The opinion of the court was delivered by: Moran, District Judge.
In this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983,
plaintiff Kathleen Strack ("Strack") seeks to recover damages against
defendants Joseph Donahue ("Donahue"), a Carpentersville, Illinois police
officer, and Robert Strack ("R. Strack"), an Illinois State police
officer and plaintiff's former husband, for the alleged deprivation of
her civil rights. Donahue has moved to strike Strack's second amended
complaint and dismiss the cause as to him. For the reasons stated below,
Donahue's motion is granted.*fn1 The claim against R. Strack is also
The facts of the case are simple and not in dispute. Kathleen and
Robert Strack were divorced in December 1976, pursuant to a divorce
decree entered by the Circuit Court for the Third Judicial Circuit,
Madison County, Illinois. On December 1, 1978 that court found Strack to
be in contempt of the divorce decree and ordered her to appear for
sentencing on December 1, 1978. When she failed to appear, the court held
her in continuing and willful contempt of court for failing to comply
with its order of December 1, and ordered issuance of a body attachment
for her apprehension to be executed by the Sheriff of Kane County,
Illinois, where she was then in residence.
On January 22, 71979 the Circuit Court for the Sixteenth Judicial
Circuit, Kane County, Illinois, Criminal Division, issued a search
warrant for the seizure of the person of Kathleen Strack, based upon the
complaint of defendant Donahue for issuance of a search warrant. In his
complaint, Donahue alleged that on December 19, 1978 he had been advised
by the Madison County Sheriff's Department of an outstanding warrant for
Strack's arrest. that he had confirmed that the warrant was still active
on January 22, 1979, and that he had spoken with defendant R. Strack to
confirm Strack's residence. Donahue served the search warrant on Strack
at her residence, handcuffed her, and took her into custody.
Strack has filed a three-count complaint based on the foregoing facts.
She alleges that the search warrant was invalid because there was no
probable cause for its issuance since she had never been charged with a
crime and was not the subject of criminal proceedings, that the
defendants willfully made false allegations in the complaint for a search
warrant with the wrongful and malicious intent of using criminal
processes to enforce a civil court order, and that the acts of the
defendants caused her humiliation, embarrassment and mental suffering. In
Count I, she claims that the defendants' conduct deprived her of
unspecified rights, privileges and immunities guaranteed by the United
States Constitution and federal law. In Count II, she claims that the
defendants violated her right to be free of unreasonable searches and
seizures under the Fourth and Fourteenth Amendments to the United States
Constitution and the Illinois Constitution. In Count III, she seeks
damages on a theory of common law trespass.
The Civil Rights Act of 1871 imposes civil liability only upon one who
under color of any statute, ordinance, regulation,
custom, or usage of any State or Territory, subjects,
or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws. . . .
42 U.S.C. § 1983. In deciding whether Strack has stated a cause of
action under § 1988, then, the initial inquiry is whether the facts
alleged in her complaint, if proven, would establish a deprivation of
rights guaranteed by the "Constitution and laws" of the United States.
Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
Although Strack does not specify in Count I of her complaint the
federally-created right that she has allegedly been denied as a result of
the defendants' conduct, it is apparent from the factual allegations of
the complaint, as well as from the Fourth Amendment claims set forth in
Count II, that she is claiming an unlawful restraint on her liberty
interests. The Fourth Amendment's protection from arrests without
probable cause applies in the criminal context the Fifth and Fourteenth
Amendments' civil protection against restraints on liberty without due
process of law. The requirements of "due process" in the civil context,
and "probable cause" in the criminal context, provide protection against
unnecessary state infringement upon the individual's right to liberty.
See Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 862, 43 L.Ed.2d 54
(1974); Chrisco v. Shafran, 507 F. Supp. 1312, 4321 (D.Del. 1981). A
liberty right must, of course, exist before these requirements come into
Taking the well-pleaded factual allegations of the complaint as true
for purposes of this motion to dismiss, Hampton v. City of Chicago, Cook
County, Illinois, 484 F.2d 602, 606 (7th Cir. 1973) cert. denied
415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974), the court finds that
the complaint, as it now stands, and read in light of the body attachment
order, is devoid of any suggestion that Strack had a liberty right which
defendants' conduct violated. Strack concedes that, at the time of her
arrest, there was an outstanding body attachment for her apprehension in
connection with a contempt of court order issued in divorce proceedings
to which she was a party. She does not challenge the constitutionality of
this body attachment, nor does it appear from the pleadings and exhibits
presently before the court that she could contest its validity. Strack,
thus, had no liberty interest in freedom from governmental restraint in
connection with her alleged contempt of court.
Strack's contention that her arrest violated the Fourth Amendment
because the arrest warrant was issued without probable cause to believe
that she had committed a criminal offense under Illinois law is
disingenuous. She cannot complain that there was reason to arrest her.
The order of contempt and the issuance of a body attachment in the prior
divorce proceedings make it clear there were grounds for taking her into
custody, albeit not criminal grounds.*fn2 Strack's real complaint is
that she was arrested by the wrong person pursuant to service of the
wrong document. She makes no allegation in her complaint that her arrest
by defendant Donahue under a warrant issued by a criminal court
constituted a restraint on her liberty more
significant than, or in any way different from, the restraint that would
have resulted from execution of the body attachment. A failure to comply
with technical procedures required by state statutory law, while perhaps
creating a cause of action under state law, does not always rise to the
level of a constitutional violation, especially in the absence of
deprivation of a substantive constitutional right. See Hamilton v.
Chaffin, 506 F.2d 904, 910 (5th Cir. 1975); Slotnick v. Stavisky,
560 F.2d 31, 34 (1st Cir. 1977).
Strack alleges that the defendants willfully made false and fictitious
statements in obtaining the criminal warrant with the wrongful and
malicious intent of using the criminal process to enforce a civil court
order. She does not specify which statements made in the complaint for
issuance of a search warrant were false or fictitious, and, in any
event, it appears from the exhibits attached to her complaint as well as
her memorandum opposing this motion that the essential allegations of
Donahue's complaint — that there was a valid body attachment
against Strack for contempt of court — is true. While it is true
that a valid arrest may be constitutionally impermissible if executed for
an improper motive, see Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct.
1213, 1219, 18 L.Ed.2d 288 (1966); Lessman v. McCormick, 591 F.2d 605,
609-11 (5th Cir. 1979),*fn3 Strack's conclusory allegations unsupported
by any facts are insufficient to state a cause of action.
Although defendant R. Strack has not moved to dismiss the second
amended complaint,*fn4 it must also be dismissed as against him for all
of the foregoing reasons. Moreover, the complaint fails to make any
allegations against R. Strack other than the conclusory charge that he
maliciously and intentionally abused his position as a police officer.
There are no factual allegations that he was in any way involved in the
arrest. The only indication of his involvement is the allegation in
Donahue's complaint for a search warrant that he spoke with R. Strack to
confirm plaintiff's current whereabouts. R. Strack's confirmation of her
residence does not amount to a violation of her constitutional rights.
Finally, the court in its discretion dismisses plaintiff's pendent
claim for common law trespass because of the dismissal of the counts
under federal law. See Smith v. No. 2 Galesburg Crown ...