Moore, Jr. v. Phillips et al

Filing 15

ORDER DISMISSING CASE : IT IS HEREBY ORDERED that Counts 1-3 are DISMISSED without prejudice as barred by Heck. Count 4 is DISMISSED without prejudice for failure to state a claim. Plaintiff may bring another suit regarding Counts 1-4 if circums tances change. Counts 5-10 are DISMISSED with prejudice as barred by the statute of limitations. Plaintiffs Motions are DENIED as MOOT. (Doc. 3) (Doc. 9). This case does not count as a strike under § 1915(g). Signed by Judge Staci M. Yandle on 2/26/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANTHONY T. MOORE, JR.,

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Plaintiff,
vs.
DEBRA J. PHILLIPS,
BRENDAN F. KELLY,
TYSON MELVIN,
DAVID LANDMANN,
JUDY DAHLIN,
DENNIS PLEW,
CAKOHIA POLICE DEPARTMENT,
UNKNOWN PARTIES #1-12,
COUNTY OF ST. CLAIR, ILLINOIS
Defendants.

Case No. 17−cv–1143−SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Anthony T. Moore, Jr., an inmate at St. Clair County Jail, brings this action for
various deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 and violations of
Illinois state law. Plaintiff requests injunctive relief and damages.
Plaintiff originally filed this action on October 23, 2017. (Doc. 1). On November 27,
2017, Plaintiff filed an Amended Complaint (Doc. 8), which is his right under Fed. R. Civ. P.
15(a). The Amended Complaint supersedes and replaces the original Complaint, Flannery v.
Recording Industry Ass’n of America, 354 F.3d 632, 640 (7th Cir. 2004).
This case is now before the Court for a preliminary review of the Amended Complaint
pursuant to 28 U.S.C. § 1915A, which provides:

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(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, 102627 (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 Amended Complaint and any supporting exhibits, the Court
finds it appropriate to exercise its authority under § 1915A; this action is subject to summary
dismissal.
The Amended Complaint
Plaintiff makes the following allegations in his Amended Complaint. On July 24, 2013, a
jury found Plaintiff guilty of 2 Counts of aggravated battery with a firearm and 1 Count of
attempted first degree murder in the December 20, 2012 shooting of 15-year-old “J.B.”, in case
no. 12-cf-0182604 of St. Clair County, Illinois. (Doc. 8, p. 6). Plaintiff was sentenced to 34

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years’ imprisonment. Id. At trial, J.B. testified that Plaintiff threw her in a ditch and fired 3
shots at her, 2 of which struck her back and the base of her skull. Id. J.B. testified that Plaintiff
shot her because he believed she was “snitching” about a UPS truck robbery. Id.
Plaintiff was also indicted in 2013 in this District Court on 1 Count of a Hobbs Act
Robbery, based on the robbery of a UPS truck. Id. United States v. Moore, 13-cr-30212-DRH
(S.D. Ill. 2013). A jury found him guilty in 2014. Id. During the federal trial, J.B. testified that
she believed Plaintiff robbed the UPS truck, and that he subsequently shot her and left her for
dead. (Case 13-30212, Doc. 84, p. 84). Plaintiff’s attempt to eliminate a witness adverse to him
was taken into account in determining the length of his sentence and the decision to run it
consecutively to his state law sentence; the Seventh Circuit later upheld the sentence and its
enhancement on those grounds. U.S. v. Moore, 784 F.3d 398, 405-06 (7th Cir. 2015).
Defendant Landmann testified at the state trial that he interviewed J.B. several hours after
the incident. (Doc. 8, p. 7). Defendant Plew also testified regarding subsequent interviews he
conducted with J.B. Id.
Plaintiff appealed his state conviction, and the Illinois Appellate Court reversed the
judgment on July 26, 2016 and remanded the case for a new trial on the basis of an improper jury
instruction. Id. People v. Moore, No. 5-13-0466, 2016 WL 4041841 (Ill. App. 5th Dis. July 26,
2016). It appears that Plaintiff’s state court proceedings are currently set for re-trial in 2018.
Plaintiff claims that he did not shoot J.B. and that he was at a girlfriend’s house from
9:00 pm on December 19, 2012 until 9:00 am December 20, 2012. (Doc. 8, p. 7). He was then
arrested at his Aunt Vicky’s house at 10:00 am on December 20, 2012. Id. Twelve officers
converged on the scene, and shot Plaintiff with a Taser. Id. The officers then proceeded to

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stomp on Plaintiff and call him names. Id. The officers had neither an arrest warrant, nor
probable cause to arrest him. (Doc. 8, p. 10).
Plaintiff was taken to the Cahokia police department where he was interviewed by
Defendant Melvin. (Doc. 8, p. 7). Melvin later testified in front of a grand jury, along with Judy
Dahlin, that police had a lead on the gun that could connect Plaintiff with the shooting. (Doc. 8,
p. 8). Melvin also testified that he had observed blood spatter on Plaintiff’s shirt when he
interviewed him, and represented to a grand jury that the blood stains were in the process of
being tested. Id. Plaintiff alleges that no gun was ever recovered, and that the stains on his shirt
were not tested. Id.
Plaintiff also alleges that J.B. told police that he was the shooter because she was
obsessed with him and was jealous of his relationship with Victoria Walker. Id. Plaintiff refused
to become sexually involved with J.B. because she was a minor at the time of the shooting. Id.
When Defendant Landmann interviewed J.B., she identified Plaintiff because she was
enraged that Plaintiff had rejected her, despite the fact that she knew beyond a shadow of a doubt
that Plaintiff was not the shooter.

Id.

J.B. later regretted her statement and tried to tell

Landmann that she lied, but Landmann told her that “we’ve been waiting to lock up that
motherfucker for a long time . . . we’re going with Anthony as the shooter . . . so make sure you
state that.” Id. J.B. kept asserting that Plaintiff was not the shooter, but Landmann did not listen
to her. Id. Plaintiff heard this information through a confidential informant. Id.
Defendants Plew and Melvin came to the hospital to interview J.B.. Id. They brought a
video camera and a photo lineup. Id. Before filming, Plew told J.B. to identify Plaintiff. Id.
J.B. allegedly told them that Plaintiff was not the shooter and that another unknown individual
shot her. (Doc. 8, p. 9). Plew and Melvin said that they didn’t care and if J.B. did not implicate

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Plaintiff, they would charge her with perjury and prosecute her lover on child molestation
charges. Id. J.B. felt threatened and coerced and identified Plaintiff as the shooter. Id.
Plaintiff’s unnamed girlfriend called the St. Clair County State’s Attorney’s office a week
or so after his arrest to offer Plaintiff’s alibi. Id. She refused to come in to discuss the matter
because she did not trust law enforcement. Id. Instead, she mailed an affidavit attesting to the
fact that Plaintiff was with her at the time of the shooting along with a letter stating that Plaintiff
was innocent. Id. After sending this correspondence, the unnamed girlfriend had no further
contact with the State’s Attorney’s office. Id.
Defendants Kelly, Dahlin, and Phillips all failed to inform Plaintiff’s attorneys or the
court that they had received letters and affidavits from a witness. (Doc. 8, pp. 9-10). Melvin and
Dahlin both failed to make this potentially exculpatory information available to the grand jury.
(Doc. 8, p. 10). Melvin and Dahlin also continued to tell the grand jury that J.B. had identified
Plaintiff as the shooter, despite knowing that information was false. Id.
Plaintiff alleges that J.B. was coerced into testifying before the grand jury and at trial in
much the same manner that she was coerced to pick Plaintiff out of a lineup. (Doc. 8, pp. 10-11).
Discussion
Based on the allegations of the Amended Complaint, the Court finds it convenient to
divide the pro se action into 10 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:
Count 1 – Defendants Plew, Melvin, Landmann, Dahlin, Phillips, and Kelly
violated Plaintiff’s Due Process rights under the Fourteenth Amendment when
they manufactured false evidence against Plaintiff in order to obtain a conviction
against him;
Count 2 – Defendants Dahlin, Phillips, and Kelly violated Plaintiff’s Due Process
rights under the Fourteenth Amendment when they failed to turn over the
exculpatory evidence provided by Plaintiff’s unnamed girlfriend;
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Count 3 – Defendants Dahlin, Kelly, Phillips, Landmann, Plew, and Melvin
conspired to violate Plaintiff’s Due Process rights under the Fourteenth
Amendment when they agreed to fabricate evidence against him;
Count 4 – Defendants Landmann, Plew, Melvin, Kelly, Dahlin, and Phillips
maliciously prosecuted Plaintiff without probable cause;
Count 5 – Defendants Melvin, Landmann, Plew, Unknown Parties #1-12, Kelly,
Dahlin, and Phillips violated Plaintiff’s right to be free from unreasonable
searches and seizures under of the Fourth Amendment where they arrested
Plaintiff on December 20, 2012 without probable cause or a warrant, and where
they knew that the eventual warrant was based on false information;
Count 6 – Defendants Plew, Landmann, Melvin, and Unknown Parties #1-12
used excessive force against Plaintiff during his arrest in violation of the
Fourteenth Amendment when they tased and stomped on him on December 20,
2012;
Count 7 – Defendants Landmann, Plew, Melvin, and Unknown Parties #1-12
were deliberately indifferent in violation of the Fourteenth Amendment when they
refused to secure Plaintiff medical care after the arrest;
Count 8 – Defendants City of Cahokia, Illinois and St. Clair County had
unconstitutional policies of allowing officers to use excessive force when
conducting arrests and searches without warrants in violation of the Fourteenth
Amendment;
Count 9 – Defendants Landmann, Plew, Melvin, and Unknown Parties #1-12
committed the tort of assault and battery upon Plaintiff whey they arrested him on
December 20, 2012;
Count 10 – Defendants Plew, Landmann, Melvin, Dahlin, Kelly, Phillips, and
Unknown Parties #1-12 intentionally inflicted emotional distress upon Plaintiff
when they arrested and prosecuted him.

Plaintiff’s claims generally fall into 2 groups.

The first group of claims addresses

perceived constitutional flaws in the criminal proceedings against Plaintiff, and the second
relates to the circumstances of his arrest.
Counts 1-3

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In Counts 1-3, Plaintiff alleges constitutional flaws in his state court criminal proceedings,
including the investigation and trial.

Plaintiff comes to this Court in a somewhat unique

procedural posture. Although he has been tried and convicted of attempted murder once before,
the conviction was reversed and remanded on procedural grounds, and the case is currently set
for re-trial in state court. If the state criminal proceeding were the sole criminal process that
Plaintiff was subjected to, this case would be stayed under Younger v. Harris, 401 U.S. 37
(1971) (a federal court should abstain from further proceedings when a pending state court
criminal proceeding is related to the same incident and involves the same parties).
Additionally, Pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), by which the Court is
required to dismiss a § 1983 suit that would imply the invalidity of a previous conviction or
sentence, the claims raised in Counts 1-3 of the Amended Complaint would have been barred
prior to 2016 because the challenge to the Defendants’ conduct in gathering evidence and
prosecuting Plaintiff would have implied the invalidity of his Illinois state law conviction for
attempted murder and assault. But that conviction has been reversed, and Plaintiff is once again
standing in the shoes of a pre-trial detainee as to those charges. As such, Heck doesn’t apply to
bar the claims in Counts 1-3 that relate specifically to the state attempted murder and assault
charges. Wallace v. Kato, 549 U.S. 384, 393-34 (2007); Gakuba v. O’Brien, 711 F.3d 751, 753
(7th Cir. 2013).
However, during Plaintiff’s federal trial for robbery of the UPS truck, for which he was
ultimately convicted (U.S. v. Moore, 13-cr-30212-DRH), J.B. testified that Plaintiff shot her and
left her for dead. (13-30212, Doc. 84, p. 84). At sentencing, the judge explicitly took J.B.’s
testimony into account in declining to run Plaintiff’s federal sentence concurrently with the state
sentence and in sentencing Plaintiff to the high end of the guidelines range, a decision

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subsequently upheld on appeal. See U.S. v. Moore, 784 F.3d 398, 405-06 (7th Cir. 2015) (district
court adequately and extensively justified high sentence and consecutive application where “the
court also heard the testimony of [J.B.] and reviewed her state court testimony regarding
Moore’s attempt on her life.”). Thus, the alleged attempted murder was a factor in determining
Plaintiff’s sentence.
If in this case, the Court were to accept Plaintiff’s allegations that he did not attempt to
murder J.B., even at the pleading stage, it would invalidate one of the bases for Plaintiff’s federal
sentence and would therefore implicate Heck. See Flick v. Preflatish, 165 F.3d 32 (table), 1998
WL 796062 at *2 (7th Cir. 1998) (upholding dismissal on Heck grounds where plaintiff argued
that his consecutive sentence based on his career offender status was improper); Walker v. Skeen,
31 F. App’x 155 (5th Cir. 2001) (finding plaintiff’s § 1983 suit barred where he failed to allege
that illegal sentence enhancement had been reduced); Smith v. Renworth, No. C 12-5106 SI PR,
2013 WL 530579 at * 2 (N.D. Cal. Feb. 11, 2013) (finding claim that federal prosecutor had a
duty to enjoin state prosecutor from using federal sentence for enhancement purposes was barred
by Heck because it would call into question the validity of the state court sentence); Bryant v.
Ruvin, 11-21541-CIV 2011 WL 13175615 at *2 (S.D. Fla. July 11, 2011) (finding that for
plaintiff to be successful in his § 1983 action, the court would have to determine that his sentence
had been unlawfully enhanced, in violation of Heck); report and recommendation adopted by
Bryant v. Ruvin, 11-21541-CIV 2011 WL 13175539 (S.D. Fla. July 29, 2011) aff’d Bryant v.
Ruvin, 477 F. App’x 605 (11th Cir. 2012); Body v. Alcoke, No. 09 C 6856, 2011 WL 1770187 at
*3 (N.D. Ill. May 6, 2011) (finding that Bivens action was barred by Heck where plaintiff
attempted to raise facts that would raise invalidity of sentencing enhancement); but cf. Banks v.
U.S., 615 F. App’x 377, 377 (7th Cir. 2015) (“It is not clear to us that Heck applies to sentence

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enhancements as opposed to convictions.”). Thus, Plaintiff’s claims that J.B. was improperly
coerced into implicating him in her attempted murder are barred by Heck, so long as Plaintiff’s
federal sentence stands. Thus Counts 1-3 must be dismissed without prejudice at this time.
Plaintiff may file a new suit if he is able to lift the bar imposed by his federal conviction.
Count 4
The procedural posture of Plaintiff’s underlying state case dooms his state law malicious
prosecution claim as well. To establish malicious prosecution, a plaintiff must show, “(1) the
commencement or continuance of an original criminal or civil judicial proceeding by the
defendant; (2) termination of the proceeding in favor of the plaintiff; (3) the absence of probable
cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.”
Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996) (quoting Joiner v. Benton Comm. Bank,
411 N.E.2d 229, 232 (Ill. 1980)); Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998).
In order to satisfy the second element, a plaintiff must allege that the resolution of the
criminal case suggested his innocence. Ferguson v. City of Chicago, 820 N.E.2d 455, 459 (Ill.
2004).

Moreover, the claim doesn’t accrue until “the State [is] precluded from seeking

reinstatement of the charges.” Id. at 461.
Here, Plaintiff cannot state a claim for malicious prosecution because he obviously
cannot allege a favorable termination of the underlying state criminal proceeding at this juncture.
As the State continues to pursue the charges, the claim is premature and must be dismissed
without prejudice.
Counts 5-10
The remainder of Plaintiff’s claims in Counts 5-10 are time barred. Although typically,
affirmative defenses such as filing an action after the statute of limitations has expired are

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litigated by the parties after service, see Jones v. Bock, 549 U.S. 199, 212 (2007), a Court may
invoke these defenses on § 1915A review when the availability of the defense is apparent on the
face of the Complaint. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Gleash v.
Yuswak, 308 F.3d 758, 760 (7th Cir. 2002); Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir.
1992).
The statute of limitations for § 1983 claims is governed by the law of the state where the
alleged violation occurred. Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001)(citing Wilson v.
Garcia, 471 U.S. 261, 276 (1985)). In this District, Illinois’ 2-year statute of limitations applies
to such claims. Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008). In other words,
plaintiffs proceeding under § 1983 must bring claims related to their arrest within 2 years. Ray v.
Maher, 662 F.3d 770, 772-72 (7th Cir. 2011). The claims accrue at the time of the arrest.
Wallace v. Kato, 549 U.S. 384 (2007); Bond v. Perley, 705 F. App’x 464 (mem) (7th Cir. 2017).
Plaintiff was arrested on December 20, 2012, but filed suit nearly 5 years later (on
October 23, 2017). Therefore, Plaintiff’s § 1983 claims in Counts 5-8 are barred by the statute
of limitations and are dismissed with prejudice.
Plaintiff’s state law tort claims in Counts 9 and 10 are likewise time-barred. Plaintiff
alleges that certain defendants subjected him to assault and battery on December 20, 2012, but
under Illinois law, the statute of limitations has run on those claims. It is unclear who employed
the 12 John Doe Defendants Plaintiff claims committed the tort. But if they were Cahokia police
officers, like Defendants Landmann and Plew, the applicable statute of limitations is 1 year
under the Illinois Local Government Employees Tort Immunity Act codified at 745 ILCS 10/8101. Crockett v. City of Northlake, IL, No. 00 C 4542, 2002 WL 31236085 at *11-12 (N.D. Ill.
Oct. 1, 2002). If, on the other hand, the arresting officers were state employees like Defendant

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Melvin, the statute of limitations would be 2 years under 735 ILCS 5/13-202.

In either case,

Plaintiff filed this too late by years as to all Defendants on his assault and battery claim.
Accordingly, Count 9 will also be dismissed with prejudice.
The same reasoning applies to Plaintiff’s state law claim for intentional infliction of emotional
distress. Plaintiff alleges that Defendants’ actions in making the arrest and continuing the
prosecution intentionally inflicted emotional distress upon him. Once again, the accrual date for
such a claim is the date of the arrest. Bridewell v. Eberle, 730 F.3d 672, 678 (7th Cir. 2013);
Evans v. Chicago, 434 F.3d 916, 934 (7th Cir. 2006). To the extent Plaintiff’s claim is premised
on the actions of employees of the Cahokia police department, it is subject to a 1 year statute of
limitations, which would have run on December 20, 2013. Davenport v. Dovgin, 545 F. App’x
535, 538 (7th Cir. 2013). Even if the more generous 2-year statute of limitations applied because
some of the arresting officers were state employees, Plaintiff’s claim would still be untimely by
almost 3 years. Count 10 must also be dismissed with prejudice.
Pending Motions
As this case will be dismissed, Plaintiff’s pending motions for appointment of counsel are
DENIED AS MOOT (Docs. 3 and 9).
Disposition
IT IS HEREBY ORDERED that Counts 1-3 are DISMISSED without prejudice as
barred by Heck. Count 4 is DISMISSED without prejudice for failure to state a claim.
Plaintiff may bring another suit regarding Counts 1-4 if circumstances change. Counts 5-10 are
DISMISSED with prejudice as barred by the statute of limitations. Plaintiff’s Motions are
DENIED as MOOT. (Doc. 3) (Doc. 9). This case does not count as a strike under § 1915(g).
Judgment to enter.

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IT IS SO ORDERED.

DATED: February 26, 2018

s/ STACI M. YANDLE
U.S. District Judge

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