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 ...