action arose at that time. Id. The subsequent reversal did not delay the accrual of the cause of action.
However, in a concurring opinion, Justice Ginsburg suggested that, for a § 1983 claim to be free from criminal prosecution, the limitation period should begin to run upon dismissal of the criminal charges, not at the start of the state procedures. Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807, 816 (1994) (Ginsburg, J., concurring). The majority did not address this issue because it was not presented in the petition for certiorari. Id. at 813.
Adhering to the law of this circuit, as the court must, DiBenedetto's claim for malicious prosecution is time-barred. The claim accrued when he was arrested on January 25, 1992. (Compl. P 9.) Although DiBenedetto was arrested a second time, (Compl. P 13), he failed to plead the date of the second arrest. The court has no date to determine when a claim stemming from second arrest accrued. Therefore, the court uses January 25, 1992, as the date of accrual for all claims. Since DiBenedetto filed his complaint on March 24, 1994, over two years after the arrest of January 25, 1992, the claims are time-barred. Accordingly, the claims against Cullotta are dismissed.
In the event that a more artfully pleaded amended complaint presents facts to avoid the limitation bar, the court addresses the following issue. Cullotta argues that § 1983 does not provide a means to bring a malicious prosecution claim. That is, malicious prosecution is not a constitutional tort, actionable under a § 1983 claim. Malicious prosecution is not generally viewed as actionable under § 1983 in the Seventh Circuit. Vukadinovich v. Zentz, 995 F.2d 750, 756 (7th Cir. 1993) ("Standing alone, malicious prosecution is not actionable under § 1983"); Mahoney v. Kesery, 976 F.2d 1054, 1059-61 (7th Cir. 1992); Easter House v. Felder, 852 F.2d 901, 910 (7th Cir. 1988); Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir. 1985) ("the common law tort of malicious prosecution does not give rise to a federal constitutional wrong remedied by 42 U.S.C. § 1983."); Yaworski v. Pate, 717 F. Supp. 624, 625 (N.D. Ill. 1989) (Norgle, J.). In Mahoney, the court analogized that if defamation by public officers is not actionable, it would be difficult to conclude that malicious prosecution is. Mahoney, 976 F.2d at 1060. The court held that, since the tort is not an exceedingly serious one, malicious prosecution does not rise to the level of a constitutional tort. Id.
In Albright, the Supreme Court definitively stated that a claim for freedom from criminal prosecution may not be premised upon substantive due process. Id. at 814. However, the Court did not express an opinion as to whether such a claim would succeed premised upon the Fourth Amendment since that issue was not raised in the appeal. Id. at 813. Justice Ginsburg, in a concurring opinion, discussed the issue and concluded that the Fourth Amendment would proscribe the alleged false criminal prosecution. Id. at 817. Notwithstanding the concurring opinion in Albright, this court is not persuaded to stray from the aforementioned precedent of the Seventh Circuit. Accordingly, to the extent that the it is premised on § 1983, DiBenedetto's malicious prosecution claim is dismissed.
The two remaining federal claims against Cullotta are one for false imprisonment and one for a § 1983 violation. The court notes that, curiously, the pleading and motions are devoid mention of the issuance of warrants. See generally Patton v. Przybylski, 822 F.2d 697, 699 (7th Cir. 1987) (holding that police officers are entitled to rely on a facially valid warrant). The parties acknowledge that criminal complaints were filed and that DiBenedetto was arrested; however, there is no mention of whether a state court issued warrants for either of the arrests. Had warrants been issued, a § 1983 claim against the police officer would most likely not stand. Furthermore, the issue of the officer's qualified immunity was not raised. Government officials performing discretionary functions are generally shielded from liability. Sherman v. Four County Counseling Center, 987 F.2d 397, 405 (7th Cir. 1993).
Nevertheless, to state a cause of action based upon § 1983, plaintiff's factual allegations must establish that the defendant, acting under color of law, deprived the plaintiff of his constitutional rights. Parratt v. Taylor, 451 U.S. 527, 536, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992). Regarding Cullotta, the complaint alleged that, acting under color of state law, he agreed with Ohanessian "to have the plaintiff falsely charged with said offenses, and ultimately arrested." (Compl. P 14.) This smacks of conspiracy, yet no conspiracy was properly alleged. "A complaint must contain more than mere conclusory allegations of such a conspiracy; a factual basis for such allegations must be provided." Bowman, 980 F.2d at 1107. Paragraph 14 is conclusory. The facts provided are insufficient to establish a conspiracy, let alone a conspiracy with a purpose to deprive DiBenedetto his constitutional rights. See id. The complaint leaves the court straining to find inferences favorable to DiBenedetto. Even under the liberal motion to dismiss standard, the court need not strain to find favorable inferences which are not apparent within the four corners of the complaint. Coates v. Illinois State Bd. of Educ., 559 F.2d 445, 447 (7th Cir. 1979). The court holds that the mere assertion that a police officer "agreed and arranged" to act upon a criminal complaint he believed to be false is not enough to aver a constitutional violation. To hold otherwise would subject every police officer acting on a criminal complaint to a federal case. Accordingly, the constitutional violations against Cullotta are dismissed.
In addition, even if the named police officer had malevolent motives for arresting the plaintiff, the existence of probable cause for an arrest would preclude § 1983 claim for unlawful arrest. Mark v. Furay, 769 F.2d 1266, 1268-69 (7th Cir. 1985). Whether plaintiff actually battered Ohanessian and, after she signed a criminal complaint against him, threatened her is not material to the determination of probable cause. The issue is whether the police had reasonable grounds to act, not whether it is reasonable to conduct further investigation. United States v. Edwards, 415 U.S. 800, 807, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974). The test for probable cause is an objective one: "Probable cause does not depend on the witness turning out to have been right; it's what the police know, not whether they know the truth, that matters." Gramenos v. Jewel Co., 797 F.2d 432, 439 (7th Cir. 1986). Regarding what the police officers in this case knew, the Seventh Circuit has held that "When an officer has 'received his information from some person--normally the putative victim or an eye witness--who it seems reasonable to believe is telling the truth,' he has probable cause." Grimm v. Churchill, 932 F.2d 674, 675 (7th Cir. 1991).
As against the last defendant, DiBenedetto claims that Ohanessian, a private citizen, acted under color of state law and, as such, is liable pursuant to § 1983. As the Supreme Court has stated:
To act "under color of" state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its Agents. Private persons, jointly engaged with state officials in the challenged action, are acting . . . "under color" of law for purposes of § 1983 actions.