Rafael Garcia v. City of Chicago, Illinois, Anna Gall, County of Cook

24 F.3d 966

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 15, 1994
• Docket: 92-4090
• Status: Published

Opinions

HARLINGTON WOOD, JR., Circuit Judge.

On March 15, 1991, Chicago Police Officer Anna Gall arrested Rafael Garcia, who at the time was on probation for two felonies and had an outstanding bond forfeiture warrant, for possession of a controlled substance. Officer Gall had discovered by Garcia’s feet a plastic bag containing a white, powdery substance, but did not test the substance before making the arrest. In the process of arresting Garcia, Gall struck him in the head with her flashlight,¹ and the police took Garcia to St. Mary of Nazareth Hospital for treatment of his injuries. The next day a hearing took place in the Circuit Court of Cook County (the Gerstein hearing)² to determine whether probable cause existed to detain Garcia.

At that time, Garcia remained hospitalized under twenty-four hour guard and therefore was unable to attend the Gerstein hearing.³ Instead, a Public Defender represented Garcia at the hearing and asked for reasonable bond on his behalf. The prosecutor petitioned the court to issue a warrant and set bail for Garcia’s violation of probation. The court found probable cause to detain Garcia, and set his bond for violating probation and possessing a controlled substance.

On March 18, while Garcia remained hospitalized, the court set a preliminary hearing for April 10. St. Mary of Nazareth Hospital released Garcia on March 20, and personnel from the Sheriff’s office immediately placed Garcia, who did not make bond, in custody at the Cook County Jail. On March 26, the Chicago Police Department laboratory tested the powder and found it to be negative for any controlled substances. The laboratory communicated that information to the State’s Attorney’s office, ^and at the preliminary hearing on April 10, Judge Mary Maxwell Thomas granted the prosecutor’s request for a nolle prosequi. On April 12, the court reinstated Garcia’s probation status. Cook County Jail released Garcia on April 15.

Garcia then filed this lawsuit for money damages in the District Court for the Northern District of Illinois. Garcia’s first amended complaint named as defendants Officer Gall, the City of Chicago, the Cook County Department of Corrections, Director of the Cook County Department of Corrections C. Richard English, Cook County State’s Attorney Jack O’Malley, and Cook County Sheriff Michael F. Sheahan. Garcia claimed that: (1) the Gerstein hearing was inadequate because he was not brought before the judge, due to his hospitalization; (2) Gall used excessive force against him and did not have probable cause to arrest him; (3) O’Malley, Sheahan, and English were responsible for detaining him without probable cause; and (4) the City of Chicago’s procedures for testing substances seized as narcotics were constitutionally inadequate. All defendants filed dispositive motions in response to Garcia’s complaint.

The district court dismissed State’s Attorney O’Malley and the Cook County Department of Corrections based on Eleventh Amendment immunity from civil liability, and dismissed all of Garcia’s Gerstein claims; the court did not dismiss Sheriff Sheahan and Director English because that issue was not before the court. Garcia then filed a motion to reconsider, as well as a motion to file a second amended complaint that in essence repeated the Gerstein claims from the first amended complaint. Sheahan and English filed a motion for summary judgment. The district court denied both of Garcia’s motions, and dismissed Sheahan and English.

Garcia then filed a motion to file a third amended complaint, which included new claims against the City of Chicago and Officer Gall, but included none of the other defendants. The district court granted the motion, and the City of Chicago and Gall moved to dismiss counts three through six of the complaint, which the district court granted. Counts I and II, for excessive force and false arrest, named only Gall as the defendánt. Gall and Garcia settled those claims for $25,-000, and Garcia reserved the right to appeal earlier rulings of the district court. Garcia now appeals from the dismissals of O’Malley, Sheahan, and English, the denial of leave to file his second amended complaint, and the dismissals of the fifth and sixth counts of his third amended complaint, which alleged that the City’s procedures for testing substances to determine if they are controlled were constitutionally deficient.

A. Defendant O’Malley

The Eleventh Amendment prohibits federal courts from deciding suits brought by private litigants against states or their agencies, and that prohibition extends to state officials acting in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Whether a particular official is the legal equivalent of the State itself is a question of that State’s law, Santiago v. Daley, 744 F.Supp. 845, 845 & n. 1 (N.D.Ill.1990), and the Illinois Supreme Court decided in 1990 that State’s Attorneys are state officials. Ingemunson v. Hedges, 133 Ill.2d 364, 140 Ill.Dec. 397, 400, 549 N.E.2d 1269, 1272 (1990) (State’s Attorneys are state, not county, officials); see also Scott v. O’Grady, 975 F.2d 366, 371 (7th Cir.1992) (those who prosecute cases pursuant to state statute are state officials for the purposes of constitutional liability); Santiago, 744 F.Supp. at 845-46. Because O’Malley was acting in his official capacity as Cook County State’s Attorney, Garcia cannot recover money damages from him.

Garcia does argue that he is entitled to injunctive relief from O’Malley, and the Eleventh Amendment provides no shield against such requests. Will, 491 U.S. at 71, 109 S.Ct. at 2312. When Garcia requested injunctive relief in his second amended complaint, however, Cook County jail had already released him from their custody, and Garcia alleged no facts to show that he was in danger of being arrested in the future and detained in a similar manner. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 1664-65, 75 L.Ed.2d 675 (1983) (no standing to seek injunction if not in danger of being arrested and subjected to future mistreatment). Thus, the district court correctly dismissed O’Malley.

B. The Gerstein Claims

Garcia’s only claims for relief against defendants Sheahan and English relate to his inability to be present at the probable cause hearing held the day after Officer Gall arrested him. Garcia also named the City of Chicago and Cook County in those claims.⁴ The Fourth Amendment, however, does not require that probable cause hearings be adversarial in nature, Gerstein v. Pugh, 420 U.S. 103, 121-22, 95 S.Ct. 854, 866-67, 43 L.Ed.2d 54 (1975); the Fourth Amendment allows the issuance of warrants in the absence of the arrestees, and its scope does not expand for probable causé determinations that take place after arrests. Id. at 120, 95 S.Ct. at 866; see also McLaughlin v. County of Riverside, 888 F.2d 1276 (9th Cir.1989) (“Those arrested with a warrant have not attended the probable cause determination made before issuance of the warrant. We perceive no basis for holding that the fourth amendment grants war-rantless arrestees such a right.”)• The record in this case demonstrates that Garcia, who never contended that he was physically capable of leaving the hospital, received a timely and constitutionally sufficient probable cause hearing in which an attorney represented Garcia without objection by Garcia. The district court therefore correctly dismissed the City of Chicago, Cook County, Sheahan, and English notwithstanding Garcia’s inability to attend the hearing.

C. The Second Amended Complaint

We must ask whether the district court abused its discretion when it denied Garcia leave to amend his complaint. See Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir.1992). A district court does not abuse its discretion in denying leave to amend if the proposed repleading would be futile, DeSalle v. Wright, 969 F.2d 273, 278 (7th Cir.1992), and futile repleadings include restating the same facts using different language, Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir.1983), reasserting claims previously determined, id., failing to state a valid theory of liability, Verhein v. South Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir.1979), and the inability to survive a motion to dismiss, Glick v. Koenig, 766 F.2d 265, 268 (7th Cir.1985).

Garcia’s second amended complaint reiterated his excessive force and Fourth Amendment claims against the City of Chicago and Officer Gall, and restated the Gerstein claims the district court had dismissed previously. The district court reasoned that because the second amended complaint stated no new claims, it was futile, and the district court therefore denied Garcia leave to amend his complaint. That decision, far from being an abuse of discretion, stood on firm legal ground.

D. The Fourth and Fourteenth Amendment Claims

Garcia argues that the Fourth Amendment requires that police officers perform tests on substances believed to be illegal drugs immediately at a police station, rather than ten to twenty days after arrests at a crime lab, as the City of Chicago did after Garcia’s arrest. Nevertheless, Garcia concedes that finding a white powder in a person’s possession provides probable cause to arrest that person for possession of cocaine. See United States v. Potter, 895 F.2d 1231, 1234 & n. 1 (9th Cir.), cert. denied, 497 U.S. 1008, 110 S.Ct. 3247, 111 L.Ed.2d 757 (1990). As we consistently have held, “once police officers have discovered sufficient facts to establish probable cause, they have no constitutional obligation to conduct any further investigation in the hopes of uncovering potentially exculpatory evidence.” Schertz v. Waupaca County, 875 F.2d 578, 583 (7th Cir.1989).

Garcia has suggested that the cobalt thioc-yanate spot test is a superior, quicker means of determining whether a substance is cocaine. Perhaps he is correct, but what is wise practice and what is constitutionally compulsory are two very different concepts. See Gramenos v. Jewel Cos., 797 F.2d 432, 442 (7th Cir.1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987). The City of Chicago is entitled to weigh the costs and benefits of available testing options and make its choice, and federal courts should be reluctant to second-guess such policy decisions. Garcia has articulated no reason why a twenty day period of time for testing a substance believed upon probable cause to be cocaine is constitutionally deficient, nor can we fathom why it would be.⁵

Garcia also contends that the City held him in custody in violation of the Fourth and Fourteenth Amendments after it discovered that the powder in question was not a controlled substance.⁶ Garcia, however, was on probation before his arrest by Officer Gall, his probation was revoked subsequent to the arrest. The City legitimately held Garcia in custody until April 12, when the court reinstated Garcia’s probation. See Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir.1989) (“We note that dismissal of the charges underlying a parole violation warrant has been found of no consequence in the state’s determination of a parole violation.”) (citations omitted). Although undue delay in making a decision regarding reinstatement of probation might in some instances rise to the level of a deprivation of constitutionally guaranteed rights, United States v. Scott, 850 F.2d 316, 319 (7th Cir.1988),⁷ Garcia did not make any arguments regarding reinstatement of his probation.

Instead, Garcia cites BeVier v. Bu-cal, 806 F.2d 123,128 (7th Cir.1986), Davis v. Kirby, 755 F.Supp. 199, 201 (N.D.Ill.1990), and People v. Quarles, 88 Ill.App.3d 340, 43 Ill.Dec. 497, 410 N.E.2d 497 (1980), for the proposition that the City was constitutionally obligated to release him as soon as it discovered that Garcia was not in possession of a controlled substance, but none of those cases hold as Garcia indicates. BeVier, Davis, and Quarles all involved the dissipation of probable cause before a judicial determination of probable cause (and in BeVier and Davis, probable cause never existed at all). Once a judge makes a probable cause determination at a Gerstein hearing, as happened here, that determination is sufficient to bring the case to trial. Gerstein, 420 U.S. at 119-24, 95 S.Ct. at 865-68.

What happens when the prosecutor discovers exculpatory evidence after a probable cause determination at a Gerstein hearing? Not all exculpatory evidence irrefutably proves the defendant’s innocence. The decision to move for nolle prosequi is a matter of prosecutorial discretion, and the prosecutor can proceed to trial if the prosecutor believes doing so is warranted. In this case, in fact, the prosecutor did dismiss the case well before trial, at the preliminary hearing — Garcia just contends that the delay from March 26 until April 10, the date the court set for his preliminary hearing, was too lengthy. The Due Process Clause, however, does not compel prosecutors to dismiss its cases before trial based on exculpatory evidence in its possession, much less compel them to do so within fifteen days. See Albright v. Oliver, - U.S. -, -, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994) (quoting Gerstein for the proposition that the accused is not “entitled to judicial oversight or review of the decision to prosecute.”).

Of course, if the prosecutor fails to deliver exculpatory evidence to the defendant before trial, it may run afoul of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). If the trial is too long in coming, a Sixth Amendment speedy trial problem may arise. See Doggett v. United States, - U.S. -,-, 112 S.Ct. 2686, 2692-94, 120 L.Ed.2d 520 (1992). Garcia, however, raises neither a Brady nor a Speedy Trial claim (nor do either problems exist here). The prosecutor, confronted with strong exculpatory evidence, properly decided to move for a nolle prosequi at the preliminary hearing rather than wait until trial. Garcia’s right to due process of law was satisfied.⁸

For the foregoing reasons, the judgment of the district court is AFFIRMED.

1 . Garcia settled for $25,000 a claim against Gall based on her use of excessive force, and that claim is not at issue in this appeal.

2 . Gerstein v. Pugh held that "the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention," 420 U.S. 103, 126, 95 S.Ct. 854, 869, 43 L.Ed.2d 54 (1975), and probable cause hearings that take place after arrests made without warrants commonly are referred to as Gerstein hearings.

3 .Garcia spent approximately five days in the hospital.

4 . Garcia failed to specify in his notice of appeal that he was appealing the dismissal of the Ger-stein claims against the City of Chicago as Federal Rule of Appellate Procedure 3(c) requires. That failure is jurisdictional, see Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), and we therefore cannot consider the appeal of the Gerstein claims as applied to the City of Chicago. Additionally, Garcia expressly waived his right to raise any Gerstein claims against the City in his settlement agreement with Officer Gall and the City. The importance of these points, however, is minimized by the fact that, as the district court explained, Garcia’s Gerstein claims lacked any merit.

5 . If Garcia believed the City was proceeding too slowly, he could have tested the substance himself by exercising his right to investigate. See U.S. Const, amend VI (Compulsory Process Clause); IU.S.CtR. 412(a)(v).

6 . Because the seizure of a person ends after the Gerstein hearing, the Due Process Clause of the Fourteenth Amendment is the only applicable constitutional provision. See Wilkins v. May, 872 F.2d 190, 193 (7th Cir.1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990). The recent Supreme Court decision of Albright v. Oliver, - U.S.-, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), casts considerable doubt on the applicability of substantive due process as well. See id. -U.S. at-, 114 S.Ct. at 814 (Scalia, J., concurring) (“But here there was no criminal sentence (the indictment was dismissed), and so the only deprivation of life, liberty or property, if any, consisted of petitioner's pretrial arrest. I think it unlikely that the procedures constitutionally "due,” with regard to an arrest, consist of anything more than what the Fourth Amendment specifies.”).

7 . In Scott, this court adopted a three factor test to determine whether a revocation hearing was not reasonably prompt: “the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Scott, 850 F.2d at 319, quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972). Here, Garcia was not prejudiced by the delay, as his probation was reinstated in less than three weeks. See Scott, 850 F.2d at 321 (13 month delay not prejudicial when no evidence of how delay impaired defense at revocation hearing exists). Additionally, Garcia never asserted his right to a reasonably prompt revocation hearing. Our holding that Garcia properly was held in custody until after the preliminary hearing is well within Scott.

8 . We are somewhat puzzled as to why Garcia was not released until April 15, 1991, given that the prosecutor entered a nolle prosequi on April 10, and that Garcia's probation was reinstated on April 12. Perhaps this was due in part to the weekend that fell on April 13-14, 1991, or to administrative inefficiencies. Obviously, holding a person in jail for several days who does not belong there might rise to the level of a constitutional violation. Nevertheless, nothing in the record suggests that Garcia’s attorney ever brought Garcia's continued confinement to the attention of the court, nor is there any indication that Garcia himself ever made an effort to contact the court, his attorney, or an administrator in the Cook County Jail.