Pernell v. Foust et al

Filing 5

OPINION AND ORDER re 1 PRO SE COMPLAINT filed by Plaintiff Trayshaun Pernell. This case is DISMISSED pursuant to 28 U.S.C. § 1915A because the Complaint does not state a claim. Signed by Judge Jon E DeGuilio on 5/23/17. (Copy mailed to pro se party). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TRAYSHAUN PERNELL,
Plaintiff,
v.
JEFF FOUST, BRIAN MARTIN, and
BRENT RODDY,
Defendants.

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Cause No. 3:16-CV-786 JD

OPINION AND ORDER
Trayshaun Pernell, a pro se prisoner, is suing three police officers who were involved in
obtaining his arrest warrant for the attempted murder of Dytrell Allen. Pernell was convicted of
that crime and is serving a 40 year sentence. Pernell v. State, 57 N.E.3d 900 (Ind. Ct. App. 2016)
(table). Pernell alleges that the defendants used false evidence to obtain the arrest warrant and then
falsely arrested him with that warrant. “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, 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.
Pernell’s arrest warrant was based on the victim’s deposition testimony identifying Kulon
Lewis and “Trigga Trey” as the two people who shot him. When the police determined that “Trigga
Trey” was Trayshaun Pernell, they showed the victim a photo line up after the deposition and he
positively identified Pernell. This information was included in the probable cause affidavit. Based

on the victim’s testimony, an arrest warrant was issued for Pernell. It is that warrant that Pernell
alleges contained false evidence.
Pernell does not dispute that the victim told the police he was shot by “Trigga Trey” nor
that the victim positively identified his photo. He does not dispute the validity of the photo line up
where he was identified. Rather, he argues that the affidavit falsely states that the victim had
previously identified his co-defendant, Kulon Lewis, in a photo line up when the victim was in the
trauma ward recovering after surgery. Pernell believes the trauma ward photo identification of
Lewis did not happen because the victim testified that he did not remember it.
Because [Pernell’s] arrest was made pursuant to a facially valid warrant issued by
a judicial officer, the [defendants] violated [Pernell]’s rights only if reasonably
well-trained officers in their positions should have known that the testimony or
affidavits they provided in support of the warrants would have failed to establish
probable cause, so that they should not have applied for the warrants in the first
place. To demonstrate this, [Pernell must] identify evidence in the record showing
that [the defendants], knowingly or intentionally or with a reckless disregard for the
truth, made false statements to the judicial officer, and that the false statements
were necessary to the judicial officers’ determinations that probable cause existed
for the arrests. A “reckless disregard for the truth” is demonstrated by showing that
the officers entertained serious doubts as to the truth of their statements, had
obvious reasons to doubt the accuracy of the information reported, or failed to
inform the judicial officer of facts they knew would negate probable cause.
Beauchamp v. City of Noblesville, 320 F.3d 733, 742-743 (7th Cir. 2003) (citations omitted,
emphasis added).
First, the mere fact that the victim did not remember speaking to the police when he was
in the trauma room waking up from surgery is not proof that the police lied about questioning him
or lied about his responses. Second, the trauma room statements were not necessary to the
determination that probable cause existed to issue a warrant for Pernell’s arrest. The Pernell
warrant relied on the victim’s statements during his deposition and his subsequent photo

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identification of Pernell. Third, even if the police had told the judicial officer that the first interview
was a total fabrication, it would not have negated the facts necessary for probable cause.
Pernell argues that the warrant’s trauma room statements about Kulon Lewis, his codefendant, are relevant because the victim did not identify Pernell until he was being deposed by
Lewis’ criminal defense attorney. He believes that but for the invalid arrest of Lewis, the victim’s
statements would not have been made during that deposition. Certainly, the victim would not have
been deposed by Lewis’ attorney if Lewis had not been previously identified and arrested.
However, that does not mean that the warrant for Pernell was invalid. The Pernell warrant was
based on the victim’s legitimate identification of Pernell. The victim’s identification was not the
product of the trauma room statements (even if totally fabricated), because the victim was known
to the police and would have identified Lewis and Pernell at some later date anyway. Therefore
this complaint does not state a claim.
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.
For these reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A because the
complaint does not state a claim.
SO ORDERED.
ENTERED: May 23, 2017
/s/ JON E. DEGUILIO
Judge
United States District Judge

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