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United States District Court, Northern District of Illinois, E.D

April 11, 1984


The opinion of the court was delivered by: Shadur, District Judge.


In July 1983 Curt Spallone ("Spallone")*fn1 filed this civil rights action against the Village of Roselle ("Roselle") and several of its policemen under 42 U.S.C. § 1983 ("Section 1983") and other sections of the Civil Rights Act, 42 U.S.C. § 1981-1996. Then on September 9 Spallone was convicted in state court on charges arising from the arrest incident alleged in the Complaint. Accordingly defendants have moved for dismissal under Fed.R.Civ.P. ("Rule") 12(b)(6):

    1. Initially defendants urged the collateral estoppel effect
  of Spallone's state court conviction barred his entire action
  under Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66
  L.Ed.2d 308 (1980).

    2. In reply defendants have also argued any causes of action
  not barred by the state court conviction are merely common
  law torts that should no longer be constitutionally
  cognizable under the analysis of Parratt v. Taylor,
  451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Though Spallone admits the first contention is well taken against his false arrest claim, none of the Complaint's four counts rests solely on false arrest. Thus collateral estoppel does not warrant dismissal of any count. As for the second assertion, Parratt has not been extended, nor should it be, to allegations such as those of the Complaint.


All four counts of the Complaint arise out of Spallone's October 24, 1982 arrest and alleged beating by police officers Dennis Medema ("Medema") and Michael Krueger ("Krueger"):

    1. Count One alleges Medema and Krueger arrested and beat
  Spallone without cause, then fabricated a story to justify
  both the arrest and the beating.

    2. Count Two alleges all defendants conspired to arrest and
  beat Spallone without cause, then to cover up their

    3. Count Three alleges Roselle Chief of Police Dayle Lites
  ("Lites") and Roselle itself are responsible for "policies,
  practices, and customs" (¶ 21) that proximately caused the
  wrongdoings alleged in Counts One and Two.

    4. Count Four alleges Lites and Roselle breached duties to
  Spallone to take adequate steps to prevent the wrongdoings
  alleged in Counts One and Two.

Spallone faced trial on four criminal charges after his arrest: (1) illegal possession or transportation of alcohol, (2) driving while intoxicated, (3) resisting arrest and (4) battery of a police officer. On September 9, 1983 he was convicted of the first two counts but acquitted of the last two. Spallone says he raised no constitutional defenses at his state trial.*fn3

Res Judicata Principles

"Res judicata" (in a broad sense) comprises claim preclusion, which prohibits litigants from splitting a single cause of action into more than one civil proceeding, and issue preclusion or collateral estoppel, which prohibits litigants from relitigating issues actually resolved in an earlier proceeding.*fn4 It is beyond dispute that federal civil rights suits are subject to both issue preclusion (Allen) and claim preclusion (Migra) stemming from prior state court litigation.

Because defendants assert the preclusive effect of Spallone's criminal trial, Spallone's inability to have raised civil claims at that trial*fn5 forecloses any application of claim preclusion principles. Accordingly defendants rely only on issue preclusion, not claim preclusion.

This Court must accord to Spallone's criminal trial the same issue-preclusive effect it would receive in state court. Migra, 104 S.Ct. at 898; 28 U.S.C. § 1738. Redfern v. Sullivan, 111 Ill. App.3d 372, 375, 67 Ill.Dec. 166, 169, 444 N.E.2d 205, 208 (4th Dist. 1982 & 1983) (citations omitted, italics in original) provides a recent statement of Illinois' law of issue preclusion:

  Where estoppel by verdict (or collateral estoppel) is
  applied, the parties are precluded from relitigating an issue
  in a subsequent proceeding where that issue was actually or
  necessarily decided by a court of competent jurisdiction in an
  earlier proceeding involving the same parties and a different
  cause of action.

Redfern, id. at 377, 67 Ill.Dec. at 170, 444 N.E.2d at 209 (citations omitted) warns "if any uncertainty exists, the doctrine will not be applied."

That poses the question whether any vital element of Spallone's claims of false arrest "was actually or necessarily decided" in his criminal proceedings.*fn6 Certainly his convictions do not preclude any elements of his claim of excessive use of force in effecting his arrest. Not even a conviction for resisting arrest necessarily establishes that excessive force was not used in the underlying arrest. See Clark v. State of Illinois, 415 F. Supp. 149, 154-56 (N.D.Ill. 1976). And as this is a motion to dismiss, defendants have not shown as a factual matter that any issues of excessiveness of the force used to arrest Spallone were actually litigated. Moreover Spallone's claims of coverup, conspiracy and inadequate institutional safeguards derive from his false arrest and excessive use of force claims and are not precluded on any independent basis by the criminal adjudication.

On the other hand, whether Spallone's false arrest claim is precluded can be resolved with the aid of admissions at Spallone's R.Mem. 2. There he acknowledges a state judge found his arrest was supported by probable cause before he had to stand trial on the criminal charges against him. As our Court of Appeals pointed out in Whitley v. Seibel, 676 F.2d 245, 248 (7th Cir.), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982), if a finding of probable cause to arrest is given preclusive effect, it necessarily prevents the assertion of any Section 1983 claim based on false arrest.

Moreover the reasons for not affording such preclusive effect in Whitley, 676 F.2d at 248-50 are not present here. There probable cause was found (id. at 249) in "a relatively summary proceeding" at which plaintiff "did not attack the veracity of the state's case against him." In reality (id. at 246) plaintiff there "had a complete alibi defense" and the state ultimately dropped its charges against him. Here by contrast Spallone had no valid defense, as the criminal trial later established.*fn7

In some abstract sense it is conceivable Spallone might have had a valid argument there was no probable cause to arrest him, did not raise it because of the summary nature of the preliminary hearing, and was ultimately convicted on subsequently-discovered evidence. That attenuated hypothesis is not sufficient even to withstand a motion to dismiss for two reasons:

    1. Spallone was convicted of two crimes, one of which was
  driving while intoxicated. Intoxication is of course a
  temporal condition. Especially in the absence of any argument
  by Spallone along these lines, it would be bizarre indeed to
  speculate that Spallone was convicted as a result of
  later-discovered evidence even while Medema and Krueger had
  no probable cause to believe Spallone was driving and
  intoxicated at the time of the arrest.

    2. Spallone's R.Mem. 1 now disavows that false arrest is the
  major thrust of his Complaint, and states (id. at 2):

    The fact that Plaintiff was convicted of two of the four
    state charges (and thus admittedly there was a finding of
    probable cause) should not obliterate nor disturb the fact
    that the actions of the arresting officers violated the
    Constitutional rights of the Plaintiff. . . .

  If Spallone might have had an argument based on the unlikely
  chain of events hypothesized above, that position is now

In short the mere fact of Spallone's convictions does not in any way damage his claims of (1) excessive use of force or (2) conspiracy, coverup and negligence in connection with that use of force. It does however warrant striking Spallone's claims of (1) false arrest and (2) conspiracy, cover-up and negligence in connection with that arrest (if indeed he ever intended those claims to be a basis for recovery).

Extension of Parratt

By the time of their reply memorandum defendants plainly realized their collateral estoppel motion could not prevail against the entire Complaint. Accordingly their R.Mem. 5 argues Parratt establishes Spallone's "broad claim of a violation of his Fourteenth Amendment rights through false arrest, false imprisonment and simple battery is precluded by the availability to plaintiff of tort remedies under Illinois law. . . ."

All that remains of Spallone's Complaint are (1) his claim of excessive use of force by Medema and Krueger and (2) his claims against other defendants that they intentionally or negligently (through a conspiracy, promulgation of policies and customs and breach of duties to Spallone) caused that excessive use of force. Today this Court, following Montroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), has held in Anton v. Lehpamer, 584 F. Supp. 1387, No. 81 C 36 (N.D.Ill. Apr. 11, 1984) that Parratt does not rewrite the history of Section 1983 so extensively that it no longer covers what has been recognized as within its core meaning: allegations of excessive use of force in making an arrest. On the reasoning of Anton, Count I states a claim for relief against Medema and Krueger for excessive use of force.

More discussion is required as to the remaining allegations of Counts Two (conspiracy), Three (custom or policy) and Four (breach of duty), for they rest on both intentional tort and negligence theories. Because Parratt dealt with negligent deprivation of property, its resemblance to those counts is perhaps greater than to the excessive use of force claim, which must rest on defendant's bad faith and not on mere negligence. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433 (1979); Whitley, 676 F.2d at 248. However that resemblance vanishes when it is recalled, as even Parratt reiterates (451 U.S. at 534, 101 S.Ct. at 1912), Section 1983 has no state-of-mind requirement. As always the question is and should be whether the plaintiff has described constitutional violations.

Once it is determined Count One states a claim, it flows logically without reference to Parratt that Counts Two through Four do the same. Count One's alleged injury, harm due to intentional excessive use of force in effecting an arrest, is of constitutional stature. Counts Two through Four accuse each defendant of proximately causing that constitutional injury. Under this Court's recently-stated analysis in Padilla v. d'Avis, 580 F. Supp. 403 (N.D.Ill. 1984), an allegation of an intentional constitutional deprivation by another, coupled with an allegation the defendant proximately caused that intentional act, suffices for Rule 12(b)(6) purposes.*fn8

There is no force to the argument Parratt swept away all Section 1983 liability for negligent constitutional deprivations, just as Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1977) swept away all vicarious liability for constitutional deprivations. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982) laid any such contention to rest when Justice Blackmun, writing for six Justices, held Section 1983 liability arises when "the state system itself" causes a constitutional deprivation "through negligence, maliciousness, or otherwise."*fn9 Moreover as this Court's review of authorities in Eklund v. Hardiman, 580 F. Supp. 410, 412-414 (N.D.Ill. 1984) indicates, our Court of Appeals has explained the contours of liability for intentional constitutional torts of others without a hint that Parratt abolished Section 1983 liability for negligence.*fn10

Of course Parratt may not be put aside lightly.*fn11 Although its holding was not very controversial (only Justice Marshall disagreed with the result, and even he agreed "with much of the majority's reasoning" (451 U.S. at 556, 101 S.Ct. at 1923)), it contains language (if not analysis) that could change the entire complexion of due process law.*fn12

We are not enlightened much by such cases as Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982), which deal with Parratt in a straightforward manner but then create confusion by finding simply (id. at 395) "Parratt does not, therefore, bar relief," and then returning to traditional due process analysis without another word about Parratt.*fn13 In contrast to that treatment it may be appropriate to suggest briefly how Parratt would really affect this case.*fn14

There are essentially three ways in which a court, confronting Parratt in the context of a case such as this one, may respond:

    1. It may follow the Brewer path, ignoring the full logical
  implications of Justice Rehnquist's discussion.*fn15 With
  all respect, that seems too much of an ostrich reaction to a
  major problem in the law of civil rights.

    2. It may make the statement found in Anton and adhered to
  earlier in this opinion, recognizing those logical
  implications but rejecting their result absent definitive
  resolution by the Supreme Court or Congress. To this Court
  such a response, throwing down a respectful gauntlet, places
  the responsibility for such a dramatic change in law
  precisely where it belongs.

    3. It may parse Justice Rehnquist's opinion to explain why it
  does not really negate Section 1983 coverage in the current
  case. See, e.g., the scholarly and extended treatment by
  this Court's colleague Judge Marshall in Begg v. Moffitt,
  555 F. Supp. 1344, 1353-65 (N.D.Ill. 1983). What this Court
  finds troublesome in that procedure is that it tends to
  disappear into the same kind of semantic bog that generated
  the problem in the first place.

It should be clear this Court views the second alternative — the frontal posing of the problem — far preferable in principle, though not nearly so satisfying in terms of logical development. Despite that it will enter the third thicket, if only to show even Justice Rehnquist's approach (as it must be read to speak for a majority of the Court) does not alter the outcome.

Until Parratt it was black-letter law that procedural due process applies to cases in which a court must evaluate the adequacy of government procedures for divesting citizens of benefits conferred by law. Substantive due process concerned what the government could and could not do in a given situation regardless of the procedures it employs. It is a familiar law school Socratic game, however, to discover the substance-procedure distinction tends to evaporate upon close examination. Substantive rights necessarily depend on the procedural profile in which an objection to the deprivation of those rights is raised.

In Parratt Justice Rehnquist took a simple substantive due process case, in which eight Justices agreed there was no violation, and applied procedural due process analysis.*fn16 He swept through the preliminary requirements of due process claims and focused on the procedural aspects of the plaintiff's rights (451 U.S. at 536-37, 101 S.Ct. at 1913-14, footnote omitted):

  Unquestionably, respondent's claim satisfies three
  prerequisites of a valid due process claim: the petitioners
  acted under color of state law; the hobby kit falls within the
  definition of property; and the alleged loss, even though
  negligently caused, amounted to a deprivation. . . . Our
  inquiry therefore must focus on whether the respondent has
  suffered a deprivation of property without due process of law.

That approach was defensible, even logical, given the necessary interaction between substantive and procedural rights.

But as Justice Blackmun (joined by Justice White) pointed out in his concurring opinion, a consequence of Justice Rehnquist's preference for procedural analysis is that more governmental activities must be considered procedural in nature. Hypothesizing that a case like this one was before him, he said (451 U.S. at 546, 101 S.Ct. at 1918, citations omitted):

  When it is possible for a State to institute procedures to
  contain and direct the intentional actions of its officials, it
  should be required, as a matter of due process, to do so.

"Procedures" in that context are not the same concept we normally consider when we speak of "procedural" due process. If that kind of redefinition is necessary to muster a majority of the Court's Members,*fn17 what is at work in the context of the present case is substantive due process in the garb of procedure. Whether that represents new wine in old bottles or old wine in new, it is a change in vocabulary and not substance.

This Court's holding can be restated in that vocabulary:

    1. Counts One and Two allege intentional deprivation of
  Spallone's right to bodily security. He has alleged color of
  state law, a liberty interest and a deprivation of that
  interest. Illinois' tort remedy is not sufficient, because
  the deprivation described is not constitutionally permissible
  regardless of the procedures employed either before or after
  the deprivation.

    2. Counts Three and Four allege that negligent or intentional
  conduct by Lites and Roselle proximately caused the
  intentional deprivation of Spallone's right to bodily
  security. Color of state law, interest and deprivation are
  the same as for Counts One and Two. Counts Three and Four —
  if proved — would establish Lites and Roselle provided
  Spallone inadequate procedural safeguards before such


To the extent the Complaint may be construed to contain allegations of false arrest and false imprisonment, those allegations must be stricken as precluded by the collateral estoppel effect of Spallone's conviction. In all other respects defendants' motion is denied. Because it would be more orderly to recast the Complaint to deal only with what now survives, Spallone is granted leave to file an amended complaint by April 13, 1984 and defendants must answer by April 25.

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