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April 3, 2003


The opinion of the court was delivered by: James B. Moran, Senior Judge, United States District Court


Plaintiff Ronnie Bullock, Sr. filed a complaint against Officer J. Beck, the Village of Homewood, and Village of Homewood Police Department seeking damages for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. Along with the complaint, plaintiff filed a petition to proceed in forma pauperis. For the following reason, plaintiff's petition is granted.

Pursuant to 28 U.S.C. § 1915 (a) we may authorize petitioner to proceed in forma pauperis if he demonstrates an inability to pay the required costs and fees. Petitioner's affidavit states that he has virtually no money in his bank accounts and owns no valuable property.

Our Inquiry does not end there however. As part of the review of a petition to proceed in forma pauperis, we conduct an initial review of the claims and dismiss the complaint if we determine that the action is frivolous or malicious, it falls to state a claim upon which relief may be granted, or seeks damages from a defendant who is immune from such relief 28 U.S.C. § 1915 (e)(2)(B)(1)-(iii); Alston v. Debruyn, 13 F.3d 1036, 1039 (7th Cir. 1994). We review the claim using the same standard as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). Pursuant to Rule 12(b)(6) we dismiss a claim only lilt appears beyond a doubt that there exist no facts to support the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Complaints by pro se parties should "be liberally construed and not held to the stringent standards expected of pleadings drafted by lawyers." McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000).

Plaintiff alleges that he was wrongly arrested and prosecuted for reckless driving and resisting arrest. He claims that, following a confrontation with Officer Beck, Beck watched him drive away safely, followed him and arrested him. He further alleges that Beck charged him with resisting arrest even though he was willing to cooperate with the officer. It Is unclear from the complaint whether he was eventually convicted or acquitted of the charges and even which of the charges he was prosecuted for. Plaintiff claims that his constitutional rights were violated because of the false arrest, unlawful detention and malicious prosecution.

Plaintiff states a claim for a violation of his Fourth Amendment rights when he was arrested and detained. We read plaintiffs claim as alleging that Officer Beck had no cause to believe that he was violating any laws, yet he arrested plaintiff without a warrant. If true, this would be an unlawful seizure of the plaintiff. The claims also serve to defeat Officer Beck's qualified immunity. A police officer is immune from suit if he could have mistakenly, yet reasonably believed that probable cause existed for an arrest. Wollin v. Gondert, 192 F.3d 616, 622-23 (7th Cir. 1999). Again, taking plaintiffs pleadings as true, no officer could reasonably have believed that plaintiff was in violation of the law at the time of this arrest.

If plaintiff was convicted of the charges in question, and these convictions have not been subsequently overturned, his claim will be barred by Heck v. Humphrey, 512 US. 477, 487 (1994). "A claim for damages bearing that relationship to a conviction or sentence that has not been invalidated is not cognizable under § 1983." Id. Because we do not know whether plaintiff was convicted or not, his complaint states a claim.

Plaintiff cannot state a separate claim for malicious prosecution. The Seventh Circuit has read Albright v. Oliver, 510 U.S. 266 (1994) as eliminating a constitutional claim for malicious prosecution based on due process fights. Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001). If the charges against plaintiff have previously been terminated in his favor, he may have a state law claim. Id. This potential state law claim "knocks out" any potential constitutional tort. Id. Any claim brought by the plaintiff based on the allegedly improper prosecution would again be alleging violations of his Fourth Amendment rights. Id. at 751-52.

Plaintiff likewise cannot state a claim against the police department or the village itself. There is no respondeat superior liability in claims of constitutional violations. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 693-94 (1978). Instead, plaintiff must point to an official custom or policy of the municipality which "may fairly be said to represent official policy." Plaintiff fails to allege that such a policy caused the injury and cannot therefore state a claim against the village or its police department


Because plaintiff alleges a Fourth Amendment violation, his petition to proceed in forma pauperis is granted. His claims against defendants Village of Homewood and Village of Homewood Police Department are dismissed.


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