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