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April 20, 1989

THE CITY OF CHICAGO, RICHARD J. ELROD, individually and as Sheriff of Cook County, and COUNTY OF COOK, Defendants

James B. Moran, United States District Judge.

The opinion of the court was delivered by: MORAN


 Plaintiff, George Johnson (Johnson), alleges that defendants, the City of Chicago (City), the County of Cook (County) and former Sheriff Richard Elrod (Elrod), violated his constitutional rights by wrongfully arresting and incarcerating him. The City and Elrod individually move to dismiss Johnson's complaint for failure to state a claim upon which relief can be granted. *fn1" For the following reasons, the motions of the City and Elrod are granted, and plaintiff's complaint is dismissed, with leave to amend consistent with this opinion.

 On a motion to dismiss we assume the truth of all well-pleaded facts and view all reasonable inferences drawn from those facts in the light most favorable to plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986).

 On January 11, 1986, Johnson was stopped by Chicago police officers for a traffic violation. He was driving on a suspended license, and was instructed by the police to follow them to the police station. During a routine computer search, the police discovered an outstanding arrest warrant for one George Johnson, an escapee from Attica Prison. The police arrested Johnson, took his fingerprints and put him in a cell.

 Throughout the arrest process and subsequent incarceration Johnson repeatedly denied being the man named in the warrant. Nonetheless, he alleges that six hours after being fingerprinted the police informed him that his prints matched those of the escapee. The police had, however, made a mistake -- the man they arrested was in fact not the escapee named in the warrant.

 The following day, January 12, 1986, Johnson appeared before a state court judge. The police presented the judge with a valid arrest warrant and, purportedly, the man named therein. As a result, the judge ordered him held without bond. Plaintiff was subsequently transported to the Cook County Jail, where he remained for the next six days. The ordeal finally ended when the attorney who had defended the escapee George Johnson by chance saw plaintiff Johnson's file on a desk and informed the police that they had the wrong man in custody.

 Relying on these facts, plaintiff brings this action under 42 U.S.C. § 1983, claiming a violation of his Fourth and Fourteenth Amendment rights and, additionally, a pendent state claim for false imprisonment.


 Under Rule 12(b) of the Federal Rules of Civil Procedure a complaint will be dismissed for failure to state a claim only if there is no set of facts which would entitle plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir. 1977).

 I. The City of Chicago

 Section 1983 provides that any person who under the color of law causes the deprivation of "any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured". In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-701, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), the Court overruled its earlier decision in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), and held that municipalities were "persons" under section 1983 and thus could be held liable for constitutional deprivations. Pursuant to Monell and its progeny, to successfully bring a § 1983 suit against a municipality Johnson must allege that (1) he was deprived of a constitutional right (2) as a result of either an official municipal policy or custom (3) which was the proximate cause of his injury. See Monell, 436 U.S. at 690-91; Powe v. City of Chicago, 664 F.2d 639, 643 (1981).

 The threshold inquiry is whether Johnson suffered an actionable deprivation of his constitutional rights. Johnson claims the Chicago police subjected him to an illegal seizure in violation of the Fourth Amendment and deprived him of his liberty without due process in violation of the Fourteenth Amendment. We address each contention separately.

 i. The Fourth Amendment

 For the purposes of the Fourth Amendment claim we must focus on the reasonableness of Johnson's arrest by the Chicago police pursuant to the warrant for one "George Johnson." In Hill v. California, 401 U.S. 797, 28 L. Ed. 2d 484, 91 S. Ct. 1106 (1971), the Court examined the standard by which we measure the reasonableness of a mistaken arrest. There the California police had probable cause to arrest Hill but mistakenly arrested Miller, who was at Hill's apartment and fit Hill's description. The Court stated that as long as the police acted reasonably in mistaking Miller for Hill, the arrest was not in violation of the Fourth Amendment. In assessing the reasonableness of the arrest, the Court recognized "that those who are apprehended and are arrested many times attempt to avoid arrest by giving false identification." Id. at 803 n.7. As a result, the Court held that although Miller repeatedly claimed he was not Hill, the officer's mistake was reasonable under the circumstances:

"sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment."

 Id. at 804.

 The mistake resulting in Johnson's arrest, however, is not new to the case law. The Seventh Circuit has directly addressed the arrest of a person under the mistaken belief that he or she is the person named in an otherwise valid warrant. See Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir. 1987); Brown v. Patterson, 823 F.2d 167, 169 (7th Cir. 1987), cert. denied, 484 U.S. 855, 108 S. Ct. 162, 98 L. Ed. 2d 117 (1987); Johnson v. Miller, 680 F.2d 39, 41 (7th Cir. 1982). These cases clearly set forth the rule that the Fourth Amendment is not violated by a mistaken arrest as long as the arresting officer acted reasonably under the circumstances, and in all three cases the court held that the arrest of the wrong person with the same name as the one in the warrant was reasonable.

 Johnson claims that these three cases are distinguishable because the mistaken arrests in those cases did not take place at the police station but rather on "the street." Thus, the concern that the "criminal will slip away while the officer anxiously compares the description in the warrant with the appearance of the person named in it," Johnson v. Miller, 680 F.2d at 41, is not present here. Plaintiff argues that the officers acted unreasonably in arresting him in the police station without first confirming his identity.

 We think plaintiff's argument lacks merit. In all three of the previously cited Seventh Circuit cases the person mistakenly arrested was eventually taken to the police station. It is therefore difficult to conclude that the distinction is decisive for, if it was, the Seventh Circuit would have held those three arrests in violation of the Fourth Amendment when the ...

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