The opinion of the court was delivered by: Kocoras, District Judge:
In this civil rights action the plaintiff sues the City of
Chicago, the superintendent of the Chicago Police Department,
two individual Chicago police officers, a private corporation,
and two of its employees over the events arising from the
towing of his car from the parking lot of the Belden Corned
Beef Center on October 7, 1982.
The plaintiff has put together a lengthy complaint that
asserts claims under virtually every conceivable theory. Using
the Bill of Rights as a starting point, the plaintiff claims
under 42 U.S.C. § 1983 that the defendants violated his rights
under the first, fourth, fifth, sixth, seventh, and eighth
amendments. Not overlooking the later amendments, the plaintiff
adds a claim for denial of due process under the fourteenth
amendment. The plaintiff next invokes 42 U.S.C. § 1985 and
1986, charging that the defendants engaged in a conspiracy to
abridge his rights because of their animus towards a class to
which he belongs. For good measure, the plaintiff also has
thrown in an array of pendent claims under Illinois law. To
encompass all of these charges, the plaintiff's amended
complaint runs seventeen pages in length. This complaint is not
the product of a pro se plaintiff untutored in the law. The
plaintiff in this case is represented by not one but three
lawyers, two of whom are members of the bar of this court.
The matters now before the court are motions by the various
defendants to dismiss the amended complaint pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted.
In order to place the legal issues in proper perspective it
is necessary to set out in some detail the facts alleged in
the amended complaint. The operative facts — as distinct from
the mere legal conclusions with which this complaint is
riddled, and upon which the pleader may not rely, see, e.g.,
Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, at
654-655 (7th Cir. 1984) — are as follows. The plaintiff parked
his car in the Belden Corned Beef Center's private parking lot
and went inside for an hour. When he came out his car was gone.
He learned that his car had been towed away by defendant
Lincoln Towing Service, a private company retained by the
Corned Beef Center to keep its lot clear of illegally parked
cars. The plaintiff went to Lincoln Towing's place of business,
paid the towing fee, and retrieved his car. He then went home.
A week later the plaintiff was called on the telephone by
Detective Pagano of the Chicago Police Department. Pagano told
the plaintiff that a complaining witness had identified him as
the person who had recently thrown paint on the Lincoln Towing
building. Pagano asked the plaintiff to come to the police
station to discuss the matter and warned him that a warrant
might be issued for his arrest. Pagano did not advise the
plaintiff of his constitutional rights during this telephone
conversation. Three days after Pagano called, the plaintiff
finally showed up at the station. No warrant had been issued
in the meanwhile.
At the station, Pagano and another detective by the name of
McGarry questioned the plaintiff for an hour regarding the
complainant's accusation that he had thrown paint on the
Lincoln Towing building. The officers did not advise the
plaintiff of his constitutional rights, and he steadfastly
denied any knowledge of the vandalism. Two employees of
Lincoln Towing were present as the plaintiff was questioned,
and they demanded that the police file a complaint against
him. Detective Pagano finally drafted a complaint, and it was
signed by one of the Lincoln Towing employees as the
The plaintiff was then placed in a cell at the station,
where he was held until he was released at 5 a.m. the next
morning. Although the plaintiff told Detective Pagano that he
had money to post bail, he was not given an opportunity to do
so until the morning. The plaintiff was eventually brought to
trial on the charge of throwing paint on the Lincoln Towing
building and the two Lincoln Towing employees testified
against him, but he was found not guilty.
Rule 11 of the Federal Rules of Civil Procedure was amended
effective August 1, 1983. As the advisory committee's notes
make clear, this amendment was enacted for the specific
purpose of curbing the filing of complaints and other papers
that lack a proper foundation in law and fact. The amendment
represented a substantial tightening of the standards for
attorney conduct over those which had prevailed under former
rule 11. In addition to the affirmative duty of prefiling
inquiry into the facts and law that it places upon attorneys,
the new rule places an obligation on the district courts to
step in and police abuses. See Fed.R.Civ.P. 11 (as amended Apr.
28, 1983, effective Aug. 1, 1983) advisory committee notes on
1983 amendment ("The detection and punishment of a violation of
the signing requirement, encouraged by the amended rule, is
part of the court's responsibility for securing the system's
effective operation."); Miller & Culp, Litigation Costs, Delay
Prompted the New Rules of Civil Procedure, Nat'l L.J., Nov. 28,
1983, at 24, 34 ("Note the . . . words `its own initiative,'
which is an attempt to place an obligation for policing Rules 7
and 11 on the court.").
The problems begin with the laundry list of claims under
section 1983. Some of them are patently frivolous. For
example, there is no basis whatever for claiming a first
amendment violation in the facts alleged. Not a single
allegation even remotely suggests such a violation. Similarly,
there is not the slightest justification for a seventh
amendment claim. That amendment provides the right to a jury
trial in certain civil cases tried in the federal courts.
See, e.g., United States v. Hutul, 416 F.2d 607, 626 (7th Cir.
1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d
504 (1970); Gustafson v. Peck, 216 F. Supp. 370, 371 (N.D.Iowa
1963). It is not possible that a reasonable lawyer could read
that amendment and think it had been violated under the facts
of this case. It is totally irrelevant in these circumstances.
Nevertheless, it is cited in this complaint as one of the
grounds for the plaintiff's federal claims.
The eighth amendment proscribes cruel and unusual
punishment, excessive bail, and excessive fines. Nothing in
the facts alleged fits within the ambit of the kind of conduct
the cases say is prohibited by this amendment. See, e.g.,
Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69
L.Ed.2d 59 ("Today the Eighth Amendment prohibits punishments
which, although not physically barbarous, `involve the
unnecessary and wanton infliction of pain,' . . . or are
grossly disproportionate to the severity of the crime. . . ."
(citations omitted)); Estelle v. Gamble, 429 U.S. 97, 104, 97
S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (deliberate indifference
to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the
eighth amendment); Hickman v. Hudson, 557 F. Supp. 1341, 1344
(W.D.Va. 1983) ("[T]he unjustified or excessive use of force or
infliction of bodily harm upon a prisoner amounts to cruel and
unusual punishment when such is inspired by malice or sadism
for the purpose of causing harm. . . ."). See also State Bank
of St. Charles v. Camic, 712 F.2d 1140, 1145-46 (7th Cir.),
cert. denied, ___ U.S. ___, 104 S.Ct. 491, 78 L.Ed.2d 686
(1983); Risner v. Duckworth, 562 F. Supp. 378 (N.D.Ind. 1983);
Emory v. Duckworth, 555 F. Supp. 985 (N.D.Ind. 1983). Moreover,
since the plaintiff in this case had not been found guilty of
any crime during the time he was at the police station he
cannot assert a claim based on the eighth amendment's
prohibition against cruel and unusual punishment in any event.
See, e.g., Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct.
1861, 1872 n. 16, 60 L.Ed.2d 447 (1979); Ingraham v. Wright,
430 U.S. 651, 671-72 n. 40, 97 S.Ct. 1401, 1412-13 n. 40, 51
L.Ed.2d 711 (1977); Barnier v. Szentmiklosi, 565 F. Supp. 869
(E.D.Mich. 1983); Watson v. McGee, 527 F. Supp. 234 (S.D. Ohio
The sixth amendment right to counsel does not attach until
the initiation of adversary judicial criminal proceedings.
See, e.g., Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32
L.Ed.2d 411 (1972). And as the Seventh Circuit held last July,
there is no sixth amendment right "to place a phone call, be it
to an attorney or family members." State Bank of St. Charles v.
Camic, supra, at 1145 n. 2. See also Guenther v. Holmgreen,
573 F. Supp. 599 (W.D.Wis. 1983). There is thus no basis for a sixth
amendment claim here.
The plaintiff's fifth amendment claim based on the failure
of the police to give him the warnings required under
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), is equally unsupported by a good legal foundation. The
judicially created right to such warnings does not arise absent
custodial interrogation. A person is not in custody for Miranda
purposes when the police merely call him on the telephone. Nor
is a suspect who voluntarily presents himself at the police
station and remains free to go until a formal complaint is
signed in custody. See, e.g., California v. Beheler,
463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Oregon
v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714
(1977). Cf. Minnesota v. Murphy, ___ U.S. ___, 104 S.Ct. 1136,
79 L.Ed.2d 409 (1984). More importantly, however, even if it
were to be assumed for the sake of argument that the plaintiff
should have been given Miranda warnings at some point, the
failure to give them did not deprive him of any constitutional
right. There is no constitutional right to Miranda warnings.
See, e.g., Guenther, supra, at 601 (citing Thornton v.
Buchmann, 392 F.2d 870, 874 (7th Cir. 1968); O'Hagan v. ...