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June 30, 1997


The opinion of the court was delivered by: PLUNKETT

 James Newsome ("Newsome") spent fifteen years in prison for a murder he did not commit. After his release and pardon, he sued the defendant Chicago police officers under 42 U.S.C. ยง 1983 ("Section 1983") for their roles in his arrest and prosecution. The defendants have moved to dismiss on a variety of grounds. For the reasons set forth in this memorandum opinion and order, the motion is granted in part and denied in part. In addition, because this Court finds that one of the defendants' arguments was not well-founded in law, the defendants are given fourteen days from the date of this opinion to file an explanation why sanctions in the amount of $ 1,000 should not be imposed under Fed. R. Civ. P. ("Rule") 11.


 On Halloween Day in 1979, Newsome, an African-American, helped a friend, Marvin White ("White"), move into a new apartment on the north side of Chicago. Late that night, as they drove through a predominantly white neighborhood, they were stopped and arrested at gunpoint by Officer Bruce James ("James") and other officers of the Chicago Police Department ("CPD") for the robbery of prostitute Shirley Wills ("Wills"), despite that fact that Wills had told police that her purse had been taken by a lone African-American male who fled down an alley on foot. In a report filed two days later, the police officers claimed that two unidentified African-American men had stopped them on the street and told them that the perpetrator of the Wills robbery had gotten into a car with the same license plate number as Newsome's. *fn1"

 Newsome and White were taken in handcuffs to the 23rd District police station. The police were unable to locate Wills, so no charges could be brought against Newsome and White for the Wills robbery. At that point Officer James Eckner ("Eckner") claimed to notice a resemblance between White and a composite sketch of the suspect in the murder of Edward Cohen ("Cohen"). Cohen had been shot the death the day before in his grocery store on the south side of Chicago by an African-American male. Based on information from two eyewitnesses, Josie Nash ("Nash"), an employee of Cohen's, and Anthony Rounds ("Rounds"), a customer, a police artist had created a sketch of a young African-American male with natural hair. The police had also learned from Nash and Rounds that the suspect was about 5'9" tall, weighed about 145 pounds and was approximately 28 to 30 years old.

 Eckner questioned White about the Cohen murder and learned that White lived on the north side of Chicago, many miles from the scene of the murder. Eckner then claimed to notice a resemblance between the sketch and Newsome, who lived only a mile from Cohen's store. When Eckner learned that, Newsome was told that he was a suspect in Cohen's murder, despite the fact that he was several years younger than the age of the suspect, was taller than the suspect and had a mole on his nose, which did not appear on the sketch.

 Detective David Dioguardi ("Dioguardi") came to the 23rd District police station and attempted to interview Newsome about the Cohen murder, but Newsome refused to talk to him, invoking his right to remain silent. Dioguardi later testified falsely that Newsome had discussed his alibi with him.

 After the line-up, Newsome was told that the witnesses had positively identified him as the killer and that his fingerprints had been found at the scene. The latter fact was untrue, for although the killer had left a number of high quality prints on items in the grocery store, they did not match Newsome's. Newsome alleges that he was told these things in an effort to get him to confess to the Cohen murder.

 Newsome was tried for murder and armed robbery in September 1980. Although the fingerprints found at the scene did not match Newsome's, based on the testimony of Nash and Rounds, Newsome was convicted. The prosecutors sought the death penalty, but Newsome was instead sentenced to natural life in prison.

 Newsome was incarcerated in various maximum security prisons in Illinois. In May 1989, after learning that the CPD had acquired the Automated Fingerprint Identification System ("AFIS") in 1986, Newsome, through his attorney, obtained a court order requiring the CPD to run the fingerprints found at the Cohen murder scene through the AFIS. Officers Theatrice Patterson ("Patterson") and Olivia Russell ("Russell") were responsible for running the search. The reported result was that the fingerprints did not match any on the AFIS.

 More than five years later, on November 24, 1994, Patterson admitted to Newsome's attorney that the Cohen crime scene fingerprints matched those of Dennis Emerson. Emerson's prints had been logged onto the AFIS in 1986, three years before the search was run. Both the prints from the Cohen murder scene and Emerson's prints in the AFIS were of good quality. Emerson had been arrested by the CPD for another crime two and one-half months after Cohen's murder and months before Newsome was tried. At the time of his arrest, Emerson had a loaded .38 caliber revolver, the same type of weapon used in the Cohen murder. He was subsequently convicted of another murder and is now on Death Row.

 On December 6, 1994, Newsome's motion to vacate his conviction was granted, and he was released to home confinement. On January 4, 1995, the Cook County State's Attorney's Office informed the Circuit Court of Cook County that it would not attempt to retry Newsome. On that date he was released from all further custody. On July 14, 1995, Governor James Edgar granted him a full pardon on the ground that he was innocent of the Cohen murder and directed that his conviction be expunged.

 Newsome filed this action on November 22, 1996.


 On a motion to dismiss under Rule 12(b)(6), all well-pleaded allegations in the complaint must be credited, with all reasonable inferences drawn in the plaintiff's favor. See, e.g., Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7th Cir. 1994), cert. denied, 133 L. Ed. 2d 113, 116 S. Ct. 172 (1995). A complaint may be dismissed only if it is clear that no set of facts consistent with its allegations would entitle the plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, ...

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