plaintiff's bail hearing on March 25, 1994, and hypothesizes that "a decision with regard to probable cause to detain would certainly have been made" at that time. Def's Memorandum in Support, at 4 n. 1. However, defendant fails to introduce any evidence that a probable cause hearing was actually held, nor can we presume at this stage that plaintiff was provided with a such a hearing. Rather, because he has not suggested in his complaint that he received a Gerstein hearing, we must permit his claim to go forward and leave for a later date the question of whether the existence of such a hearing wipes out any constitutional claim he might have asserted.
Defendant next moves to dismiss that portion of plaintiff's complaint seeking relief under the Fifth Amendment to the United States Constitution. Complaint, P 17. The City correctly argues that the Fifth Amendment's Due Process Clause only applies to actions taken under color of federal law. See Peoria School of Business, Inc. v. Accrediting Council for Continuing Educ. and Training, 805 F. Supp. 579, 581 (N.D. Ill. 1992). Plaintiff concedes that the Fifth Amendment is inapplicable to his case, but asserts that this is of no import: because the Fourteenth Amendment's Due Process Clause provides a remedy for his claim of unlawful detention. However, in support of this assertion plaintiff cites Lile v. Tippecanoe County Jail, 844 F. Supp. 1301 (N.D. Ind. 1992), a case dealing solely with the issue of whether the conditions of a pre-trial detainee's confinement violated the Fourteenth Amendment. Plaintiff fails to cite any support for his contention that unlawful detention claims are cognizable under the Fourteenth Amendment, nor does he venture an explanation as to how his claim avoids the holding in Albright. See, 114 S. Ct. at 813-14. Accordingly, defendant's motion to dismiss plaintiff's Fifth Amendment claim is granted.
Defendant City next attacks Count II of the complaint, arguing that plaintiff's allegation of "gross negligence" in the supervision of police officers is insufficient to establish municipal liability. See Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Although defendant is correct that an allegation of gross negligence will not support a § 1983 claim, we disagree with its reading of plaintiff's complaint. Indeed, Count II specifically alleges that "the Chicago Police Department was intentionally indifferent to, or grossly negligent in permitting, the [complained of] conduct." Complaint, P 33. In other words, plaintiff contends (in part) that defendant City acted with deliberate indifference to the rights of its citizens, and § 1983 liability may be imposed on a municipal defendant possessing such a state of mind. See City of Canton v. Harris, 489 U.S. 378, 392, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir. 1994). While it is true that the very next paragraph of the complaint only refers to the City's gross negligence, we believe that a fair reading of Count II fully incorporates the allegation of deliberate indifference into this section of the complaint as well. Accordingly, defendant's motion to dismiss Count II is denied.
Finally, defendant moves to strike the portions of Count II referring to the sanctioning by defendant of "violent" activities and acts of "excessive force" by its officers. Defendant contends that even if such policies exist, they did not cause plaintiff's complained of injury (ie., unlawful detention and malicious prosecution) and therefore are irrelevant to plaintiff's complaint. Plaintiff responds that such allegations bolster his contention that the City actually had a policy of not interfering with the unlawful arrests performed by the individual defendants.
Federal Rule of Civil Procedure 12(f) authorizes us to strike from the pleadings "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." However, such motions are not favored, and will only be granted if "the language of the pleading has no possible relation to the controversy and is clearly prejudicial." Simmons v. John F. Kennedy Medical Ctr., 727 F. Supp. 440, 442 (N.D. Ill. 1989) (quoting Garza v. Chicago Health Clubs, Inc., 347 F. Supp. 955, 962 (N.D. Ill. 1972)). While the language in question is not directly related to any policy which could have caused plaintiff's complained of injury, it is consistent with Gonzalez's allegation that the City failed to properly screen and supervise its police officers. As this language arguably bears some relation to plaintiff's claim, we decline to strike it from the complaint.
For the reasons set forth above, defendant City's motion is granted in part and denied in part. It is so ordered.
MARVIN E. ASPEN
United States District Judge