Flournoy, Michael v. Winnebago County Sheriff's Office et al
Filing
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ORDER Dismissing 1 Complaint, pursuant to Fed. R. Civ. P. 8. 3 Motion for Leave to Proceed in forma pauperis terminated. (Amended Complaint due 2/15/2015.) Signed by District Judge James D. Peterson on 1/22/2015. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL E. FLOURNOY,
v.
Plaintiff,
OPINION & ORDER
14-cv-528-jdp
WINNEBAGO COUNTY SHERIFF’S OFFICE,
ROBERT BOB BAUDELIO JUANEZ,
LARRY MARINO, DANIEL FREEDLUND,
PETER DALPRA, JOSEPH BOOMER,
BRAD KISER, IASPARRO DOMINC,
CUNNINGHAM NICK, JULIE DODD,
NEAL C. GRUHN, WAYNE JACKOWSKI,
CRAIG SMITH, ADAM KING,
JOHN D. RICHARDSON, and DAN IVANCICH,
Defendants.
Pro se prisoner Michael Flournoy has filed a proposed complaint under 42 U.S.C. § 1983
in which he alleges that defendants violated his Fourth and Fourteenth amendment rights
during an investigation, arrest, and prosecution in Illinois state court. Plaintiff seeks monetary
damages for loss of work and missed family events, as well as punitive damages for what he
alleges to have been willful and malicious conduct by defendants.
Plaintiff has made an initial partial payment of the filing fee under 28 U.S.C.
§ 1915(b)(1). The next step in this case is for the court to screen plaintiff’s complaint and
dismiss any portion that is legally frivolous, malicious, fails to state a claim upon which relief
may be granted, or asks for monetary damages from a defendant who by law cannot be sued for
money damages. 28 U.S.C. §§ 1915 and 1915A. In screening any pro se litigant’s complaint, the
court must read the allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521
(1972). After reviewing the complaint with this principle in mind, I conclude that plaintiff has
failed to provide a short and plain statement of a claim for unlawful arrest. I will therefore
dismiss plaintiff’s complaint in its entirety, but allow him an opportunity to amend.
ALLEGATIONS OF FACT
Plaintiff is currently a prisoner at FCI-Oxford, located in Wisconsin. He was convicted in
the United States District Court for the Northern District of Illinois on one count of conspiring
to possess cocaine with intent to distribute and one count of attempting to possess cocaine with
intent to distribute. Plaintiff’s direct appeal is currently pending before the Seventh Circuit.
Defendants are officers or employees of the Winnebago County, Illinois, Sheriff’s Office, the
Federal Bureau of Investigation, or the Bureau of Alcohol, Tobacco, Firearms and Explosives. 1
In this case, plaintiff’s complaint alleges a series of events that occurred in Rockford,
Illinois. Specifically, plaintiff alleges that defendants arrested him on July 30, 2012, seized his
car and personal property, and then held him for prosecution, all without probable cause.
Plaintiff also alleges that, in connection with his false arrest, defendants concealed evidence,
submitted false declarations, and pressured the State’s Attorney’s Office to bring charges. The
State’s Attorney’s Office acquiesced, and plaintiff was charged with two counts of state law drug
crimes. The state charges were eventually dropped in favor of the federal charges for which
plaintiff is now incarcerated.
Plaintiff’s complaint further alleges that defendants used “unauthorized methods to
conduct a narcotics investigation” against him. Dkt. 1, at 5. The complaint describes what
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Plaintiff also refers to “defendant Mohit Khare” in the substance of his complaint, but does
not include him in the caption of the complaint. Dkt. 1, at 2. Plaintiff alleges that Khare is
employed by the State’s Attorney’s Office, and the complaint broadly alleges that plaintiff’s
prosecution was unlawful. To the extent that plaintiff intended to assert a claim against Khare,
however, such a claim is barred because prosecutors enjoy absolute immunity from § 1983 suits
concerning actions they take which are “intimately associated” with the judicial phase of the
criminal process. Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
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plaintiff perceives to have been unlawful audio recordings and a conspiracy to investigate him.
Plaintiff does not identify any events that occurred in Wisconsin.
ANALYSIS
Under Federal Rule of Civil Procedure 8, a plaintiff must present “a short and plain
statement of the claim showing that [he] is entitled to relief.” The purpose of the requirement is
“to provide the defendant with ‘fair notice’ of the claim and its basis.” Arnett v. Webster, 658
F.3d 742, 751 (7th Cir. 2011). Here, I understand plaintiff to allege that defendants violated
his Fourth Amendment rights by unlawfully arresting him on July 30, 2012. To succeed on such
a claim, plaintiff must prove that defendants arrested him without probable cause. McBride v.
Grice, 576 F.3d 703, 706 (7th Cir. 2009). 2 Probable cause exists if, at the time of plaintiff’s
arrest, “the facts and circumstances within the [arresting] officer’s knowledge are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to commit an offense.”
Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). “It is a fluid concept that relies on the
common-sense judgment of the officers based on the totality of the circumstances.” United States
v. Reed, 443 F.3d 600, 603 (7th Cir. 2006) (citing United States v. Breit, 429 F.3d 725, 728 (7th
Cir. 2005)). The existence of probable cause precludes a § 1983 suit for false arrest. Morfin v.
City of E. Chi., 349 F.3d 989, 997 (7th Cir. 2003).
2
I note that Heck v. Humphrey, 512 U.S. 477 (1994), does not automatically bar plaintiff’s
unlawful arrest claim. The Seventh Circuit explains “that any § 1983 claim for damages
resulting from a false arrest is not barred by Heck and accrues immediately after the arrest,
because such alleged violations of the Fourth Amendment would not necessarily impugn the
validity of a conviction.” Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 897
(7th Cir. 2001). At this point in the case, the record is not developed enough to determine
whether plaintiff’s § 1983 claim would impugn the validity of his conviction.
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At this point, plaintiff’s allegations and supporting materials do not suggest that officers
lacked probable cause to arrest him, and the complaint therefore fails to satisfy Rule 8’s
requirements. Plaintiff submitted the “probable cause statement” that defendant Officer
Freedlund prepared, which provides a narrative summary of the undercover investigation that
led to plaintiff’s arrest. Dkt. 1-8. The target of the investigation was Cesar Sanabria-Sanchez,
who tried to purchase 10 kilograms of cocaine from an undercover officer. The officer arranged
for a controlled buy in Rockford, Illinois, on July 30, 2012. Two cars arrived to meet the officer;
Sanabria-Sanchez and his wife drove the first car, plaintiff and Sanabria-Sanchez’s brother were
in the second car, which plaintiff drove. After the undercover officer showed Sanabria-Sanchez
the cocaine, plaintiff drove up and placed money into the officer’s car. Other deputies then
moved into the area to make arrests. At this point, plaintiff was back in the driver’s seat of his
car. The deputies searched the vehicle and found cell phones, cannabis, and wrapped stacks of
cash. They also determined that the car was registered to plaintiff. Freedlund’s statement
explains that plaintiff admitted to being paid $7,000 to drive his car to Rockford, “knowing that
he was driving a large amount of US currency that was being used to purchase narcotics.” Id.
The statement concludes by noting that plaintiff has “an extensive criminal history.” Id.
Plaintiff also submitted reports from other Winnebago County deputies, including the
undercover officer who set up the controlled buy. These reports corroborate Freedlund’s version
of the events leading up to plaintiff’s arrest. Dkt. 1-7, at 8, and Dkt. 1-9, at 6-8. Specifically,
officers saw plaintiff arrive at the scene of the controlled buy, get out of his car and retrieve a
black duffel bag, and then empty the contents of the bag into the undercover officer’s car.
Taken together, these reports suggest that the deputies who arrested plaintiff had
probable cause to do so. “Generally, a controlled buy, when executed properly, is a reliable
indicator as to the presence of illegal drug activity.” United States v. Sidwell, 440 F.3d 865, 869
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(7th Cir. 2006); see also United States v. Slone, 636 F.3d 845, 849-50 (7th Cir. 2011). The
deputies knew that a controlled buy had been arranged, and that the target of their investigation
was going to bring a considerable amount of money to the transaction. They observed plaintiff
arrive at the controlled buy and participate in the transaction by using a duffel bag to move
money from his own car to the undercover officer’s car. From these observations, a reasonably
prudent person would easily believe that plaintiff was involved in a conspiracy to possess
cocaine. In fact, this is the conclusion that the Northern District of Illinois reached in denying
plaintiff’s motion to suppress. United States v. Sanabria-Sanchez, No. 12-cv-50044 (N.D. Ill. May
29, 2013) (order denying motion to quash arrest and suppress physical evidence) (“[I]t was
abundantly reasonable to conclude that defendant was providing the funds for the purchase of
the cocaine when he dumped the money into [the undercover officer’s] vehicle.”).
Plaintiff’s complaint attempts to avoid the result he reached in his criminal case by
alleging that: (1) the undercover officer never received authorization from a court for the audio
recordings that led to the controlled buy; and (2) defendants made false statements throughout
their reports. If true, plaintiff might have a claim for unlawful arrest, and the court usually
accepts a plaintiff’s allegations as true when screening his complaint. But in this case, plaintiff’s
statements are too conclusory to support a claim for false arrest, and his own submissions
contradict him. See Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007) (for
purposes of determining whether a complaint states a claim, “[w]here an exhibit and the
complaint conflict, the exhibit typically controls”).
For example, plaintiff accuses the deputies of never obtaining authorization for audio
recordings. But documents that he submitted demonstrate otherwise. See, e.g., Dkt. 1-4, at 4-5
(reports describing “State’s Attorney copy” and “Judge copy” of the audio recording); Dkt. 1-7,
at 5 (undercover officer’s report that begins by stating “I was advised that overhear authority
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had been obtained and all phone communication between Cesar and I should be recorded”).
Moreover, plaintiff does not dispute the deputies’ version of the events leading up to his arrest.
Although plaintiff alleges that defendants lied or made false statements, the complaint does not
identify any specific inaccuracies in their reports, nor does it offer an alternative narrative from
which to conclude that no reasonable person would suspect that plaintiff had engaged in
criminal activity. As it stands, plaintiff has not adequately alleged facts which, if true, would
show that officers lacked probable cause to arrest him. Nevertheless, I will not dismiss plaintiff’s
case at this point because it may still be possible for him to amend his complaint, and to state
with specificity why the deputies’ statements are false and why probable cause was lacking for
his arrest.
Although I will afford plaintiff an opportunity to amend his pleadings, this case has other
fundamental defects which might make amendment futile. Specifically, the allegations in
plaintiff’s complaint suggest that this court does not have personal jurisdiction over the
defendants he is suing. None of the defendants are residents of Wisconsin, nor does plaintiff
allege that they took any actions in this state which would amount to the “certain minimum
contacts” necessary for personal jurisdiction. Int’l Shoe Co. v. State of Wash., Office of
Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945). For the same reasons, venue is
likely improper in this district. See 28 U.S.C. § 1391. Defendants could conceivably waive
objections to personal jurisdiction and venue, and so neither of these considerations require me
to sua sponte dismiss plaintiff’s case. But given the obvious deficiencies, plaintiff should consider
whether he wants to continue his case in this district. Because the events he describes occurred
in Rockford, Illinois, the Northern District of Illinois is likely the correct forum for his suit.
If plaintiff decides to continue with his case in this court, he must file an amended
complaint that at least minimally articulates why he believes that the officers lacked probable
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cause to arrest him on July 30, 2012. Plaintiff must also allege how defendants’ reports are
inaccurate, or what specific facts the reports misconstrue. If plaintiff does not file an amended
complaint on or before the deadline in this order, I will dismiss his case for failure to state a
claim upon which relief can be granted.
ORDER
IT IS ORDERED that:
1. Plaintiff Michael Flournoy is DENIED leave to proceed on his Fourth Amendment
claim against defendants for false arrest, and the complaint is DISMISSED in its
entirety for failure to comply with Federal Rule of Civil Procedure 8. Plaintiff may
have until February 15, 2015, to file an amended complaint that provides a short and
plain statement of a Fourth Amendment claim against defendants.
2. If plaintiff fails to timely amend his complaint, the court will dismiss this action,
without prejudice, for failure to state a claim upon which relief can be granted.
Entered January 22, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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