Pettiford v. Marion Police Department et al
Filing
4
OPINION AND ORDER: This case is DISMISSED pursuant to 28 U.S.C. § 1915A. Signed by Judge Rudy Lozano on 11/12/2013. (lhc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
RUDELL PETTIFORD,
Plaintiff,
vs.
MARION POLICE DEPARTMENT,
et al.,
Defendants.
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NO. 1:13-CV-320
OPINION AND ORDER
This matter is before the Court on the complaint filed by
Rudell Pettiford, a pro se prisoner, on November 4, 2013. For the
reasons set forth below, this case is DISMISSED pursuant to 28
U.S.C. § 1915A.
BACKGROUND
On May 20, 2013, Rudell Pettiford was arrested in his home at
1113
Riga
Street
in
Marion,
Indiana.
Police
came
to
the
neighborhood in response to reports of shots having been fired.
When they arrived, they were directed to Pettiford’s house by a
crowd of bystanders. Autumn Deloporte told the police that only her
two children were in the house. The children came out of the house,
and she persistently denied that anyone else was in the house.
Nevertheless, witnesses told the police that the person with the
gun had entered the house and not left. While continuing to
question Deloporte, the police saw some unknown person peak out
from around a corner in the living room. With their guns drawn, the
police arrested that person - who was subsequently identified as
the plaintiff in this case: Rudell Pettiford.
Deloporte refused to consent to a search of the house, so the
police secured the residence and obtained a warrant to search it.
During the search the police found various things including: a
handgun and ammunition, 144 grams of marijuana, 2 digital scales,
a roller, baggies, and $960 in cash. “Pettiford is suing each
defendants for illegal search and seizure, and false arrest . . ..”
DE 1 at 2.
DISCUSSION
“A document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers."
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Nevertheless, the court must review prisoner
complaints pursuant to 28 U.S.C. § 1915A. A complaint must contain
sufficient factual matter to “state a claim that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
“Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (quotation marks, citations and footnote
omitted). “[W]here the well-pleaded facts do not permit the court
to
infer
more
than
the
mere
possibility
of
misconduct,
the
complaint has alleged – but it has not shown – that the pleader is
entitled to relief.” Iqbal, 556 U.S. at 679 (quotation marks and
brackets omitted). Thus, “a plaintiff must do better than putting
a few words on paper that, in the hands of an imaginative reader,
might suggest that something has happened to her that might be
redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403
(7th Cir. 2010) (emphasis in original).
Pettiford names nine defendants and has also listed the Marion
Police
Department
in
the
caption
of
this
case.
The
police
department is not a suable entity. Smith v. Knox County Jail, 666
F.3d 1037, 1040 (7th Cir. 2012). Therefore the Marion Police
Department must be dismissed.
The only allegation that Pettiford makes against Chief David
Gilbert is that he is in charge of the department. However, “[t]he
doctrine
of
respondeat
superior
can
not
be
used
to
hold
a
supervisor liable for conduct of a subordinate that violates a
plaintiffs’
constitutional
rights.”
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Chavez
v.
Illinois
State
Police,
251
F.3d
612,
651
(7th
Cir.
2001).
Here,
where
the
subordinates have not violated his rights, there is absolutely no
basis for liability and Chief David Gilbert must be dismissed.
The other eight officers were involved in various aspects of
the search, seizure, and arrest described above. However, because
none
of
the
events
described
state
a
claim,
they
will
(for
convenience) merely be described as the police.
Pettiford alleges that he was wrongly arrested as a result of
racial profiling. “Racial profiling, or selective enforcement of
the law, is a violation of the Equal Protection Clause.” Sow v.
Fortville Police Dep’t, 636 F.3d 293, 303 (7th Cir. 2011). However,
in order to state a claim, Pettiford must plausibly allege that the
police “acted or failed to act with a nefarious discriminatory
purpose, and discriminated against [the plaintiff] because of her
membership in a definable class” McPhaul v. Board of Com’rs of
Madison County, 226 F.3d 558, 564 (7th Cir. 2000) (citations,
quotation marks and brackets omitted); see also Sow, 636 F.3d at
303. Here, Pettiford has not alleged any factual basis from which
a
discriminatory
animus
could
be
plausibly
inferred.
“[A]
plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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When the police arrested Pettiford, they were not looking for
someone of a particular race – they were not profiling. They were
looking in a house where witnesses said that a person with a gun
had fled. They were talking to a woman who was familiar with the
house1 who repeatedly told them that no one was there. Based on the
description of events, Pettiford was arrested after he stuck his
head around the corner in the living room. Nothing about the
described events contains any hint of racial or discriminatory
intent. Based on the facts presented, it is not plausible that any
of these defendants are liable to Pettiford for racial profiling.
To prevail on his false arrest claim, Pettiford must plausibly
allege that he was arrested without probable cause. See Lawson v.
Veruchi, 637 F.3d 699, 703 (7th Cir. 2011). However, the facts
alleged demonstrate that the police had probable cause to arrest
Pettiford. “Probable cause for an arrest exists if, at the moment
the
arrest
is
made,
the
facts
and
circumstances
within
the
officer[’s] knowledge and of which [he] had reasonably trustworthy
information
were
sufficient
to
warrant
a
prudent
person
in
believing that an offense has been committed.” Hughs v. Meyer, 800
F.2d 967, 969 (7th Cir. 1989). Here, there had been gun shots fired
in the neighborhood shortly before the police arrived. Witnesses
saw a man with a gun run into the house. Deloporte stated that no
1
Based on the description provided, it is unclear whether she and her
children lived in the house, but since her children were inside and she
repeatedly said that no one else was in the house, it is clear that she was
familiar with it.
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one (besides her children) had been or were in the house. Then
Pettiford peaked his head around the corner of the living room.
Based on these facts, the police had probable cause to believe that
Pettiford was the man with the gun who had fled into the house and
that he had been involved in the shooting in the neighborhood.
Thus, Pettiford does not state a claim for having been falsely
arrested.
Pettiford
alleges
that
the
police
performed
an
illegal
protective search of the house without a warrant. Pettiford does
not allege that the police did more than a cursory sweep through
the house after they arrested him and before they obtained a
warrant to conduct a full search.
In [Maryland v.] Buie[, 494 U.S. 325 (1990)], the
Supreme Court recognized an exception to the warrant
requirement for a protective sweep accompanying an
in-home arrest. The Court held that when the police
arrest an individual at his home, they may conduct a
limited search of the premises without a warrant and
without probable cause if there are articulable facts
which, taken together with the rational inferences from
those facts, would warrant a reasonably prudent officer
in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene.
United States v. Arch, 7 F.3d 1300, 1303 (7th Cir. 1993) (quotation
marks and citation omitted). Here, the police were responding to a
shooting in the neighborhood and Deloporte either did not know who
was in the house or had lied to conceal who was there. Either way,
the police clearly had justification for conducting a protective
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sweep of the house after arresting Pettiford. See Leaf v. Shelnutt,
400 F.3d 1070, 1088 n. 22 (7th Cir. 2005).
Pettiford alleges that the search of the house and the seizure
of items from the house was illegal. Other than saying that it was
a violation of an unspecified (and undescribed) police department
policy, he does not describe why searching the house with a warrant
(see DE 1 at 22-23) was illegal. Neither does he allege that any of
the seized items were outside the scope of the warrant. Violations
of police department policy, even if true, do not state a claim
under 42 U.S.C. § 1983. Savory v. Lyons, 469 F.3d 667, 670 (7th
Cir. 2006) (“In order to state a claim under [42 U.S.C.] § 1983 a
plaintiff must allege: (1) that defendants deprived him of a
federal constitutional right; and (2) that the defendants acted
under color of state law.”)
Pettiford argues that the police “failed to file a supporting
affidavit for the search warrant . . ..” DE 1 at 9. It appears that
he makes this argument because the box on the warrant for “an
affidavit for search warrant was filed” was left unchecked. DE 1 at
22. However, the other box is checked. It indicates that “sworn
testimony
was
presented
to
the
court.”
Id.
There
is
no
constitutional requirement that a court only issue a warrant based
on a written affidavit. Cf. Federal Rules of Criminal Procedure
4.1(a) (“A magistrate judge may consider information communicated
by telephone or other reliable electronic means when reviewing a
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complaint or deciding whether to issue a warrant or summons.”) and
Indiana Code 35-33-5-8 (Authorizing issuance of a warrant upon
sworn testimony and without an affidavit.)
In an attempt to challenge the legitimacy of the warrant,
Pettiford alleges that the judge “failed to place his signature on
the search warrant return that orders disposition of property
seized.” DE 1 at 10. While is it unclear why the copy of the return
that Pettiford submitted was not signed by the State court judge
and also unclear whether the original has ever been signed, it is
clear that nothing about the return could create liability here. In
Malley v. Briggs, 475 U.S. 335 (1986), “the Supreme Court held that
an officer who relies on a subsequently invalidated warrant may be
liable for § 1983 damages only if the warrant application was ‘so
lacking in indicia of probable cause as to render official belief
in its existence unreasonable.’” Junkert v. Massey, 610 F.3d 364,
369 (7th Cir. 2010). Here, nothing about how the return was
processed has anything to do with the warrant application or the
warrant itself. Moreover, nothing about the absence of a judicial
signature on the return gives any hint that the warrant was in any
way invalid.
Finally, Pettiford argues that the police should not have
sought to have forfeited the $960 in cash that was seized from his
residence because there were no “smoking devices, scales, and
packaging bags located on [his] person” (DE 1 at 11); because there
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is no evidence that the cash was linked to drug sales; and because
it is a violation of Indiana law. However, the drug paraphernalia
he mentions was (like the $960 cash and 144 grams of marijuana)
found in his residence. He does not argue that these items are not
his. But to the extent that he were to make that argument (or any
other argument opposing the forfeiture), he would need to present
it to the State court that is presiding over the forfeiture
proceeding because it has exclusive jurisdiction over the $960
until the conclusion of that proceeding. See United States v.
$79,123.49, 830 F.2d 94 (7th Cir. 1987). Finally, a violation of
Indiana law (if true) is not a basis for a claim under § 1983 which
requires the deprivation of a federal constitutional right. See
Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Though the
Fourteenth
Amendment
provides
that
State
officials
shall
not
“deprive any person of life, liberty, or property, without due
process of law”, the forfeiture proceeding provides Pettiford with
due process. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“For
intentional, as for negligent deprivations of property by state
employees, the state’s action is not complete until and unless it
provides
or
refuses
to
provide
remedy.”)
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a
suitable
post
deprivation
CONCLUSION
For the reasons set forth above, this case is DISMISSED
pursuant to 28 U.S.C. § 1915A.
DATED:
November 12, 2013
/s/RUDY LOZANO, Judge
United States District Court
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