United States District Court, S.D. Illinois
REPORT AND RECOMMENDATION
DONALD G. WILKERSON, Magistrate Judge.
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Motion to Dismiss filed by Defendants on November 5, 2013 (Doc. 5). For the reasons set forth below, it is RECOMMENDED that the Motion to Dismiss be GRANTED IN PART and DENIED IN PART, and that the Court adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
The Complaint alleges that Plaintiff was arrested by Police Officer Belba and Sergeant Peel on October 16, 2011, after having committed no violation of the law, in furtherance of unconstitutional policies promulgated by Nick Gailius, the Chief of Police for the City of Fairview Heights, Illinois. Plaintiff brought suit under 28 U.S.C. § 1983 alleging that his Fourth Amendment rights were violated by the illegal arrest. This matter was removed to this Court on October 22, 2013 pursuant to this Court's federal question jurisdiction, 28 U.S.C. § 1331. (Doc. 2).
Plaintiff claims that he was a back-seat passenger of a car that was stopped by Defendants Belba and Peel in the early morning hours of October 16, 2011 for an alleged traffic infraction. During the "extended" stop, the police officers found a revolver in the car for which another passenger in the car, Mr. Ariel Coleman, was charged with possessing. The officers also allegedly suspected that the driver of the car, Mr. LaMont McGraw, Jr., fit the description of an armed robber who was wanted for the robbery of a pizza delivery man around Southern Illinois University, Edwardsville ("SIUE"), on the same evening. Plaintiff was nonetheless detained, strip-searched, and held for 2 days without probable cause - the Complaint does not specify for what reason he was arrested other than perhaps being the armed robbery suspect. The Complaint further states that the stop and subsequent detention was merely because of Plaintiff's race (African-American).
In particular, the Complaint alleges that:
1. "That the stop, arrest and jailing of the Plaintiff were performed by Peel and Belba without probable cause [or reasonable suspicion], pursuant to the practices and policies of Chief Gailius and the City of Fairview Heights." (Comp. ¶ 8).
2. "That Defendant Belba's police report on its face, shows the racial nature of the stop of the Plaintiff." (Comp. ¶ 13).
3. "At no time did the Plaintiff own or have actual or constructive possession of the weapon found in the car." (Comp. ¶ 16).
4. "That the Plaintiff was illegally strip searched and his body violated...." (Comp. ¶ 26).
5. "Plaintiff was illegally jailed by all said defendants in a Fairview Heights Police Department hold over cell for two days." (Comp. ¶ 7).
Plaintiff alleges a wide-range of constitutional claims:
That his stop, arrest, detention and jailing were illegal and violative of his Fourth, Eighth, and Fourteenth Amendment rights, including his right against unreasonable search and seizure of his person, his right against warrantless searches, his right against stops and searches performed without reasonable suspicion or probable cause, his Eighth Amendment right against cruel and unusual punishment, and his Fourteenth Amendment right to substantive and procedural due process, and that said violations were committed pursuant to the policies, practice and procedure of the City of Fairview Heights, Illinois and of Chief Gailius. (Comp. ¶ 26).
Plaintiff hedges, though, on the alleged illegality of the stop. He states, in order to be "clear, " that if the police report is credited, then Mr. McGraw (the driver) should have only briefly been stopped for running a stop sign. (Comp. ¶ 17). Plaintiff further states that the police had no justification for an "extended" stop even though they detected an odor of an unknown substance and saw what looked to be marijuana on Mr. McGraw's clothes. (Comp. ¶ 18). And, the police would not have found the weapon but for the "illegal extended stop." ( Id. ). Plaintiff then states that the police should have ...