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Moore v. Venice Police Dept.

United States District Court, S.D. Illinois

September 13, 2016

DEMETRIUS D. MOORE, #S09786 Plaintiff,
v.
VENICE POLICE DEPT., NGOMA, and SHELLENBERG Defendants.

          MEMORANDUM AND ORDER

          J. Phil Gilbert, U.S. District Judge

         Plaintiff Demetirus D. Moore, an inmate in Pickneyville Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff seeks compensatory and punitive damages. 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 on 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). Frivolousness is an objective standard that refers to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         Upon careful review of the Complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

         The Complaint

         Plaintiff alleges that on July 5, 2013, he noticed a police officer monitoring his activity on some property he owns in Venice, Illinois. (Doc. 1, p. 6). Plaintiff called the Madison County Courthouse and confirmed that there were no outstanding warrants on him. (Doc. 1, p. 6). Sometime afterwards, Officer Ngoma knocked on his door and asked Plaintiff to step outside. (Doc. 1, p. 6). He asked Plaintiff to come with him down to the Venice Police Department. (Doc. 1, p. 6). Plaintiff asked Ngoma if he had a warrant for his arrest or to search the property. (Doc. 1, p. 6). Ngoma told Plaintiff he did not have a warrant of any type. (Doc. 1, p. 6). He also told Plaintiff he did not know why Plaintiff was wanted at the station. (Doc. 1, p. 6). Plaintiff then asked Ngoma to leave. (Doc. 1, p. 6).

         Officer Shellenberg then appeared and told Ngoma to arrest Plaintiff and that they did not need a warrant. (Doc. 1, p. 7). Plaintiff told the officers he would not go with them without one. (Doc. 1, p. 7). Plaintiff attempted to re-enter his house, but the officers stopped him. (Doc. 1, p. 7). Plaintiff then fled. (Doc. 1, p. 7). Shellenberg and Ngoma chased him for two blocks, at which time Shellenberg filed a warning shot at Plaintiff. (Doc. 1, p. 7). Plaintiff stopped and put his hands up. (Doc. 1, p.7). Ngoma then tackled him to the ground, and put his knee into Plaintiff's back. (Doc. 1, p. 7). Shellenberg then came over and put his steel-toed boot in Plaintiff's face, breaking two of his back teeth. (Doc. 1, p. 7). Shellenberg told Plaintiff, “Next time you run from me, I'ma shoot you.” (Doc. 1, p. 7). Plaintiff began experiencing difficulty breathing. (Doc. 1, p. 7). Plaintiff requested medical attention, but both officers refused, and put him in the back of a cruiser. (Doc. 1, p. 7). Shellenberg then entered Plaintiff's house without a search warrant to retrieve Plaintiff's keys and cell phone. (Doc. 1, p. 7). Plaintiff did not receive medical attention until July 6, 2013. (Doc. 1, p. 8).

         Discussion

         Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into four counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The following claims survive threshold review:

Count 1 - Ngoma and Shellenberg violated Plaintiff's Fourth Amendment rights when they arrested him ...

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