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October 19, 2004.

CLARK ARMOND, Plaintiff,
OFFICER BURWELL, et al, Defendants.

The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge


Plaintiff Clark Armond, a prisoner in the custody of the Illinois Department of Corrections, filed this pro se civil rights action under 42 U.S.C. § 1983 seeking $7.1 million in damages from the police officers who arrested him, the state's attorneys who prosecuted him, and his defense attorneys public and private, in a virtual "soup to nuts" attack on his criminal arrest, prosecution, conviction and appeal. For the following reasons, the court dismisses this action in its entirety.

Because Armond is a prisoner suing governmental employees, the court is required to review the complaint prior to service and dismiss any portion of the complaint it finds frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915A. In determining whether the complaint states a claim upon which relief may be granted, the court applies the familiar standard employed in ruling upon a contested motion to dismiss under Rule 12(b)(6): the court accepts the allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor. Wynn v. Southward, 251 F.3d 588, 591-92 (7th Cir. 2001).

  The court is not, however, required to believe the unbelievable, and a claim based on incredible factual allegations should be dismissed as frivolous. Gladney v. Pendleton Correctional Facility, 302 F.3d 773, 774 (7th Cir. 2002). A claim will also be dismissed as frivolous if it is clear from the complaint and exhibits that a dispositive affirmative defense, such as limitations, would keep the claim from reaching first base. Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002). ALLEGATIONS OF THE COMPLAINT

  Armond alleges he was arrested on December 7, 1996, by four Chicago police officers, defendants Burwell, Parks, Lewis and Oglesby, who kicked in Armond's door, searched Armond's home and "trashed" it, and deliberately inflicted pain on Armond when he asked to see an arrest or search warrant. Armond alleges Burwell and Parks conspired to fabricate a call to the 911 telephone emergency service complaining of an aggravated battery as a pretext for arresting him. Defendants Winstead and Habiak, also Chicago police officers, allegedly joined this conspiracy by "unlawfully subjecting [Armond] to an illegal photographing [sic] line up," Cmplt. ¶ 7, in which Armond was identified as the perpetrator of an armed robbery.

  At a hearing on Armond's motion to quash his arrest and suppress evidence on December 16, 1997, Armond alleges that Burwell, allegedly in conspiracy with the assistant state's attorney, defendant Clarissa Palermo, gave false testimony to cover up the officers' arrest and search without probable cause. Judge Flannery of the Circuit Court of Cook County granted the motion to quash the arrest, stating that although the officers had probable cause to arrest Armond, they had not been justified in arresting him in his home without a warrant when they could have obtained one.

  Judge Flannery suppressed shotgun shells found in Armond's home as fruits of the unlawful arrest, and asked Armond's public defender, defendant Steven Powell, what other evidence he was seeking to suppress. (Armond's public defender is identified in transcript excerpts attached to the complaint as "Stephen W. Power," but is consistently called "Powell" in the complaint.) Powell stated the he "was seeking to have suppressed the lineup procedure that was used with the witness Carlos Martinez as well as a statement that I received from Mr. Clark [sic]." Judge Flannery asked whether the statement was made at the police station. Told that it was, Judge Flannery denied the motion to suppress the statement and the lineup, because there had been probable cause to arrest Armond and only the officers' entry into his home had been unlawful.

  Armond alleges that there was no such statement, that Powell conspired with Palermo, Burwell and Parks in saying there was, and that this statement prejudiced Armond before Judge Flannery by implying that Armond had confessed to a crime. Armond also alleges that Powell conspired with Palermo to have the case transferred to Judge Lawrence P. Fox, whom he alleges was more sympathetic to the prosecution. Armond states he "had no knowledge of this transfer, how, who, or when this happen," Cmplt. ¶ 17, and alleges that this advanced Powell's own interest to Armond's detriment.

  Armond further claims that Powell misled him to believe that Powell would "defend the proceedings" and "would subject state's case to adversary test." Cmplt. ¶ 18. Powell "failed to present any case law or cannons of law to defend every element of said proceeding," and Powell's misstatement "prejudiced plaintiff at a critical stage." Id. ¶ 20.

  Armond and his family retained a private attorney, Rick Beuke, who began representing Armond in March of 1998, and whom Armond also names as a defendant. Armond alleges Beuke failed to investigate why his case was transferred from Judge Flannery after Judge Flannery's ruling in Armond's favor. Armond alleges that Beuke assured him and his family that because Armond's arrest had been quashed, the case should have been dismissed, and that he would bring a pretrial motion to challenge evidence obtained subsequent to Armond's arrest. Beuke "failed to present any evidence, case law cannons of law to defend every element of the proceedings to adversarial test." Cmplt. ¶ 31. Armond alleges that he had witnesses who would have testified in his behalf at trial, but Beuke did not call them, telling them they didn't need to testify. Armond also alleges Beuke failed to file an appellate brief on his behalf.


  Armond brings this action under 42 U.S.C. § 1983, which provides a cause of action for persons deprived of any right guaranteed by the Constitution or federal law by persons acting under color of state law. Although the potential claims in Armond's complaint suffer from other defects as well, each is defeated by its timing. Every claim has been brought either too late, after the expiration of the limitations period, or too soon, because it cannot be asserted while Armond's criminal conviction stands.

  The limitations period for claims under § 1983 corresponds to the limitations period for personal injury claims under the law of the state where the injury occurred, Wilson v. Garcia, 471 U.S. 261, 280 (1985), and accordingly Illinois' two-year limitations period, 735 ILCS 5/13-202, governs § 1983 claims arising in Illinois. Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001). The two-year limitations period commences when the claim accrues, that is, when the plaintiff can bring suit on it, and when a claim under § 1983 accrues is determined by federal common law. Heard v. Sheahan, 253 F.3d 316, 317-318 (7th Cir. 2001).

  A claim under § 1983 normally accrues at the time the plaintiff knew or should have known that his constitutional rights have been violated. Licari v. City of Chicago, 298 F.3d 664, 668 (7th Cir. 2003). That is not always the case, however, when a § 1983 claim arises out of a criminal prosecution and conviction. The Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994), effectively divided claims arising out of a plaintiff's arrest and prosecution into two classes. If proof of the plaintiff's claim would necessarily imply the invalidity of his criminal conviction, he may not sue under § 1983 for damages resulting from that conviction until his conviction has been invalidated, either through state-court proceedings, executive pardon, or a federal writ of habeas corpus. The related civil claim accrues only if and when the conviction is invalidated, and the limitations period commences at that time. On the other hand, if proof of the plaintiff's ...

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