prosecution was based on the false information provided by defendants to the
prosecution.

Plaintiff further alleges that defendants Radon and Centracchio were acting under color of

federal law at all times mentioned in the amended complaint?

DISCUSSION
In considering a Rule 12(b)(6) motion, the court is obligated to accept all well-pleaded
facts in plaintiff's amended complaint as true and draw all reasonable inferences in favor of the

non-moving party. Northern Trust Co. v. Peters, 69 F.3d 123, 129 (7" Cir. 1995). The

consideration of a Rule 12(b)(6) motion is generally restricted to the pleadings, which include the
complaint, any exhibits attached thereto, and supporting briefs. Thompson y. Illinois Department
of Professional Regulation, 300 F.3d 750, 753 (7" Cir. 2002).

1. Count I: Unlawful Search and Seizure (against Radon, Centracchio, and the United States
Postal Service®)

The federal defendants have moved to distniss Count I on the following grounds: (1)
plaintiff has not adequately alleged that Centracchio and Radon were acting under color of state
law, and (2) plaintiff may not sue the United States Postal Service for damages. For the reasons
stated below, the federal defendants’ motion to dismiss Count I is granted with respect to

Centracchio and the United States Postal Service and is denied with respect to Radon.

*In his response brief, however, plaintiff argues that Centracchio and Radon were acting
in concert with the members of the Chicago Police Department to violate his civil rights.

*In his response brief, plaintiff stipulated to the dismissal of all claims against the United
States Customs Service.



Thus, the collective knowledge doctrine permits an officer to rely upon knowledge of another
officer, or the knowledge of his agency, in making an arrest. Accordingly, when officers are in

communication regarding a suspect, knowledge of one officer may be imputed to another. U.S. v.

Sawyer, 224 F.3d 675, 680 (7" Cir. 2000) (citing Hensley, 469 U.S, at 232-233, and Tangwall, 135
F.3d at 517).

With this background in mind, the court concludes that plaintiff’ s Monell claim, which would

require officers to obtain written reports of testing rather than allowing them to rely on
representations of inspectors and fellow officers, is. at odds with Hensley and Tangwall. The court
thus dismisses Count I against the City of Chicago.
3. Counts II and III - False Arrest and Malicious Prosecution

In Counts II and II, plaintiff asserts claims.of false arrest under the Fourth and Fourteenth
Amendments against all individual defendants, and malicious prosecution under IIlinois law against
the defendant police officers. Defendants maintain that plaintiff cannot prove an essential element
of these claims, specifically that he was arrested and prosecuted without probable cause.

To state a claim of false arrest, plaintiff must allege that no probable cause existed for his

arrest. Williams v. Jaglowski, 269 F.3d 778 (7" Cir. 2001). Similarly, to state a claim for malicious

prosecution under Illinois law, plaintiff must allege, among other things, that no probable cause

existed for his prosecution. Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222, 1231 (Ill. 1990).

With respect to his false arrest claim, plaintiff alleges that:

[since the [search] warrant was not supported by probable cause, defendants were
not legally permitted to be in plaintiff's residence. Thus, any materials seized were
unlawfully seized and could not be the basis of an arrest of [plaintiff]. That being the
case, the arrest of [plaintiff] was also unsupported by probable cause and was thus
an unlawful detention.



knowledge that there had been no field testing as an allegation, made on information and belief,
that Radon knew that Mazurski had lied on his affidavit in support of the search warrant.

Plaintiff's allegations regarding Centracchio’s participation are insufficient to state a
claim against him, however. As the federal defendants point out in both their motion and their
reply brief, there is no allegation that Centracchio participated in the search, arrest, or
prosecution of plaintiff that gave rise to his alleged injuries. Moreover, aside from conceding
that his claims against Centracchio in his official capacity are barred by sovereign immunity,
plaintiff failed to respond to the federal defendants’ attack on the insufficiency of his pleadings
regarding Centracchio’s involvement in the events giving rise to the instant action. Accordingly,
Count I] is dismissed as to defendant Centracchio.

Count I must also be dismissed as to the United States Postal Service. The Postal
Reorganization Act, 39 U.S.C. § 401(1), provides that the United States Postal Service shall have
the power to “sue and be sued in its official name.” Even assuming arguendo that the “sue and
be sued” language constitutes a waiver of the Postal Service’s sovereign immunity for
constitutional torts, plaintiff cannot identify any substantive law that provides him a cause of
action for his Fourth Amendment claim.

In F.D.LC. v. Meyer, 510 U.S. 471, 483 (1994), the Supreme Court dismissed a damages
claim against the Federal Deposit Insurance Corporation (the “FDIC”). According to the Meyer
court, although the FDIC’s sue-and-be-sued clause waived its sovereign immunity for

constitutional torts, plaintiffs claim for damages still failed because Bivens’ did not provide a

‘In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388,
393 (1971), the Supreme Court held that an individual injured by a federal agent’s alleged

(continued...)


There are two circumstances in which a defendant may be found to act under color of
state law for purposes of § 1983: (1) when the state has cloaked the defendant in some degree of
authority - normally through employment or some other agency relationship; or (2) when the
defendant has conspired or acted in concert with state officials to deny constitutional rights.

Case v. Milewski, 327 F.3d 564, 567 (7"" Cir. 2003); Moore v. Marketplace Restaurant, Inc., 754

F.2d 1336, 1352 (7" Cir. 1985). Plaintiff acknowledges in his first amended complaint that
Radon and Centracchio are federal, not state, officials, and does not allege, even in a cursory
manner, that they were agents or employees of the Chicago Police Department.

The question then becomes whether plaintiff has adequately pled that Radon and
Centracchio acted in concert with state officials to deny plaintiff his rights under the Fourth
Amendment. The allegations in the first amended complaint relating to this issue are that: (1)
Centracchio contacted Radon and Mazurski to “relate[] to them what he had discovered”; (2)
Centracchio and Radon acted “in concert” with the Chicago Police Department and the defendant
officers to further investigate the package and its recipient; (3) Radon, Mazurski and other
officers of the police department executed the “invalid” search warrant; and (4) Radon
participated in the preparation of the package for controlled delivery and executed the search
warrant “despite apparent knowledge that there had never been field testing done on the
substance contained in the package.”

Under the liberal pleading standards of the Federal Rules of Civil Procedure, the court
concludes that plaintiff's allegations regarding Radon’s participation in the execution of the
search warrant are adequate, at the pleading stage, to survive the instant motion to dismiss. In

reaching this conclusion, the court construes plaintiff’s allegation regarding Radon’s “apparent”



constitutional injury was caused by a person with final policymaking authority. McTigue v. City of
Chicago, 60 F.3d 381, 382 (7" Cir. 1995) (citations omitted).

In the instant case, plaintiff bases his Monell claim on the absence of a policy under
circumstances that allegedly demand one. According to the first amended complaint, the failure of
the Chicago Police Department to have a policy or procedure in place requiring that its officers,
when applying for a search warrant, have copies of reports regarding the results of field testing
performed outside their presence when such field test results are the basis for the search warrant,
leads directly to the violation of Fourth Amendment rights.

The City of Chicago cites to U.S. v. Hensley, 469 U.S. 221, 222-3 (1985), for the proposition
that “law enforcement officers are entitled to rely upon the representations of officials from foreign
jurisdictions, and need not have personal knowledge to form a reasonable belief of probable cause.”
According to the Hensley court, id. at 232:

If a flyer or bulletin has been issued on the basis of articulable facts supporting a

reasonable suspicion that the wanted person has committed an offense, then reliance

on that flyer justifies a stop to check identification, to pose questions, or to detain the

person briefly while attempting to obtain further information. If the flyer has been

issued in the absence of a reasonable suspicion, then a stop in the objective reliance

upon it violates the Fourth Amendment. In such a situation, of course, the officers

making the stop may have a good-faith defense to any civil suit.

The “collective knowledge” doctrine, as articulated in Tangwall v. Stuckey, 135 F.3d 510
(7" Cir. 1998), is consistent with Hensley. In Tangwall, id. at 517 (citations and quotations omitted),

the Seventh Circuit explained that:

[T]he police who actually make the arrest need not personally know all the facts that
constitute probable cause if they reasonably are acting at the direction of another
officer or police agency. Jn that case, the.arrest is proper so long as the knowledge
of the officer directing the arrest, or the collective knowledge of the agency he works
Jor, is sufficient to constitute probable cause. [Emphasis in original.]



Minate Order Forin (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magierateindge | Robert W. Gettleman — | Spire ier ore
CASE NUMBER 03 C 2074 DATE January 13, 2004
CASE James Bradshaw. Vv Thomas Mazurski, etal
TITLE

Un the following box (a) indicate the party filing the motion, e.g... plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of { use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) ia) Answer bricf to motion due. . Reply to answer brief due.

(4) im) Hearing

(5) o Status hearing set for 3/2/04, at 9:00 a.m.

(6) o Pretriat conference[held/continued to} [set for/re-set for} on set for at :

(7) oO Trial{set for/re-set for] on at :

(8) a [Bencl/Jury trial] [Hearing] held/continued t

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) O General Rule 21 CI FRCP41(a)\(1) CO FRCP41(a)(2).

(10) Wl Memorandum opinion and order entered. Defendant City of Chicago’s

motion to dismiss count lis granted. Federal defendants’ motion to dismiss count
lis granted as to Centraacchio and deniéd as to Radon. Count I is dismissed with
prejudice as to US Custom & US Postal. Counts II and III are dismissed as to all
moving defendants. Second amended complaint is due by 2/24/04. Response is due

by 2/24/04.
ai @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices required umber afratiees Number
Xf Notices mailed by judge’s stat dA N “Ens i M4,
Notified counsel by telephone, date
Docketing to mail notices,
Mail AO 430 form. wi OK,
Copy to judge/magistrate judge. sas 6)
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courtroom
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central Clerk's Office -: 7} malting deputy initials
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In Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), the Second Circuit explicitly
declined to apply the exclusionary rule, and the related fruit of the poisonous tree doctrine, to a civil
rights action brought under § 1983. The plaintiff.in Townes was allegedly subjected to an illegal
search and seizure that led to the discovery of handguns that were in plaintiff's possession, which
in turn led to his arrest, incarceration and subsequent conviction (which was ultimately overturned
onappeal). The plaintiff in that case sought damages for injuries that were “derivative” of the search
and seizure, including his arrest, conviction, and incarceration. The Second Circuit held that the
plaintiff's claims should have been dismissed by.the district court pursuant to Fed. R. Civ. P.
12(b)(6), because plaintiff's injuries were not fairly traceable to the actual violations of his civil
rights. Id. at 141.

According to the Townes court, the plaintiff could not state a claim for false arrest because,

although the defendants in that case lacked probable cause to stop and search him, they “certainly
had probable cause to arrest him upon discovery of the handguns.” Id, at 149. Noting that the fruit
of the poisonous tree doctrine was unavailable,* the court thus concluded that “the lack of probable
cause to stop and search [did] not vitiate the probable cause to arrest.” Id.

The court finds the reasoning in Townes persuasive. Because plaintiff appears to concede
the facts that establish that his arrest and prosecution were supported by probable cause, the court
concludes that plaintiff has failed to state a claim for false arrest and malicious prosecution against

the moving defendants.

According to the Townes court, “[a] § 1983 action, like its state tort analogs, employs the
principle of proximate causation.” Id. at 146. The court then observed that adopting the fruit of
the poisonous tree doctrine in a § 1983 action would “impermissibly recast the relevant
proximate cause inquiry to one of taint and attenuation.” Id. The court therefore concluded that
the fruit of the poisonous tree doctrine was not available to “elongate the chain of causation.” Id.

il



As for his malicious prosecution claim, plaintiff alleges that:

Mazurski’s false sworn statement that a field test had been performed on the material

discovered in the package was the basis on which the Court issued the original search

warrant, which in turn was the basis for the unlawful discovery of the material on

which (plaintiff’s] prosecution was based,. Therefore, the entire prosecution was

based on the false information provided by defendants to the prosecution.

Plaintiffs own allegations suggest that his arrest and subsequent prosecution were based on
material discovered during the search of his residence. This suggests that defendants had probable
cause to arrest and prosecute plaintiff, thus defeating plaintiff’s claims of false arrest and malicious
prosecution. Plaintiff attempts to circumvent this inevitability by asserting that the search which led
to the arrest and subsequent prosecution was not supported by probable cause, and thus could not
serve as the basis for his arrest and prosecution.

The fact that the search might not have been Supported by probable cause does not establish
aclaim for false arrest and malicious prosecution, however. Although that evidence might not have
been admissible at a criminal trial as a result of the exclusionary rule, that does not mean that such
evidence could not be used to establish probable cause for plaintiffs subsequent arrest and
prosecution. The exclusionary rule is generally limited to criminal proceedings, and both the

Supreme Court and Seventh Circuit have reco gnized.a number of situations in which it cannot apply.

See, ¢.g., United States v. Janis, 428 U.S. 433 (1976) (exclusionary rule not applicable to federal

civil tax proceedings); U.S. v. Calandra, 414 U.8.338 (1974) (exclusionary rule does not apply to

grand jury proceedings); U.S. v. Brimah, 214 F.3d 854 (7" Cir. 2000) (exclusionary rule does not

apply to sentencing hearings).

10


cause of action against a federal agency. Among other reasons for this result, the court noted that
implying a damages remedy against federal agencies for constitutional torts would undermine the

deterrent effect of the Bivens remedy against individuals and would create an enormous financial

burden for the federal government. Id. at 485-6. See also Tsau v. National Science Foundation,

2000 WL 1466665 (N.D.IIl. September 29, 2000) (“[T]he Supreme Court has specifically

declined to imply a Bivens action against federal agencies.”). Following Meyer, the court

dismisses Count ] as to the United States Postal Service, with prejudice.
2. Count I: Unlawful Search and Seizure (against the City of Chicago)

The City of Chicago advances two arguments for dismissing Count I: (1) plaintiffs claim
is “at odds with the well-established constitutional principle that law enforcement officers may
rely upon the representations of other law enforcement officers in making a determination of
probable cause”; and (2) plaintiff's theory of recovery against the City of Chicago is inconsistent
with his claims against Mazurski. For the reasons. discussed below, the court agrees with the
City of Chicago’s first argument, and thus need not reach the merits of its second argument.

42 U.S.C. § 1983 does not recognize the theory of respondeat superior as a basis for
municipal liability. Monell v. Department of Social Services, 436 U.S. 658 (1978). To state a valid
§ 1983 claim against the City of Chicago, plaintiff must allege that: (1) the City had an express
policy that, when enforced, caused a constitutional deprivation; (2) the City had a widespread
practice that, although not authorized by written law or express municipal policy, was so permanent

and well-settled as to constitute a “custom or usage” with the force of law; or (3) that the

4(...continued)
violation of his Fourth Amendment rights may bring an action for damages directly against the
agent.



Plaintiff alleges that Radon and Centracchio acted in concert with the Chicago Police
Department and the defendant officers to further investigate the package and its intended
recipient. According to the first amended complaint, Radon, “acting pursuant to the invalid
search warrant,” prepared the package for a controlled delivery, which was then executed by
Radon, Mazurski, and other police officers. Plaintiff alleges that Radon did so with “apparent
knowledge” that no testing had been done on the. substance contained in the package.

Several items were seized from plaintiff’s residence during the execution of the search
warrant, and he was arrested for possession of a controlled substance with intent to deliver (720
ILCS 570/401). According to the first amended complaint, prosecution of plaintiff ensued, and a
disposition of nolle prosequi was entered in the Circuit Court of Cook County, Illinois, on April
25, 2002.

In Count I, plaintiff seeks damages under 42.U.S.C. § 1983 arising from defendants’
“intrusion... into the security of plaintiffs person and residence” in violation of plaintiff's rights
under the Fourth and Fourteenth Amendments. Count II asserts a false arrest claim under the
Fourth and Fourteenth Amendments for which plaintiff seeks damages under 42 U.S.C. § 1983.
In Count III, plaintiff asserts a claim of malicious prosecution under Illinois law. In support of
that claim, plaintiff states first that Daly’s false statement to the grand jury that the liquid in the
package had been field tested was the basis for the grand jury’s charges against him, and, second,
that:

Mazurski’s false sworn statement that a field test had been performed on the

material discovered in the package was the basis on which the Court issued the

original search warrant, which in turn was the basis for the unlawful discovery of
the material on which Bradshaw’s prosecution was based. Therefore, the entire



them.' For the reasons stated below, the City of Chicago’s motion is granted, and the federal
defendants’ motion is granted in part and denied in part.
FACTS

According to plaintiff's complaint, on March 21, 2001, Centracchio, acting under his
authority as an agent for the U.S. Customs Service, opened an international package addressed to
plaintiff. The package contained two bottles of nail enamel remover, and Centracchio contacted
Postal Inspector Radon and Chicago Police Officer Mazurski of the Chicago Police Department’s
Postal Interdiction Team to tell them what he discovered.

On March 22, 2001, Mazurski applied for.and was issued a search warrant to execute a
controlled delivery and to search “Jim Bradshaw.or anyone taking control of the U.S.P.S. Priority
Mail Parcel” at the address listed on the package. Plaintiff alleges that the search warrant was
invalid, however, because it was based on Mazurski’s false testimony that the liquid contained in
the two bottles in the package had been field tested for the presence of gammahydroxybutyrate
(GHB), a controlled substance, with positive results. According to plaintiff, no field test of the
liquid had been conducted, and at the time he filed the application for the search warrant,
Mazurski allegedly did not have any documentation of the field-test that was allegedly performed
or the results of that testing. Plaintiff alleges that the Chicago Police Department has no policy
or procedure in place requiring that its officers have copies of reports regarding the results of
field testing performed outside their presence when they apply for a search warrant on the basis

of that field testing.

"Defendants Daly and Mazurski filed answers to plaintiff's first amended complaint on
September 12, 2003, and August 4, 3003, respectively.

2



DOCKETED
IN THE UNITED STATES DISTRICT COURT JA
FOR THE NORTHERN DISTRICT OF ILLINOIS N15 2004
EASTERN DIVISION

JAMES BRADSHAW,

Plaintiff,
No. 03 C2074
v.
Judge Robert W. Gettleman
Chicago Police Officer THOMAS MAZURSKI;
Chicago Police Officer CHARLES DALY; the
CITY OF CHICAGO; United States Customs
Agent CENTRACCHIO; and the UNITED
STATES CUSTOMS SERVICE; United States
Postal Service Inspector BENEDICT R. RADON,
and the UNITED STATES POSTAL SERVICE,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff James Bradshaw filed a first amended complaint against Chicago Police Officers
Thomas Mazurski and Charles Daly, the City of Chicago, Customs Inspector Lawrence Centracchio,
United States Postal Service Inspector Benedict Radon, the United States Postal Service and the
United States Customs Service, arising from defendants’ application for and execution of a warrant
to search plaintiff and his residence. Specifically, plaintiff asserts a claim of unlawful search and
seizure in violation of his rights under the Fourth and Fourteenth Amendments to the Constitution
of the United States (Count I), false arrest and detention in violation of the Fourth and Fourteenth
Amendments (Count II), and malicious prosecution under Illinois law (Count II). The federal

defendants and the City of Chicago have moved separately to dismiss plaintiffs claims against

YO



CONCLUSION
For these reasons, the City of Chicago’s motion to dismiss Count | is granted, and the
federal defendants’ motion to dismiss Count I is granted with respect to Centracchio and denied
with respect to Radon. Count | is dismissed with prejudice as to the United States Custom
Service and United States Postal Service, and Counts II and III are dismissed as to all moving
defendants. Plaintiff is directed to file a second amended complaint conforming to this opinion
by February 3, 2004. Defendants shall file their response(s) by February 24, 2004. The parties

are directed to appear for a status report on March 2, 2004, at 9:00 a.m.

“Vedi. (ii

Robert W. Gettleman
United States District Judge

ENTER: January 13, 2004

12