Appeal from he United States District Court for the Northern District of Illinois, Eastern Division. No. 76-C-3811 -- Thomas R. McMillen, Judge .
Before Swygert, Senior Circuit Judge, and Pell and Bauer, Circuit Judges.
Plaintiff-appellant Andrew Powe filed this lawsuit against the City of Chicago and the County of Cook under section 1983, 42 U.S.C. § 1983. The district court granted defendants' motions for summary judgment "as motions for judgment on the pleadings pursuant to F.R.C.P. 12(b)(6)." Powe appealed.
We note at the outset that because this appeal is from a dismissal of the complaint for failure to state a claim, the sole issue is the sufficiency of the complaint. We must therefore exclude from our discussion facts presented in the plaintiff's and the defendants' briefs that are based upon documents and deposition testimony obtained through discovery, but that are not alleged in the complaint. Rather, our discussion is directed to the allegations that appear in the complaint. See Glaros v. Perse, 628 F.2d 679, 681 (1st Cir. 1980). Naturally, we take these allegations to be true, and view them, together with reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff. See, e.g., Sterling v. Village of Maywood, 579 F.2d 1350, 1351 n.2 (7th Cir. 1978), cert. denied sub nom. Village of Maywood v. Sterling, 440 U.S. 913, 99 S. Ct. 1227, 59 L. Ed. 2d 462 (1979); Little v. Walker, 552 F.2d 193, 194 n.2 (7th Cir. 1977), cert. denied sub nom. Walker v. Little, 435 U.S. 932, 98 S. Ct. 1507, 55 L. Ed. 2d 530 (1978). As an additional preliminary note, we add, because there was some question about it at oral argument, that the complaint with which we are concerned is the Second Amended Complaint as Amended.*fn1 This complaint incorporates by reference the complaints that preceded it, that is, the Original Complaint and the First Amended Complaint.
According to the complaint, in February of 1972 Powe was the victim of an armed robbery committed by one Ernest Brooks, who took, among other things, Powe's wallet containing his identification. Brooks was later arrested for another crime, and, using Powe's stolen identification, he pleaded guilty and was sentenced to two years' probation under the name "Andrew Powe." He then violated probation, and a probation violation arrest warrant was issued, by the Cook County Adult Probation Department, on December 20, 1974, for the arrest of "Andrew Powe, a/k/a Ernest Brooks."*fn2 This warrant was lodged with the Cook County Sheriff's Fugitive Warrant Section, and was placed as a "stop order" with the Chicago Police Department, "without adequate specificity to identify the intended arrestee." Count I, Paragraph 12.
On November 25, 1975, the real Andrew Powe was stopped by Chicago police for a traffic offense. The police officers made a routine computer check, via police radio, for warrants outstanding against Powe. This check revealed the "Andrew Powe, a/k/a Ernest Brooks" arrest warrant. Powe was accordingly placed under arrest, was booked, fingerprinted and photographed, and spent the night in jail because he was unable to post the required bond until the following day. Powe appeared in court to answer the probation violation charge on December 1, 1975, and he then explained the circumstances to the judge. The case was continued, to permit the prosecutor to investigate. On December 30, 1975, the prosecutor reported to the judge that Powe's story was true. Powe was therefore discharged.
Three months later, on March 8, 1976, Powe was stopped by Chicago police for speeding. Since he was driving on a traffic ticket at the time, he was taken to the Seventh District Station of the Chicago Police Department to post a $25 bond. While he was at the police station, a routine computer check was made for outstanding warrants, as before, and as before the probation violation warrant turned up. Powe was therefore taken to Central Detention Lockup at 11th and State Streets in Chicago, was booked, fingerprinted and photographed, and spent the night in jail. The following day a Cook County Probation Department employee, who had a photograph of the actual probation violator, informed the Chicago police officers at Central Lockup that Powe was not the man sought in the warrant. The Chicago police refused to release him promptly, however, and instead transported him in a squadrol, with his hands cuffed behind him, back to the Seventh District Station. He was not released from custody until "many hours later."
Following the second arrest Powe filed this lawsuit. Thereafter, he was arrested twice more on the same warrant, once in January of 1977 and again on November 5, 1977. In this lawsuit, he seeks damages and injunctive relief under section 1983, and under pendent state counts of negligence and respondeat superior, for all four of his arrests, and for his retention in custody by the Chicago police, on the occasion of his second arrest, after they were notified that he was not the man sought under the warrant.
Our task is to determine whether the complaint's allegations, outlined above, suffice to state a cognizable claim for relief against the city and the county under section 1983. Both defendants are municipalities. The Supreme Court set forth the elements of a civil rights claim against a municipality in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).*fn3 Under Monell, a section 1983 plaintiff must show (1) that he or she has suffered a deprivation of a constitutionally protected interest, and (2) that the deprivation was caused by an official policy, custom or usage of the municipality. Id. at 690-91, 98 S. Ct. at 2035-36. Our first question, then, is whether the complaint is adequate to allege an unconstitutional deprivation.
A. Deprivation of Liberty
Powe contends that he was deprived of his liberty without due process of law. The district court, relying on Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979), held that the deprivations of his liberty were not unconstitutional. In Baker, the Supreme Court found no unconstitutional deprivation of liberty where the plaintiff was arrested pursuant to a valid arrest warrant. The person actually sought under the warrant was the plaintiff's brother, who, having earlier been arrested on narcotics charges and released on bail bond, was being sought at the bondsman's request to revoke his suretyship. It was the plaintiff's name that appeared in the arrest warrant, however, because his brother had obtained his driver's license and had used it at his arrest, booking, and release on bond. The plaintiff was arrested pursuant to the warrant, and was detained by the county sheriff for three days until it was discovered that he was not the person actually sought. The Supreme Court held the deprivation of plaintiff's liberty was not unconstitutional, even though he was innocent, because the plaintiff conceded that both the arrest warrant and the arrest pursuant to the warrant were valid. Id. at 143, 99 S. Ct. at 2694.*fn4
In the present case, the district court found that the warrant was conceded by all parties to be valid. Were we in accord with this premise, we would agree with the district court's conclusion that the complaint must be dismissed under Baker. We are constrained to conclude, however, that the district court's premise was incorrect.
At Count I, Paragraph 12 of the complaint, Powe charges that the warrant was "without adequate specificity to identify the intended arrestee." At Count I, Paragraph 16, Powe charges that when the warrant was reissued after his first arrest, it was "likewise deficient in identifying the person to be arrested." Powe further complains that the warrant was issued in his name in spite of the knowledge on the part of the law enforcement agencies of the defendants that Brooks was "a person who employed several aliases." Count I, Paragraph 17 (emphasis added). Finally, Powe's challenge to the warrant was reiterated in the last brief he filed with the district court: in his brief in opposition to the defendants' motion for summary judgment (the motion that resulted in the dismissal of the case and the appeal to this court), Powe argued that the unlawful detentions were "caused by the defective warrant.... (T)he defective warrant was the sina (sic) qua non of Plaintiff's injury." In view of these allegations and arguments, we cannot agree that Powe conceded the validity of the arrest warrant.
This court has held that where an arrest is made pursuant to an invalid warrant, Baker cannot be applied to preclude the arrestee's claim of an unconstitutional deprivation of liberty. Murray v. Chicago, 634 F.2d 365, 367 (7th Cir. 1981). To determine whether Baker is applicable here, therefore, we must determine whether Powe's complaint adequately alleges that his arrests were made pursuant to an invalid warrant. Our finding that Powe did not concede the validity of the warrant is not dispositive of this question. The validity of an arrest warrant is a mixed question of law and fact. Thus, while we cannot and do not ignore Powe's contention that the warrant was not valid, the contention is not a "fact" that must be taken as true in judging the sufficiency of his complaint. Rather, we must determine whether Powe's historical-fact allegations, together with reasonable inferences drawn ...