Jones v. Mooney et al

Filing 5

IT IS HEREBY ORDERED that the Complaint is DISMISSED with prejudice with respect to COUNTS 1 and 2 and without prejudice with respect to COUNT 3, all for failure to state a claim upon which relief may be granted. COUNT 4 is DISMISSED without prejud ice to Plaintiff bringing the claim in state court. Plaintiff is GRANTED leave to file a First Amended Complaint on or before 2018. Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructi ons set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 4/18/2018). Signed by Judge J. Phil Gilbert on 3/21/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CORBIN D. JONES,
Plaintiff,
vs.
NEIL MOONEY, and
CITY OF MT. VERNON, ILLINOIS
Defendants.

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Case No. 18-cv-255−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, a former detainee at the Jefferson County Justice Center, brings this pro se civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff requests monetary damages. At the time of
filing, Plaintiff was not incarcerated, meaning that he was not a “prisoner” under 28 U.S.C. §
1915A. However, he has filed a motion seeking leave to proceed in forma pauperis, and so the
Court will screen this case pursuant to 28 U.S.C. § 1915(e)(2)(B), which provides:
Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that ... the
action or appeal—
i.

is frivolous or malicious;

ii.

fails to state a claim on which relief may be granted; or

iii.

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, 10261

27 (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).
The Complaint
Plaintiff claims that he was “falsely imprisoned for six months.” (Doc. 1, p. 2). The
Complaint identifies two defendants: (1) Neil Mooney, described as the arresting police officer
and (2) the City of Mt. Vernon. (Doc. 1, pp. 1-2). The statement of claim consists of a single
page that includes several confusing statements.

(Doc. 1, p. 6).

The statements are not

associated with any particular individual, let alone the named Defendants. (Doc. 1, p. 6). The
Court specifically notes the following:
•

“Violated Rule 1.16 of the Illinois Rules of Professional Conduct.”

•

“[They] had all the evidence in front of them to know the case was wrongful but they
decided to push forward.”

•

“Also liable, slander, defamation of character, abuse of process, sovereign immunity,
violation of the Illinois Rules of Professional Conduct.”

•

“The Federal Tort Claims Act allows an individual to sue the federal government…”

(Doc. 1, p. 6).
The Complaint was filed with 55 pages of exhibits. (Doc. 1-1). However, only a single
page relates to the instant case. (Doc. 1-1, p. 1). The other 54 pages are filings related to other
civil rights actions Plaintiff is pursuing or previously pursued in this Court. (Doc. 1-1, pp. 2-55).

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The page that appears to be relevant to the instant case includes the following additional
information:
•

Plaintiff was arrested or falsely imprisoned on February 14, 2017.

•

Defendant Mooney was the arresting officer.

•

“Drug items” were found in “plain view” at a residence.

•

A crystal substance tested positive for methamphetamine.

•

Cannabis located on the scene was destroyed by Officer C. Greenwood.

•

Evidence was collected, photographed, labeled, and placed in an evidence locker.

•

Plaintiff was removed from the residence and detained at the Jefferson County Justice
Center.

(Doc. 1-1, p. 1).
Prior Civil Rights Action Involving Officer C. Greenwood
On July 10, 2017, Plaintiff filed a civil rights action against Officer C. Greenwood. Jones
v. Greenwood, 17-cv-719-JPG (S.D. Ill.) (“Prior Case”). In his Complaint, Plaintiff alleged that
on February 14, 2017, Greenwood “acted in bad faith to destroy potentially exculpatory evidence
the drug paraphernalia.” (Prior Case, Doc. 1, p. 5). Plaintiff then recited various legal phrases
and constitutional rights. (Prior Case, Doc. 1, p. 6) (e.g., “procedural due process rights &
substantive due process rights,” “qualified immunity and absolute prosecutorial,” “motion to
dismiss on qualified immunity grounds the destruction of evidence rises to the level of a due
process violation,” “destroying exculpatory evidence, ”). Id. Plaintiff also inserted, without
explanation, a case number (Case # 17-cf-69) at the bottom of the pleading.1 Id. In reviewing
Plaintiff’s Complaint, the undersigned judge noted that the case number appeared to reference a

1

Case No. 17-cf-69 is one of several cases associated with Plaintiff in Jefferson County Circuit Court.

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criminal action that was filed against Plaintiff in Jefferson County, charging Plaintiff with
possession of Meth. (Prior Case, Doc. 8). The electronic docket for that action indicated that
charges were filed in February 2017 and that, on August 23, 2017, the action was dismissed
“nolle prosequi.” Id.
The Court dismissed the Prior Case without prejudice and with leave to amend. Id.
Plaintiff failed to amend and did not otherwise communicate with the Court. Accordingly, on
November 30, 2017, the Court dismissed the action with prejudice, assessed a strike, and entered
judgment. (Prior Case, Docs. 10-11).
Discussion
It appears that Plaintiff is, once again, attempting to assert claims pertaining to his arrest
and subsequent detention on February 14, 2017. Only this time, Plaintiff has named different
defendants. The claims also appear to be related to Jefferson County Case # 17-cf-69. Beyond
that, the Court is struggling to ascertain the specific claims Plaintiff intended to assert against
Officer Mooney and the City of Mt. Vernon.
That being said, based on the allegations of the Complaint, the Court has divided the pro
se action into the following 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. These
designations do not constitute an opinion as to its merit. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be considered dismissed without prejudice
under the Twombly pleading standard.
Count 1 -

Claim for violating the Illinois Code of Professional conduct.

Count 2 -

FTCA claim.

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Count 3 -

On February 14, 2017, Defendants violated Plaintiff’s Fourteenth
Amendment right to a fair trial because Officer Greenwood destroyed
cannabis.

Count 4 -

State law claim for false imprisonment.
Count 1

Plaintiff suggests that someone violated Rule 1.16 of the Illinois Code of Professional
Conduct. However, the Illinois Code of Professional Conduct applies to attorneys; not police
officers or municipalities. Moreover, an alleged violation of the Illinois Code of Professional
Conduct does not implicate the Constitution. Dawaji v. Askar, 618 F. App’x. 858 (7th Cir. 2015)
(because Illinois Rule of Professional Conduct is not “ ‘a right secured by the Constitution and
laws of the United States,’ its alleged violation cannot predicate a § 1983 claim”). Accordingly,
Count 1 shall be dismissed with prejudice.
Count 2
Plaintiff also references the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346,
2671–2680. But, the FTCA provides jurisdiction for suits against the United States regarding
torts committed by federal officials, not state officials. Therefore, Plaintiff cannot bring an
FTCA claim against either Defendant. Accordingly, Count 2 shall be dismissed with prejudice.
Count 3
In describing the circumstances of his arrest, Plaintiff claims that contraband, which was
located in “plain view” and included a substance that tested positive for methamphetamine, was
photographed and taken into evidence. At which point, Plaintiff was escorted from a “residence”
and detained at the Jefferson County Justice Center. None of these facts suggest a constitutional
violation. However, Plaintiff also alleges that Officer Greenwood destroyed a substance Plaintiff

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identifies as cannabis. This suggests that Plaintiff may be attempting to bring a claim pertaining
to Officer Greenwood’s destruction of the cannabis.
The bad-faith destruction or loss of exculpatory evidence violates a suspect’s right to a
fair trial. Armstrong v. Daily, 786 F.3d 529, 532 (7th Cir. 2015). Generally, if all criminal
charges are dismissed prior to trial, the right to a fair trial is not implicated. See Morgan v.
Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (When all charges are dismissed prior to
trial, “courts have held universally that the right to a fair trial is not implicated and, therefore, no
cause of action exists under § 1983” for withholding or destruction of evidence.). However, the
Seventh Circuit has indicated that a pretrial deprivation of liberty resulting from the bad-faith
destruction of evidence may state a viable claim under § 1983. Armstrong v. Daily, 786 F.3d
529, 554-55 (7th Cir. 2015).
That being said, the Complaint states no such claim as to Officer Mooney or the City of
Mt. Vernon. First, it is unclear how the destruction of cannabis could amount to the destruction
of exculpatory evidence resulting in a liberty deprivation in the instant case. Here, the charge
that resulted in Plaintiff’s detention was a charge for possession of methamphetamine. Second,
Plaintiff claims that Officer Greenwood destroyed the cannabis. Plaintiff does not allege that
Officer Mooney had any involvement in the alleged destruction. This is insufficient. Absent
further information, Plaintiff has failed to state a claim as to Officer Mooney. See Palmer v.
Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (Section 1983 requires a defendant's personal
involvement in the alleged constitutional violation). As to the City of Mt. Vernon, Plaintiff has
failed to allege a municipal policy, practice, or custom attributable to Mt. Vernon. Accordingly,
Plaintiff has failed to state a claim as to the City of Mt. Vernon. See Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978).

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Count 4
A federal district court that has original jurisdiction over a § 1983 claim will also have
supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long
as the state claims “derive from a common nucleus of operative fact” with the original federal
claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). However, when all
federal claims are dismissed by the district court, “the usual practice is to dismiss without
prejudice state supplemental claims[.]” Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.
1999).
The Court finds no reason to depart from this usual practice. Accordingly, Plaintiff's
false imprisonment claim will be dismissed without prejudice to Plaintiff attempting to bring the
claim in state court. Nothing herein shall be construed as a comment on the merits or timeliness
of the state-law claim.
Pending Motions
Plaintiff has filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 3), which will
be addressed in a separate Order of this Court.
Disposition
IT IS HEREBY ORDERED that the Complaint is DISMISSED with prejudice with
respect to COUNTS 1 and 2 and without prejudice with respect to COUNT 3, all for failure to
state a claim upon which relief may be granted. COUNT 4 is DISMISSED without prejudice to
Plaintiff bringing the claim in state court.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before April 18,
2018. Should Plaintiff fail to file his First Amended Complaint within the allotted time or
consistent with the instructions set forth in this Order, the entire case shall be dismissed with

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prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED.
R. APP. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e. 18-cv-255JPG).
To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail
Plaintiff a blank civil rights complaint form.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915(e)(2).
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee remains due and payable, regardless
of whether Plaintiff elects to file a First Amended Complaint. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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

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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: March 21, 2018
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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