fees is denied as Plaintiff
is not the “prevailing party.” 42 U.S.C.A. § 1988. Based on the above, the Court dismisses
Count I in its entirety.
B.

Count II – Line-up Procedures
Plaintiff alleges that during the 50 hours that he was in police custody, both known and

unknown detectives violated his constitutional rights by using him as “fodder for the line-up
machine.” (Dkt. No. 75 at 19-22.) Further, he alleges that he suffered harm because the
executing officers “were completely unaware of and had had no training in recognized and
scientific police procedures in the conduct of fair and unbiased line-ups.” (Id. at ¶ 107.) Plaintiff
also asserts that the jury verdict in Swanigan I did not compensate him for harm caused by being
forced to partake in the line-ups, but rather only compensated him for his unreasonable detention.
(Dkt. No. 89 at 14.) Defendant counters that Plaintiff’s Monell claims must be dismissed

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because the Plaintiff did not suffer a constitutional deprivation, the declaratory judgment does
not create an actual controversy, and that Plaintiff lacks standing to seek any injunctive relief.
(Dkt. No. 83 at 10.)
The Court holds that Plaintiff has failed to plead sufficient facts in support of his position
that the allegedly illegal line-ups violated his constitutional rights.

Plaintiff grounds his

challenge in both the Fourth and Fifth 3 Amendments, but the Court does not find that his rights
under either amendment were violated. First, Plaintiff alleges that the police's illegal line-up
procedures, which he argues led to “a loss of liberty,” amounts a due process violation.
However, and as Defendant correctly counters, unduly suggestive line-ups, which is the only
constitutional violation that Plaintiff alleges, are not unconstitutional unless “those flawed
procedures compromised the constitutional right to a fair trial.” Alexander v. City of S. Bend,
433 F.3d 550, 555 (7th Cir. 2006). The Seventh Circuit, discussing exactly this issue, has
unequivocally held that these procedural safeguards provide “no support for the plaintiff's
contention that an improper line-up proceeding in itself constitutes a distinct and actionable
constitutional wrong.” Hensley v. Carey, 818 F.2d 646, 648-49 (7th Cir. 1987). As Plaintiff was
never formally indicted or subjected to any criminal proceeding, the “prophylactic rule” designed
to protect him from the ills of unduly suggestive line-ups was never called into action. 4 Id. As
such, the Plaintiff has failed to plead sufficient facts in support of his due process claim.

3

It is black letter law that the Fifth Amendment due process prohibitions only apply to the federal government. See,
e.g. Carreon v. Baumann, 747 F. Supp. 1290 (N.D. Ill. 1990) (“The Due Process Clause of the Fifth Amendment
only applies to federal officials.”). However, given that the Plaintiff cited to the Fourteenth Amendment in his
Amended Complaint, see Dkt. No. 75 at ¶ 1, and that the Defendant responded accordingly, see Dkt. No. 93 at 12 n.
18, this Court will analyze controlling Fourteenth Amendment jurisprudence for both Counts II and III.
4
Plaintiff cites to various Supreme Court case law in support of his claim. (Dkt. No. 89 at 11-12.) However, none
of those cases discuss the Fifth of Fourteen amendment due process rights as applied to unduly suggestive line-ups.
In fact, Plaintiff fails to cite a single case indicating that the facts that he alleges are sufficient to support a claim
under the Fifth Amendment.

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Plaintiff's allegation in regards to the Fourth Amendment fails for similar reasons. The
thrust of Plaintiff's claim is that the Defendant violated his Fourth Amendment right to liberty
and privacy by forcing him to “participate in line-ups” that were both related and unrelated to the
crime for which he had been arrested. (Dkt. No. 89 at 12-13.) Plaintiff further characterizes
these forced line-ups as “in essence a seizure within a seizure.” (Id. at 13.) While Plaintiff does
allege facts to support his claim that he was forced to participate in these line-ups, the mere
forced participation in line-ups when already in custody does not amount to a constitutional
violation. See, e.g., U.S. ex rel. Vanorsby v. Acevedo, No. 11 C 7384, 2012 WL 3686787, at *4
(N.D. Ill. Aug. 24, 2012) (“Prisoners can be required to participate in line-ups for cases unrelated
to those for which they are in lawful custody.”); see also Rigney v. Hendrick, 355 F.2d 710, 712
(3d Cir. 1965). Moreover, as Plaintiff's arrest was lawful, Defendants seizure within a seizure
claim is devoid of legal support. 5 Therefore, as the Plaintiff has failed to present a viable claim
based upon the unduly suggestive line-ups, the Court dismisses Count II. 6
C.

Count III – “Clear Closed” Policy
Finally, Plaintiff alleges that his Fourth and Fifth Amendment constitutional rights are

being violated by the Defendant's “Clear Closed” policy. Plaintiff argues that the policy permits
the Defendant to maintain records that allegedly list him as the perpetrator of the “hard hat
bandit” case despite the fact that the true perpetrator has already been found and convicted.
(Dkt. No. 75 at ¶¶ 136-137.) Based on that policy, Plaintiff alleges that he currently suffers from
emotional harm and may suffer additional harm, such as extended traffic stops or an “increased
likelihood that a vehicle stop of plaintiff will be at gunpoint.” (Id. at ¶¶ 139-150.) Defendant
5

It is also problematic that Plaintiff fails to provide any legal support that being forced to participate in a line-up
when already in custody is, in fact, a seizure for Fourth Amendment purposes. The Court declines to make such a
finding.
6
Given that the Court has dismissed Plaintiff's claim for failing to allege a constitutional violation, the Court need
not address the Defendant's second and third counterargument.

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contends that Plaintiff's claim must be dismissed for failing to allege a constitutional violation.
In addition, Defendant argues that Plaintiff lacks standing to seek an injunction and that,
assuming that both the damages and injunctive requests are dismissed, a request for declaratory
judgment alone cannot survive Defendant's motion to dismiss. (Dkt. No. 93 at 12.)
The Court agrees that the Plaintiff has failed to allege a constitutional violation of either
the Fourth or Fifth Amendment and thus dismisses Plaintiff's third Monell claim. Plaintiff first
argues that the Clear Closed policy violates his “Fourth Amendment liberty and privacy rights.”
The Fourth Amendment right to privacy cannot be construed as a “general constitutional right to
privacy.” Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507, 510, 19 L. Ed. 2d 576 (1967);
see also Willan v. Columbia Cty., 280 F.3d 1160, 1163 (7th Cir. 2002) (“[T]he only place to look
for a general right of informational privacy would be the due process clause of the Fifth
Amendment or (in this case, in which the defendants were acting under color of state rather than
federal law) of the Fourteenth Amendment.”) (emphasis in original). In addition, the Plaintiff
has failed to supply and the Court has not found any authority indicating that the failure of police
to expunge their allegedly incorrect police records is a matter of Constitutional concern,
particularly in relation to privacy or liberty issues. Further, the Court does not find any
meaningful support for Plaintiff’s position that he has been, due to the policy, effectively
convicted as a “violent felon[] on police records in absentia and without a trial.” (Dkt. No. 89 at
15.) Such unsupported assertion does not persuade the Court that any constitutional right has
been violated.
Plaintiff also alleges that his substantive due process rights were violated by the
Defendant’s policy. (Dkt. No. 89 at 16.) Under the Fourteenth Amendment (which the Court
applies in lieu of the Fifth Amendment, see n.3 supra), substantive due process “prevents the

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government from engaging in conduct that ‘shocks the conscience,’ or interferes with rights
‘implicit in the concept of ordered liberty….’” United States v. Salerno, 481 U.S. 739, 746
(1987) (internal citations omitted). The rights “encompassed by this theory have been carefully
limited to ‘matters relating to marriage, family, procreation, and the right to bodily integrity.’”
Kraushaar v. Flanigan, 45 F.3d 1040, 1047 (7th Cir. 1995) (quoting Albright v. Oliver, 510 U.S.
266, 271 (1994)). Given that narrow jurisprudence, this Court cannot find that the Plaintiff’s
allegations that he is listed as a perpetrator on police documents support a claim that his
substantive due process rights were violated, particularly given the high standard of such a claim.
Plaintiff also states that he has no procedural recourse against the existence of the police records.
(Dkt. No. 89 at 16.) To the extent that Plaintiff is alleging that his procedural due process rights
are violated by the Clear Closed policy, he again fails to allege a constitutional violation.
Procedural due process requires that any government action that deprives a person of life, liberty,
or property but survives substantive due process scrutiny “must still be implemented in a fair
manner.” Salerno, 481 U.S. at 739. Here, Plaintiff was not deprived of any of his rights when
he was labelled a suspect or perpetrator in police documents. As such, the implementation of
that labelling cannot be seen as a violation of his procedural rights, where no substantive rights
were infringed.
As such, because Plaintiff has failed to present a viable claim in relation to the “Clear
Closed” policy, the Court dismisses Count III. 7
CONCLUSION

7

As with Count II, the Court need not discuss the Defendant’s counterarguments regarding injunctive and
declaratory relief.

15

Because the Amended Complaint has not sufficiently alleged the plausibility of a
constitutional injury and for the reasons explained above, the Defendant’s motion to dismiss the
Plaintiff’s Monell claims is granted with prejudice.

________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: 2/12/2016

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