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ANDERSON v. CITY OF CHICAGO

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


September 11, 1992

ANTHONY ANDERSON, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

 Anthony Anderson ("Anderson"), currently confined in the Menard Correctional Center, has tendered a self-prepared Complaint under 42 U.S.C. § 1983 ("Section 1983") against the City of Chicago, its former Police Superintendent Leroy Martin, several Chicago Police Officers and four private citizens: "Dr. Hill," from Oak Park, Illinois; "John Doe," an unknown tow truck driver; and Patricia Taylor and Clarice Evans, the complaining witnesses against him in his criminal trial. In a nutshell Anderson claims "that City of Chicago police officers conspired together . . . with private parties . . . to have him falsely imprisoned."

 Anderson's Allegations1

 Anderson was arrested on March 19, 1989 by three police officer defendants who burst into his home without a warrant. While transporting Anderson to the police station, the police officers stopped the car by the side of the road so that Anderson could be identified by the two complaining witnesses.

 Then the officers drove Anderson to a restaurant on 45th and Halsted Street for questioning. While he was being questioned, other officers met with the unknown tow truck driver and instructed the driver to wipe clean an allegedly stolen car, thus removing any evidence that would vindicate Anderson of the crime of car theft.

 Next the arresting officers took Anderson to the police station, locked him in a small room and interrogated him, despite the fact that he had requested counsel. During the interrogation the officers told Anderson that they had received test results from Dr. Hill that showed that Anderson had sexually assaulted the alleged victim.

 Anderson was later identified in a lineup, and he was ultimately charged with and convicted of aggravated criminal sexual assault, robbery and possession of a stolen motor vehicle. He was sentenced to 30 years in prison. On June 30, 1992 the Illinois Appellate Court affirmed the convictions.

  All the defendants knew that Anderson was innocent of the charges against him. Moreover, all defendants knew that Clarice Evans implicated Anderson in the alleged crimes only because of a long-running feud between their two families. Anderson seeks declaratory relief, compensatory and punitive damages, and "any other such relief that this honorable court deems just, proper, and equitable," including criminal indictments against the defendants.

 Operative Standards

 Any litigant who seeks leave to proceed without paying a filing fee must satisfy two requirements:

 1. his or her financial inability to pay the filing fee plus

 2. the existence of one or more claims that is or are non-"frivolous" in the legal sense defined by Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338 , 109 S. Ct. 1827 (1989) and more recently reconfirmed and refined in Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733-34 (1992).

 As for the first of those, Anderson has not provided the required application form with the necessary financial showing. *fn2" But even assuming that he could satisfy the showing of indigency, he still fails on his present assertions.

 Statute of Limitations

 Of the several substantive problems that confront Anderson, perhaps the most obvious is that of timeliness. Farrell v. McDonough, 966 F.2d 279 (7th Cir. 1992) has once again reconfirmed that Section 1983 cases arising in Illinois are subject to the two-year limitations period contained in Ill. Rev. Stat. ch. 110, P 13-202.

 Here Anderson was arrested on March 19, 1989. McCune v. City of Grand Rapids, 842 F.2d 903 (6th Cir. 1988), citing Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982) and Singleton v. City of New York, 632 F.2d 185, 191 & n.5 (2d Cir. 1980), has dealt with the time of accrual of a Section 1983 claim of a Fourth Amendment violation *fn3" --an unlawful seizure--akin to a state-law claim of false arrest. McCune, 842 F.2d at 906 held that when an allegedly false arrest is the sole cause of the constitutional harm suffered by plaintiff (that is, a single harm that caused a continuing injury such as imprisonment), the claim accrues on the date of the arrest.

 In the absence of any Seventh Circuit decision on the subject, this Court accepts the persuasive common sense view of McCune and the other cases on which it relies. Because Anderson's Fourth Amendment claim accrued on March 19, 1989, that claim will be time barred unless he can take advantage of any tolling provision under the Illinois statutes of limitations. As for his other potential claims, Anderson has not identified specific dates--but all of them clearly appear to be of the same vintage.

 For a long time Illinois had a blanket tolling provision applicable to the filing of any lawsuit brought by a person laboring under the "disability" of being a prisoner (formerly part of Ill. Rev. Stat. ch. 110, P 13-211). But that tolling provision was eliminated on January 1, 1991. Wilson v. Giesen , 956 F.2d 738, 742-43 (7th Cir. 1992) has held that the proper inquiry when applying such an amendment shortening the statute of limitations is whether plaintiff then had a reasonable amount of time in which to commence his action. Citing this Court's opinion in Knox v. Lane, 726 F. Supp. 200, 203 (N.D. Ill. 1989) among others, Wilson, 956 F.2d at 742 noted that Illinois courts have found delays of more than one year unreasonable where plaintiff knew of his or her claim before the shortening amendment took effect. Accord, Farrell, 966 F.2d at 282 (also citing Knox, and holding 23-month delay unreasonable).

 Here Anderson waited nearly 20 months after the tolling provision was eliminated to file this action. On the basis of Anderson's own allegations, he clearly knew that he was being arrested falsely on the day of his arrest. It may be that Anderson waited until the Appellate Court affirmed his conviction to file this lawsuit. But no such pendency of other legal proceedings operates to stop the limitation clock's ticking.

 That alone compels denial of leave to Anderson to file and proceed in forma pauperis. *fn4" Hence this opinion need not go on to discuss other problems he would confront, such as the difficulty of charging the City and former Superintendent Martin under Section 1983 (they appear to be sued only on the impermissible predicate of respondeat superior liability), the need to link the four named defendants who are private actors with the type of "willful participation in joint activity with the State or its agents" necessary for them to meet the Section 1983 "under color of law" requirement (see, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142 , 90 S. Ct. 1598 (1970), quoting United States v. Price, 383 U.S. 787, 794, 16 L. Ed. 2d 267 , 86 S. Ct. 1152 (1966)) and the possible immunity of the two witnesses (at least as to potential Section 1983 liability stemming from their trial testimony).

 Accordingly this Court finds no arguable legal basis for the Complaint, and it denies Anderson's motion for leave to file in forma pauperis (see Neitzke). In accordance with the procedure prescribed by Smith-Bey v. Hospital Administrator, 841 F.2d 751, 758 (7th Cir. 1988), this action is dismissed without prejudice pursuant to 28 U.S.C. § 1915(d) (see Denton, 112 S. Ct. at 1734). In addition Anderson is informed:

 1. If he wishes to appeal this order of dismissal, within 30 days after the entry of judgment he must file a Notice of Appeal to the United States Court of Appeals for the Seventh Circuit (see Fed. R. App. P. 4(a)). That Notice of Appeal must be filed with the Clerk of the Court of the United States District Court, 219 South Dearborn Street, 20th Floor, Chicago, Illinois 60604.

 2. Although this Court of course expresses no substantive views on this subject, Anderson should also be aware that if the Court of Appeals were to determine that such an appeal were "frivolous" in the legal sense, that could result in the imposition of sanctions by that Court (see Fed. R. App. P. 38).

 Milton I. Shadur

 Senior United States District Judge

 Date: September 11, 1992


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