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Banks v. Varallo

United States District Court, Seventh Circuit

October 21, 2013

Larry Banks (#B-42423), Plaintiff,
Daniel Varallo, et al., Defendants.


ROBERT M. DOW, Jr., District Judge.

Defendants' motion to dismiss the second amended complaint for failure to state a claim [#36] is granted. The second amended complaint is dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff's motion to deny the motion to dismiss [#39] is denied. Plaintiff's motions for judgment on the pleadings [#40] and for reconsideration of case title [#41] are denied as moot. Plaintiff's motion for leave to amend [#48] is denied as futile. Because the Court finds that amendment would be futile, the case is terminated. The Court declines to assess a "strike" under 28 U.S.C. § 1915(g), as Plaintiff's false arrest claim is time-barred as a practical matter rather than actually time-barred.


Plaintiff, an Illinois state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff appears to claim that Defendants, two Chicago police officers, violated Plaintiff's constitutional rights by using as evidence against him clothing and property that were inventoried upon his arrest. This matter is before the Court for ruling on pending motions.

Defendants have moved to dismiss the second amended complaint for failure to state a claim. It is well established that pro se complaints are to be liberally construed. Kaba v. Stepp, 458 F.3d 678, 681, 687 (7th Cir. 2006). Pro se submissions are held to a less stringent standard than formal pleadings drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief, " in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 667 (7th Cir. 2008).

When considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the Court assumes all factual allegations in the complaint to be true, viewing all facts-as well as any inferences reasonably drawn therefrom-in the light most favorable to the plaintiff. Bell Atlantic Corp., 550 U.S. at 563 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)); Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010). A well-pleaded complaint may proceed even if it appears "that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Bell Atlantic Corp., 550 U.S. at 556.

Nevertheless, the factual allegations in the complaint must be enough to raise a right to relief above the speculative level. Id. at 555. While a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp., 550 U.S. at 555 (citations omitted). The Court "need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). "The complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Furthermore, a plaintiff can plead himself or herself out of court by pleading facts that undermine the allegations set forth in the complaint. See, e.g., Whitlock v. Brown, 596 F.3d 406, 412 (7th Cir. 2010) (citations omitted) ("A judicial admission trumps evidence. This is the basis of the principle that a plaintiff can plead himself out of court.").


Plaintiff Larry Banks is an Illinois state prisoner. Defendants Daniel Varallo and John

Campbell are Chicago police officers. The Court summarily dismissed multiple claims and Defendants on initial review pursuant to 28 U.S.C. § 1915A. See Minute Order of March 18, 2013. Plaintiff alleges the following facts with respect to the two remaining Defendants:

In the early morning hours of April 18, 2011, Plaintiff was riding his bicycle on a city street when a police vehicle cut him off. Two officers jumped out of the patrol car, searched Plaintiff, and took money out of his pockets. One of the officers then ordered Plaintiff to turn around and be handcuffed. Plaintiff seems to imply (despite the Court's admonitions, much of the complaint consists of "legalese" and conclusions) that the officers had neither a warrant nor probable cause for arresting him.

Plaintiff was placed in a holding cell at the police station. The arresting officers, along with Defendants Campbell and Varallo, went to the cell to interrogate Plaintiff; however, he refused to speak to the police without an attorney. Defendants then took Plaintiff's shoes and clothing and made him don a white cotton jumpsuit. Forensic (DNA) testing was apparently performed on the confiscated clothing. See also Banks v. Gaetz, Case No. 13 C 1642 (N.D. Ill.) (Exhibits to Habeas Petition).[1] The Illinois Department of Corrections website reflects that Plaintiff is currently serving a fourteen-year sentence for burglary, with a custody date of April 1, 2011.


Even accepting Plaintiff's factual allegations as true, the Court finds that the second amended complaint fails to state a viable claim as a matter of law. Irrespective of whether Plaintiff's claims are Heck -barred, the named Defendants were not responsible for Plaintiff's arrest, any cause of action against the arresting officers is now time-barred, Plaintiff cannot sue for malicious prosecution in view of ...

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