which he claims was a reward for confessing (Cplt. PP 4-5).
Based on these alleged facts, Williams charges that Hutchens violated his constitutional rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. He says that he was illegally searched, wrongfully detained, subjected to improper identification by witnesses, and coerced into confessing a crime (Cplt. PP 1-5). The complaint names as co-defendant the Downers Grove Police Department. Williams claims that the Department should be held responsible for the actions of both Hutchens and the other officers who observed Hutchens' allegedly illegal conduct and did nothing to stop it (Cplt. PP 6-7). In response, both defendants have moved this court to dismiss the complaint for failure to state a claim upon which relief can be granted.
In ruling on a motion to dismiss, the court assumes the facts to be as stated in the complaint. In the case of plaintiffs proceeding pro se, like Williams, the court construes the complaint even more liberally than usual. Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Only if the plaintiff, even with the benefit of the assumptions in his favor, "'cannot establish any set of facts which would entitle him to the relief requested,'" can the court dismiss the claim. Caldwell v. City of Elwood, 959 F.2d 670, 672 (7th Cir. 1992) (quoting Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991)).
A. Downers Grove Police Department
The Downers Grove Police Department is merely an organizational division of the Village of Downers Grove and enjoys no separate legal existence. Therefore, Williams' claim against the Department must be dismissed with prejudice. See Chan v. City of Chicago, 777 F. Supp. 1437, 1442 (N.D.Ill. 1991) (holding that the Chicago Police Department "has no separate legal existence apart from the City of Chicago" and "is therefore not a suable entity"); Reese v. Chicago Police Department, 602 F. Supp. 441, 443 (N.D.Ill. 1984) (same).
Even if Williams had named the Village as defendant instead of the Department, we would be compelled to grant the motion to dismiss because Williams has not alleged sufficient facts to state a claim against the Village. Since Williams may choose to amend his complaint to name the Village as defendant instead of the Department, we address what such a claim would require.
The Supreme Court has established that municipal governments are not suable on a theory of respondeat superior; they are liable only for those civil rights violations that occur as a result of their official policies. Monell v. Department of Social Services of New York, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) ("a municipality cannot be held liable under § 1983 on a respondeat superior theory"); Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) ("the entity's 'policy or custom' must have played a part in the violation of federal law"). Recently, in Baxter v. Vigo County School Corp., 26 F.3d 728, 734-35 (7th Cir. 1994), the Seventh Circuit identified the three ways in which a plaintiff can prove the existence of a local government policy. He can point to an explicit policy promulgated through formal channels (such as an ordinance or code); show that the local government engaged in a practice "so permanent and well settled as to constitute a 'custom or usage' with the force of law," City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988) (plurality opinion) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)); 485 U.S. at 138 (Brennan, J., concurring); or allege that his injury was caused by a person with "final policymaking authority," Praprotnik, 485 U.S. at 123; id. at 139 (Brennan, J., concurring); Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) (plurality opinion).
Williams does not allege facts sufficient to state a claim against the Village under any of the three methods of proof mentioned above. He mentions no explicit policy, nothing that could raise an inference of a custom or practice of unconstitutional conduct, and no fault on the part of anyone with final policymaking authority. As for a theory that the Village failed to train Hutchens adequately, see City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989), Williams has not alleged that "the [alleged] inadequacies resulted from conscious choice -- that is, proof that the policymakers deliberately chose a [policy] which would prove inadequate" -- as Supreme Court precedent requires. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985). Therefore, even if Williams had named the Village as a defendant, he would not have stated a claim against the Village. If he chooses to amend his complaint to include the Village as a defendant, he must also include the proper elements of a § 1983 claim against a municipality or that claim too will be dismissed.
B. Officer Michael Hutchens
Williams does not specify whether he seeks relief against Hutchens in his individual or official capacity, or both. Ordinarily, complaints against public officials that do not say whether the official is being sued in his individual capacity or his official capacity are presumed to be official capacity claims. Yeksigian v. Nappi, 900 F.2d 101 (7th Cir. 1990); Kolar v. County of Sangamon, 756 F.2d 564 (7th Cir. 1985). However, the Seventh Circuit has indicated that this presumption should give way where it is clear that the plaintiff may have intended something else or may not have understood the nuances of § 1983 liability. Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir. 1991) (adopting a "sensible approach to reading a complaint so that suits may be maintained regardless of technical pleading errors"). It would not be fair to Williams, a pro se litigant, to adhere closely to the technicalities of § 1983 pleadings and construe his complaint as stating only an official-capacity claim or only an individual-capacity claim. Instead, we will give him the benefit of the doubt and treat his complaint as stating both claims.
An official-capacity suit against a public official is really a suit against the governmental entity that employs the official. Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) ("it is not a suit against the official personally, for the real party in interest is the entity"). Therefore, a plaintiff pursuing such a suit must meet the pleading requirements for municipal liability. As explained above, Williams has not done so, so his official-capacity claim is dismissed without prejudice.
The individual-capacity claim requires closer consideration. Williams alleges four
separate violations of his rights: (1) illegal search of his person before arrest, (2) illegal search after arrest, (3) improper identification by witnesses, and (4) coerced confession.
Each is discussed in turn.
Williams' allegations concerning the pre-arrest search state a Fourth Amendment claim. Police officers may conduct brief warrantless searches for weapons (pat-downs) if they reasonably suspect a person of criminal activity. Terry v. Ohio, 392 U.S. 1, 27, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Here it is not clear from the complaint that Hutchens had any basis to suspect Williams of wrongdoing. Although Hutchens argues in his motion to dismiss that he had a legitimate basis for stopping Williams, motions to dismiss are decided on the basis of the complaint only, and we cannot consider any additional evidence until the summary judgment stage. Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 915 (7th Cir. 1985) ("dismissal under Rule 12(b)(6) is proper only if the allegations of the complaint make clear that the plaintiff cannot state a claim") (emphasis added); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990) ("dismissal is justified only when the allegations of the complaint itself clearly demonstrate that plaintiff does not have a claim"). Furthermore, Williams also alleges that Hutchens reached inside his clothing to retrieve a checkbook. This was more than just a pat-down search and thus required probable cause. No basis for finding probable cause is evident from Williams' complaint. Accordingly, we must conclude that he has stated a cause of action under the Fourth Amendment.
Similarly, Williams' allegations that Hutchens illegally searched him by reaching into his crotch area after he was arrested state a Fourth Amendment claim. It is well settled that after a suspect has been lawfully arrested police may conduct a full search of his person to remove any weapons or to seize any evidence that might otherwise be concealed or destroyed. Chimel v. California, 395 U.S. 752, 763, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969); United States v. Trigg, 878 F.2d 1037, 1039 (7th Cir. 1989) ("a police officer may thoroughly search the person of a suspect after making a custodial arrest"), appeal after remand, 925 F.2d 1064 (7th Cir.), cert. denied, 502 U.S. 962, 112 S. Ct. 428, 116 L. Ed. 2d 448 (1991). Here, however, Williams' complaint gives us no reason to believe that the arrest was lawful, so we cannot say that the intrusive search that Hutchens allegedly conducted did not violate the Fourth Amendment. Therefore, this part of the complaint states a claim against Hutchens.
Williams' third allegation is that Hutchens violated his due process rights by presenting him to witnesses at Service Merchandise for identification.
Witness identification of a suspect, if "unnecessarily suggestive and conducive to irreparable mistaken identification," can violate the suspect's due process rights. Stovall v. Denno, 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). A one-person lineup (or "showup"), although proper and not unduly suggestive in certain circumstances, United States v. Clark, 989 F.2d 1490, 1495 (7th Cir. 1993), is clearly more suggestive than the typical multiple-person lineup. The Supreme Court has established a two-part test to determine whether showups and other lineups are proper: "First, the court must decide whether the police used an unduly suggestive pretrial procedure in obtaining an identification. . . . Then the court must determine whether, under all the circumstances, that suggestive procedure resulted in a substantial likelihood of irreparable misidentification." United States v. Flannigan, 884 F.2d 945, 948 (7th Cir. 1989) (citing Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977)), cert. denied, 497 U.S. 1027, 110 S. Ct. 3277, 111 L. Ed. 2d 786 (1990).
To maintain a § 1983 action against Hutchens, Williams must allege not only that the identification was improper under the Manson test but also that the evidence derived from the identification prejudiced his right to a fair trial. Hensley v. Carey, 818 F.2d 646, 649-50 (7th Cir.), cert. denied, 484 U.S. 965, 108 S. Ct. 456, 98 L. Ed. 2d 395 (1987). Stovall and Manson set forth a prophylactic rule that protects a defendant's right to a fair trial; they "do not establish a right to an impartial lineup as long as the evidence gained through that lineup is not used at trial." Id. at 650. Williams' claim here consists only of the statement that Hutchens "drove me to Service Merchandise to be viewed" (Cplt. at 1). He alleges no prejudice at trial, such as a witness who was at the showup and then identified Williams in court, that could lead us to impose § 1983 liability upon Hutchens.
Moreover, even if Williams had alleged prejudice, his claim will ultimately fail if he was convicted and the conviction stands. In claiming that Hutchens conducted an improper showup and that his right to a fair trial was prejudiced thereby, Williams would effectively be claiming that his conviction -- the only damage he could have suffered as a result of an improper identification -- was invalid. The Supreme Court recently held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.