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July 16, 2004.


The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District


Plaintiff Hiram Fuentes filed a two-count Amended Complaint against Defendant Michael Sheahan, Sheriff of Cook County, in his official capacity, alleging numerous violations of his constitutional rights as well as unspecified state law claims. Presently before us is Sheahan's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, we deny in part and grant in part Sheahan's motion.


  The following facts are taken from Fuentes' Amended Complaint and are deemed true for the purposes of this motion. On September 20, 2002, Plaintiff Hiram Fuentes was arrested for domestic battery and incarcerated in the Cook County Department of Corrections ("CCDOC"). Fuentes appeared in the Circuit Court of Cook County on October 10, 2002, and the court dismissed the domestic battery charges. Instead of being released from incarceration on October 10, Fuentes alleges that he was incarcerated by the CCDOC until October 15, 2002, when he was transferred into the custody of the Illinois Department of Corrections ("IDOC"). On December 10, 2002, the IDOC released Fuentes after it received documents stating that the domestic battery charges against him had been dismissed by the Circuit Court.

  On July 16, 2003, Fuentes filed a two-count complaint, which he amended on November 4, 2003. Count I, brought pursuant to 42 U.S.C. § 1983, alleges that Sheriff Sheahan violated plaintiff's Fourth, Fifth, and Fourteenth Amendment rights by detaining him in the CCDOC after he had been ordered released by the Circuit Court, transferring him to the IDOC when he should have been released, and failing to take actions to remedy the erroneous transfer and further detention. Count II alleges that plaintiff's detention after October 10, 2002, violated his rights under the Fourth, Eighth, and Fourteenth Amendments. Plaintiff also avers to unspecified, but apparently related, state law claims, which Sheahan interprets in his motion to dismiss to be a claim for false imprisonment. Sheahan now moves to dismiss the complaint in its entirety.


  The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to decide the adequacy of the complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir 1990). In considering a motion to dismiss, we must accept all well-pled allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See MCM Partners, Inc. v. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 972 (7th Cir. 1995), aff'd 161 F.3d 443 (7th Cir. 1998), cert. denied 528 U.S. 810 (1999). Therefore, a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). I. § 1983 Claims

  Fuentes brings this action against Michael Sheahan, in his official capacity as Sheriff of Cook County. An official capacity suit is actually a suit against the government entity such that this suit is against Cook County. See Richman v. Sheahan, 270 F.3d 430, 439 (7th Cir. 2001) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). To bring a § 1983 suit against a municipality, a plaintiff must allege that (1) he suffered a deprivation of a constitutional right (2) as a result of either an express municipal policy, widespread custom, or deliberate act of a decision-maker with final policy-making authority for the municipality (3) which was the proximate cause of his injury. Ienco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 2002) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)); see also Theriault v. Village of Schaumburg, No. 02-C-7058, 2002 WL 31803826, at *3 (N.D. Ill. Dec. 12, 2002).

  A. Plaintiff Has Sufficiently Alleged a Policy or Practice

  Government entities cannot be held liable under § 1983 unless an official policy or custom caused the deprivation of constitutional rights. See Kujawski v. Bd. of Comm'rs of Bartholomew County, Indiana, 183 F.3d 734, 737 (7th Cir. 1999) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). An unconstitutional policy or custom can be: 1) an express policy that causes a constitutional deprivation; 2) a widespread practice that is so well-settled that it constitutes a "custom" with the force of law even though it is not authorized by an express policy or written law; or 3) an allegation that the constitutional injury was caused by a person with final policymaking authority. See Palmer v. Marion County, City of Indianapolis, 327 F.3d 588, 594-95 (7th Cir. 2003) (citation and quotation marks omitted). Fuentes has not alleged that his injuries were caused by an express policy or a person with final policymaking authority. Rather, Fuentes alleges the existence of a "custom, practice, and policy" that permits the detention of inmates in the CCDOC after they have been ordered released by the Circuit Court, the transfer of inmates to the IDOC who should have been released from CCDOC, and the extended detention of inmates without remedial action by the CCDOC after the erroneous transfer to the IDOC. Recognizing that the Supreme Court has made clear that we may not impose a heightened pleading standard to civil rights actions alleging municipal liability, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), and that the Seventh Circuit has found a complaint containing conclusions, including a "smattering of phrases like `highest policymaking officer' and `widespread practice,'" was sufficient to survive a motion to dismiss, McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000), we find that Fuentes' complaint sufficiently alleges a municipal custom.*fn1

  B. Deprivation of Civil Rights

  The next inquiry is whether Fuentes has suffered an actionable deprivation of his constitutional rights. Fuentes claims that the County's policy violated his rights under the Fourth, Fifth, and Fourteenth Amendments. Sheahan argues that Fuentes' claims under the Fourteenth Amendment should be dismissed. Sheahan, though moving to dismiss the complaint in its entirety, fails to argue that any other claims should be dismissed. Nonetheless, we will address each allegation in turn.*fn2

  The Fifth Amendment provides in part that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V. Fuentes' complaint does not specify which clause of the Fifth Amendment the County's policy violates. His complaint does not allege that the County policy violated double jeopardy or that the policy forced him to be a witness against himself at trial. Moreover, the Fifth Amendment only applies to due process claims against federal officials. See Markham v. White, 172 F.3d 486, 491 (7th Cir. 1999); see also Jones v. City of Chicago, No. 99-C-6082, 2000 WL 1139904, at *4 (N.D. Ill. Aug. 10, 2000). Fuentes has not set forth a claim against a federal official. Therefore, to the extent Fuentes seeks to assert a claim alleging a violation of the Fifth Amendment, it must be dismissed.

  Likewise, Fuentes' Eighth Amendment claim should be dismissed since the Eighth Amendment only applies to those who have been convicted of a crime. See Palmer, 327 F.3d at 593 ("The state does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.") (quoting Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977)). As ...

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