The opinion of the court was delivered by: Judge Blanche M. Manning
Plaintiff Michael Patrick Contorno ("Contorno") brings this first amended complaint ("FAC"), by and through his attorneys, pursuant to 42 U.S.C. § 1983. Defendants Daniel McCann, Todd Kubish, Sgt. Budig, and the Villa Park Police John Doe Officers ("McCann Defendants") have filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) ("McCann Motion"). Defendants Raymond Hessler and Lt. Cook have filed a separate motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) ("Hessler Motion").*fn1 Contorno has responded to both motions. For the reasons stated herein, both the McCann Motion and the Hessler Motion [75-1, 78-1] are granted in part and denied in part.
I. Standard of Review on a Motion to Dismiss
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Dismissal is properly granted if it is clear that no set of facts which plaintiff could prove consistent with the pleadings would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When ruling on a motion to dismiss, the court assumes that well-pleaded allegations are true and draws all reasonable inferences in a light most favorable to the plaintiff. Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999).
In line with the foregoing authorities, the following factual statement is drawn from Contorno's complaint. On June 25, 2002 at approximately 10:30 p.m., Contorno was visiting James Current in Villa Park when he heard a commotion in the neighboring alley. Contorno, Current and an unidentified female went into the alley, where they saw several uniformed and undercover police officers. Two of the undercover officers (whom Contorno identifies as Daniel McCann and Todd Kubish) were choking and pushing two African-American males. Contorno, Current and the female friend walked through the alley toward the officers. Two officers approached them, requested identification, and checked the police computer for existing warrants. No warrants were found. Contorno, Current and the friend resumed walking toward McCann and Kubish.
Kubish grabbed Contorno and pushed him against a car. McCann and Kubish, who were familiar with Contorno, searched Contorno's pants pockets and recovered $512.00 in cash. They asked Contorno whether the money came from the sale of crack, which Contorno denied. McCann brought Contorno to the station, where he was questioned about the $512.00. The interrogation turned violent, and McCann and Kubish punched and choked Contorno.
Contorno was charged with unlawful possession of open alcohol and obstructing a police officer. Contorno agreed to post bond and called his aunt to arrange for a ride home. On the phone, Contorno told his aunt that the charges were unfounded and that he had suffered police brutality. During the conversation, Kubish took the phone from Contorno and hung it up. McCann and Kubish again struck Contorno in the stomach and ribs. Contorno informed Sargent Budig that he had been attacked by McCann and Kubish. Budig responded, "tell it to the judge and jury tough guy."
Contorno requested permission to call an attorney, but McCann denied his request, stating that he had already used his phone call. Contorno alleges the existence of a policy whereby those in custody whose names are in the L.E.A.D.S.*fn2 files, are transported to the DuPage County Jail for a bond hearing. In accordance with this policy, McCann and Kubish escorted Contorno to the DuPage County Jail. In route to the DuPage County Jail, McCann and Kubish stopped the car, pulled Contorno's shirt over his head, and punched and kicked him for two to four minutes.
At the jail, officers performed a strip search of Contorno. He alleges that police officers planted a controlled substance on his person, which was then discovered during a subsequent search. After searching Contorno, Hessler created a jail ticket describing the controlled substance that he found on Contorno's person. Hessler made no arrangements for a bond hearing regarding the ticket. Contorno was allowed to post bond of $115.00 at approximately 6:55 a.m. on June 26, 2002, the morning after his alleged confrontation with the police and subsequent arrest. Contorno alleges a police conspiracy by which the police prevented Contorno from receiving a bond hearing before a judge because they were fearful of the judge seeing the marks and bruises from the police brutality.
On August 15, 2002, Contorno appeared in court and was tendered discovery including McCann's police report. In the report, McCann states that Hessler seized a small rock type substance from Contorno's pants leg. The FAC alleges that while the DuPage County Sheriff did not charge Contorno with possession of a controlled substance, McCann and Kubish made a complaint against Contorno for unlawful possession of a controlled substance and received a warrant for his arrest. Contorno was charged with possession of a controlled substance on or about June 26, 2002. Contorno was placed in the custody of the DuPage County Sheriff on September 14, 2002. A jury convicted Contorno of the unlawful possession of a controlled substance on July 24, 2003. At some point, the original open alcohol and obstruction charges received an entry of nolle prosequi.
As a result of the foregoing factual allegations, Contorno has alleged five counts. Count I is a § 1983 claim related to charges of unlawful possession of open alcohol and obstruction of a police officer, alleging against Defendants McCann and Kubish: (1) deprivation of right to counsel; (2) deprivation of due process and equal protection, (3) failure to intervene, (4) delay in posting bond; (5) unreasonable search and unlawful arrest due to lack of probable cause; and (6) excessive force. Count I further alleges claims against Defendants Sgt. Budig, and Villa Park John Doe Officers for: (1) unreasonable search and seizure; (2) failure to intervene; (3) deprivation of equal protection under the Fourteenth Amendment; (4) and delay in posting bond. Count I also alleges the following claims against the Hessler Defendants: (1) unreasonable search and seizure; and (2) delay in posting bond.
Count II is an Illinois state law claim against Defendants McCann and Kubish for false arrest related to the charges for possession of open alcohol and obstruction of a police officer.
Count III is an Illinois state law claim against Defendants McCann and Kubish for malicious prosecution related to the charges for possession of open alcohol and obstruction of a police officer.
Count IV is a § 1983 claim related to a conviction for unlawful possession of a controlled substance. As against the Hessler Defendants, Contorno alleges: (1) unreasonable search and seizure, (2) failure to inform Contorno in a reasonable time that a controlled substance was found on his person, and (3) unspecified violations of due process under the Fourth and Fourteenth amendments.*fn3
Count V is an Illinois state law false arrest claim against the Hessler Defendants related to Contorno's conviction for ...