Hamilton v. East Chicago City of et al
Filing
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OPINION AND ORDER DISMISSING CASE, The Court DENIES Plaintiff's motion for leave to proceed in forma pauperis DE 2 and pursuant to 28 U.S.C. § 1915(e)(2), DISMISSES his complaint WITHOUT PREJUDICE. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 11/7/13. cc:pltf(kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOHN P. HAMILTON,
Plaintiff,
vs.
CITY OF EAST CHICAGO and
UNKNOWN POLICE OFFICER,
Defendant.
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CAUSE NO. 2:13-CV-338
OPINION AND ORDER
This
matter
is
before
the
Court
on
Plaintiff
John
P.
Hamilton’s complaint and petition to proceed in forma pauperis.
For
the
reasons
set
forth
below,
pursuant
to
28
U.S.C.
§
1915(e)(2), the Court DENIES the Plaintiff’s motion to proceed in
forma pauperis and DISMISSES the Plaintiff’s complaint WITHOUT
PREJUDICE.
BACKGROUND
The Plaintiff alleges that, while waiting on a street corner
near his home to retrieve a package from a United States Postal
Worker, an unknown police officer sitting in his police car honked
his horn and gestured for the Plaintiff to come toward him.
Initially the Plaintiff, the postal worker, and a third individual
looked at the officer but simply turned away, presumably returning
to their business.
The officer then honked a second time.
This
time, he pointed at the Plaintiff and gestured for the Plaintiff to
come to him.
The Plaintiff walked toward the officer’s vehicle.
The officer then told the Plaintiff that there had been a report of
a suspicious person in the area.
According to the complaint, the
Plaintiff said, “well you know they weren’t talking about me
because you’ve been here since I walked up.”
The officer agreed
with the Plaintiff, and then asked him why he was standing on the
street corner.
pocket.
The
dispatcher.
He produced a notice of parcel receipt from his
officer
then
said
okay
and
radioed
in
to
his
Thereafter, the Plaintiff returned to the United
States postal vehicle and retrieved his parcel.
According to the
Plaintiff, the officer engaged in wanton and wilful misconduct
designed to make the plaintiff appear as a criminal.
Based on these facts, Plaintiff asserts that “the unknown
officer had no probable cause for illegal search and seizure of the
plaintiff,” and that the officer violated the Fourth and Fifth
Amendments of the United States Constitution and section 11 of the
Indiana State Constitution.
He seeks $10,000,000.00 in damages.
DISCUSSION
Pursuant to 28 U.S.C. § 1915, indigent litigants may proceed
without prepayment of fees, which prevents poverty from becoming an
impediment to the adjudication of legitimate claims in the federal
courts.
To prevent abusive, captious or meritless litigation,
however, federal courts are authorized to dismiss a claim filed in
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forma pauperis if the allegation of poverty is untrue or if the
action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary damages from an immune
defendant. 28 U.S.C. § 1915(e)(2).
If a plaintiff “pleads facts
that show his suit is . . . without merit, he has pleaded himself
out of court.”
Tregenza v. Great American Communications Co., 12
F.3d 717, 718 (7th Cir. 1993), cert. denied, 511 U.S. 1085 (1994).
The Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which provides a cause of action to redress the violation of
federally secured rights by a person acting under color of state
law.
Burrell v. City of Mattoon, 378 F.3d 642 (7th Cir. 2004).
To
state a claim under § 1983, a plaintiff must allege violation of
rights secured by the Constitution and laws of the United States,
and must show that a person acting under color of state law
committed the alleged deprivation. West v. Atkins, 487 U.S. 42
(1988).
The Fourth Amendment states it is “the right of the people to
be secure in their person, houses, papers, and effects against
unreasonable searches and seizures[.]”
U.S. Const. Am. IV.
To
determine whether a cause of action has been stated, courts
determine whether the alleged conduct constituted a search or
seizure, and if so, whether it was unreasonable in light of the
facts.
A person has been “seized” for purposes of the Fourth
Amendment if “in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not
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free
to
leave.”
Gentry
v.
Sevier,
597
F.3d
838,
(7th
Cir.
2010)(quoting Michigan v. Chesternut, 486 U.S. 567 (1988), in turn
quoting in part United States v. Mendenhall, 446 U.S. 544, 554
(1980)). “The test of reasonableness under the Fourth Amendment is
not capable of precise definition or mechanical application, and
its proper application requires careful attention to the facts and
circumstances of each particular case.”
Brokaw v. Mercer County,
235 F.3d 1000, 1010 (7th Cir. 2000) (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)).
According to the United States Supreme
Court:
Law enforcement officers do not violate the
Fourth Amendment’s prohibition of unreasonable
seizures merely by approaching individuals on
the street or in other public places and
putting questions to them if they are willing
to listen. Even when law enforcement officers
have no basis for suspecting a particular
individual, they may pose questions, ask for
identification, and request consent to search
luggage - provided they do not induce
cooperation by coercive means.
If a
reasonable person would feel free to terminate
the encounter, then he or she has not been
seized.
United States v. Drayton, 536 U.S. 194, 200-201 (2010); see also
United States v. Adamson, 441 F.3d 513, 519-20 (7th Cir. 2006)(“It
is well settled that police may approach an individual in a public
place and seek the individual's cooperation in answering a few
questions. Such an encounter is not a “seizure” within the meaning
of the Fourth Amendment.”).
The following factors are considered in determining whether a
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stop was consensual:
whether the encounter took place in public,
whether the suspect consented to speak to
police, whether the officers told the suspect
that he was not under arrest and free to
leave, whether the suspect was moved to another area, the number of
officers present and whether they displayed weapons or physical
force.
Id. (citing United States v. Robinson, 30 F.3d 774, 782 (7th
Cir.1994)). The Court has considered these factors with regards to
Hamilton’s Fourth Amendment Claim, and concludes that Plaintiff has
alleged nothing other than a brief, consensual encounter with a
police officer.
The Fifth Amendment provides that, “[n]o person ... shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. Am. V.
Plaintiff’s claim under the Fifth Amendment is
so vague that the Court is left to guess how Plaintiff thinks the
Fifth Amendment is implicated.
Nevertheless, to the extent he is
trying to allege a violation of his Miranda rights, he has no valid
claim because he does not allege that any of his statements were
used against him in court.
Chavez v. Martinez , 538 U.S. 760, 766-
67 (2003) (failure to give Miranda warning alone is not actionable
under the Fifth Amendment unless the defendant gave a statement in
response to coercive police questioning that was used against him
in a criminal proceeding); Sornberger v. City of Knoxville, 434
F.3d 1006, 1024-25 (7th Cir. 2006) ("After Chavez . . . violation
of the Miranda safeguards cannot provide the basis for § 1983
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liability without use of a suspect's statements against him in a
'criminal case.'"). Accordingly, the Plaintiff has failed to state
a Fifth Amendment claim against either the City of East Chicago or
the unknown officer.
Plaintiff also asserts a claim under Section 11 of the Indiana
Constitution.
Because the federal claims must be dismissed, the
court will also dismiss this state law claim without prejudice.
See Doe-2 v. McLean County Unit Dist. No. 5 Bd. of Dirs., 593 F.3d
507, 513 (7th Cir. 2010) (“Ordinarily, when a district court
dismisses the federal claims conferring original jurisdiction prior
to
trial,
it
relinquishes
supplemental
jurisdiction
over
any
state-law claims under 28 U.S.C. § 1367(c).”).
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion
for leave to proceed in forma pauperis (DE 2) and pursuant to 28
U.S.C. § 1915(e)(2), DISMISSES his complaint WITHOUT PREJUDICE.
DATED: November 7, 2013
/S/RUDY LOZANO, Judge
United States District Court
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