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COLTON v. SWAIN

April 24, 1973

ROBERT COLTON, PLAINTIFF,
v.
JOHN B. SWAIN ET AL., DEFENDANTS AND THIRD PARTY PLAINTIFFS, V. PACIFIC INDEMNITY COMPANY, A CORPORATION, THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the third party defendant's motion to strike and dismiss the third party complaint.

The complaint in the instant action sets forth a claim for redress of an alleged civil rights violation pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331 and 1343. The plaintiff is Robert Colton, a citizen of the United States and a resident of Naperville, Illinois. The defendants are John B. Swain, Gerald Smithson, Elmer P. Alsip, Paul Sahs, Clyde Motter, Daniel Leonard, Allen MacKechie, and Edwin Simpson, all of whom during the time in question were duly appointed and acting police officers and deputy sheriffs of the Du Page County Sheriff's Office.

In the complaint the plaintiff alleges, inter alia, the following facts:

  1.  On or about May 25, 1972 the plaintiff was
      peaceably conducting himself in Naperville,
      Illinois.
  2.  The defendants were all acting under the
      color of state law and the scope of their
      employment as deputy sheriffs of Du Page
      County, Illinois.
  3.  Each of the defendants menaced and threatened
      the plaintiff with firearms. The defendant
      John B. Swain, set upon, pushed and pummelled
      the plaintiff, threw him to the ground and
      struck him repeatedly with a blackjack. Then
      each of the defendants kicked, beat and
      viciously attacked the plaintiff with their
      feet and hands inflicting injury to the
      plaintiff. The plaintiff was then dragged and
      pushed into the County Jail by the
      defendants.
  4.  At the jail, the plaintiff was searched and
      found to be in possession of certain drugs
      which had been prescribed by a duly licensed
      physician as medication for the plaintiff's
      epilepsy.
  5.  The defendant was falsely and without
      probable cause charged with the following
      crimes:
      a) criminal damage to property of the County
      of Du Page;
      b) unlawful possession of a controlled
      substance; and
      c) obstructing a police officer in the
      performance of his duties.
      Thereafter the Office of the State's Attorney
      of Du Page County chose not to prosecute the
      plaintiff for the first two of offenses
      listed above, and the plaintiff was

      found not guilty of the third offense and
      discharged on August 15, 1972.

The plaintiff claims that the above described actions of the defendants deprived him of his civil rights in violation of 42 U.S.C. ยง 1983. The plaintiff seeks damages in the amount ...


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