Richardson v. Azcona et al
Filing
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OPINION AND ORDER: Plaintiff Christopher Richardson's arrest claim is DISMISSED WITH PREJUDICE and the coerced testimony claim is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §1915A. Signed by Judge Joseph S Van Bokkelen on 9/22/15. (cc: Christopher Richardson). (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
CHRISTOPHER RICHARDSON,
Plaintiff,
v.
ARTURO AZCONA and CITY OF GARY,
Defendants.
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Case No. 2:15-CV-328-JVB
OPINION AND ORDER
Christopher Richardson, a pro se prisoner, filed a complaint against two defendants
pursuant to 28 U.S.C. § 1983. “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). Nevertheless,
pursuant to 28 U.S.C. § 1915A, this court must review the complaint and dismiss it if the action
is frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant who
is immune from such relief. “In order to state a claim under § 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.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
Here, Richardson alleges that Gary Police Officer Arturo Azcona arrested him without
probable cause on September 15, 2010. “Fourth Amendment claims for false arrest or unlawful
searches accrue at the time of (or termination of) the violation.” Dominguez v. Hendley, 545 F.3d
585, 589 (7th Cir. 2008). Thus, this claim accrued when Richardson was arraigned shortly after
he was arrested on September 15, 2010. See id. (“[H]is unlawful seizure was terminated [at] the
time of his arraignment.”). “Indiana’s two-year statute of limitations . . . is applicable to all
causes of action brought in Indiana under 42 U.S.C. § 1983.” Snodderly v. R.U.F.F. Drug
Enforcement Task Force, 239 F.3d 892, 894 (7th Cir. 2001). However, Richardson waited nearly
five years to bring this lawsuit. Because this claim is barred by the statute of limitations, it will
be dismissed with prejudice.
Richardson also alleges that Officer Azcona coerced Simmuel Mobley into providing
false testimony and knowingly used that testimony against him in a probable cause affidavit. The
Seventh Circuit has “expressly stated that a police officer who manufactures false evidence
against a criminal defendant violates due process if that evidence is later used to deprive the
defendant of his liberty in some way.” Saunders-El v. Rohde, 778 F.3d 556, 560 (7th Cir. 2015)
(quotation marks, brackets, and citation omitted). In addition the use of Moberly’s testimony in
the probable cause affidavit, Mobley also testified at Richardson’s criminal trial. He testified that
Richardson had been his friend for nearly a year. He testified that Richardson (who was 41 years
old) was dating a 14 year old. He testified that he ordered Richardson off his property because
Richardson and the girlfriend were arguing. He testified that later that evening Richardson shot
him in the leg outside of Richardson’s apartment building. Richardson v. State, 968 N.E. 2d 867
(Ind. Ct. App. 2012) (table). Clearly Mobley’s allegedly coerced testimony was used to deprive
Richardson of his liberty. However, in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the
Supreme Court explained that “in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such a determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” Here, in order to prevail, Richardson would have to
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show that Mobley’s testimony was false and that it was coerced by Officer Azcona. That would
undermine Richardson’s conviction. However, because Richardson’s conviction has not been
reversed or otherwise invalidated, this claim is not yet ripe. Therefore it must be dismissed
without prejudice.
Though it is usually necessary to permit a plaintiff the opportunity to file an amended
complaint when a case is dismissed sua sponte, see Luevano v. Wal-Mart, 722 F.3d 1014 (7th
Cir. 2013), that is unnecessary where the amendment would be futile. Hukic v. Aurora Loan
Servs., 588 F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad discretion to deny leave to
amend where . . . the amendment would be futile.”) Such is the case here because no amendment
could make the arrest claim timely nor the coerced testimony claim ripe.
For the foregoing reasons, the arrest claim is DISMISSED WITH PREJUDICE and the
coerced testimony claim is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §
1915A.
SO ORDERED on September 22, 2015.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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