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Cortez D. Gillum v. Micheal Baxton Jr.

September 12, 2012

CORTEZ D. GILLUM, PLAINTIFF,
v.
MICHEAL BAXTON JR., MICHEAL FLOORE, ALVIN PARKS JR., AND EAST ST. LOUIS POLICE DEPARTMENT, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Cortez D. Gillum, a prisoner at the St. Clair County Jail, brings this pro se action pursuant to 42 U.S.C. § 1983. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(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 upon which relief may be granted; or

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

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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of the plaintiff's claim, Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Brooks, 578 F.3d at 581. At the same time, however, the factual allegations of a pro se complaint are to be construed liberally. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.2009).

The Complaint

On March 4, 2012, Plaintiff was walking across a parking lot at a housing complex in East St. Louis, Illinois, when a car approached him at high speed from behind. Plaintiff turned around and saw it was a police car. The car struck him in the knee as it pulled to a stop. Defendant Micheal Baxton Jr. got out of the car, drew his gun, and pointed it at Plaintiff's face. Baxton grabbed Plaintiff by the shirt and hit him across the right side of his head with a gun. Plaintiff ducked to avoid a second blow, but the butt of the gun hit him on the top of the head. Baxton told Plaintiff he was going to save the taxpayers money and kill Plaintiff. He continued to beat Plaintiff, telling him, "Run so I can shoot you, punk." Plaintiff tried to defend himself. He told Baxton, "Man, just arrest me and take me to jail." Baxton told him he wasn't going to jail today. He was going to die. They scuffled with the gun. Baxton put the gun under Plaintiff's chin and tried to fire it, but it failed to discharge because the safety was on. When Baxton saw the safety was on, he said "I am going to mace the fuck out of you with pepper spray and then blow your brains out." Plaintiff pleaded with Baxton that he had a wife and children. Baxton again told Plaintiff to run so Baxton could shoot him.

Plaintiff believed he was in imminent danger. Just then, his cell phone rang and distracted Baxton. Baxton then told the people standing nearby to mind their own business and look the other way or leave. He started to raise his gun. Plaintiff, fearing for his life, pulled out his own gun, fired it, and ran as Baxton dove in front of the police car.

Plaintiff says Baxton's assault on him was without provocation or justification. Plaintiff is currently held in the St. Clair County jail, although he does not say how he got there or whether it is related to the incident with Baxton.

Discussion

Plaintiff alleges that Baxton attempted to kill him "with malice" and that he used deadly force without provocation while acting under the color of law and performing his official duties. In an action under § 1983, the plaintiff must show that the defendant deprived him of a right se-cured by the Constitution and laws of the United States, and that the defendant acted under color of state law when he deprived the plaintiff of that right. See Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir.1995); Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir.1989). The mere fact that a defendant is a police officer does not mean that he acted under color of state law. Gibson v. City of Chicago, 910 F.2d 1510, 1516 (7th Cir.1990). The essential inquiry is whether the police officer's actions related in some way to the performance of a police duty. Gibson, 910 F.2d at 1517. Here, Baxton drove up to Plaintiff in a police car. He also told Plaintiff to run so Baxton could shoot him. These facts suggest Baxton was there, at least officially, to arrest Plaintiff. So his actions related in some way to the performance of a police duty.

Under the Fourth Amendment, an officer's right to make an arrest, investigatory stop, or other seizure*fn1 of a person includes the right to use some degree of physical force, but the use of force must be objectively reasonable in light of the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 396 (1989); see also Catlin v. City of Wheaton, 574 F.3d 361, 366 (7th Cir. 2009). Under ...


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