Harris v. Wolf, et al
OPINION AND ORDER DISMISSING case without prejudice. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 8/8/17. (Copy mailed to pro se party)(ksc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
GREGORY WOLF, et al.,
CAUSE NO. 2:17-CV-51
OPINION AND ORDER
This matter is before the Court on a complaint filed by Joseph
Harris, a pro se prisoner, on February 6, 2017 [ECF 1]. For the
reasons set forth below, this case is DISMISSED WITHOUT PREJUDICE.
Joseph Harris, a pro se prisoner, filed this case pursuant to
42 U.S.C. § 1983 against the Defendants, Sgt. Gregory Wolf of the
Gary Police Department and Antonio Reeves. Harris alleges that the
defendants have been harassing him in an attempt to get him to join
their street gang since 2006. On July 23, 2016, he was confronted
whip[ped]” Harris. During the altercation, the gun fell and Harris
recovered the firearm and shot Reeves. [ECF 1 at 3, 4.] Sgt. Wolf
then arrested Harris and he was eventually charged for shooting
Reeves. Harris brings suit against both Sgt. Wolf and Antonio
intentional infliction of emotional distress. That criminal charge
appears to be currently pending against Harris in the Lake County
criminal court system.
Pursuant to 28 U.S.C. § 1915A, the court must review the
merits of a prisoner complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against a defendant who is
immune from such relief. “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).
Harris alleges that the defendants1 worked together to have
charged, but not yet convicted, of that crime. Thus, Harris’s
federal false imprisonment claims are barred by Heck v. Humphrey,
512 U.S. 477, 486-87 (1994).
In addition, it does not appear as though Harris could bring a
constitutional claim against Antonio Reeves. “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, while Sgt.
Wolf is an officer with the Gary Police Department, there is no indication
that Reeves is a state actor. If Reeves is not a state actor, he cannot be
sued for constitutional violations. See Blum v. Yaretsky, 457 U.S. 991, 1004
(1982); Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
application of Heck to situations involving outstanding
convictions. Rather, joining other circuits, we have
interpreted Heck as barring damage claims which, if
successful, would necessarily imply the invalidity of a
potential conviction on a pending criminal charge.
Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892,
898 n.8 (7th Cir. 2001). Here, prevailing in this case would be
inconsistent with Harris’ potential conviction in his criminal
case. Therefore, this claim must be dismissed. If at some time in
the future, the criminal charges for shooting Reeves (and any other
dismissed, “reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
issuance of a writ of habeas corpus”, Heck, 512 U.S. at 486-7, then
Harris may file a new lawsuit reasserting those claims.
attention to Harris’ state law claims for intentional infliction of
emotional distress. This opinion does not purport to adjudicate any
such claims. Instead, the Court will dismiss these claims without
prejudice should Harris wish to pursue them in state court. 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).”). The court offers no opinion about the
wisdom of pursuing this course or the merit of any potential claim
he may have.
For the reasons set forth above, this case is DISMISSED
DATED: August 8, 2017
/s/ RUDY LOZANO, Judge
United States District Court
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