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
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. Soto,
523 F. Supp. 625, 629 (S.D.N.Y. 1981)). Further, it is clear
from the plaintiff's own allegations that he never confessed to
anything. When the police inquired, he denied any knowledge of
the paint throwing incident. It therefore can hardly be
suggested that he was compelled to incriminate himself.
As for his fourth amendment claim, the plaintiff apparently
is relying, at least in part, on the theory that he was
arrested in violation of the fourth amendment the moment the
police officer telephoned him and asked him to come to the
station. As an initial matter, entirely apart from the
question of whether the officer had some objective
justification for making this call in fourth amendment terms
(i.e., probable cause or reasonable suspicion that the
plaintiff had committed a crime), there is the question of
whether this may be viewed as a "seizure" that brings the
fourth amendment into play. The plaintiff blithely assumes
that the officer's telephone call amounted to a seizure. But
even a casual perusal of recent fourth amendment cases reveals
the legal infirmity of this position. Fourth amendment
doctrine has for some time been moving in a direction that is
quite unsupportive of a claim that a person can be "seized" by
means of a mere telephone call. In United States v. Mendenhall,
446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497
(1980), the Supreme Court said:
We adhere to the view that a person is "seized"
only when, by means of physical force or a show
of authority, his freedom of movement is
restrained. Only when such restraint is imposed
is there any foundation whatever for invoking
constitutional safeguards. . . . As long as the
person to whom questions are put remains free to
disregard the questions and walk away, there has
been no intrusion upon that person's liberty or
privacy as would under the Constitution require
some particularized and objective justification.
We conclude that a person has been "seized"
within the meaning of the Fourth Amendment only
if, in view of all of the circumstances
surrounding the incident, a reasonable person
would have believed that he was not free to
This view was adopted by the Seventh Circuit in United States