Bell v. Bierbaum et al
Filing
6
MERIT REVIEW OPINION entered by Judge Joe Billy McDade on 09/22/2015. IT IS ORDERED: 1) Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. By October 16, 2015, Plainti ff may file an amended complaint against Officer Bierbaum. Failure to file an amended complaint will result in the dismissal of this action for failure to state a claim and the assessment of a "strike" pursuant to 28 U.S.C. § 1915(g). 2) If Plaintiff files an amended complaint, the amendedcomplaint will replace Plaintiff's original complaint in its entirety. Piecemeal amendments are not accepted. See full written Opinion.(JS, ilcd)
E-FILED
Tuesday, 22 September, 2015 02:44:06 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
EARNEST BELL,
Plaintiff,
v.
BLOOMINGTON POLICE DEPT.,
JAREED BIERBAUM,
J. GARY SUTHERLAND, and
SGT. GRAY,
Defendants.
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15-CV-1284
MERIT REVIEW OPINION
Plaintiff, proceeding pro se from his detention in the McClean
County Jail, has filed a complaint challenging his arrest and the
prosecution of charges against him. The case is before the Court
for a merit review pursuant to 28 U.S.C. § 1915A.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
must be provided to "'state a claim for relief that is plausible on its
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face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted
cite omitted).
Allegations
Plaintiff alleges that, on June 17, 2014, a man named Larry
Lewis falsely told Officer Bierbaum that Plaintiff had sold Mr. Lewis
cocaine.
Plaintiff alleges that he had “audio and visual evidence” to
exonerate him of this false accusation, and that Officer Bierbaum
allegedly became aware of this evidence on June 19, 2014.
Whether Plaintiff was arrested before or after Officer Bierbaum
learned of this information is not clear. In any event, the criminal
prosecution of Plaintiff continued despite the exonerating evidence.
Plaintiff filed an internal complaint within the Bloomington
Police Department to protest his arrest and prosecution, but
Defendants Sutherland and Gray allegedly refused to take
corrective action.
In addition to monetary relief, Plaintiff asks that the false
charges against him be dropped, that the citizen who made the false
statement be charged, that Officer Bierbaum be fired, and that
Defendants Gray and Sutherland be suspended.
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Analysis
A “‘warrant request violates the Fourth Amendment if the
requesting officer knowingly, intentionally, or with reckless
disregard for the truth, makes false statements in requesting the
warrant and the false statements were necessary to the
determination that a warrant should issue.’” Hart v. Mannina, --F.3d ---, 2015 WL 4882405 * 9 (7th Cir. 2015).
While Plaintiff does allege that Officer Bierbaum knew that
Larry Lewis was lying or unreliable, Plaintiff’s allegations are too
conclusory and potentially contradictory to state a claim without
more detail. For example, the timing of Officer Bierbaum’s
knowledge that Mr. Lewis was lying is unclear. Did Officer
Bierbaum learn that Mr. Lewis’ statement was false before or after
Plaintiff was arrested? The difference is important because if the
exonerating evidence surfaced after Plaintiff’s arraignment, the
claim would not be one for false arrest but instead possibly for
malicious prosecution, a state law claim which requires that the
prosecution end in Plaintiff’s favor. Llovet v. City of Chicago, 761
F.3d 759, 762 (7th Cir. 2014)(Fourth Amendment claim drops out
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at point of arraignment); Ray v. City of Chicago, 629 F.3d 660, 664
(7th Cir.2011) (no § 1983 action because Illinois has malicious
prosecution claim available); Swick v. Liautaud, 169 Ill.2d 504, 512
(1996)(malicious prosecution claim requires termination of criminal
proceedings in plaintiff’s favor). If Officer Bierbaum reasonably
relied on Mr. Lewis’ statement when Plaintiff was arrested,
exonerating evidence which surfaced later would not render Officer
Bierbaum’s affidavit knowingly false when made. “A police officer is
permitted to rely on information provided by an eyewitness as long
as the officer reasonably believes the witness is telling the truth.”
Id.
Additionally, Plaintiff does not explain how Officer Bierbaum
became aware that Mr. Lewis was lying. Plaintiff alleges that Officer
Bierbaum listened to an exonerating audio recording, but Plaintiff
does not explain what was in the recording that would have
suggested to Officer Bierbaum that Mr. Lewis was lying.
In short, not enough facts are provided to state a plausible
federal claim against Officer Bierbaum. Plaintiff will be given an
opportunity to file an amended complaint against Officer Bierbaum.
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As to the other Defendants, the Court sees no possible federal
claim against them. Defendants Sutherland and Gray allegedly
failed to take action in Plaintiff’s favor after Plaintiff filed a
complaint with the police department. That is not enough to state a
constitutional violation. “Failure to take corrective action cannot in
and of itself violate section 1983. Otherwise the action of an inferior
officer would automatically be attributed up the line to his highest
superior . . . .”). Soderbeck v. Burnett County, 752 F.2d 285, 293
(7th Cir. 1985). Nor may a claim be pursued against the police
department, since the department is not a suable entity. See Gray
v. City of Chicago, 159 F.Supp.2d 1086 (N.D. Ill. 2001)(Chicago
Police Department does not have legal existence separate from City
of Chicago); Hall v. Village of Flossmoor Police Dept., 2012 WL
379902 *2 (N.D. Ill. 2012)("Police departments are departments of
the municipalities they serve; they do not have distinct legal
existences under Illinois law.").
IT IS ORDERED:
1)
Plaintiff's complaint is dismissed for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A.
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By October 16, 2015, Plaintiff may file an amended complaint
against Officer Bierbaum. Failure to file an amended complaint will
result in the dismissal of this action for failure to state a claim and
the assessment of a “strike” pursuant to 28 U.S.C. § 1915(g).
2) If Plaintiff files an amended complaint, the amended
complaint will replace Plaintiff's original complaint in its entirety.
Piecemeal amendments are not accepted.
ENTERED: 09/22/2015
FOR THE COURT:
s/Joe Billy McDade
JOE BILLY MCDADE
UNITED STATES DISTRICT JUDGE
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