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BULLOCK v. DIOGUARDI

May 4, 1993

RONNIE BULLOCK, SR. and RONNIE BULLOCK, JR., Plaintiffs,
v.
DAVID DIOGUARDI, PATRICK O'HARA, and CITY OF CHICAGO, Defendants. ASPEN



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

MARVIN E. ASPEN, District Judge:

 Ronnie Bullock, Sr. abducted a nine-year-old girl on her way to school and sexually assaulted her. He was convicted in a 1984 jury trial and is now serving concurrent sentences of fifteen and sixty years. See People v. Bullock, 154 Ill. App. 3d 266, 507 N.E.2d 44, 107 Ill. Dec. 380 (1987). Following his conviction, Bullock commenced this action against the City of Chicago and the police officers who arrested him. On April 6, 1990, Bullock filed a second amended complaint on behalf of himself and Ronnie Bullock, Jr., the infant son who was with Bullock at the time of his arrest. Alleging violations of their rights under the first, fourth, fifth and fourteenth amendments, the second amended complaint seeks damages and injunctive relief. Bullock purports to brings his action under 42 U.S.C. §§ 1981, 1982, 1983, 1985(2) and (3), 1988 and 28 U.S.C. §§ 1331, 1332, and 1343. On June 20, 1990, Judge George M. Marovich, the third judge to be assigned to this case, dismissed Ronnie Jr. with leave to reinstate once Bullock named a guardian for his son. Bullock thereafter filed a motion asking the court to appoint a guardian or counsel for his son and a motion to amend seeking to reinstate his son as a plaintiff. Those motions have yet to be rule upon. Also pending for decision are a motion to dismiss on behalf of defendant Patrick O'Hara, a motion to dismiss portions of the second amended on behalf of the City of Chicago ("City") and defendant David Dioguardi, the City and Dioguardi's motion for summary judgment, Bullock's motion for partial summary judgment, and various discovery-related motions filed by both parties. The case was assigned to this court on August 25, 1992. The court will now rule on the motions.

 I. Facts1

 In April 1983, Dioguardi and O'Hara were assigned to investigate the deviate sexual assault of a little girl by a man posing as a police officer. O'Hara took the victim to a police sketch artist who made a composite drawing from the description the girl gave to him. Another police officer who saw the composite drawing noted that it resembled a security guard he had arrested for rape several years earlier. After some further investigation, the officer identified that person as Bullock. Bullock had completed his sentence on the prior offense in 1981. Furnished with this information, Dioguardi went to the home of Bullock's parents on the evening of May 4, 1983. He informed them that he wanted to talk to Bullock about a shooting. Bullock's parents called Bullock and he spoke to Dioguardi. Dioguardi asked Bullock if he would come to his parent's house, but Bullock refused. Bullock then agreed to come in to the police station at 5:00 p.m. the next day and answer questions about the shooting.

 Bullock attended court the next morning. He had his infant son with him when he left the courthouse around 11:30 a.m. Dioguardi spotted Bullock as he was leaving the court and arrested him. Refusing Bullock's request to be allowed to take his son home, Dioguardi took Bullock back to the police station located in the courthouse. There he confiscated Bullock's briefcase, wallet, and journals and began interrogating him. Dioguardi denied Bullock's request to contact his lawyer. O'Hara joined Dioguardi about an hour later and advised Bullock of his constitutional rights. They handcuffed Bullock to the wall and continued questioning him over the next six hours. Bullock's repeated requests to call his attorney or contact his family were denied as were his requests for food, water, and access to toilet facilities. According to the allegations of the second amended complaint, the officers delivered food that his parents had brought for him at 8:00 p.m. Bullock further alleges he was at that time allowed to use the bathroom and drink a cup of coffee before being taken back for more questioning. Information Dioguardi and O'Hara elicited from Bullock during the interrogation was introduced into evidence at his trial.

 At some point in the afternoon, the police called the victim, and another little girl who similarly had been sexually assaulted by a uniformed man, to arrange for a line-up. They scheduled the lineup for 7:30 that night at another police station. Dioguardi and O'Hara took Bullock to the police station where both girls identified Bullock as their assailant. Following the identification, Bullock was returned to the police station where he was arrested. Bullock alleges in the second amended complaint that the officers threatened him and used racial slurs while transporting him back and forth between police stations. Dioguardi then investigated an alibi that Bullock proffered before contacting a state's attorney to obtain approval for filing criminal charges against Bullock. Shortly after 11:00 p.m., Bullock was taken to the lock-up where he was booked and fingerprinted. The fingerprints "cleared" at 3:15 a.m. and Bullock was released to the custody of the watch commander on duty at the time. Around noon on May 6, Bullock appeared before a judge for a bond hearing. Unable to make bond, he remained in custody through May 12, 1983 when he appeared for his preliminary hearing at which time a judge made a finding of probable cause.

 The first task is to outline the claims that Bullock raises from these facts. This is no easy matter. Although Bullock has divided his second amended complaint into two counts, his "counts" are not counts in the usual sense of separate, easily identifiable claims for relief. Nonetheless, reading the pleading generously as required under Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), the court understands count one of the second amended complaint to be directed at the City of Chicago. Bullock asserts that defendants violated his right to a prompt determination of probable cause before a judicial officer under the fourth and fourteenth amendments and attributes that violation to a City policy that permitted police officers to detain a suspect for a period longer than normally might be expected in order to continue an investigation. Bullock reasserts his extended detention claim in count two, but includes claims against the individual police officers who detained him as well as the City. Both counts could also be read to challenge the legality of his warrantless arrest. Bullock, however, explicitly disclaims any intent to raise a claim of false arrest in this action. Doc. 106, p. 6. The court therefore will give no consideration to the allegations of unlawful arrest contained in the second amended complaint.

 In addition to the extended detention claim, count two of the second amended complaint also challenges Bullock's treatment while in police custody. The court understands Bullock to raise four separate claims with respect to the conditions of his post-arrest detention. Bullock alleges that the police defendants (1) failed to inform him of the nature of the charges for which he was arrested; (2) denied him a right to contact an attorney after his arrest; (3) confiscated and subsequently lost certain items of personal property that was in his possession at the time of his arrest; and (4) used coercive tactics to obtain damaging statements from him. Two issues must be addressed before turning to the substantive merits of the claims Bullock raises in the second amended complaint. Defendant O'Hara was not joined in this action until April 6, 1990 when Bullock amended his complaint for the second time. Claiming this was too late, O'Hara raises a statute of limitations defense to the suit against him. The other procedural matter before the court is Bullock's request to have Ronnie Jr. reinstated in the action.

 II. Statute of Limitations

 State law determines the statute of limitations for a suit filed under § 1983. Owens v. Okure, 488 U.S. 235, 239, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989). The limitations period for a § 1983 suit filed in Illinois is two years. Farrell v. McDonough, 966 F.2d 279, 282 (7th Cir. 1992), cert. denied, 122 L. Ed. 2d 364, 113 S. Ct. 1059 (1993); Kalimara v. Illinois Department of Corrections, 879 F.2d 276, 277 (7th Cir. 1989). Whether a suit is timely, however, also depends on the pertinent tolling provisions of the forum state's limitations law. Hardin v. Straub, 490 U.S. 536, 539, 104 L. Ed. 2d 582, 109 S. Ct. 1998 (1989). Although Illinois no longer tolls the running of the limitations period for its prisoners, at the time Bullock filed his second amended complaint Illinois law treated inmates as persons under a disability entitled to the benefits of its tolling rules, at least with respect to suits that were not directed against the Illinois Department of Corrections or its employees. Wilson v. Giesen, 956 F.2d 738, 741 (7th Cir. 1992); see also Dixon v. Chrans, 986 F.2d 201, (7th Cir. 1993) (holding state exception for correctional officials inconsistent with purposes of § 1983). As Bullock joined O'Hara to the action before Illinois amended its statutes to remove prisoners from the class of litigants considered to be under a legal disability, his complaint would appear to be timely.

 O'Hara sees it differently. He maintains the tolling of the statute of limitations stopped at the time Bullock first initiated this action. Under this theory, Bullock had two years to bring O'Hara into the action. O'Hara maintains the suit is untimely as to him because nearly four years had elapsed by the time Bullock got around to naming O'Hara as a defendant in the second amended complaint. The validity of this contention must, of course, be tested against state law.

 O'Hara cites one case, Baird & Warner, Inc. v. Addison Industrial Park, Inc., 70 Ill. App. 3d 59, 387 N.E.2d 831, 26 Ill. Dec. 1 (1979), to support his argument. But that case has no applicability here. Plaintiff in Baird attempted to refile a previously dismissed claim after the statute of limitations had already run. He sought to avoid the limitations bar by arguing that the filing of the initial complaint tolled the running of the limitations period thereby allowing him additional time in which to bring a second suit. The court, however, rejected the notion that a plaintiff could extend the general limitation period by tacking on the time during which a prior suit was pending. 70 Ill. App. 3d at 75, 387 N.E.2d at 845.

 Unlike the plaintiff in Baird, Bullock is not seeking additional time within which to file his claim against O'Hara. State law still considered Bullock to be under a disability when Bullock filed his second amended complaint joining O'Hara to the action. Bullock's situation thus is more akin to that of the plaintiff in Casillas v. Rosengren, 86 Ill. App. 2d 139, 229 N.E.2d 141 (1969). Plaintiff in that case, a minor, attempted to refile an action several years after her previous lawsuit had been dismissed for want of prosecution. Finding that dismissal for want of prosecution was not an adjudication on the merits, the court remanded the case back to the trial court. The court found that refiling would not run afoul of the statute of limitations because plaintiff was still a minor and therefore still entitled to the benefits of the tolling statute. 86 Ill. App. 2d at 143, 229 N.E.2d at 143. Thus, under Casillas, the filing of the complaint is of no moment so long as the plaintiff is still under a disability at the time he refiles or, as in this case, seeks to join an additional party to a pending lawsuit.

 III. Ronnie, Jr.

 In the second amended complaint, Bullock asserts claims on behalf of his son Ronnie, Jr. who was fifteen-months old at the time of the events at issue in this case. Bullock alleges that police refused to let him take Ronnie Jr. home before submitting to their questioning. He asserts the officers held his son in custody for four hours before releasing him to his mother. The officers allegedly refused to allow Ronnie, Jr. to eat or use the restroom during this time. Bullock maintains that defendants treatment of him frightened his son and complains that O'Hara physically took his son from him at one point and threatened to give him to a matron unless Bullock answered their questions.

 Defendants moved to dismiss Ronnie, Jr. from the action arguing, inter alia, that a minor could bring claim in a lawsuit only through his or her legal guardian. On June 20, 1990, Judge Marovich granted the motion with leave to reinstate Ronnie, Jr. as a party when Bullock named a guardian for his son. Bullock thereafter filed a motion asking the court to appoint a guardian for Ronnie, Jr. More recently, he filed a motion to amend seeking to reinstate his son as a plaintiff. For the reasons that follow, those motions are denied.

 Capacity to sue is determined by reference to the law of the individual's domicile. Fed.R.Civ.P. 17(b). A minor in Illinois cannot bring suit in his own name. Severs v. Country Mutual Life Insurance Co., 89 Ill. 2d 515, 520, 434 N.E.2d 290, 292, 61 Ill. Dec. 137 (1982). Because Ronnie, Jr. cannot bring suit in his own name, he can litigate only through someone acting in a representative capacity. A parent may sue on behalf of his or her minor child as a next friend if the parent is represented by counsel and has no interests that conflict with those of the child. See In re Chicago, Rock I., & Pac. R.R., 788 F.2d 1280, 1282 (7th Cir. 1986). Bullock, however, is proceeding without counsel. Although a parent has a right to litigate claims on his own behalf without an attorney, he cannot litigate the claims of his children unless he obtains counsel. Osei-Afriyie v. Medical College, 937 F.2d 876, 883 (3d Cir. 1991); Blue v. People, 223 ...


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