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Washington v. Summerville

September 17, 1997

GEORGE WASHINGTON, PLAINTIFF-APPELLANT,

v.

JOHN SUMMERVILLE, DETECTIVE #16520, P. FOLEY, DETECTIVE #12215, J. CAPESIUS, DETECTIVE #11093, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 203 George M. Marovich, Judge.

Before BAUER, HARLINGTON WOOD, JR., and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

ARGUED FEBRUARY 27, 1997

DECIDED SEPTEMBER 17, 1997

Plaintiff George Washington filed an action under 42 U.S.C. sec. 1983 against three detectives in their individual capacities and against the City of Chicago under the doctrine of respondeat superior. Among the eight counts in the complaint were allegations of unlawful arrest, excessive force, and federal and state claims for malicious prosecution. The detectives and the City moved to vacate or dismiss Washington's complaint for failure to state timely and/or cognizable claims under sec. 1983. The district court denied Defendants' motion to vacate, dismissed six of the counts, and granted summary judgment for Defendants on the remaining two counts. Washington appealed. On appeal, Washington maintains that his claims of unlawful arrest and excessive force were timely filed and that his malicious prosecution claims should be recognized.

Background

The district court accepted Washington's factual allegations as true for purposes of the detectives' motion to dismiss, and we do the same on appeal. Apostol v. Landau, 957 F.2d 339, 343 (7th Cir. 1992) (citations omitted). On March 9, 1991, Detective John Summerville and another detective stopped an automobile at the intersection of Cermak Road and Fairfield Street in Chicago. Without a warrant, the detectives arrested George Washington, a passenger in the car. Summerville shoved Washington's head against the trunk of the car. After transporting Washington to Area IV Headquarters, the detectives took him to an interrogation room, where they pushed Washington's head against a wall, knocking him unconscious. The detectives then handcuffed Washington to the wall of the interrogation room. Summerville struck Washington in the throat and demanded that Washington make an inculpatory statement. He then left the room.

According to Washington's complaint, Detective Patrick Foley told Washington that his treatment would grow steadily worse if he refused to cooperate. When Washington replied that he did not understand what Foley was talking about, Foley struck Washington across his face. Summerville then returned to the interrogation room and strongly suggested that Washington should tell an Assistant State's Attorney about his involvement in a murder. When Washington again stated that he did not know what the detective was talking about, Summerville kicked Washington in the groin. Washington's complaint also accused Detective James Capesius of making similar threats if Washington failed to cooperate.

After Summerville repeatedly struck him in the ribs with a flashlight, Washington made some inculpatory statements concerning the murder. Washington then repeated his statements to Assistant State's Attorney ("ASA") Michael Cawley.

On April 5, 1991, Washington was indicted for first degree murder in Illinois state court. On November 8, 1991, Washington filed a motion to suppress his statements on the ground that they were coerced by the detectives' excessive force. The court denied the motion. Washington filed two subsequent motions for reconsideration and/or rehearing on the motion to suppress, both of which the trial court denied.

On October 6, 1993, Washington filed a third motion for reconsideration and/or rehearing. After reading newspaper stories about Summerville's alleged drug use and other criminal activity, the court decided to reopen and hold a hearing on Washington's motion. The court was informed that Summerville would invoke his Fifth Amendment privilege against self-incrimination in response to any inquiries about his reported drug use. The court concluded that Washington was entitled to cross examine Summerville on his drug use and that it had no other choice but to grant Washington's motion and suppress his statements. Washington was released from custody on May 23, 1994 after the court granted the State's Attorney's nolle prosequi motion.

On January 12, 1994, Washington filed a pro se complaint and a motion for leave to proceed in forma pauperis in the Northern District of Illinois, Eastern Division. In his complaint, Washington alleged various claims of excessive force and failure to protect under 42 U.S.C. sec. 1983. He named Cook County State's Attorney Jack O'Malley, ASA Cawley, Det. Summerville, Det. Foley, Det. Capesius, the Chicago Police Department, and the Cook County State's Attorney's Office as defendants. Summerville, Foley, and Capesius were never served with the complaint.

On April 29, 1994, Judge Ann Claire Williams gave Washington until May 10, 1994 to show cause why his complaint should not be dismissed because it was filed after the statute of limitations had run. On June 9, 1994, upon receiving no response from Washington, Judge Williams denied Washington's motion for leave to proceed in forma pauperis and dismissed his complaint as untimely.

On February 27, 1995, Washington filed a motion to vacate the June 9, 1994 order. Judge Williams granted Washington's motion and allowed him to file an amended complaint. Washington filed an eight-count amended complaint on March 9, 1995, naming Detectives Summerville, Foley, and Capesius in their individual capacities and the City of Chicago under respondeat superior. The detectives and the City moved to vacate or dismiss Washington's first amended complaint. The district court (Judge George M. Marovich) *fn1 denied Defendants' motion to vacate, dismissed Counts I, II, IV, V, VII and VIII of Washington's first amended complaint, and granted summary judgment in favor of Defendants on Counts III and VI. *fn2 Washington filed a notice of appeal on May 1, 1996.

On appeal, Washington contends that his allegations of unlawful arrest and unreasonable force were timely filed. Washington also argues that he pleaded cognizable state and federal claims for malicious prosecution.

Analysis

A. The Heck v. Humphrey Hubbub

We review de novo a district court's 12(b)(6) dismissal. Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). We accept as true all facts alleged in the complaint and draw all reasonable inferences from them in the plaintiff's favor. Apostol v. Landau, 957 F.2d 339, 343 (7th Cir. 1992) (citations omitted). We will affirm the dismissal of a complaint if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)).

Washington argues that the district court should not have dismissed his sec. 1983 claims of unlawful arrest and excessive force as untimely. He believes that, under Heck v. Humphrey, 512 U.S. 477 (1994), his cause of action did not arise, and hence the statute of limitations on these claims did not begin to run, until the criminal proceedings against him had terminated because ...


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