West v. Campbell

Filing 5

IT IS HEREBY ORDERED that COUNTS I and II of the complaint are DISMISSED without prejudice for failure to state a claim upon which relief may be granted. Accordingly, COUNT III is DISMISSED without prejudice because the Court lacks supplemental jurisdiction under 28 U.S.C. § 1367. IT IS FURTHER ORDERED that, on or before December 4, 2013, Plaintiff shall file an amended complaint. Failure to file an amended complaint by the prescribed deadline will likely result in the dismissal of this action with prejudice. (Amended Pleadings due by 12/4/2013). Signed by Judge Michael J. Reagan on 11/4/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIMBERLY A. WEST,
Plaintiff,
vs.
VERNON CAMPBELL,
Defendant.

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Case No. 13-cv-01065-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Kimberly A. West, represented by counsel but seeking leave to proceed
in forma pauperis, brings this action against Defendant Vernon Campbell, Police Chief of
Johnson City, Illinois, for deprivations of her constitutional rights pursuant to 42 U.S.C. § 1983.
Plaintiff alleges that during the course of a traffic stop, search and arrest, Defendant inflicted
cruel and unusual punishment, used excessive force, was deliberately indifferent to Plaintiff’s
serious medical needs, and denied Plaintiff due process. Plaintiff further alleges that Defendant
committed battery under state law.
The complaint is divided into three counts:
Count I: Defendant: (a) deprived Plaintiff of her right to be free
from cruel and unusual punishment as guaranteed under
the Eighth and Fourteenth Amendments; and (b) subjected
Plaintiff to physical harm and deprived her of liberty
without due process, in violation of the Fourteenth
Amendment;
Count II: Defendant was deliberately indifferent to Plaintiff’s serious
medical needs in violation of the Eighth Amendment 1; and
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Count 2 does not specifically cite to the Eighth Amendment, but deliberate indifference is the
mens rea associated with the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 828-29
(1994).
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Count III: Defendant committed battery against Plaintiff, in violation
of state law.
This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires dismissal of any portion of the complaint
that is frivolous, malicious, or fails to state a claim on which relief may be granted, or which
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). 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).
Counts I and II, as drafted, fail to state federal claims upon which relief may be
granted, which further deprives the Court of supplemental jurisdiction over Count III, Plaintiff’s
state law battery claim. See 28 U.S.C. § 1367. Although legal theories need not be pleaded
under Federal Rule of Civil Procedure 8, because Plaintiff has specifically cited the Eighth and
Fourteenth Amendments in Count I and premised Count II upon the mental state required for
liability under the Eighth Amendment, she has pleaded herself out of court. The Court cannot
merely construe Counts I and II under the correct constitutional principles; dismissal is required.
The recent Seventh Circuit decision Currie v. Chhabra, 728 F.3d 626 (7th Cir.
2013), illustrates how the Eighth and Fourteenth Amendments are inapplicable to Plaintiff’s
situation. Currie was premised upon the scheme outlined in Gerstein v. Pugh, 420 U.S. 103,
123-125 (1975), for determining which legal standard applies at which procedural milestone. The
Court of Appeals for the Seventh Circuit has summarized the Gerstein scheme and rationale:

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The Fourth Amendment protects against unreasonable seizures; an
arrest is a seizure, and the Fourth Amendment affords persons who are
arrested the further, distinct right to a judicial determination of probable
cause “as a prerequisite to extended restraint of liberty following arrest.”
Gerstein, [420 U.S. at 114]. The judicial determination of probable cause
may be made before the arrest (in the form of an arrest warrant) or
promptly after the arrest, at a probable cause hearing (sometimes called a
Gerstein hearing). But whether the arresting officer opts to obtain a
warrant in advance or present a person arrested without a warrant for a
prompt after-the-fact Gerstein hearing, the Fourth Amendment requires a
judicial determination of probable cause. See Haywood v. City of Chi., 378
F.3d 714, 717 (7th Cir. 2004) (even though warrantless arrest was “clearly”
supported by probable cause, Fourth Amendment required a probable
cause hearing before a judicial officer).
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Accordingly, we have held that “the Fourth Amendment governs
the period of confinement between arrest without a warrant and the
preliminary hearing at which a determination of probable cause is made,
while due process regulates the period of confinement after the initial
determination of probable cause.” Villanova v. Abrams, 972 F.2d 792, 797
(7th Cir. 1992); see also Brokaw v. Mercer County, 235 F.3d 1000, 1018 n.
14 (7th Cir. 2000) (after a probable cause hearing the Fourth Amendment
no longer applies); Luck v. Rovenstine, 168 F.3d 323, 326 (7th Cir. 1999)
(Fourth Amendment applies before the probable cause hearing and Due
Process Clause applies after); Reed v. City of Chi., 77 F.3d 1049, 1052 (7th
Cir. 1996) (the “seizure” of an arrestee ends after the probable cause
hearing). Our cases thus establish that the protections of the Fourth
Amendment apply at arrest and through the Gerstein probable cause
hearing, due process principles govern a pretrial detainee’s conditions of
confinement after the judicial determination of probable cause, and the
Eighth Amendment applies following conviction.
Lopez v. City of Chicago, 464 F.3d 711, 718 -19 (7th Cir. 2006); see also Williams v. Rodriguez,
509 F.3d 392, 403 (7th Cir. 2007).
The complaint makes clear that Plaintiff was not stopped based on a warrant, and
all of the relevant events occurred prior to a judicial finding of probable cause. Plaintiff was in
the position of an arrestee; therefore, the Fourth Amendment covers Plaintiff’s claims.
Accordingly, the complaint will be dismissed without prejudice and with leave to amend.

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Disposition
IT IS HEREBY ORDERED that COUNTS I and II of the complaint are
DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
Accordingly, COUNT III is DISMISSED without prejudice because the Court lacks
supplemental jurisdiction under 28 U.S.C. § 1367.
IT IS FURTHER ORDERED that, on or before December 4, 2013, Plaintiff
shall file an amended complaint. Any amended complaint will be subject to review under 28
U.S.C. § 1915(e)(2)(B). Failure to file an amended complaint by the prescribed deadline will
likely result in the dismissal of this action with prejudice.
IT IS SO ORDERED.
DATED: November 4, 2013

s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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