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LABOY v. ZULEY

October 4, 1990

PLACIDO LABOY, JR., Plaintiff,
v.
RICHARD P. ZULEY, WILLIAM DORSCH, and JOHN BOYLE, Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Placido LaBoy, Jr. is an inmate at the Cook County correctional facility. Seeking to recover monetary damages for several alleged violations of his civil rights, LaBoy asserts a variety of claims against Chicago police officers Richard P. Zuley, William Dorsch, and John Boyle. Defendants have moved to dismiss plaintiff's complaint in its entirety. For the reasons stated herein, defendants' motion to dismiss is granted in part and denied in part.

 I. FACTS

 On July 10, 1987, the Chicago Police Department received a report of an armed robbery. Upon arriving at the scene of the crime, the responding officer interviewed the victims of the robbery. The victims gave a description of their assailant and the vehicle he was driving. Several hours later, officers Zuley, Dorsch, and Boyle arrested Placido LaBoy -- the owner of the vehicle. The officers took LaBoy to the police station and placed him in a lineup. LaBoy was identified in the lineup as the perpetrator of the crime.

 Following a jury trial in the Circuit Court of Cook County, LaBoy was convicted of armed robbery and attempted criminal sexual assault. (87 CR 9971.) Shortly thereafter, LaBoy was charged in a separate indictment with committing three murders in 1979. (89 CR 13008.) He is currently awaiting trial for the alleged triple murder.

 Claiming that he was unlawfully arrested and convicted of the armed robbery, LaBoy now seeks an award of monetary damages against Zuley, Dorsch, and Boyle. *fn1" LaBoy alleges that defendants, acting under color of law, violated his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. In seeking damages for these alleged constitutional violations, LaBoy asserts a claim pursuant to 42 U.S.C. § 1983. LaBoy further alleges that defendants conspired to obtain a conviction through the use of fabricated evidence and an overly suggestive lineup, in violation of 42 U.S.C. §§ 1985(2) and 1985(3). In addition, LaBoy seeks to hold defendants liable for perjury and subornation of perjury. LaBoy also asserts a claim for malicious prosecution against defendant Zuley. The court will now address each of these claims separately.

 II. DISCUSSION

 A. Section 1983

 In support of his § 1983 claim, LaBoy alleges that he was unlawfully arrested without a warrant, in violation of the Fourth Amendment. LaBoy further contends that defendants violated his right to due process under the Fifth and Fourteenth Amendments. *fn2"

 Whether or not LaBoy can maintain a claim under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment is a more difficult question. As support for his Fourth Amendment claim, LaBoy alleges that defendants lacked probable cause for the arrest. LaBoy intimates that defendants impaired his right to due process under the Fourteenth Amendment by fabricating evidence *fn3" and creating an overly suggestive lineup.

 Defendants contend that LaBoy is estopped from litigating these issues because he raised the same issues in a prior state court proceeding. After his criminal trial, LaBoy filed several post-trial motions, including a motion to quash the arrest, a motion to suppress the evidence obtained from the arrest, and a motion to suppress the lineup identification. The trial judge conducted a three-day hearing on these motions, in which both parties presented witnesses. After listening to the arguments of both sides and considering the evidence presented at the hearing, the judge denied all of LaBoy's post-trial motions. (Tr. 122.) The denial of LaBoy's post-trial motions, defendants argue, precludes LaBoy from recovering monetary damages in this civil rights action.

 The defense of issue preclusion, or collateral estoppel, may be asserted in a § 1983 action to preclude relitigation of an issue of fact or law that was resolved in a prior criminal proceeding. Allen v. McCurry, 449 U.S. 90, 103-05, 66 L. Ed. 2d 308, 101 S. Ct. 411, 419 (1980); Melmuka v. O'Brien, 574 F. Supp. 163, 165 (N.D. Ill. 1983). In deciding whether the prior state court proceeding is given preclusive effect, the district court must apply the preclusion laws of the state in which the prior ...


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