United States District Court, Northern District of Illinois, E.D
November 16, 1983
DENNIS MELMUKA, PLAINTIFF,
MICHAEL O'BRIEN, ET AL., DEFENDANTS. DENNIS MELMUKA, PLAINTIFF, V. CAROL RILEY, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Dennis E. Melmuka ("Melmuka") seeks leave to file these two pro
se actions under 42 U.S.C. § 1983 ("Section 1983") without
prepayment of the filing fee. Each action arises out of events
leading up to Melmuka's conviction for the August 14, 1980
burglary of a condominium at 457 West Fullerton Avenue,
Chicago. For reasons that need only brief treatment in this
opinion, Melmuka's motions to file these actions in forma
pauperis are denied.
Melmuka names as defendants:
1. in 83 C 866 ("866"), four Chicago police officers; and
2. in 83 C 868 ("868"), Carol Riley ("Riley"), a resident at
the burglarized address who testified at Melmuka's trial.
In 866 Melmuka alleges the "police officers both encouraged
perjury and committed perjury by their testimony and prepared
false police reports to cover up the true facts, which led to
plaintiff being convicted for Burglary that they fabricated,
from the beginning." In 868 he alleges Riley "presented false
testimony" and "conspired with the States Attorney [sic] Office
of Cook County to convict plaintiff of Burglary." In each
action he seeks damages and a new trial as relief.
Melmuka's prayers for a new trial are not cognizable under
Section 1983. Any plaintiff who seeks to overturn a state
conviction (thus obtaining release from custody) must look to a
habeas corpus petition as his or her exclusive federal
remedy.*fn1 Preiser v. Rodriguez, 411 U.S. 475, 488-89, 93
S.Ct. 1827, 1835-36, 36 L.Ed.2d 439 (1973). This opinion turns
then to Melmuka's damage claims.
Briscoe v. LaHue, ___ U.S. ___, 103 S.Ct. 1108, 1118, 75
L.Ed.2d 96 (1983) teaches Congress did not intend to abrogate
the absolute immunity the common law extended to witnesses for
their testimony in judicial proceedings. Consequently Briscoe
held (id. at 1119-21) even a police officer who commits
perjury during a state court criminal trial is absolutely
immune from Section 1983 civil liability. Briscoe thus bars
Melmuka's entire claim against Riley and his claim of perjury
against the officers who testified at his trial.
But Melmuka's 866 claim against the officers includes charges
of subornation of perjury and falsification of police reports.
Because those allegations are not limited to the officers'
giving of testimony, this Court must look beyond the immunity
question to determine whether the 866 Complaint raises a
colorable claim for relief.
That Complaint asserts the police officers induced perjury by
encouraging a witness to testify he saw Melmuka exit from a
basement door when they knew such an observation was impossible
from the vantage of the witness. It also alleges the
officers falsified police reports concerning the timing of the
Miranda warnings, to permit the prosecution to enter into
evidence statements Melmuka made to the police at the scene of
the burglary.*fn2 Melmuka also complains of the police
report's description of his location when police arrived at the
scene. Because all those issues were raised and decided
adversely to Melmuka during the course of his trial and appeal,
he is precluded from raising them in a Section 1983 damage
Collateral estoppel (sometimes — and perhaps more accurately —
termed issue preclusion) is available to Section 1983
defendants to bar relitigation of issues of fact or law
determined in a prior criminal proceeding. Allen v. McCurry,
449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Blake v.
Katter, 693 F.2d 677, 682 (7th Cir. 1982).*fn3 For that
purpose the operative standards were defined in Whitley v.
Seibel, 676 F.2d 245, 248 (7th Cir. 1982), cert. denied, ___
U.S. ___, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982) (quoting 1B
Moore's Federal Practice, ¶ 0.443):
whether the issue sought to be concluded is the same as that
involved in the prior action; was litigated in the prior
action; was in fact judicially determined in the prior action;
and whether the judgment in the prior action was dependent upon
the determination made of the issue.
All those elements are satisfied here.
Melmuka specifically raised the issues of falsified police
reports and perjured testimony in paragraphs 1 and 9 of his
post-trial brief (R. 547-48). In denying the motion the trial
judge stated (R. 460, 462):
I have had an opportunity to take a look at and read Mr.
Melmuka's pro se motion and most of the matters and things
raised in the defendant's motion he alleges Yanow's testimony
and he cites as statements and inconsistencies various items
from the transcript of the preliminary hearing and also from
the police reports. These were matters that were brought out on
cross examination that go to the credibility of the witness and
they are not in my opinion evidence of perjury and they are
matters the jury considered in its determination of the
credibility of the witnesses. They chose to believe Mr. Yanow
and the others . . . .
The probable cause for arrest, I find nothing wrong with the
arrest procedure under the circumstances in this record.
In appealing on the sufficiency of the evidence, Melmuka again
challenged the witness' veracity in testifying he saw Melmuka
exit the building by the basement stairs. Like the trial court,
the Illinois Appellate Court rejected Melmuka's challenge as
People v. Melmuka, 108 Ill. App.3d 1211,
68 Ill.Dec. 584, 446 N.E.2d 318, slip op. at 4-5 (1st Dist.
As before the Appellate Court (and as previously before the
trial court in reviewing Melmuka's post-trial motions), the
remaining Section 1983 issue is whether Melmuka was accorded a
fair trial. Any claim the officers induced perjury and
falsified police reports can be actionable only to the extent
(if any) that conduct caused Melmuka to be deprived of
liberty without due process of law — and that perforce means
he must show the conduct caused his conviction.
But Melmuka did challenge the veracity of the police reports
and the testimony of the allegedly mendacious witness during
cross-examination at trial, in the post-trial motion and on
appeal. By its verdict the jury necessarily rejected Melmuka's
attacks upon the integrity of the evidence against him, for
deciding the credibility of that evidence was essential to its
finding of guilt. In short, as a review of the state court
record reveals, the truthfulness of the allegedly suborned
perjury and falsified police reports were "distinctly put in
issue and directly determined" in the criminal prosecution of
Melmuka. See Williams v. Liberty, 461 F.2d 325, 327 (7th Cir.
1972). Because those issues were determined adversely to
Melmuka, defensive collateral estoppel principles preclude him
from again raising the issues in this Section 1983 action.
Accordingly this Court finds — as a matter of law — Melmuka's
Complaints are "frivolous" in the sense of Wartman v.
Milwaukee County Court, 510 F.2d 130, 134 (7th Cir. 1975).
Consequently Melmuka is denied leave to file either Complaint
in forma pauperis.