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GONZALEZ v. TILMER

September 30, 1991

BENITO GONZALEZ, Plaintiff,
v.
MICHAEL TILMER, Assistant Public Defender; MOSES COLLINS, Assistant Public Defender; JANET TRAFELET, Assistant State Attorney; KEVIN DURKIN, Assistant State Attorney RANDY RUECKERT, Assistant State Attorney; and AUBREY O'QUINN, Police Detective, Defendants



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Benito Gonzalez, an inmate at the Pontiac Correctional Center, brings this action pursuant to 42 U.S.C. § 1983 seeking damages and other relief for alleged violations of his constitutional rights during an interrogation following his arrest and in the course of the trial that resulted in his conviction. In its order of August 8, 1988, the court dismissed all Gonzalez's claims except his damage claim against Chicago police officer Aubrey O'Quinn. O'Quinn has filed a motion for summary judgment to which Gonzalez has responded with a summary judgment motion of his own. For the reasons that follow, the court grants O'Quinn's motion and denies that of Gonzalez.

 Given the liberal construction accorded pro se pleadings under Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), Gonzalez's complaint can be read to assert two claims against O'Quinn. *fn1" Gonzalez maintains that O'Quinn violated his rights under the Fourth and Fourteenth Amendments by detaining him for forty-eight hours before providing a judicial determination of probable cause. Gonzalez also complains that O'Quinn's harsh treatment of him during this period of detention coerced him into giving an inculpatory statement.

 Facts2

 O'Quinn arrested Gonzalez at 4:00 p.m. on October 29, 1984. He had reason to believe that Gonzalez was responsible for shooting a waitress in a restaurant because an eyewitness to the crime had given police a description that fit Gonzalez and had identified Gonzalez as the assailant from a photo array. Following the arrest, O'Quinn took Gonzalez to the police station where he was cuffed to a wall in an interview room and questioned. Police meanwhile tried to contact the eyewitness and arrange a lineup. The eyewitness, however, could not come to the police station until the following day. Learning this, detective Timothy Nolan submitted a request to the watch commander to hold Gonzalez past the regularly scheduled court call in order to hold the lineup the next morning. The request was approved and Gonzalez was turned over to the lockup keeper somewhere around 5:00 p.m.

 The lineup was held the next day shortly after noon. The eyewitness identified Gonzalez as the man who shot the waitress. After the lineup, Gonzalez was taken back to the interview room where he again was handcuffed to the wall. O'Quinn had no further contact with Gonzalez until the trial.

 At approximately 4:00 p.m., assistant state's attorney Janet Trafelet arrived at the station and began questioning Gonzalez. Shortly thereafter, Gonzalez gave Trafelet a statement regarding the shooting incident. Gonzalez asserts he signed it only because Trafelet misinformed him as to the contents of the statement and told him he could go home once he signed it. Gonzalez also maintains that he did not receive any food between the time of his arrest and the time he gave his statement. *fn3" After he gave his statement, Gonzalez was returned to the lockup where he remained until the next day when he was taken to court for his preliminary hearing. Although the exact time of the preliminary hearing is not in the record, it appears that it was held in the late afternoon.

 A jury convicted Gonzalez of aggravated battery, armed violence, and attempt murder. The appellate court vacated the conviction for aggravated robbery and armed violence and affirmed the conviction for attempt murder. That conviction has withstood several collateral challenges in both state and federal court.

 Discussion

 Standard of Review

 Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has pointed out the lack of a genuine issue of material fact, a non-moving party who bears the burden of proof on an issue may not rest on the pleadings. He instead must come forth with specific facts through affidavits or other materials showing that a genuine issue of material fact exists and requires trial. Id. at 324; Morgan v. Harris Trust and Savings Bank, 867 F.2d 1023, 1026 (7th Cir. 1989). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Exhaustion of Habeas Corpus Remedies

 O'Quinn advances several grounds in support of his motion for summary judgment. He first asserts that Gonzalez's challenge to the conditions of his detention is essentially a challenge to the fairness of his trial which can only be made in a habeas corpus petition because it amounts to a constitutional challenge to his conviction. Accordingly, O'Quinn, citing Hernandez v. Spencer, 780 F.2d 504 (5th Cir. 1986), contends that Gonzalez cannot bring his § 1983 claim until after he has exhausted the remedies available to him under the habeas corpus statutes. Although it is true that an imprisoned § 1983 plaintiff must first exhaust ...


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