Overton v. Schuwerk et al
Filing
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OPINION entered by Judge Sue E. Myerscough on 5/14/2012. Rule 16 Scheduling Conference set for 7/9/2012 at 1:30 pm (or as soon as the Court can reach the case) before U S District Judge Sue E Myerscough, by personal appearance. (SEE WRITTEN ORDER)(MAS, ilcd)
E-FILED
Monday, 14 May, 2012 04:50:29 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JERALD OVERTON,
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Plaintiff,
v.
SCHUWERK, et al.,
Defendants.
11-CV-3263
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se, was incarcerated in Stateville
Correctional Center at the time he filed his complaint. He has since been
released on parole. The case is before the Court for a merit review of the
complaint pursuant to 28 U.S.C. § 1915A.
LEGAL STANDARD
The Court is required by § 1915A to review a Complaint filed by a
prisoner against a governmental entity or officer and, through such
process, to identify cognizable claims, dismissing any claim that is
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“frivolous, malicious, or fails to state a claim upon which relief may be
granted.” A hearing is held if necessary to assist the Court in this review,
but, in this case, the Court concludes that no hearing is necessary. The
Complaint and its attachments are clear enough on their own for this
Court to perform its merit review of Plaintiff’s Complaint.
The review standard under § 1915A is the same as the notice
pleading standard under Federal Rule of Civil Procedure 12(b)(6).
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a
claim, the allegations must set forth a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Factual allegations must give enough detail to give “‘fair notice
of what the . . . claim is and the grounds upon which it rests.’” EEOC v.
Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add’l citation
omitted). The factual “allegations must plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a ‘speculative
level.’” Id., quoting Bell Atlantic, 550 U.S. at 555. “A claim has facial
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plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged . . . . Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550
U.S. at 555-56. However, pro se pleadings are liberally construed when
applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009).
ALLEGATIONS
On March 19, 2009, Plaintiff and his wife were pulled over by
Illinois State Trooper Vahle while traveling on the highway. Vahle told
Plaintiff that he was pulled over due to an obstructed of driver's view and
other vehicle violations, but Plaintiff denies any vehicle violations existed.
He maintains that Vahle pulled him over because Vahle was “racially
profiling.”
During the traffic stop, Plaintiff admitted to Vahle that Plaintiff
may have an old, outstanding warrant for his arrest. Vahle verified that
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this was true and took Plaintiff into custody, placing him in the patrol
car. Other officers arrived at the scene (Defendants Cook, Schuwerk,
Douglas, and Roll).
Plaintiff refused Vahle’s request for consent to search the vehicle.
Officer Vahle ordered Plaintiff's wife to exit the vehicle. Defendants then
searched Plaintiff's vehicle, without a warrant and without consent,
damaging the vehicle and some property, and leaving the property in a
disheveled state. A pistol was found in the glove compartment during the
search. Plaintiff and his wife were then taken to jail.
Fearing for his wife, Plaintiff confessed to the charge of unlawful
possession of a weapon. Despite his confession, Plaintiff’s wife was still
charged with unlawful possession and not allowed to leave until she had
posted bond.
Officer Vahle allegedly applied for a search warrant to again search
the vehicle. He allegedly made knowingly false statements on the
affidavit in order to obtain the search warrant. Vahle was also reportedly
seen driving Plaintiff’s car about town.
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The day after her arrest, Plaintiff’s wife went to Allen’s Tire Shop to
pick up the vehicle. She paid the owners of the shop $125.00 for towing,
even though she knew the car had not been towed. She noticed the gas
tank had dwindled from 3/4 to 1/4 full. When she retrieved the vehicle,
she observed further damage on both the inside and the outside of the
vehicle.
ANALYSIS
Plaintiff states arguable Fourth Amendment claims for
unreasonable search and seizure based on the alleged lack of probable
cause to pull the car over, the search of the vehicle without a warrant,
and the seizure the vehicle without a warrant. Whether probable cause
existed for the stop, warrantless search, or seizure must be determined on
a more developed record. See, e.g., Carmichael v. Village of Palatine, 605
F.3d 451 (7th Cir. 2010)(probable cause exists for stop if traffic violation
observed); Schor v. City of Chicago, 576 F.3d 775, 779 (7th Cir.
2009)(“If the police officer has an objectively reasonable basis to believe
that a traffic law has been violated, then he or she has probable cause to
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make a traffic stop.”); Thornton v. U.S., 541 U.S. 615 (2004)(passenger
compartment may be searched after arrest of vehicle’s passenger).
Additionally, the alleged destructive manner in which the search was
conducted arguably states an independent Fourth Amendment violation.
Soldal v. Cook County, Illinois, 506 U.S. 56, 61 (1992)(removal of and
damage to mobile home amounted to seizure).1 Plaintiff may also state a
Fourth Amendment claim based on the alleged intentionally false
statements made to procure the search warrant.2 See Lawson v. Veruchi,
637 F.3d 699, 704 (7th Cir. 2011)(officer may not submit affidavit
containing knowingly false statements).
Additionally, whether Plaintiff was pulled over because of his race
states an equal protection claim and deserves further development.
Whren v. United States, 517 U.S. 806, 813 (1996)(“[T]he Constitution
prohibits selective enforcement of the law based on considerations such
Plaintiff's claims may be barred by the Illinois two-year statute of limitations,
but that determination would be premature. See 735 ILCS 5/13-202; see also Lucien
v. Jockisch, 133 F. 3d 464, 466 (7th Cir. 1998).
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The car had already been searched; the grounds for an additional search are
unclear.
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as race . . . .”).
Plaintiff cannot bring claims on behalf of his wife for the alleged
constitutional violations she suffered. Additionally, Plaintiff states no
federal claims against the tire shop or its owners. They did not search
Plaintiff’s car, nor were they responsible for seizing the car. Kuhn v.
Goodlaw, — F.3d. —, 2012 WL 1522012 *3 (7th Cir. 2012)(“§ 1983
liability is premised on the wrongdoer's personal responsibility”). They
were also not “state actors,” which is required under 42 U.S.C. § 1983.
Wilson v. Price, 624 F.3d 389, 392 (7th Cir. 2010)(Section1983 applies
to constitutional violations by a person acting "under color of state law.").
If the shop wrongfully charged Plaintiff, that might create some sort of
state law claim against the shop, but the claim would be unrelated to the
federal claims proceeding in this case and would involve different
defendants. Thus, the Court could not take supplemental jurisdiction of
the state claims against the shop. Lastly, the Court is unaware of any
constitutional claim for the “illegal chain of custody” of Plaintiff’s
vehicle. This claim seems a duplicate of the Fourth Amendment claims
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already proceeding. Accordingly, at this point this case will proceed only
against the police officers on Plaintiff’s Fourth Amendment and equal
protection claims.
IT IS THEREFORE ORDERED:
1) Pursuant to its merit review of the Complaint under 28 U.S.C. §
1915A, the Court finds that Plaintiff states Fourth Amendment and
equal protection claims against Defendants Schuwerk, Vahle, Douglas,
Cook, and Roll. Any additional claims shall not be included in the case,
except at the Court’s discretion on motion by a party for good cause
shown or pursuant to Federal Rule of Civil Procedure 15.
2) Defendant Allen Tire Shop and its owners (Rich and Greg) are
dismissed for failure to state a federal claim against them.
3) The Clerk is directed to send to each remaining Defendant
pursuant to this District's internal procedures: 1) a Notice of Lawsuit and
Request for Waiver of Service; 2) a Waiver of Service; 3) a copy of the
Complaint; and, 4) this order.
4) If a Defendant fails to sign and return a Waiver of Service to the
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Clerk within 30 days after the Waiver is sent, the Court will take
appropriate steps to effect formal service on that Defendant and will
require that Defendant to pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2).
5) With respect to a Defendant who no longer works at the address
provided by Plaintiff, the entity for whom that Defendant worked while
at that address shall provide to the Clerk said Defendant's current work
address, or, if not known, said Defendant's forwarding address. This
information shall be used only for effecting service. Documentation of
forwarding addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
6) Defendants shall file an answer within the time prescribed by
Local Rule. A motion to dismiss is not an answer. The answer should
include all defenses appropriate under the Federal Rules. The answer and
subsequent pleadings shall be to the issues and claims stated in this
Opinion.
7) After defense counsel has appeared, Plaintiff shall serve upon
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defense counsel a copy of every filing submitted by Plaintiff for
consideration by the Court, and shall also file a certificate of service
stating the date on which the copy was mailed. Any paper received by a
District Judge or Magistrate Judge that has not been filed with the Clerk
or that fails to include a required certificate of service will be stricken by
the Court.
9) This cause is set for further scheduling procedures under Fed. R.
Civ. P. 16 on July 9, 2012 at 1:30 p.m. (or as soon as the Court can
reach the case) before U. S. District Judge Sue E. Myerscough, by
personal appearance.
10) Plaintiff shall immediately notify the Court of any change in
his mailing address and telephone number. Plaintiff's failure to notify the
Court of a change in mailing address or phone number will result in
dismissal of this lawsuit, with prejudice.
11) The Clerk is to notify the parties of their option to consent to
disposition of this case before a United States Magistrate Judge by
providing Plaintiff with a magistrate consent form. Upon receipt of a
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signed consent from Plaintiff, the Clerk shall forward the consent to
Defendants for consideration.
ENTERED:
May 14, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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