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PATTERSON v. LEYDEN

November 1, 1996

FLOYD PATTERSON, Plaintiff,
v.
DETECTIVE LEYDEN, et al., Defendants.



The opinion of the court was delivered by: PLUNKETT

MEMORANDUM OPINION AND ORDER

 Plaintiff Floyd Patterson filed a one-count complaint under 42 U.S.C. § 1983 against Chicago police officers James Leyden and Barrett Moran and the Chicago Police Department, alleging that Leyden and Moran had arrested him without an arrest warrant and searched his apartment and taxicab without a search warrant. Patterson sought leave to proceed in forma pauperis. Leave was granted April 9, 1996 with respect to Leyden and Moran, while the Chicago Police Department was dismissed since it is not a suable entity.

 Leyden and Moran have moved to dismiss the complaint. Patterson has sought leave to file an amended complaint adding seven police officer defendants, and his motion was continued pending decision of the motion to dismiss. For the reasons discussed below, Patterson's motion to amend is denied without prejudice, the motion to dismiss is granted in part and denied in part, and this suit is stayed pending the final determination of the validity of Patterson's conviction by the Illinois courts.

 A. Pleading Requirements

 Defendants' first objection to the complaint is that it improperly combines multiple claims in a single count; their second is that it violates Rule 8(a) by not providing a "short and plain statement" of Patterson's claims. The court agrees. The defendants are entitled to a reasonably clear statement of what each one is accused of doing and how this is alleged to have violated Patterson's rights.

 Although Patterson should have received the defendants' motion before he filed his proposed amended complaint, the amended complaint does not cure these defects. The proposed amended complaint has the additional problem that it adds seven new defendants without specifying what each of them did to violate Patterson's rights. Patterson complains of at least three separate actions: an arrest, a search of his apartment and a search of his cab. It is unlikely that all ten officers participated in each. Patterson's motion to file the proposed amended complaint is denied without prejudice to his filing an amended complaint that complies with the Federal Rules.

 Because the complaint appears to state a claim, and because it is enough to put the defendants on notice of the nature of the claims asserted -- or most of them -- the court will not dismiss the complaint on this ground. Nevertheless, defendants' motion to dismiss the complaint under Rules 8 and 10 will be treated as a motion under Rule 12(e) for a more definite statement, and, as such, it is granted. As will be explained below, this suit will be stayed. Within 45 days after the entry of an order lifting the stay, Patterson must file either an explanatory statement, a list of the specific acts each of the two defendants is alleged to have done, with each allegation in a separate numbered paragraph, or an amended complaint similarly setting forth this information. An amended complaint, but not an explanatory statement, may include additional defendants. If Patterson fails to do so, the original complaint will be stricken and the suit dismissed as provided in Rule 12(e).

 B. Elements of Patterson's Claims

 Defendants take the position that the complaint does not set forth the elements of any claim. Federal pleading, of course, does not require that the formal elements of a cause of action be set forth. A motion to dismiss should not be granted unless the court concludes that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). In deciding the motion, we must not only assume that the alleged facts are true, we must draw every reasonable inference in the plaintiff's favor. Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992). Nevertheless, "The complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Sutliff v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir. 1984) (quoting 5 Wright and Miller, Federal Practice and Procedure § 1216 at 121-23 (1969)).

 Defendants are correct that Patterson has not alleged a claim for forgery under Illinois law. Patterson alleges that Leyden stated at one point that he signed a police report, but later stated that he didn't know whether he signed it personally, admitting that sometimes his partner "forges" his signature. One person may authorize another to sign a document on his behalf. If his partner signed Leyden's name with his approval, the only reasonable inference here, it would not be forgery.

 Patterson also cannot recover from either defendant for perjury. Policemen, like other witnesses, have absolute immunity from liability for testimony given in a criminal proceeding. Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983), held that witnesses have absolute immunity for giving perjured testimony at a criminal trial, and the Seventh Circuit has extended absolute immunity to witnesses testifying pretrial hearings. Curtis v. Bembenek, 48 F.3d 281 (7th Cir. 1995).

 We now come to Patterson's central claims of unlawful search and arrest. Defendants are correct that neither a warrantless arrest nor a warrantless search is necessarily a constitutional violation, but the record discloses the outline of a claim. In reviewing a pro se complaint, the court is directed to consider the allegations contained in all documents filed with the court. Hughes v. Rowe, 449 U.S. 5, 10 n.8, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992). Patterson's amended complaint, while unacceptable as a complaint, may be considered in determining whether Patterson has stated a claim. A warrantless search is normally only permissible if consent has been obtained, as an incident to an arrest that is otherwise justified, or when exigent circumstances excuse the warrant requirement. Patterson states in his amended complaint that he was "practically forced" to let the police search his house and cab, negating consent, and it may be reasonably inferred that his arrest was a result of the searches rather than the other way around. Under federal notice pleading, Patterson does not have the burden of pleading the absence of exigent circumstances. He has therefore alleged searches in violation of his Fourth Amendment rights, and, inferring that the search yielded probable cause for his arrest, an unlawful arrest as well.

 EFFECT OF PATTERSON'S CONVICTION

 Defendants have provided a certified statement by the Clerk of the Circuit Court of Cook County showing that Patterson was convicted of attempted murder and sentenced on December 18, 1995 to 18 years imprisonment. Def. Exh. C. Defendants are correct that the court may take judicial notice of matters of public record in deciding a motion to dismiss without converting it to a motion for summary judgment. Henson v. Edit Services, 29 F.3d 280, 284 (7th Cir. 1994). According to defendants, Patterson's conviction has two consequences. First, it negates the element of lack of probable cause, foreclosing a claim for an unlawful ...


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