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Jeremy Johnson (#M-02872 v. Kenyatta Harper

January 3, 2012

JEREMY JOHNSON (#M-02872)
v.
KENYATTA HARPER, ET AL.



Name of Assigned Judge Matthew F. Kennelly Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The second amended complaint is summarily dismissed on preliminary review pursuant to 28 U.S.C. § 1915A. The case is terminated. This dismissal counts as one of plaintiff's Jeremy Johnson's three allotted dismissals under 28 U.S.C. § 1915(g).

O [For further details see text below.] Docketing to mail notices.

STATEMENT

Jeremy Johnson, an Illinois state prisoner, has brought this pro se lawsuit pursuant to 42 U.S.C. § 1983. He cldaims that a former girlfriend, defendant Harper, made a false police report against him; the responding officers arrested him for domestic battery without probable cause; and a police supervisor wrongfully approved the charge. Plaintiff also sues the City of Chicago as the officers' employer.

In a decision dated November 21, 2011, the Court largely granted defendants' motion to dismiss but gave plaintiff an opportunity to attempt to replead to see if he could articulate a viable federal claim. Plaintiff has submitted a second amended complaint. Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a suit brought in forma pauperis at any time if the Court determines that it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Here, even accepting plaintiff's factual allegations as true, the second amended complaint fails to state a viable claim.

Plaintiff alleges that on January 1, 2010, Harper, his girlfriend, attacked him in a jealous rage. Plaintiff says he did not assault Harper but merely defended himself. Plaintiff alleges that he believed that he and Harper soon resolved their misunderstanding. Plaintiff says, however, that Harper called the police while he was asleep and falsely reported that he had beaten her.

Defendants Chibicki, Bratton, and Baader, Chicago police officers, responded to Harper's call. As Officer Baader interviewed Harper, Officers Chibicki and Bratton went upstairs to rouse and arrest plaintiff. Plaintiff alleges that the officers failed to "follow protocol" and had no probable cause to arrest him for domestic battery. He says that they did not bother to ask for his side of the story. Plaintiff alleges that defendant Brown, a police sergeant, reviewed the arresting officers' reports and approved the charges even though he was fully aware that probable cause did not exist to arrest plaintiff for domestic battery.

Facts

Discussion

On January 20, 2010, the domestic battery charge was dismissed.

Although Fed. R. Civ. P. 15(a) provides that leave to amend shall be freely given when justice so requires, it is not to be automatically granted." Johnson v. Cypress Hill, 641 F.3d 867, 871-72 (7th Cir. 2011) (internal quotation marks and citation omitted). "[District] courts have broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile." Id. at 872 (internal quotation marks and citation omitted). See also Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008); Thompson v. Ill. Department of Professional Regulation, 300 F.3d 750, 759 (7th Cir. 2002). The Court finds that plaintiff's proposed amended complaint would be futile.

1. Plaintiff cannot successfully sue Harper under 28 U.S.C. § 1983 for calling the police even if her allegations of domestic battery were false. Generally, to be liable under 42 U.S.C. § 1983, a defendant must have both acted under color of state law and violated a constitutional right of the plaintiff. Burrell v. City of Mattoon, 378 F.3d 642, 647 (7th Cir. 2004). As the Court stated in an earlier order, see Order of April 25, 2011, merely providing false information to the police does not transform a private individual into a state actor. Pepper v. Village of Oak Park, 430 F.3d 805, 811 ...


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