# Laird v. Elliott

> District Court, S.D. Illinois · November 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10151105

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** November 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10151105

## How later opinions describe it (automated extraction)

- holding plaintiff must demonstrate that the defendants’ official policy, widespread custom, or action by an official with policy-making authority was the moving force behind his constitutional injury
- holding that to be properly considered a party, a defendant must be specified in the caption

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHRISTOPHER T. LAIRD, )
#K99985 )
)
Plaintiff, )
) Case No. 19-cv-00716-SMY
vs. )
)
SETH ELLIOTT, )
JONATHAN PFLAUM, )
JUSTIN BLOOMER, )
MUNICIPALITY OF OLNEY, )
ILLINOIS, )
BLAKE PEAVLER, )
KEVIN MCCORMICK, )
ROBERT SAKOWICZ, )
JOHN DOE )
JIM LANE, )
MUNICIPALITY OF RICHLAND )
COUNTY, ILLINOIS, )
AARON SHAW, and )
CHARLES BRADLEY VAUGHN, )
)
Defendants. )

MEMORANDUM AND ORDER
Joan H. Lefkow, U.S. District Judge:1
Plaintiff Christopher T. Laird, an inmate of the Illinois Department of Corrections
currently incarcerated at Pinckneyville Correctional Center, brings this action pursuant to
42 U.S.C. § 1983 for alleged deprivations of his constitutional rights related to an arrest,
detention, and prosecution on a criminal charge in Illinois state court. He seeks monetary
damages and injunctive relief.

1 Sitting by designation pursuant to 28 U.S.C. § 294(c) and Administrative Order No. 252 of the
United States District Court for the Southern District of Illinois.
This case is now before the court for preliminary review of the Complaint under
28 U.S.C. § 1915A, which requires the court to screen prisoner Complaints to filter out
nonmeritorious claims. 28 U.S.C. § 1915A(a). Any portion of the Complaint that is legally
frivolous, malicious, fails to state a claim for relief, or requests money damages from an immune

defendant must be dismissed. 28 U.S.C. § 1915A(b).
The Complaint
Laird alleges the following in his Complaint: On May 7, 2018, a report was made that
Laird violated an order of protection. (Doc. 1, p. 20). When Officers Elliott and Pflaum
responded to the call, Laird was not present. (Id., pp. 20, 21). Officers Elliot, Pflaum, Sakowicz,
Peavler, and Bloomer searched the area, but did not find Laird. (Id., p. 22). Later that day,
Officers Elliot, Pflaum, Peavler, and McCormick attempted to locate Laird at his last known
address. (Id., pp. 23, 24). When they encountered him, Officers Pflaum and Peavler pointed
tasers at Laird while Officer Elliott handcuffed him. (Id., pp. 24, 25). As Laird was being
transported to a police vehicle, he made eye contact with Officer McCormick. (Id., p. 25).

The arrest and ensuing criminal charge and parole revocation were made without
probable cause. (Id., p. 26). At the time he was arrested, Laird’s clothing did not match the
description given by the individual who reported the violation of the order of protection. (Id.).
Additionally, the alleged violation of the order of protection was reported to have occurred at a
residence other than the residence listed on the order. (Id.).
After being charged with violating an order of protection, Laird received a parole
violation report written by Parole Agent Shaw. (Id.) In the report, Shaw falsely stated that Laird
had failed to complete substance abuse and anger management treatment. (Id.) Laird had
completed the treatment and verification had been sent to Parole Agent Hedgpeth. (Id.) Further,
Shaw’s report of the arrest for violation of an order of protection was misleading because it
failed to mention the facts illustrating a lack of probable cause. (Id.)
Following the arrest, Laird was detained in the Richland County jail. (Id., p. 10). Laird’s
right to a speedy trial was violated by the State’s Attorneys and his Public Defender. (Id., p. 28).

After a parole revocation, he was incarcerated in the Illinois Department of Corrections. (Id., pp.
27, 68-70). On October 26, 2018, the criminal charge for the violation of an order of protection
was dismissed. (Id., pp. 28, 67).
Based on the allegations in the Complaint, the court finds it convenient to divide this
action into the following Counts:
Count 1: Fourth Amendment claim against Elliot, Pflaum, Peavler,
Bloomer, Sakowicz, and McCormick for arresting and detaining
Laird on a violation of an order of protection without probable
cause.

Count 2: Fifth and/or Fourteenth Amendment claim against Elliot, Pflaum,
Peavler, Bloomer, Sakowicz, and McCormick for arresting and
detaining Laird on a violation of an order of protection without
probable cause.

Count 3: Eighth Amendment claim against Elliot, Pflaum, Peavler,
Bloomer, Sakowicz, and McCormick for arresting and detaining
Laird on a violation of an order of protection without probable
cause.

Count 4: Malicious prosecution claim against Elliot, Pflaum, Peavler,
Bloomer, Sakowicz, and McCormick for arresting and detaining
Laird on a violation of an order of protection without probable
cause.

Count 5: Claim against the Municipality of Olney, Illinois for the
misconduct of its employees Elliot, Pflaum, and Bloomer for
arresting and detaining Laird without probable cause.

Count 6: Claim against the Municipality of Richland County, Illinois for the
misconduct of its employees Peavler, McCormick, and Sakowicz
for arresting and detaining Laird without probable cause and its
employees Doe, Vaughn, and Lane related to the prosecution of the
criminal charge of violation of an order of protection.

Count 7: Fourth, Fifth, Sixth, and Fourteenth Amendment claims against
Doe and Vaughn for charging Laird with a violation of an order of
protection without probable cause and violating Laird’s right to a
speedy trial.

Count 8: Sixth Amendment claim against Lane for failing to provide
adequate and effective assistance of counsel.

Count 9: Fourteenth Amendment claim against Shaw for filing a parole
violation report that contained falsehoods and misleading
statements which was relied on by the Prisoner Review Board to
revoke Laird’s parole.

The parties and the court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this court. Any claim that is mentioned in the
Complaint but not addressed in this Order is considered dismissed without prejudice as
inadequately pleaded under Twombly.2
Preliminary Dismissal
Laird references actions by the Richard County Circuit Clerk, Zachary Holder (Doc. 1, p.
29), but he is not identified as a defendant in the case caption. The Court will not treat an
individual not listed in the caption as a defendant and, therefore, any claim against Holder is
dismissed without prejudice. Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005)
(holding that to be properly considered a party, a defendant must be specified in the caption).
Discussion
Count 1
Laird alleges his Fourth Amendment rights were violated because he was arrested and

2 An action fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007).
detained without probable cause. A claim for unlawful arrest and detention without probable
cause may be brought as an unlawful pretrial detention in violation of the Fourth Amendment.
Lewis v. City of Chicago, 914 F.3d 472, 475 (7th Cir. 2019). The constitutional objection is to
the wrongful custody because there is a right not to be held in custody without probable cause.

Manuel v. Joliet (“Manuel I”), ––– U.S. ––––, 137 S.Ct. 911, 917–20 (2017). The allegations
that Elliot, Pflaum, and Peavler were directly involved in the arrest and detention of Laird, and
that they made the arrest knowing it was without probable cause, are sufficient to state a claim
for unlawful pretrial detention at the screening stage. The allegations that Bloomer, Sakowicz,
and McCormick participated in the investigation that led to the arrest and detention by searching
for Laird, and that McCormick witnessed Laird’s arrest, do not state a colorable claim. To be
liable for a false arrest, a defendant must have been personally involved in the wrongful arrest
either by making the arrest himself or by causing it to happen by filing a false report or criminal
complaint. Acevedo v. Canterbury, 457 F.3d 721, 723 (7th Cir. 2006). Accordingly, Count 1
will proceed against Elliot, Pflaum, and Peavler and will be dismissed as to Bloomer, Sakowicz,

and McCormick.
Count 2
Laird claims that the unlawful arrest and detention also violated his Fifth and/or
Fourteenth Amendment due process rights. Following Manuel I, a section 1983 claim for
unlawful pretrial detention rests exclusively on the Fourth Amendment. Lewis, 914 F.3d at 478.
Accordingly, the due process claim in Count 2 will be dismissed.
Count 3
Laird contends the unlawful detention constituted cruel and unusual punishment in
violation of the Eighth Amendment. As a pretrial detainee, the Eighth Amendment does not
apply to Laird, but he has equivalent rights under the Fourteenth Amendment due process clause.
Smentek v. Dart, 683 F.3d 373, 374 (7th Cir. 2012). To the extent his claim is based solely on
the alleged unlawful detention, as previously stated, that claim rests exclusively on the Fourth
Amendment. Lewis, 914 F.3d at 478. Otherwise, to support a cruel and unusual punishment

claim, Laird must show that he was incarcerated under conditions that posed a substantial risk of
serious harm, and that the defendants were deliberately indifferent to that risk. Grieveson v.
Anderson, 538 F.3d 763, 771–72, 775, 777–79 (7th Cir. 2008). Laird has not alleged any facts
regarding the conditions of his detention or that he was subjected to any risk of serious harm.
Accordingly, he has not alleged facts to support this claim and Count 3 will be dismissed.
Count 4
Laird claims that his arrest and detention without probable cause constituted malicious
prosecution. There is no free-standing federal constitutional claim for “malicious prosecution.”
Manuel II, 903 F.3d at 670. “[T]here is no such thing as a constitutional right not to be
prosecuted without probable cause.” Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013). As

such, Count 4 will be dismissed.
Counts 5 and 6
Laird seeks to hold the municipalities that employed the individual defendants named in
his Complaint responsible for their employees’ alleged unconstitutional acts. There is, however,
no respondeat superior liability under section 1983. Daniel v. Cook Cty., 833 F.3d 728, 733 (7th
Cir. 2016); Montano v. City of Chi., 535 F.3d 558, 570 (7th Cir. 2008). To state a claim against
a municipality or local governmental entity under section 1983, a plaintiff must allege that the
constitutional deprivations were the result of an official policy, custom, or practice of the
municipality or local governmental entity. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91
(1978); Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2009). Laird points to
no policy, custom, or practice that served as the driving force behind the alleged constitutional
deprivations. Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir. 2016) (holding plaintiff must
demonstrate that the defendants’ official policy, widespread custom, or action by an official with

policy-making authority was the moving force behind his constitutional injury). Accordingly,
the claims in Counts 5 and 6 against the Municipality of Olney, Illinois and the Municipality of
Richland County, Illinois will be dismissed.
Count 7
Laird alleges the State’s Attorney charged him with violation of an order of protection
without probable cause and violated his right to a speedy trial. “Prosecutors are absolutely
immune from liability for damages under § 1983 for conduct that is functionally prosecutorial;
this immunity is understood to broadly cover all conduct associated with the judicial phase of the
criminal process.” Bianchi v. McQueen, 818 F.3d 309, 316 (7th Cir. 2016) (citing Van de Kamp
v. Goldstein, 555 U.S. 335, 341–43, 129 S.Ct. 855 (2009); Burns v. Reed, 500 U.S. 478, 486,

111 S.Ct. 1934 (1991); Imbler v. Pachtman, 424 U.S. 409, 430–31, 96 S.Ct. 984 (1976)).
Whether an individual “is protected by absolute prosecutorial immunity depends on the type of
work he performed and the factual premises of the plaintiffs’ claims” because a “prosecutor only
enjoys absolute immunity insofar as he is ‘act[ing] within the scope of his prosecutorial duties.’”
Id. at 318 (quoting Imbler, 424 U.S. at 420).
Here, the allegations related to conduct during the judicial phase of the criminal process
and the State’s Attorneys would be entitled to absolute immunity. Accordingly, the claims in
Count 7 against Doe and Vaughn will be dismissed. Although the current claim does not
indicate any exception to prosecutorial immunity, out of an abundance of caution, the dismissal
will be without prejudice.
Count 8
Plaintiff contends his public defender failed to provide him adequate and effective
assistance of counsel on the charge of violation of an order of protection. Defense attorneys,

even those appointed by the court, are not considered state actors or federal official for purposes
of a claim under section 1983. Polk Cty. v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445 (1981)
(holding that “a public defender does not act under color of state law [for purposes of liability
under § 1983] when performing a lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding”); see also, e.g., Turner v. Godinez, 693 F.App’x. 449, 454 (7th Cir. 2017)
(“The public defenders were not acting under color of state law and thus cannot be sued under §
1983.”). Accordingly, the claim in Count 8 against Lane will be dismissed with prejudice.
Count 9
Laird alleges that Shaw filed a parole violation report that contained falsehoods and
misleading statements that the Prisoner Review Board relied on to revoke his parole. He

contends Shaw’s actions caused the revocation of his parole, his incarceration, and denial of his
liberty without due process. His claim puts the lawfulness of his confinement at issue and is,
therefore, barred under Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). Heck
prohibits a litigant from bringing a damages claim under section 1983 that would necessarily
invalidate a conviction or sentence, unless the conviction or sentence had been previously set
aside in another proceeding. Id. at 486–87. Heck applies to challenges to revocation of parole.
See Henderson v. Baldwin, No. 18-cv-1032-NJR, 2018 WL 3489596, at *2 (S.D. Ill. July 19,
2018); see also, e.g., Hadley v. Quinn, 524 F. App’x 290, 293–94 (7th Cir. 2013) (Heck applied
to complaint that parole board improperly revoked plaintiff’s parole).
Laird does not allege that the revocation of his parole has been reversed on direct appeal,
declared invalid by a state tribunal, or called into question by a federal court’s issuance of a writ
of habeas corpus. As a result, Laird’s claim is not cognizable because any award of damages or
declaratory relief would seriously call into question the as yet undisturbed validity of the parole

board’s action. Accordingly, Count 9 will be dismissed.
Request for Injunctive Relief
In his request for relief in the Complaint, Laird seeks a preliminary and permanent
injunction ordering Defendants “to cease their harassment and threats” and “to prohibit future
retaliatory actions” toward Laird for the filing of this lawsuit. (Doc. 1, p. 29). Laird did not file
a separate motion under Federal Rule of Civil Procedure 65(a) in support of the request,
however, and he did not set forth the reasons he is entitled to preliminary injunctive relief in the
Complaint. Further, he has not described any harassment, threats, or retaliatory actions by
Defendants. If Laird wishes to pursue the request, he must file a separate motion for preliminary
injunction by December 5, 2019. Failure to do so will result in denial of the request without

prejudice. Laird may only pursue this request against the defendants that have not been
dismissed. Further, “a preliminary injunction is appropriate only if it seeks relief of the same
character sought in the underlying suit, and deals with a matter presented in that underlying suit.”
Hallows v. Madison Cty. Jail, No. 18-cv-881-JPG, 2018 WL 2118082, at *6 (S.D. Ill. May 8,
2018) (internal citations omitted); see also Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994) (“[A] party moving for a preliminary injunction must necessarily establish a relationship
between the injury claimed in the party’s motion and the conduct asserted in the complaint.”). If
Laird files a motion, the defendants shall file a response within fourteen days of service.
Disposition
IT IS HEREBY ORDERED that Count 1 will proceed against Elliot, Pflaum, and
Peavler. Counts 2, 3, 5, 6, and 7 are DISMISSED without prejudice. Counts 4, 8, and 9 are
DISMISSED with prejudice.

IT IS FURTHER ORDERED that Bloomer, Sakowicz, McCormick, Municipality of
Olney, Municipality of Richland County, Doe, and Vaughn are DISMISSED without prejudice
and Lane and Shaw are DISMISSED with prejudice. The Clerk of Court is DIRECTED to
TERMINATE those Defendants as parties in the Case Management/Electronic Case Filing
system.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants
Elliot, Pflaum, and Peavler: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a
Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail
these forms, a copy of the Complaint, and this Memorandum and Order to each Defendant’s
place of employment as identified by Laird. If a Defendant fails to sign and return the Waiver of

Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the
Clerk shall take appropriate steps to effect formal service on Defendant, and the Court will
require Defendant to pay the full costs of formal service, to the extent authorized by the Federal
Rules of Civil Procedure.
If a Defendant cannot be found at the work address provided by Laird, the employer shall
furnish the Clerk with the Defendant’s current work address, or, if not known, the Defendant’s
last-known address. This information shall be used only for sending the forms as directed above
or for formally effecting service. Any documentation of the address shall be retained only by the
Clerk. Address information shall not be maintained in the court file or disclosed by the Clerk.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g). Pursuant to
Administrative Order No. 244, Defendants need only respond to the issues stated in this
Merit Review Order.

If judgment is rendered against Laird, and the judgment includes the payment of costs
under Section 1915, Laird will be required to pay the full amount of the costs, regardless of
whether his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).
IT IS FURTHER ORDERED that this entire matter shall be REFERRED to a
United States Magistrate Judge for disposition, pursuant to Local Rule 72.2(b)(3) and 28 U.S.C.
§ 636(c), if all parties consent to such a referral.
IT IS FURTHER ORDERED that Laird’s Motion for Status Hearing (Doc. 5) is
DENIED as moot.
IT IS FURTHER ORDERED that pursuant to Administrative Order No. 252 of the
United States District Court for the Southern District of Illinois, this case is REASSIGNED to

U.S. DISTRICT JUDGE STACI M. YANDLE.
Finally, Laird is ADVISED that he is under a continuing obligation to keep the Clerk of
Court and the opposing parties informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: November 5, 2019
G oan H. Lefkow
United States District Judge

Notice to Plaintiff
The Court will take the necessary steps to notify the appropriate Defendants of your
lawsuit and serve them with a copy of your Complaint. After service has been achieved,
Defendants will enter their appearance and file an Answer to your Complaint. It will likely take
at least 60 days from the date of this Order to receive Defendants’ Answers, but it is entirely
possible that it will take 90 days or more. When all Defendants have filed Answers, the Court
will enter a Scheduling Order containing important information on deadlines, discovery, and
procedures. Plaintiff is advised to wait until counsel has appeared for Defendants before filing
any motions, to give Defendants notice and an opportunity to respond to those motions. Motions
filed before Defendants’ counsel has filed an appearance will generally be denied as premature.
Plaintiff need not submit any evidence to the Court at this time, unless specifically directed to do
sO.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151105. Public record. Not legal advice.