Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Austin v. McVicker

February 15, 2006

RICHARD AUSTIN, JR., PLAINTIFF,
v.
NATE MCVICKER, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, a detainee in the Madison County Jail, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted leave to proceed in forma pauperis without payment of an initial partial filing fee.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides, in pertinent part:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds that none of the claims in the complaint may be dismissed at this point in the litigation.

Factual Background

Plaintiff states that he was stopped by Defendant McVicker, an Illinois state trooper, on January 11, 2005, on a routine traffic stop for failing to use his headlights when required. After removing Plaintiff from the vehicle and patting him down, Defendant McVicker placed Plaintiff in the backseat of his patrol car while he ran Plaintiff's license. Plaintiff states that after seeing his criminal history, Defendant McVicker told Plaintiff he had smelled marijuana smoke in the vehicle and asked him whether he had any drugs or weapons on his person or in the vehicle. Plaintiff told him no. Defendant McVicker then asked Plaintiff if he could search his vehicle.

Plaintiff said no. Defendant McVicker then told Plaintiff that the fact that his name was not on the vehicle rental agreement and that Ms. Derrick, the renter of the vehicle, was not in the car gave him probable cause to search the vehicle. Defendant McVicker then returned to the vehicle and instructed the passengers to get out and proceeded to search the vehicle. Plaintiff claims that he was "racially profiled" by Defendant McVicker and that Defendant McVicker illegally searched both him and his vehicle. Plaintiff seeks to have the charges against him and the other passengers in the vehicle dismissed and monetary damages.

Legal Standard

The current status of criminal charges Plaintiff may face as a result of the traffic stop is unclear. However, it is certain that Plaintiff may not seek to have state charges dismissed or to be released from confinement in this type of action. A state prisoner seeking release from an unconstitutional confinement must bring an action as one for habeas corpus pursuant to 28 U.S.C. § 2254, but only after he has presented all of his claims to the Illinois courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1998). Ordinarily, this will involve raising every issue at trial or in a post-conviction motion, and appealing any adverse decisions to the Illinois Appellate Court and the Illinois Supreme Court. Accordingly, Plaintiff's claim seeking that the charges against him be dropped because of the alleged illegal search and seizure is DISMISSED without prejudice.

However, Fourth Amendment claims for damages for illegal search and seizure may be brought during the pendency of an underlying criminal case. The Seventh Circuit has held that such claims are not barred by Heck v. Humphrey, 512 U.S. 477 (1994), because adjudication of the civil rights claims does not necessarily imply the invalidity of an underlying conviction. See Copus v. City of Edgerton, 151 F.3d 646, 649 (7th Cir. 1998) Furthermore, Fourth Amendment claims for illegal search or arrest "may be brought immediately," and a defendant need not wait until criminal proceedings have concluded to bring a civil rights ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.