The opinion of the court was delivered by: Robson, Senior District Judge.
Plaintiff John L. Reese, an inmate at the Pontiac Correctional
Center, brings this pro se complaint seeking declaratory and
injunctive relief and damages for the alleged violation of his
federal constitutional rights in connection with his conviction
for armed robbery, pursuant to 42 U.S.C. § 1983. The defendants
named in this action are the Chicago Police Department, the City
of Chicago, the former Superintendent of Police, the watch
commander of Chicago Police Area 2, four Chicago Police officers
(all of the above hereinafter City defendants); the County of
Cook (hereinafter County defendant); and the Cook County State's
Attorney's Office, the present and former State's Attorney of
Cook County, the Chief of the Criminal Division and the head of
Felony Review of the State's Attorney's Office, and two Assistant
State's Attorneys (all of the above hereinafter Prosecutor
This cause is before the court on the City defendants, County
defendant, and Prosecutor defendants' motions to dismiss the
complaint for failure to state a claim upon which relief can be
granted. For the reasons stated below, the motions of the County
and the Prosecutor defendants will be granted and the motion of
the City defendants will be granted in part and denied in part.
In ruling on a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, it is well settled that the
court must "take [the plaintiff's] allegations to be true, and
view them, together with reasonable inferences to be drawn
therefrom, in the light most favorable to the plaintiff." Powe v.
City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). The motion
should not be granted "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-6, 78 S.Ct. 99, 101-2, 2 L.Ed.2d 80 (1957). It is equally well
settled that pro se complaints, such as those of indigent
prisoners like Reese, are to be liberally construed. Haines v.
Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Reese's complaint contains allegations that the Chicago Police
Department has maintained a policy and engaged in the practice of
keeping unofficial reports on criminal investigations, known as
"street files," which are not systematically made a part of the
official files, preserved from destruction, nor made known and
available to criminal defendants. The details of this practice
first were revealed in the case of People v. Jones, Numbers
81-3632 and 81-4426, in the Circuit Court of Cook County. They
also form the basis of a class action suit presently pending
before Judge Milton I. Shadur in this court. See Palmer v. City
of Chicago, No. 82 C 2349 (N.D.Ill.). This practice was
preliminarily enjoined in a memorandum opinion and order issued
by Judge Shadur on March 31 and April 27, 1983.
As part of his lawsuit, Reese seeks injunctive and declaratory
relief to remedy the alleged constitutional abuses flowing from
the practices regarding these "street files." The same relief is
sought in the Palmer case. Palmer was filed on behalf of two
subclasses, one of which consists of those persons convicted of
criminal offenses in the Circuit Court of Cook County and
sentences to probation or imprisonment. Reese is thus a member of
that class, and his plea for declaratory and injunctive relief
will be decided in the Palmer case and cannot be adjudicated by
this court. Since the ultimate judgment in Palmer will bind all
members of the certified class pursuant to Rule 23(c)(3) of the
Federal Rules of Civil Procedure, Reese is not able to maintain
a separate equitable action. Goff v. Menke, 672 F.2d 702, 704
(8th Cir. 1982). See also Brown v. Vermillion, 593 F.2d 321 (8th
Cir. 1979). His claims for declaratory and injunctive relief will
therefore be dismissed without prejudice.
See Bryan v. Werner, 516 F.2d 233, 239 (3d Cir. 1975).
The question of damages for past street files abuses is not
before the Palmer court. Therefore, if the practices alleged to
have injured Reese state a claim for damages under 42 U.S.C. § 1983,
that claim may be pursued in this court. Section 1983
provides for damages for the deprivation, under color of state
law, of "any rights, privileges, or immunities secured by the
Constitution and laws . . ." Such a deprivation may be sustained
by the suppression of evidence favorable to an accused by the
prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194,
1196, 10 L.Ed.2d 215 (1963). When such evidence has been
requested by a defendant, its suppression by the prosecution
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution. Id. Since Brady only covers evidence
actually requested, the practice described by Reese in which
criminal defendants could not have requested their street files
because they could not have known of their existence does not
state a literal Brady violation. It does raise at least the
possibility of a Brady violation, however, in that such conduct
on the part of the State clearly thwarts the purpose of Brady.
The Seventh Circuit has stated that Brady stands for the broader
proposition that "[a] defendant's right to prepare the best
defense he can and bring to the court's attention any evidence
helpful to this case is constitutionally protected." McDonald v.
State of Illinois, 557 F.2d 596, 603 (7th Cir. 1977), cert.
denied 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453.
As long as it is possible that Reese's complaint states a
violation of constitutionally protected rights, dismissal of the
damages portion of the plaintiff's complaint is not appropriate.
A court may dismiss a complaint only if it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations. Conley v. Gibson,
355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, should the
defendants produce Reese's street file, if one exists, and
demonstrate that it contains no evidence which would have been
favorable to his defense, this court will then entertain a motion
for summary judgment on their behalf.
There remains the question of whether the complaint adequately
states a claim against certain defendants. The Chicago Police
Department and the Cook County State's Attorney's Office, which
do not enjoy separate legal existence independent of the City of
Chicago and the County of Cook, respectively, are not suable
entities and should therefore be dismissed. Jordan v. City of
Chicago, Department of Police, 505 F. Supp. 1, 4 (N.D.Ill. 1980);
Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D.Ill. 1979).
Furthermore, all of the individual State's Attorneys and
Assistant State's Attorneys named in this action enjoy absolute
prosecutorial immunity from claims for money damages. Imbler v.
Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The
plaintiff's claims against these defendants will thus also be
dismissed. See Joe Woods v. Bernard C. Carey, et al., 563 F. Supp. 212
(N.D.Ill.) (Memorandum Opinion and Order of Judge Aspen dated
May 5, 1983). Moreover, since the County of Cook has no statutory
involvement, powers, or duties regarding criminal prosecutions
conducted by the State of Illinois, no cause of action has been
stated against this defendant and it too will be dismissed.
For the reasons stated above, the motions of the County and
Prosecutor defendants to dismiss the complaint will be granted.
The motion of the City defendants to dismiss will be granted only
as to defendant Chicago Police Department, and denied as to the
remaining defendants. However, plaintiff's claims for declaratory
and injunctive relief against the remaining City defendants are
hereby ordered stricken.
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