United States District Court, N.D. Illinois, Eastern Division
October 19, 2004.
CLARK ARMOND, Plaintiff,
OFFICER BURWELL, et al, Defendants.
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
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
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 claim would not necessarily invalidate
a criminal conviction, it accrues in the manner of any other §
1983 claim. See Wiley v. City of Chicago, 361 F.3d 994, 996-97
(7th Cir. 2004), cert. denied, ___ S.Ct. ___, 2004 WL 2059429
(Oct. 4, 2004).
We begin with Armond's claims arising from his arrest and the
search of his home. Because Judge Flannery ruled that Armond's
warrantless arrest and the search of his home violated the Fourth
Amendment, it would appear that Armond has a valid claim under §
1983 against the arresting officers. However, the evidence found
in that search was suppressed and did not contribute to Armond's
conviction. Because proof that Armond's arrest and the search of
his home violated the Fourth Amendment would not impugn Armond's
conviction, his Fourth Amendment claims accrued at the time of
his arrest, December 7, 1996, and are now time-barred. 2. Lineup
Armond does not say why he claims the photographic lineup was
"illegal." Although a federal plaintiff may plead legal
conclusions, the complaint should at least "give the defendant
fair notice of what the plaintiff's claim is and the grounds upon
which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). A
lineup or a display of photographs for identification can support
a claim for damages under § 1983 only if it violated an
arrestee's constitutional right to a fair trial, i.e., it was
unduly suggestive and was viewed by a witness who testified at
the trial resulting in the arrestee's conviction. See Hensley v.
Carey, 818 F.2d 646, 649 (7th Cir. 1987); Alexander v. City of
South Bend, 256 F.Supp.2d 865, 877-78 (N.D.Ind. 2003).
Consequently, if the lineup violated Armond's rights at all, it
violated his right to a fair trial, and such a claim accrues only
after any resulting conviction has been set aside. Armond has not
alleged his conviction has been set aside, and the court takes
judicial notice of Illinois Department of Corrections' records
showing Armond serving a prison sentence for the conviction in
3. Suppression hearing
Armond's claim that defendant Burwell gave false testimony at
the suppression hearing is defeated by his own allegation that
Judge Flannery did not believe it; Burwell's alleged perjury
caused Armond no injury. This claim is also defeated by a
witness's absolute immunity from damage claims under § 1983 for
perjured testimony, recognized by the Supreme Court with respect
to trial testimony in Briscoe v. LaHue, 460 U.S. 325 (1983),
and extended by the Seventh Circuit to pretrial proceedings in
Curtis v. Bembenek, 48 F.3d 281, 285 (7th Cir. 1995). Absolute
immunity also shields a prosecutor, such as defendant Palermo,
from liability for presenting false testimony to the court, even
if she "conspires" with the witness in that she knows the witness
will lie. Manning v. Miller, 355 F.3d 1028, 1032 (7th Cir.
2004) (citing House v. Belford, 956 F.2d 711, 720 (7th Cir.
1992)). Armond claims Palermo presented "other illegal evidence"
at the hearing, Cmplt. ¶ 14, but with no indication of what the
evidence was or why it was illegal, this vague allegation cannot
state a claim. Armond next claims that Powell, his public defender, conspired
with Palermo, Burwell and Parks to "alter the course of Judge
Flannery's ruling" by asking Judge Flannery to suppress what
Powell called "a statement that I received from Mr. Clark [sic]."
Cmplt. Exh. A-3. Armond claims that Powell's mention of a
"statement" hinted that Armond had confessed, and this induced
Judge Flannery to deny the motion to suppress the lineup
evidence. This is frivolous. If an intimation of the defendant's
guilt invalidated a suppression hearing, there could be no
suppression hearings. A judge asked to suppress evidence may
infer that the evidence sought to be suppressed would tend to
incriminate the defendant, and usually the connection between the
evidence sought to be suppressed and the prosecution's case is
Armond argues that if he had given Powell a statement, it would
have been protected by attorney-client privilege, and Powell
should not have disclosed its existence. But Judge Flannery would
have understood Powell's reference to "a statement that I
received from [Armond]" to mean a statement Armond made, or
allegedly made, that Powell had received, presumably from the
prosecution. It is absurd to suggest that Judge Flannery would
have thought Powell was inexplicably seeking to suppress a piece
of evidence that was in his possession, not the state's, and
would have been inadmissible anyway.
Because we must assume that Armond's allegations are true
unless they are incredible, we must assume that Armond made no
statement. Powell may have confused Armond's case with another
one. But it is incredible, hence frivolous, to claim that Powell
conspired with Palermo to induce Judge Flannery to refuse to
suppress the lineup by mentioning a "statement," equally
frivolous to claim that the mention of a "statement" influenced
Judge Flannery's ruling. In any event, if Judge Flannery's ruling
affected the outcome any claim would be barred by Heck; if it
did not, Armond has suffered no injury.
4. Change of Judge
Armond's next claim, that Powell conspired with Palermo to have
the case transferred to Judge Fox, also crosses the line between
the unlikely and the incredible, as well as being similarly
barred by Heck. Whatever the reason may have been that Judge
Fox instead of Judge Flannery was on the bench when Armond's case was called on January 20 and
21, 1998, Judge Fox made no rulings in Armond's case. The docket
excerpts furnished by Armond show that his case was reassigned to
Judge Stanley J. Sacks after Judge Fox granted Powell leave to
file a petition for substitution of judge on January 21, 1998.
Cmplt. Exhs. D-3, D-7, D-11. If, as Armond claims, Powell
succeeded in prejudicing Judge Flannery against him, it would
make no sense for Powell to then "conspire" to transfer the case
to Judge Fox. And if Powell conspired to transfer the case to
Judge Fox, it would make no sense for him to file a motion for
substitution of judge immediately thereafter.
Armond claims that in "conspiring" to transfer the case "he
made a choice advancing his own interest to the detriment of his
client," Cmplt. ¶ 21, but nowhere alleges how this supposed
conspiracy might have benefitted Powell. Not only has Armond
alleged no facts to support a claim that Powell conspired with
other defendants to injure him; he has alleged nothing suggesting
that Powell had any reason or motive to do so. Armond's claims
against Powell are not merely frivolous, but malicious.
6. Claims against defendant Beuke
Armond cannot sue defendant Beuke, his private defense
attorney, under § 1983 because Beuke was not acting under color
of state law. Beuke was not a state official, he was hired by
Armond and his family, and was responsible only to Armond, not
the state. A defense attorney can be found to be acting under
color of state law if he or she conspires with state actors,
Tower v. Glover, 467 U.S. 914 (1984), but, unlike Powell,
Armond does not allege that Beuke conspired with the prosecutor
or the police.
Moreover, even if Beuke had been a state actor, a claim that a
criminal conviction resulted from defense counsel's professional
errors is a challenge to the validity of that conviction. See
Strickland v. Washington, 466 U.S. 668 (1984); Hampton v.
Leibach, 347 F.3d 219 (7th Cir. 2003) (failure to investigate
and call exculpatory witnesses justified writ of habeas corpus).
Consequently, Heck would bar a claim for damages under § 1983
unless and until Armond's conviction is overturned. Armond's
conviction also bars any claim for legal malpractice under Illinois law. Following decisions of the Illinois Appellate
Court, the Seventh Circuit has held that a plaintiff suing his
former criminal defense counsel must prove his own innocence, and
cannot sue while his conviction stands. Woidtke v. Clair
County, 335 F.3d 558, 564-65 (7th Cir. 2003); Levine v. Kling,
123 F.3d 580, 582 (7th Cir. 1997).
This action is accordingly dismissed in its entirety as
frivolous, and the court finds that Armond's claims against
Powell are malicious as well. This dismissal counts as one of
plaintiff's three allotted dismissals under 28 U.S.C. § 1915(g).
Because this action is dismissed as frivolous, Armond may not
appeal this dismissal without prepayment of the $255 appellate
filing and docketing fees unless he persuades this court or the
Court of Appeals that the appeal is taken in good faith, that is,
that there is some reasonable basis for the appeal.
28 U.S.C. § 1915(a)(3); Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000).
Unless the appellate filing and docketing fees are prepaid, any
notice of appeal should be accompanied by a statement of Armond's
grounds for appeal.
Because Armond filed this suit while incarcerated, the $150.00
filing fee will be deducted in installments from his prison trust
account pursuant to 28 U.S.C. § 1915(b). The trust fund officer
at Armond's place of incarceration shall collect, when funds
exist, an initial partial filing fee of $23.00 from Armond's
trust fund account and pay it directly to the clerk of court.
Thereafter, the trust fund officer at the correctional facility
where Armond is confined shall collect monthly payments from
Armond's trust fund account in an amount equal to 20% of the
preceding month's income credited to the account. Monthly
payments shall be forwarded to the clerk of court each time the
amount in the account exceeds $10 until the full $150 filing fee
IT IS SO ORDERED.
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