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April 29, 1998

HARRY B. MADSEN, Plaintiff,

The opinion of the court was delivered by: HART


 Pro se plaintiff Harry Madsen brings this suit against various state and municipal employees. *fn1" Madsen claims he was deprived of his civil rights when stopped and issued a citation by a Park City, Illinois police officer. Presently pending are certain defendants' motion to dismiss, the motion for judgment on the pleadings of other defendants, and plaintiff's motion to voluntarily dismiss certain defendants.

 The same standards apply to both the Rule 12(c) motion for judgment on the pleadings and the Rule 12(b)(6) motion to dismiss. Gutierrez v. Peters, 111 F.3d 1364, 1368 (7th Cir. 1997). As to both motions, plaintiff's well-pleaded allegations of fact are to be taken as true and all reasonable inferences are drawn in plaintiff's favor. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 164, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992). A complaint need not set forth all relevant facts or recite the law; all that is required is a short and plain statement showing that the party is entitled to relief. Fed. R. Civ. P. 8(a); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). A plaintiff in a suit in federal court need not plead facts; conclusions may be pleaded as long as the defendant has at least minimal notice of the claim. Fed. R. Civ. P. 8(a)(2); Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995). It is unnecessary to specifically identify the legal basis for a claim as long as the facts alleged would support relief. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). It is also true, however, that a plaintiff can plead himself out of court by alleging facts showing no viable claim. Jackson, 66 F.3d at 153-54; Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir. 1993), cert. denied, 511 U.S. 1085, 128 L. Ed. 2d 465, 114 S. Ct. 1837 (1994); Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). Additionally, because Madsen is proceeding pro se, his complaint must be construed liberally with plaintiff being held to less stringent standards than those applied to complaints drafted by attorneys. Swofford, 969 F.2d at 549. Also, consideration is not limited to the complaint; allegations contained in other court filings such as plaintiff's answer to the motion to dismiss must be considered as well. Id.

 Plaintiff alleges that, on January 26, 1996 at 2:00 a.m., he was driving in Waukegan, Illinois in obedience with the traffic laws. A car began following behind which turned out to be a Park City squadrol driven by defendant James Leding, a Park City police officer. The squadrol followed behind at normal speed for a short distance; there was no chase. Eventually, the squadrol turned on its dome lights and plaintiff pulled over. Leding questioned plaintiff and obtained plaintiff's driver's license and proof of insurance. After a discussion between defendant "Dispatching Officer" and police sergeant Al Leggans, *fn2" Leding issued a citation to plaintiff. While plaintiff was stopped, a Waukegan police car also pulled up and observed the incident. This car was driven by defendant "Waukegan Police Officer."

 Plaintiff refers to the incident as an "arrest." He does not claim that he was in custody other than to the extent that Leding required that plaintiff stop and stay by his car. Plaintiff does not allege what the citation was for. *fn3" Plaintiff claims the citation was false and fraudulent in that it falsely stated that plaintiff was stopped and the citation issued within Park City, whereas during all pertinent times plaintiff was in Waukegan. Plaintiff further contends that the arrest and citation was illegal because it occurred outside the jurisdiction of Park City. There is no contention that the citation is false as to the violation stated therein nor is there any contention that Leding lacked reasonable suspicion or probable cause to stop and question plaintiff.

 Plaintiff further alleges that his car was towed from the spot where the citation was issued. The complaint is silent as to what happened to plaintiff after the car was towed. There is no contention that he was taken to a local detention center or that the officers abandoned him at the side of the road. There is also no express contention that no basis existed for towing the car. Defendant J.R. Wrecker Service, Inc. ("J.R.") towed plaintiff's car pursuant to a contract with Park City. Theodore Richter, Debra Lee Richter, and "Tow Truck Driver" (respectively the president, the secretary, and an employee of J.R.) are also named as defendants.

 The law firm of Magna & Hauser represents Park City in prosecuting these types of citations. The firm is named as a defendant as is Rudolf Magna (the firm's "leading partner") and Tracy Callow (an employee of the firm who assisted with the prosecution). Magna is alleged to have established policies for the prosecutions that were followed by James Hauser (the partner who actually conducted the prosecution of plaintiff's citation) and Callow. Hauser is not named as a defendant. Instead, the body of the complaint acknowledges that Hauser has prosecutorial immunity. The judge who presided over the case is not named as a defendant, but is referred to in the body of the complaint where it is acknowledged that he is entitled to judicial immunity.

 It is claimed that Hauser, with the complicity of Callow and in accordance with standard procedures promulgated by Magna, falsified records for the prosecution. Plaintiff claims there was an "evidentiary conflict" as to the license plate number of his vehicle. He moved to dismiss the citation on the ground that the license plate number was incorrectly stated in a letter dated April 23, 1996. He contends that defendants Vicki S (later identified as Vicky Schulte) and "Typing Poolee" in the Secretary of State's office then provided a false record by producing a new letter on May 3, 1996 changing the license plate number to correctly match plaintiff's car and again dating the letter April 23, 1996. Plaintiff does not allege that the information about his car was incorrect; he alleges only that the dating of the second letter was incorrect and an intentional falsification. Plaintiff claims that the prosecution team was aware of the false dating of the letter and also aware of the falsely stated location in the citation. The prosecutors eventually decided to drop the charges.

 The Illinois Secretary of State is also named as a defendant in his individual and official capacities and is alleged to be aware of a practice of issuing documents for traffic prosecutions that are known to contain incorrect information. As to Secretary of State personnel who are named as defendants, it is alleged that Vickie S. knowingly processed, Typing Poolee knowingly prepared, and Jim Schneider knowingly signed the cover letter of the document with the falsified date. Gail (later identified as Faythia Gail Williams) of the Secretary of State's office is also named as a defendant.

 It is also claimed that Park City engages in a practice of regularly issuing citations outside its municipal boundaries in order to enhance its revenues. Besides naming Park City as a defendant, plaintiff names as defendants in their individual capacities: Mayor Robert Allen; City Council members William Schaefer, Kenneth Enberg, and Richard Palimieri; and Police Chief Michael Fluff. *fn4" All are alleged to have known of this revenue-enhancing practice and to have implemented, promoted, or condoned it.

 Plaintiff seeks both damages and injunctive relief. However, because plaintiff was no longer under arrest or under prosecution at the time he filed this complaint, he lacks standing to seek injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983); County of Riverside v. McLaughlin, 500 U.S. 44, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991); Garcia v. City of Chicago, 24 F.3d 966, 969 (7th Cir. 1994), cert. denied, 514 U.S. 1003, 131 L. Ed. 2d 194, 115 S. Ct. 1313 (1995).

 Defendants Ryan, Schneider, Vickie S., and Gail answered the complaint and also moved for judgment on the pleadings. Defendants Park City, Allen, Schaefer, Enberg, Palimieri, Fluff, Leggans, Leding, Dispatching Officer, Magna, Callow, and Magna & Hauser moved to dismiss the complaint. Subsequently, plaintiff moved to voluntarily dismiss without prejudice the following defendants: Magna & Hauser, J.R., Theodore Richter, Debra Lee Richter, Tow Truck Driver, Waukegan Police Officer, Ryan (individual and official capacity), Gail, Schneider, Vickie S., and Typing Poolee.

 Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure permits a plaintiff to voluntarily dismiss the cause of action against one or more defendants without prejudice as long as it is prior to the answer or a summary judgment motion and as long as there has not been a prior dismissal of an action involving the same claim. A plaintiff has an absolute right to do this; leave of court is not required and the court may not limit or condition this right. Scam Instrument Corp. v. Control Data Corp., 458 F.2d 885, 888-89 (7th Cir. 1972); Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993); Hare v. Abbott Laboratories, 1997 U.S. Dist. LEXIS 5992, 1997 WL 223056 *1 (N.D. Ill. April 29, 1997). In a multiple defendant case, it is permissible to voluntarily dismiss just some of the defendants, Pedrina, 987 F.2d at 609-10; C.A. Wright & A. Miller, Federal Practice & Procedure § 2362 at 250-52 (2d ed. 1994), and the fact that some of the defendants have already answered does not preclude invoking this rule as to other defendants, Aggregates (Carolina), Inc. v. Kruse, 134 F.R.D. 23, 25-26 (D.P.R. 1991). A motion to dismiss (unless it relies on outside documents such that it is actually a summary judgment motion) is not considered to be an answer or summary judgment motion that precludes application of Rule 41(a)(1)(i). Scam Instrument, 458 F.2d at 889-90; Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995), cert. denied, 517 U.S. 1183, 134 L. Ed. 2d 772, 116 S. Ct. 1710 (1996); Ansonia Tenants' Coalition, Inc. v. Ansonia Associates, 163 F.R.D. 468, 469-70 (S.D.N.Y. 1995); Bryan v. Federal Deposit Insurance, 1987 U.S. Dist. LEXIS 7124, 1987 WL 15420 *1 (N.D. Ill. Aug. 3, 1987).

 Since defendants Ryan, Schneider, Vickie S., and Gail answered the complaint before plaintiff sought to voluntarily dismiss them, plaintiff does not have the right to dismiss the claims against those defendants without prejudice. Therefore, the motion for judgment on the pleadings will be considered on its merits and, since grounds for granting that motion exist, the claims against these defendants will be dismissed with prejudice. As to the other defendants plaintiff seeks to voluntarily dismiss, plaintiff's motion will be granted and the claims against those defendants will be dismissed without prejudice. Such dismissal, however, would not preclude any possible collateral estoppel effect of the dismissal with prejudice of the claims against the other ...

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