Appeal from the Circuit Court of Kane County; the Hon. Richard
Weiler, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Plaintiff, Steve Weimann, brought suit in the circuit court of Kane County naming Kane County, the Kane County State's Attorney's office, the village of Sugar Grove, the Sugar Grove police department, the city of St. Charles, and the St. Charles police department as defendants. He voluntarily dismissed his claim against all of the defendants except Kane County (the county), against which he filed a three-count amended complaint. Count I of the amended complaint alleges a violation of plaintiff's civil rights pursuant to section 1983 of the United States Code (42 U.S.C. § 1983 (1982)). Counts II and III are State claims for false imprisonment and malicious prosecution, respectively.
In the complaint, Weimann alleges that he was arrested and charged with forgery on September 27, 1983. He was then imprisoned for "over a month" although witnesses were unable to identify him "at over five line-ups." He claims that there was no probable cause for his arrest or detention and no evidence that he had committed the crime. He also generally alleges that the Kane County employees responsible for these actions were "acting pursuant to governmental custom, policy or practice."
On defendant's motion, the court dismissed all three counts for failure to state a cause of action. Plaintiff appeals only the dismissal of counts I and II.
• 1 The only issue presented in this appeal is whether the complaint is sufficient to state a cause of action. When reviewing the sufficiency of a complaint, the court accepts as true all facts well-pleaded and all reasonable inferences that can be drawn from them. (See, e.g., Morse v. Nelson (1977), 48 Ill. App.3d 895, 898; Dear v. Locke (1970), 128 Ill. App.2d 356.) In addition, the complaint must be construed liberally, to favor providing the plaintiff with a determination on the merits of his claim. See Fleshner v. Copeland (1958), 13 Ill.2d 72, 77; Bohacs v. Reid (1978), 63 Ill. App.3d 477, 481.
• 2 In Monell v. Department of Social Services (1978), 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018, the United States Supreme Court held that liability may be imposed on local governing bodies under section 1983 of the United States Code (42 U.S.C. § 1983 (1982)) for violations of Federal constitutional rights when the violation is due to the implementation or execution of an officially adopted governmental policy or of an informal but pervasive governmental custom. (436 U.S. 658, 690-91, 56 L.Ed.2d 611, 635-36, 98 S.Ct. 2018, 2035-36.) To state a cause of action against a local governmental entity under Monell, the plaintiff must allege both that he has been deprived of a constitutionally protected right and that the deprivation was caused by a governmental policy or custom. (See, e.g., Powe v. City of Chicago (7th Cir. 1981), 664 F.2d 639, 643.) The county argues that Weimann's amended complaint alleges neither.
Defendant argues that, because Weimann was arrested pursuant to a valid arrest warrant, his arrest and detention were clearly constitutional, and his complaint argues for the recognition of continuing probable cause as a new constitutional right.
• 3 The relevant portions of plaintiff's complaint are as follows:
"8. Plaintiff was then detained and subjected to a search of his person despite protests that he had not committed the act complained of.
10. Plaintiff was jailed for over a month by personnel of the defendant who were acting pursuant to custom, policy or practice of the defendant in spite of failure by witnesses to identify the plaintiff as the perpetrator of the forgery complained of at over five line-ups.
11. At the time plaintiff was arrested and at all times material hereto, there was no probable cause or evidence that plaintiff committed the act of forgery complained of."
A prisoner arrested pursuant to a warrant issued by a magistrate on a showing of probable cause clearly has no constitutional right to periodic hearings to determine whether there remains probable cause to detain him while awaiting trial. (Baker v. McCollan (1979), 443 U.S. 137, 143, 61 L.Ed.2d 433, 441, 99 S.Ct. 2689, 2694.) However, we interpret the complaint to allege, not that the sheriff's officers or State's Attorneys were affirmatively obligated to conduct periodic inquiries to determine whether there was still cause to hold Weimann, but that it was clearly apparent to all involved that he was not the individual who had committed the forgery. If Weimann was in fact deprived of his liberty by persons who knew him to be innocent of the charges, he may well have a cognizable section 1983 claim. See Gay v. Wall (4th Cir. 1985), 761 F.2d 175, 178-79; Coleman v. Frantz (7th Cir. 1985), 754 F.2d 719; see also Powe v. City of Chicago (7th Cir. 1981), 664 F.2d 639, 651-52 (noting that nothing in Baker precludes finding a constitutional violation where an arrestee is detained after the police discover he is not the person sought).
The county next argues that the complaint is insufficient because it fails to identify a governmental policy or custom which caused the violation of Weimann's rights, and that, even if a policy or custom has been adequately alleged, the existence of such a policy must be supported by allegations of fact relating to more than one incident of a constitutional ...