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.
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 ...