*fn1,The opinion of the court was delivered by: Coffey, Circuit Judge,TOMMY SMITH, JR., PLAINTIFF-APPELLANT, v. MOISES GOMEZ, ET AL., DEFENDANTS-APPELLEES." />

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Smith v. Gomez

December 15, 2008 *fn1

TOMMY SMITH, JR., PLAINTIFF-APPELLANT,
v.
MOISES GOMEZ, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 04-CV-114-Rudolph T. Randa, Chief Judge.

The opinion of the court was delivered by: Coffey, Circuit Judge

SUBMITTED JUNE 18, 2008

Before COFFEY, RIPPLE, and SYKES, Circuit Judges.

Tommy Smith, a Wisconsin prisoner, sued a number of law enforcement officers including officers of the Milwaukee Police Department (MPD) and employees of the Wisconsin Division of Community Corrections (DCC) and the Wisconsin Division of Hearings and Appeals (DHA), as well as the governmental entities themselves, arguing under 42 U.S.C. §§ 1983, 1985(3), and 1986 that the defendants conspired to deprive him of his constitutional rights to "freedom, liberty, full due process, and equal protection" after he was arrested for being a felon in possession of a firearm and for at-tempted armed robbery. As a result of the arrest, his parole was revoked. The trial court resolved all claims in favor of the governmental authority on various grounds, including their absolute immunity as well as their qualified immunity. Smith appeals, essentially repeating the same claims he made in the trial court. We affirm.

The events leading to Smith's complaint began on February 13, 1999, when Milwaukee police detectives found a handgun while investigating an unsuccessful armed robbery. Some four days later on February 17, 1999, they were able to trace the gun back to Smith's cousin, (Sharon Lewis), using its serial number. Detective Moises Gomez and another detective, defendant Michael Grogan, questioned Lewis about the gun. Initially she told the officers during questioning that she owned the gun and that it had been stolen. According to her testimony she claims that the officers advised her that if she was truthful and cooperative they would not arrest her. In response, Lewis stated to the officers that on February 8 she had ordered a gun for Smith, because he could not purchase one as a convicted felon. Lewis told the police that on February 10, she and Smith went to pick up the gun, she had purchased it and turned it over to him. He later reimbursed her for the weapon. Smith told Lewis to hide the gun above a ceiling tile in her bedroom. On February 12, Smith retrieved the gun from Lewis's home. Two days later, "Mike G," who, like, Smith, was a member of the "Gangster Disciples gang," told Lewis that the gun had been lost during an attempted car robbery. Based on these facts, Gomez determined that Smith should be arrested for attempted armed robbery and possessing a firearm while in the status of a convicted felon. Smith was arrested without incident and charged with attempted armed robbery as well as being a felon in possession of a firearm on February 24 and sentenced to a concurrent term of one year and nine months' imprisonment. This sentence occurred as a direct result of his parole violation and was related to his 1992 conviction for armed robbery. While in prison, he filed a petition for a writ of habeas corpus concerning the circumstances of his arrest and subsequent parole revocation, and released from confinement before a decision was rendered.

The substance of Smith's lawsuit centers around his contention that he was arrested without probable cause and that there was a conspiracy against him to deprive him of his civil rights. Smith claimed that Gomez obviously did not believe Lewis was telling the truth when she said it was her gun since Gomez gave her a warning about truthfulness. Smith argues that his arrest, which was prompted by the story Lewis told the police, was false. According to Smith, Officers Gomez, Grogan, and a third police detective, Jon Sell, conspired with his parole agent, defendant Dawn Davenport of the DCC, to deprive Smith of his constitutional rights when they placed a parole hold on him. Davenport put a parole hold on Smith after receiving authorization from her supervisor, defendant Irving Suesskind. Subsequently, defendant Andrew Riedmaier, an Administrative Law Judge, held a hearing and ordered the revocation of Smith's parole for possessing a firearm as a felon, and defendant William Lundstrom, Assistant Administrator of the DHA, sustained the revocation.

At the initial screening, the trial court dismissed Smith's complaint without prejudice. See 28 U.S.C. § 1915A. The court reasoned that because Smith's claims are all based on his allegation that the defendants conspired to arrest him and revoke his parole, any determination in Smith's favor would necessarily imply the invalidity of the parole revocation and confinement. Such claims are barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), according to the court. Heck holds that a § 1983 plaintiff seeking dam-ages for an allegedly unconstitutional conviction, imprisonment, or other such harm must initially establish that the conviction has been reversed, expunged, declared invalid, or called into question by the issuance of a federal writ of habeas corpus. The court concluded that since Smith had not successfully challenged and invalidated his parole revocation, Heck precluded any relief for him under § 1983 or other federal civil rights statutes.

Smith next filed a motion for relief from the screening order. See FED. R. CIV. P. 60(b). And Smith argued that his complaint should not be Heck-barred because his petition for a writ of habeas corpus was rendered moot at the time of his release from prison. In April 2005 the trial court agreed that Smith's § 1983 claims were not barred by Heck and permitted Smith to amend his complaint. However, the court dismissed Smith's claims under § 1985(3) and § 1986 and also dismissed as defendants the MPD, the DCC, and the DHA. See Edelman v. Jordan, 415 U.S. 651, 663 (1974). Smith thereafter filed an amended complaint against the following remaining defendants: Gomez, Grogan, Sell, Davenport, Suesskind, Riedmaier, and Lundstrom. The defendants were sued in their individual capacities. See Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001); Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000); Hill v. Shelander, 924 F.2d 1370, 1372-73 (7th Cir. 1991).

In September 2006, after the pleadings were filed, the trial court granted a motion to dismiss filed by Davenport, Riedmaier, Lundstrom, and Suesskind, concluding that the first three defendants were entitled to immunity and that the only potential theory of liability for Suesskind would be respondeat superior, which is not permitted under § 1983. See Pacelli v. DeVito, 972 F.2d 871, 878 (7th Cir. 1992). The court also granted summary judgment to Gomez, concluding that he was protected by qualified immunity because a reasonable police officer would have believed there was probable cause to arrest Smith. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The only remaining defendants, therefore, were Sell and Grogan. In May 2007 the trial court granted Sell's motion for summary judgment. Sell asserted that he was not personally involved in the alleged constitutional violations and submitted an affidavit to this effect. The trial court determined that Smith had failed to submit any admissible evidence to contradict Sell's sworn assertions and concluded that he had not been involved in the events surrounding Smith's arrest and parole revocation. And finally, in December 2007, the trial court granted Grogan's motion for summary judgment and dismissed the case. Grogan stated in an affidavit that he was not personally involved in the alleged constitutional violations and that he was entitled to qualified immunity. The court noted that there was a disputed issue of material fact with respect to whether Grogan was involved in Smith's arrest. However, the court also reasoned that since Smith's arrest was supported by probable cause no liability could attach. The court also concluded that Grogan was not personally involved in the decision to revoke Smith's parole.

On appeal, Smith raises a host of arguments, disputing nearly every ruling made by the trial court throughout this protracted litigation. Most of his assertions are grounded in his belief that the named defendants participated in a conspiracy against him to deprive him of his civil rights. We note at the outset that conspiracy is not an independent basis of liability in § 1983 actions. See Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). Moreover, many of Smith's claims on appeal are patently frivolous, consisting of baseless accusations of unlawful conduct and fabrication of evidence by the defendants. We conclude that the trial court's reasoning on all of the various appealed issues, discussed at length below, are proper, and we commend the court for its thorough treatment of Smith's many contentions.

First Smith challenges several of the rulings the trial court made in its April 2005 order. Smith argues that the court should not have dismissed the claims he made under § 1985(3) and § 1986 and should not have dismissed the MPD, DCC, and DHA as defendants. He argues that his status as a parolee was sufficient to meet the "otherwise class-based" requirement of § 1985(3). Smith admits that the MPD, DCC, and DHA are not sueable entities; however he contends that the court should have accepted his designating them as defendants as a "John Doe" identification of the city of Milwaukee and State of Wisconsin. He therefore contends that the city and state are responsible for the inadequate supervision of their employees, which permitted them to conspire against him.

The trial court's reasoning on these questions is incontrovertible, however. Section 1985(3) prohibits a conspiracy to deprive another of equal protection under the law such as are alleged in Smith's complaint, but the conspiracy must be motivated by racial, or other class-based discriminatory animus. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002). Smith has failed to sufficiently allege such animus because status as a parolee is not considered a "suspect class" for equal-protection purposes. And because Smith has failed to state a § 1985 claim, his § 1986 claim fails as well. See Hicks v. Resolution Trust Corp., 970 F.2d 378, 382 (7th Cir. 1992). Smith asks that we remand this case to allow him to name the city of Milwaukee and the state of Wisconsin as defendants. However, the trial court previously permitted Smith to amend his complaint-after informing him that the MPD, DCC, and DHA would not be liable-and nor did he add the city or the state as parties at that time. As a result, any claim against them has been waived. In any event, such a remand would be futile: the state of Wisconsin is also not a proper defendant for a § 1983 action because it has Eleventh Amendment immunity, see Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-67 (1989), and the only theory of liability for the state and the city would be respondeat superior which, as noted above, is not permissible in an action brought under § 1983.

Smith next challenges the trial court's dismissal of various defendants in its September 2006 order. In that order, the court determined that Gomez and Lundstrom were entitled to qualified immunity, that Davenport and Riedmaier were entitled to absolute immunity, and that there could be no liability for Suesskind under a respondeat superior theory. Smith's basic contention to refute dismissal is that no reasonable officer could believe there was probable cause for his ...


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