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March 29, 1984


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 complainant.

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 amended complaint in this case was filed four months after the new rule became effective. At least with respect to the federal claims, the complaint is in direct contravention of the rule. Most of those claims have no arguable basis in existing law. A reasonable amount of research before the document was drafted, which is all the new rule requires, would have revealed that to the plaintiff's three lawyers.

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 1981).

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. ...

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