Mordi v. Zeigler et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, Order for Service of Process upon Defendants CHANCE, DETERS, DEVORE, FOWLER, HEALY, KAMMINGA, MONNET, PANSING, RICH, RISTVEDT, ZERRUSEN, ZIEGLER, EFFINGHAM COUNTY SHERIFF'S DEPARMENT, COUNTY OF EFFINGHAM, MARION COUNTY SHERIFF'S DEPARTMENT, and COUNTY OF MARION. Illinois State Police, State of Illinois and Illinois State Police terminated. IT IS HEREBY ORDERED that COUNTS ONE and THREE fail to state a claim upon which reli ef may be granted, and thus are DISMISSED with prejudice. Defendants STATE OF ILLINOIS, ILLINOIS STATE POLICE, and DISTRICT 12 OF THE ILLINOIS STATE POLICE are DISMISSED from this action with prejudice. Signed by Judge Michael J. Reagan on 1/19/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UCHE PHILIP MORDI, Federal Inmate )
)
#08179-025,
)
)
Plaintiff,
)
)
vs.
)
)
TODD ZIEGLER, et al.,
)
)
Defendants.

CASE NO. 11-cv-193-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Uche Philip Mordi, is a federal inmate in the Allenwood Federal Correctional
Institution in Pennsylvania. Pursuant to 42 U.S.C. ' 1983, Mordi brings this action against
several county and state officials for deprivations of his rights under the United States Constitution
and the Vienna Convention. Plaintiff is serving a 120 month federal sentence for possession with
intent to distribute crack cocaine. This case is now before the Court for a preliminary review of
the complaint, in accordance with 28 U.S.C. ' 1915A, which provides:
(a) Screening.B 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.B On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaintB
(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.
28 U.S.C. ' 1915A.
An action or claim is frivolous if Ait lacks an arguable basis either in law or in fact.@
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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 Aenough facts to state a claim to relief that is plausible on its
face.@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is
plausible on its face Awhen 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,
129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as
true, some factual allegations may be so sketchy or implausible that they fail to provide sufficient
notice of a plaintiff=s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally,
Courts Ashould not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.@ Id. At the same time, however, the factual allegations of a 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, the Court finds it appropriate to exercise its
authority under ' 1915A; portions of this action are subject to summary dismissal.
The Complaint
Plaintiff is a Nigerian national who was an undergraduate student at Southern Illinois
University at Carbondale at the time of his March 12, 2009, arrest (Doc. 1, pp. 6, 9, 17). He was
the subject of a traffic stop on Interstate 57 in Effingham County, conducted by Defendants Ziegler
and Zerrusen, both Illinois State Police Officers (Doc. 1, p. 14-15). Plaintiff claims that the stop
was made because he was unlawfully Aprofiled@ based on his race, age and style of dress.
Plaintiff was issued a warning citation, apparently for a license plate violation. Defendants
Ziegler and Zerrusen, along with Defendant Rich, an Effingham County Sheriff=s Officer, then
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unreasonably prolonged the traffic stop after Plaintiff declined to consent to a search, in order to
conduct a canine sniff search of Plaintiff=s vehicle. The dog alerted, and drugs and cash were
found in Plaintiff=s duffle bag. Plaintiff and his passenger (named Otesile) were both arrested.
After Plaintiff was taken to the Illinois State Police (AISP@) station in Effingham,
Defendants Chance and Healey interrogated him for over eight hours without giving him anything
to eat (Doc. 1, p. 15-16). They also refused to remove his handcuffs for this entire time. They
were assisted by Defendant Kamminga, also an ISP Officer. Plaintiff became extremely tired and
hungry, and states he Asupposedly admitted@ to purchasing the drugs and intending to deliver them
(Doc. 1, p. 16). He was then transported to the Effingham County Jail, where he was placed in a
cell and was not fed until the following morning. The next day, state charges were filed against
him, however, some weeks later he was charged with the federal drug offense. Thereafter,
Defendant Fowler, an Assistant State=s Attorney, withdrew the state charges. Plaintiff alleges that
Defendant Fowler, along with Defendant Deters (the Effingham County State=s Attorney),
Defendant Chance, and Defendant Effingham County, Atraded@ Plaintiff to the federal prosecutor
in exchange for a better chance to obtain a conviction in federal court, and for the eventual
proceeds of the forfeiture of Plaintiff=s property.
During all of Plaintiff=s interactions with these Defendants, he was never informed of his
right under the Vienna Convention to contact a representative of his home country=s embassy,
despite the Defendants= knowledge that Plaintiff was a Nigerian citizen. Had he been properly
informed according to this treaty, he would have availed himself of assistance from a Nigerian
representative, and his case may have had a different outcome. As it was, Plaintiff eventually
pled guilty to the federal drug charges, which led to the forfeiture of his vehicle and a substantial
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amount of cash, on top of the substantial prison sentence. Plaintiff alleges he was under pressure
to plead guilty to avoid further harassment of his former girlfriend, who was interrogated by
Defendant Chance and lost her job as a result, and to spare Otesile (his passenger) from ongoing
harassment by local Carbondale police.
Plaintiff claims that the search of his vehicle, his arrest, and subsequent prosecution were
all unconstitutional. Moreover, he asserts that the conditions of his interrogation and detention
constituted cruel and unusual punishment. Based on the violation of his rights under the Vienna
Convention and the constitution, he seeks compensatory, special and punitive damages, including
compensation for the forfeiture of his property and his expulsion from his Bachelor=s Degree
program. He also seeks a temporary restraining order requiring the Defendants to comply with
the Vienna Convention notification requirements in the future.
Discussion
Based on the allegations of the complaint, the Court finds it convenient to divide the pro se
action into three (3) 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
designation of these counts does not constitute an opinion as to their merit.
Count 1 - Challenges to Underlying Conviction
At the outset, it must be stated that many of Plaintiff=s allegations of unconstitutional
conduct by the arresting and investigating officers, which led to his conviction, cannot be
addressed in the context of a ' 1983 action. Indeed, Plaintiff=s complaint never requests the Court
to invalidate his conviction. However, Plaintiff claims that the original traffic stop was a result of
improper Aprofiling,@ the stop was illegally prolonged in order to conduct a canine sniff search, he
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was pressured to waive his Miranda rights, his interrogation was unduly coercive, and the county
prosecutors acted improperly in turning him over to the federal prosecutor. Such matters are not
the proper subject of a civil rights suit under ' 1983. See Graham v. Broglin, 922 F.2d 379, 381
(7th Cir.1991) (release from custody cannot be sought in a ' 1983 action). Challenges to the
constitutionality of a conviction must be raised, if at all, on direct appeal from the conviction or in
a proper post-conviction or habeas action, if Plaintiff=s right to raise such matters was not waived
by his guilty plea, and if any of these actions could be timely filed. Accordingly, these allegations
will not be further addressed in this proceeding, and this count shall be dismissed with prejudice.
Count 2 - Vienna Convention
Plaintiff=s allegation that he was not informed of his right to contact the Nigerian Consulate
after his arrest and detention, however, does state a cognizable ' 1983 claim.
Article 36 of the Vienna Convention provides, in relevant part:
[I]f he [the alien] so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its consular
district, a national of that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner. Any communication addressed to
the consular post by the person arrested, in prison, custody or detention shall also
be forwarded by the said authorities without delay. The said authorities shall
inform the person concerned without delay of his rights under this sub-paragraph.
Vienna Convention on Consular Relations, Art. 36(1)(b), Apr. 24, 1963, 21 U.S.T. 77, 101,
T.I.A.S. No. 6820; see also Jogi v. Voges, 480 F.3d 822, 835 (7th Cir. 2007) (AJogi II @). To state
a claim under ' 1983, a plaintiff must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Federal laws include
treaties such as the Vienna Convention. U.S. CONST., art. VI, cl. 2; see also Jogi II, 480 F.3d at
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825-27. Under the law of this circuit, 42 U.S.C. ' 1983 provides a private right of action for
individuals to pursue claims for violations of Article 36 of the Vienna Convention. Jogi II, 480
F.3d at 835-36. Furthermore, the Seventh Circuit has determined that such a claim, seeking
damages rather than immediate or more speedy release from custody, is not barred by Heck v.
Humphrey, 512 U.S. 477 (1994). Jogi II, 480 F.3d at 836 (citing Wallace v. Kato, 549 U.S. 384
(2007) and Wilkinson v. Dotson, 544 U.S. 74 (2005)).
Plaintiff claims that following his arrest, he was never informed by any of the Defendants
that he had the right to communicate with and request assistance from the Nigerian Consulate. He
thus states a claim under ' 1983 that shall receive further consideration, against the officers who
arrested, searched, and interrogated him: Defendants Ziegler, Zerrusen, Rich, Chance, Healey and
Kamminga.
In addition to the Defendants named above, Plaintiff identifies a number of other
individual Defendants who failed to notify Plaintiff of his rights under the Vienna Convention.
These include Defendant ISP Officers Ristvedt and Pansing, who directed or dispatched the other
ISP Defendants who interrogated Plaintiff; Defendant Monnet (the Effingham County Sheriff) and
Defendant Devore (the Marion County Sheriff), both of whom oversaw Plaintiff=s detention in
their respective counties; and Defendants Deters and Fowler, the Efngham County State=s
Attorney and assistant who initiated and later terminated the state prosecution against Plaintiff.
The gist of the complaint is that each of these officials, who were involved in Plaintiff=s detention
and criminal prosecution, failed to follow the Vienna Convention requirement to notify Plaintiff of
his right to seek assistance from the Nigerian consulate. At the pleadings stage, Plaintiff has
likewise stated a claim against Defendants Ristvedt, Pansing, Monnet, Devore, Deters, and
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Fowler, that should receive further review.
In addition, Plaintiff names several municipalities, Defendants Effingham County Sheriff=s
Department, Marion County Sheriff=s Department, and the Counties of Effingham and Marion; as
well as the State of Illinois, the Illinois State Police, and District 12 of the Illinois State Police. In
order to obtain relief against a municipality, a plaintiff must allege that the deprivations of his
rights were the result of an official policy, custom, or practice of the municipality. Monell v.
Dep=t of Soc. Servs., 436 U.S. 658, 691 (1978); see also Pourghoraishi v. Flying J, Inc., 449 F.3d
751, 765 (7th Cir. 2006). Monell applies to any local government unit that is not considered part
of the State for Eleventh Amendment purposes. Monell, 436 U.S. at 690 (AOur analysis of the
legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend
municipalities and other local government units to be included among those persons to whom '
1983 applies.@). Liberally construed, Plaintiff's allegations that the Effingham and Marion
County Sheriffs failed to follow the notification requirements of the Vienna Convention are based
upon the conditions, policies, and customs of each Sheriff=s Department and of Marion and
Effingham Counties. Accordingly, Plaintiff may proceed against Defendants Effingham County
Sheriff=s Department, Marion County Sheriff=s Department, and the Counties of Effingham and
Marion.
As to the State of Illinois and its agencies, however, the Eleventh Amendment bars suits in
federal court against these entities, and they are not considered Apersons@ within the meaning of '
1983. Will v. Mich. Dep=t of State Police, 491 U.S. 58, 71 (1989); Wynn v. Southward, 251 F.3d
588, 592 (7th Cir. 2001); see also Billman v. Ind. Dep=t of Corr., 56 F.3d 785, 788 (7th Cir. 1995)
(state Department of Corrections is immune from suit by virtue of Eleventh Amendment); Hughes
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v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991) (same); Santiago v. Lane, 894 F.2d 218, 220
n.3 (7th Cir. 1990) (same). Plaintiff is thus barred from seeking money damages from Defendants
State of Illinois, the Illinois State Police, and ISP District 12.
Plaintiff has also requested prospective injunctive relief. Under the doctrine of Ex parte
Young, a plaintiff may file Asuit[ ] against state officials seeking prospective equitable relief for
ongoing violations of federal law . . . .@ Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997)
(emphasis added); see Ex parte Young, 209 U.S. 123, 159-60 (1908); Ind. Prot. and Advocacy
Servs. v. Ind. Family and Soc. Servs. Admin., 603 F.3d 365, 371 (7th Cir. 2010). Plaintiff=s
complaint, however, fails to name any individual state officials against whom such injunctive
relief may be considered. Defendants State of Illinois, Illinois State Police, and District 12 of the
Illinois State Police shall be dismissed from this suit with prejudice.
Count 3 - Cruel and Unusual Punishment
Finally, Plaintiff alleges that during his detention and interrogation, he was deprived of
food from the time of the traffic stop (around 1:10 p.m. on March 12, 2009) until the following
morning, when he was fed breakfast (Doc. 1, pp. 13, 16). His interrogators also refused to remove
his handcuffs during the approximate eight hours of his questioning. As noted above in Count 1,
whether these allegedly coercive conditions were extreme enough to invalidate Plaintiff=s alleged
confession or call into question the validity of his conviction are not matters properly before this
Court. Plaintiff’s allegations shall be analyzed only to determine whether they state a claim for
unconstitutionally cruel and unusual punishment.
Claims brought pursuant to ' 1983, when involving detainees, arise under the Fourteenth
Amendment and not the Eighth Amendment. See Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir.
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2000). However, the Seventh Circuit has Afound it convenient and entirely appropriate to apply
the same standard to claims arising under the Fourteenth Amendment (detainees) and Eighth
Amendment (convicted prisoners) >without differentiation.=@ Board v. Farnham, 394 F.3d 469,
478 (7th Cir. 2005) (quoting Henderson v. Sheahan, 196 F.3d 839, 845 n.2 (7th Cir. 1999)).
Generally, confinement of pre-trial detainees may not be punitive, because Aunder the Due Process
Clause, a detainee may not be punished prior to an adjudication of guilt.@ Bell v. Wolfish, 441
U.S. 520, 535 (1979).
In a case involving conditions of confinement, two elements are required to establish
violations of the Eighth Amendment=s cruel and unusual punishments clause. First, an objective
element requires a showing that the conditions deny the inmate Athe minimal civilized measure of
life=s necessities,@ creating an excessive risk to the inmate=s health or safety. Farmer v. Brennan,
511 U.S. 825, 834 (1994). The second requirement is a subjective element B establishing a
defendant=s culpable state of mind. Id. Thus, for >cruel and unusual punishment= claims brought
by a detainee, the plaintiff must show that the jail officials knew that the plaintiff was at risk of
serious harm, and that they disregarded that risk by failing to take steps to avoid the harm.
Grieveson v. Anderson, 538 F.3d 763, 771-72, 777-79 (7th Cir. 2008).
In some circumstances, a prisoner=s claim that he was denied food may satisfy the objective
element but, as the Seventh Circuit has held, the denial of food is not a per se violation of the
Eighth Amendment. Rather, a district court Amust assess the amount and duration of the
deprivation.@ Reed v. McBride, 178 F.3d 849, 853 (7th Cir. 1999). See generally Wilson v.
Seiter, 501 U.S. 294, 304 (1991) (it would be an Eighth Amendment violation to deny a prisoner
an Aidentifiable human need such as food@); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir.
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2001) (withholding food from an inmate can, in some circumstances, satisfy the first Farmer
prong); Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (noting that denial of one out of every
nine meals is not a constitutional violation; Cooper v. Sheriff of Lubbock Cnty., 929 F.2d 1078 (5th
Cir. 1991) (failure to feed a prisoner for twelve days is unconstitutional); Cunningham v. Jones,
567 F.2d 653, 669 (6th Cir. 1977), app. after remand, 667 F.2d 565 (1982) (feeding inmates only
once a day for 15 days, would constitute cruel and unusual punishment only if it Adeprive[s] the
prisoners concerned . . . of sufficient food to maintain normal health.@). In Plaintiff=s case, he
missed no more than two meals, dinner and possibly lunch on the day of his traffic stop. This
short term deprivation of food does not rise to the level of a constitutional violation.
As to the handcuffs, Plaintiff takes issue with the length of time he was required to remain
in these restraints and the tightness of the cuffs. He does not specifically allege that he suffered
any injury, nor that his interrogators intended to physically harm him at any time. In an excessive
force claim, the Court must consider whether the force Awas carried out >maliciously and
sadistically= rather than as part of >a good-faith effort to maintain or restore discipline.=@ Wilkins v.
Gaddy, 130 S. Ct. 1175, 1180 (2010) (citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)). An
inmate seeking damages for the use of excessive force need not establish serious bodily injury to
make a claim, but not Aevery malevolent touch by a prison guard gives rise to a federal cause of
action.@ Id. (the question is whether force was de minimis, not whether the injury suffered was de
minimis); see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001). Further, the "cruel
and unusual punishments" clause proscribes only the deliberate, "unnecessary and wanton
infliction of pain," Whitley v. Albers, 475 U.S. 312, 320 (1986); actions taken in the interest of
institutional security are not violative of the clause, even if objectively unreasonable. Id. at
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320-21. Plaintiff describes circumstances that were uncomfortable. No injury resulted and
minimal force was used, without any indication of improper intent. For these reasons, Plaintiff=s
treatment does not violate the constitution.
Although the conditions described by Plaintiff were unpleasant and perhaps unreasonable,
it is clear that he was subjected to these conditions for only a short time B fewer than twenty-four
hours without food, and approximately eight hours in handcuffs. AThe conditions of
imprisonment, whether of pretrial detainees or of convicted criminals, do not reach even the
threshold of constitutional concern until a showing is made of >genuine privations and hardship
over an extended period of time.=@ Duran v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985) (quoting
Bell v. Wolfish, 441 U.S. 520, 542 (1979)). Accordingly, Plaintiff=s claim for cruel and unusual
punishment shall be dismissed with prejudice.
Disposition
IT IS HEREBY ORDERED that COUNTS ONE and THREE fail to state a claim upon
which relief may be granted, and thus are DISMISSED with prejudice. Defendants STATE OF
ILLINOIS, ILLINOIS STATE POLICE, and DISTRICT 12 OF THE ILLINOIS STATE
POLICE are DISMISSED from this action with prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants
CHANCE, DETERS, DEVORE, FOWLER, HEALY, KAMMINGA, MONNET,
PANSING, RICH, RISTVEDT, ZERRUSEN, ZIEGLER, EFFINGHAM COUNTY
SHERIFF=S DEPARMENT, COUNTY OF EFFINGHAM, MARION COUNTY
SHERIFF=S DEPARTMENT, and COUNTY OF MARION (1) Form 5 (Notice of a Lawsuit
and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).
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The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this Memorandum and
Order to each Defendant=s place of employment as identified by Plaintiff. If a Defendant fails to
sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the
date the forms were sent, the Clerk shall take appropriate steps to effect formal service on that
Defendant, and the Court will require that Defendant to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be
found at the work address provided by Plaintiff, the employer shall furnish the Clerk with the
Defendant=s current work address, or, if not known, the Defendant=s last-known address. This
information shall be used only for sending the forms as directed above or for formally effecting
service. Any documentation of the address shall be retained only by the Clerk. Address
information shall not be maintained in the court file or disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants (or upon defense
counsel once an appearance is entered), a copy of every pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date on which a true and correct copy of the document was served on Defendants or
counsel. Any paper received by a district judge or magistrate judge that has not been filed with
the Clerk or that fails to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. ' 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Williams for further pre-trial proceedings.
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IT IS FURTHER ORDERED that this entire matter shall be REFERRED to United
States Magistrate Judge Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C.
' 636(c), if all parties consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under Section 1915, Plaintiff will be required to pay the
full amount of the costs, notwithstanding that his application to proceed in forma pauperis has
been granted. See 28 U.S.C. ' 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. ' 1915 for
leave to commence this civil action without being required to prepay fees and costs or give security
for the same, the applicant and his or her attorney were deemed to have entered into a stipulation
that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay
therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1)."
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of
Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
after a transfer or other change in address occurs. Failure to comply with this order will cause a
delay in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: 1/19/2012
__s/ MICHAEL J. REAGAN
U.S. District Judge
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