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BROWN v. STATE'S ATTY.

February 4, 1992

CHARLES BROWN, Plaintiff,
v.
STATE'S ATTORNEY, et al., Defendants.


Aspen


The opinion of the court was delivered by: MARVIN E. ASPEN

MARVIN E. ASPEN, District Judge:

 Plaintiff Charles Brown, an inmate in the custody of the Illinois Department of Corrections ("IDOC"), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 against the Cook County State's Attorney, police officers Peggy O'Connor and Dale Altman, United States Probation Officer Ronald Krumke, and alleged police informants Clifford Perkins and Khili Lutfi (a/k/a Kahmil Lufti) *fn1" Currently before this court are defendants Altman, O'Connor, and Krumke's motions to dismiss Brown's complaint for failure to state a claim. For the reasons set forth below, defendants' motions are granted in part and denied in part.

 I. Motion to Dismiss Standard

 It is settled law that the allegations within a pro se complaint, "however inartfully pleaded [are held] to less stringent standards than formal pleadings drafted by lawyers . . . ." Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972); see also Maclin v. Paulson, 627 F.2d 83, 86 (7th Cir. 1980). "Such a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 10, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163 (1980) (per curiam) (citing Haines, 404 U.S. 520 at 520-21, 92 S. Ct. at 596); see also Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1832, 104 L. Ed. 2d 338 (1989). As always, in ruling on defendants' motions to dismiss, the court accepts as true the factual allegations of the complaint. See Hughes, 449 U.S. at 10, 101 S. Ct. at 176 (citing Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972)).

 II. Background

 The allegations of Brown's amended complaint detail an intriguing tale of vengeance and conspiracy. Brown's story begins on June 26, 1990, at which time he was arrested by state authorities and charged with one count of criminal sexual assault, Ill. Rev. Stat. ch. 38, § 12-13(a), and one count of aggravated criminal sexual assault, Ill. Rev. Stat. ch. 38, § 12-14(b). The gravamen of Brown's conspiracy allegations is that the charges for which he was arrested on June 26, 1990, were fabricated in retaliation for unspecified past actions. According to Brown, the specific purpose of the conspiracy was to confine him for an indefinite period of time, thereby enabling defendants to steal from his apartment an estimated $ 100,000 in property and legal documents.

 Within a week after the arrest, officers Altman and O'Connor conducted a search of Brown's premises pursuant to a valid search warrant. Altman and O'Connor allegedly utilized Perkins and Lutfi, paid police informants, to effectuate the search. At that date nothing incriminating was seized. After this initial search, Perkins and Lutfi purportedly entered Brown's apartment on multiple occasions without authorization, attempting to steal, among other items, a black and white IBM typewriter. During the period of the unauthorized break-ins, Brown's landlord repeatedly sought help from the police. These pleas, however, were of no avail, as Altman and O'Connor allegedly had initiated and directed the invasions.

 On March 14, 1991, Brown filed this pro se civil rights action pursuant to 42 U.S.C. 1983, naming Altman, O'Connor, and Krumke as defendants. In his first-amended complaint, Brown indiscriminately alleges violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. Altman, O'Connor, and Krumke now move to dismiss all counts against them, both in their individual and official capacities.

 III. Discussion

 In order to state a claim under 1983, a plaintiff must allege two things: (1) that the defendant was acting under the color of state law, and (2) that his conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981) (overruled in part, not relevant here, by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)). Regarding the first element, Brown sufficiently alleges that Altman and O'Connor were acting under color of state law by means of the authority given to them by the State of Illinois as employees of the Chicago Police Department. While ordinarily 1983 has no application to actions against federal officials such as Krumke, Wheeldin v. Wheeler, 373 U.S. 647, 83 S. Ct. 1441, 10 L. Ed. 2d 605 (1963), where a federal official has acted "in complicity with . . . state officials, and the injury to the plaintiff[] was perpetrated under color of state law, the federal official[] is subject to suit under 42 U.S.C. § 1983." Hampton v. Hanrahan, 522 F. Supp. 140, 146 (N.D. Ill. 1981). In the instant case, Brown's only allegation against Krumke is that he voluntarily became an accomplice to Altman and O'Connor's scheme. Accordingly, based on the facts as detailed in Brown's amended complaint, Krumke is subject to liability under 1983. *fn2" We now turn to the issue of whether Brown's allegations of harm give rise to a claim of deprivation secured by the Constitution or laws of the United States.

 Brown's assertion of conspiracy against Krumke is readily disposable. To establish a prima facie case of a 1983 conspiracy, a plaintiff must show: "(1) an express or implied agreement among defendants to deprive plaintiff of his or her constitutional rights, and (2) actual deprivations of those rights in the form of overt acts in furtherance of the agreement." Pontarelli Limousine, Inc. v. City of Chicago, 704 F. Supp. 1503, 1509 (N.D. Ill. 1989) (citing Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir.), cert. denied, 486 U.S. 1043, 108 S. Ct. 2035, 100 L. Ed. 2d 620 (1988)); see also Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991). The allegations in Brown's amended complaint do not satisfy the first element of a § 1983 conspiracy claim.


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