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KOCH v. SCHNEIDER

August 23, 1982

DEAN KOCH, PLAINTIFF,
v.
GEORGE SCHNEIDER, DENNIS MILLER, MILO RAFELLI, AND VILLAGE OF JUSTICE, DEFENDANTS.



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

  MEMORANDUM AND ORDER

Plaintiff Dean Koch brings this action under 42 U.S.C. § 1983 against Police Officers George Schneider ("Schneider") and Dennis Miller ("Miller"), Chief of Police Milo Rafelli ("Rafelli") and the Village of Justice ("Village"), to redress alleged violations of his Eighth and Fourteenth Amendment rights. Schneider and Miller have moved to dismiss Count III for failure to state a claim upon which relief may be granted. Rafelli and the Village have similarly moved to dismiss Counts IV and V, respectively. For the reasons stated below, Count III is dismissed, but the motion to dismiss Counts IV and V is denied.

Accepting plaintiff's allegations as true for purposes of this motion, Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir. 1978), the following facts form the basis of this lawsuit. On March 13, 1979 plaintiff's automobile went into a drainage ditch in the Village of Justice. He left to seek assistance in removing his car and upon his return found Officer Schneider there with a tow truck. Schneider refused plaintiff's request that he be permitted to tow the auto and then, without cause or justification, the police officer physically restrained plaintiff, pinned his arms together, threw him against the car, handcuffed him and shoved him into the squad car. Without informing the plaintiff of his rights or the charges against him Schneider drove him to the police station, where he dragged plaintiff from the vehicle by his legs. Once in the station Schneider struck plaintiff on the back of the head with a flashlight, knocking him unconscious. Officer Schneider, in a conspiracy with Officer Miller, then charged the plaintiff with damage to city property, and with battery.

In Count I plaintiff avers that Schneider violated § 1983 by falsely and maliciously charging him with damage to city property and with battery. Additionally, plaintiff states that his arrest without probable cause deprived him of liberty without due process of law. In Count II plaintiff alleges that Schneider used unreasonable and excessive force in arresting and detaining him, in violation of § 1983. Count III contains allegations that Officers Schneider and Miller conspired to bring a false complaint against him and to offer false testimony at a trial on these charges. Finally, Rafelli and the Village of Justice, in Counts IV and V, respectively, are charged with ratifying or approving the unlawful conduct of the officers and being, therefore, liable under the Civil Rights Act. Schneider has not moved to dismiss Counts I and II.

I. Schneider and Miller's Motion to Dismiss Count III

Plaintiff alleges in Count III that Officers Schneider and Miller deprived him of liberty without due process in violation of § 1983 by conspiring to bring a false complaint of battery against him and by offering false testimony at a trial on these charges. Defendants contend that neither allegation states a claim under § 1983. This court agrees.

In Briscoe v. Lahue, 663 F.2d 713 (7th Cir. 1981), cert. granted, ___ U.S. ___, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982), the Seventh Circuit addressed the question whether police officers can be sued under § 1983 for testifying falsely in criminal proceedings. Although finding important considerations both favoring and weighing against absolute immunity in a § 1983 suit, the court was persuaded that recent Supreme Court comments on the subject compel the conclusion that police officers, as witnesses, are absolutely immune from § 1983 liability. Id. at 720. Accord, Myers v. Bull, 599 F.2d 863, 866 (8th Cir.), cert. denied, 444 U.S. 901, 100 S.Ct. 213, 62 L.Ed.2d 138 (1979); Burke v. Miller, 580 F.2d 108, 109 (4th Cir. 1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1268, 59 L.Ed.2d 487 (1979); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978).

Whether § 1983 provides a remedy for the officer's alleged agreement to bring a false complaint of battery presents a more difficult question. To state a claim under § 1983 plaintiff must allege that the defendant, acting under color of law, deprived him of a right secured by the Constitution or laws of the United States. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Schneider and Miller contend that not only is state action lacking but, moreover, that a claim sounding in common law malicious prosecution may not be maintained under § 1983. Additionally, Miller argues that he is only liable as a co-conspirator, and that the allegations of conspiracy are insufficient.

As to Miller, we agree that the count should be dismissed. The complaint states that only Officer Schneider signed the false complaint, but holds Miller liable for "agreeing implicitly or explicitly with Schneider to bring [a] false complaint and have it prosecuted." Even assuming that Officer Schneider was acting under color of law, no facts are alleged to establish Miller as a state actor. The mere fact that Miller is employed as a police officer does not make his every act performed under color of law. U.S. v. McGreevy, 652 F.2d 849 (9th Cir. 1981); Norton v. Liddel, 620 F.2d 1375 (10th Cir. 1980). While it can be asserted that Schneider acted pursuant to state authority because part of the duties of the arresting officer is to file a charge based on that arrest, no such argument can be made on Miller's behalf. No allegations in the complaint remotely involve Miller as a police officer. His only complicity concerns "agreeing" to the filing of a charge.

A private party, however, may be liable under § 1983, where they have jointly engaged with public officials in the denial of civil rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Tarkowski v. Bartlett Realty Co., et al., 644 F.2d 1204, 1206 (7th Cir. 1980). A conspiracy exists when plaintiff alleges facts sufficient to show that "there was an agreement between the parties to inflict a wrong or injury upon another and an overt act that results in damages." Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). Plaintiff's sole attempt to establish a nexus between Miller and Schneider is the allegation that the parties "implicitly or explicitly" agreed to file the charge. Mere allegations that the parties acted in concert, however, without any of the necessary factual averments, is insufficient to defeat a motion to dismiss. Tarkowski v. Bartlett Realty Co., supra, at 1206. McCabe v. City of Chicago, No. 81 C 5108 (N.D.Ill. 3/2/82). "Plaintiffs must allege with some particularity that the public defendant, acting in his official capacity, conspired with the private defendants to deny plaintiffs their rights; vague or conclusory allegations of official participation are not sufficient to withstand a motion to dismiss." Weiss v. Willow Tree Civic Ass'n., 467 F. Supp. 803, 811 (S.D.N.Y. 1979) (emphasis added). Accordingly, since the allegations in the complaint are insufficient to support a claim that Miller acted under color of law or conspired with state officials, the motion to dismiss Count III as to Miller is granted. In the event that discovery should provide some particularized basis for a claim against Miller, plaintiff will have ample opportunity to seek his rejoinder as a defendant.

With regard to Schneider, the inquiry becomes more complicated. Both strands of the test for stating a claim under § 1983 — state action and deprivation of a federal right — pose close questions not yet addressed in this circuit. Ultimately, we conclude that although Schneider may have been acting under color of law when he signed the complaint, that act did not deprive Koch of a right secured by the Constitution or laws of the United States.

"[A]cts committed by a police officer even while on duty and in uniform are not under color of state law unless they are in some way `related to the performance of police duties.'" Brisco v. LaHue, supra, at 721 n. 4, quoting Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D.Pa. 1968). Undoubtedly, private citizens and, indeed, individuals employed as police officers, may sign complaints without there being any indicia of state action. See Norton v. Liddel, supra, at 1379 (10th Cir. 1980). In the circumstances presented here, however, we believe the complaint sufficiently indicates that Schneider acted in his official capacity. The full performance of an officer's investigative responsibilities includes, either by regulation or custom, a duty to swear out complaints based on that investigation. Cf. Briscoe v. LaHue, supra, at 721 n. 4.

Of course, state action is necessary but not sufficient to satisfy the threshold requirements in a § 1983 suit. The Act "imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). Thus, the question becomes whether malicious prosecution contravenes the Fourteenth Amendment's guarantee against deprivation of life, liberty or property without due process of law.

The Seventh Circuit has not directly considered whether malicious prosecution states a claim under the Civil Rights Act, and district courts within the circuit are split. Compare Brainerd v. Potratz, 421 F. Supp. 836, 840 (N.D.Ill. 1976) (malicious prosecution is not a violation of a constitutional right), with Spears v. Conlisk, 440 F. Supp. ...


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