Flanagan v. White

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ARON WAYNE FLANAGAN,

Plaintiff,

v. Case No. 20-CV-01318-SPM

WILLAM WHITE, a/k/a BILLY,

GREG DODSON, and CITY OF

CENTRALIA, a corporation,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

This matter is before the Court on Plaintiff Aron Wayne Flanagan’s Motion for

Leave to Proceed in forma pauperis (“IFP”) (Doc. 3). On December 20, 2020, Flanagan

filed a civil rights action under 42 U.S.C. § 1983, alleging Defendants violated, among

others, his First and Fourth Amendment rights. He also sought to proceed without

prepayment of required filing fees (Doc. 3).

The Complaint alleges that on March 7, 2020, at some unspecified time in the

City of Centralia, Illinois, both Flanagan and his daughter came upon a man lying in

a public roadway (Doc. 2). Flanagan’s daughter called police and, some later time,

Defendant William White from the Centralia Police Department appeared on scene

(Id.). Officer White requested Flanagan’s identification and Flanagan refused (Id.).

White “rais[ed] his voice and us[ed] derogatory language,” and seized Flanagan. White

searched Flanagan; found his ID; and subsequently shackled and placed Flanagan in

the squad car (Id.). Shortly thereafter, White drove Flanagan to the police station

where he was ultimately released (Id.). While Defendant Chief of Police Greg Dodson

disciplined White, Dodson maintained that the arrest was lawful (Id.).

As a preliminary matter, under 28 U.S.C. § 1915(a)(1), a federal court may

permit an indigent party to commence a civil action without prepayment of fees if he

files an affidavit stating all his assets and demonstrates an inability to pay the fees. 28

U.S.C. § 1915(a)(1). An affidavit demonstrating that his poverty prevents him from

providing for himself the necessities of life is sufficient. Adkins v. E.I. DuPont de

Nemours & Co., 335 U.S. 331, 339-40 (1948).

The Court has considered Flanagan’s affidavit (Doc. 3) and finds he is indigent.

Flanagan’s sworn affidavit affirms that he holds no assets apart from $7.52 in a

checking account. His request to proceed IFP is GRANTED.

LEGAL STANDARD

The Court’s inquiry does not end there, however, because § 1915(e)(2) requires

the Court to scrutinize the IFP plaintiff’s complaint. The Court must dismiss any

complaint if the allegation of poverty is untrue or if the action is frivolous or malicious,

fails to state a claim upon which relief can be granted, or seeks monetary relief against

a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

The complaint is legally frivolous if it “lacks an arguable basis either in law or

in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Examples of frivolous claims

include “claims against which it is clear that the defendants are immune from suit and

claims of infringement of a legal interest which clearly does not exist.” Id. at 327

(citations omitted).

The standards for deciding whether to dismiss a case for failure to state a claim

under § 1915(e)(2)(B)(ii) are the same as those for reviewing claims under the Federal

Rule of Civil Procedure 12(b)(6). Dewalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000).

Specifically, “to survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” McCoy

v. Iberdrola Renewables, Inc., 760 F.3d 674, 685 (7th Cir. 2014) (citing Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Pro se complaints have the additional benefit of being construed liberally and

held to a less stringent standard than lawyer-drafted pleadings. Arnett v. Webster, 658

F.3d 742, 751 (7th Cir. 2011).

DISCUSSION

I. Individual and Official Capacity

When filing a § 1983 action, the plaintiff should specify whether suit is brought

against the defendants in their official or individual capacities. Hill v. Shelander, 924

F.2d 1370, 1372 (7th Cir. 1991). To establish personal liability in individual-capacity

section 1983 suits it is sufficient to show the official acted under color of state law

thereby causing deprivation of federal right. Id. That showing is insufficient to prove

liability under an official-capacity suit, “where the action alleged to be under color must

be linked with the entity’s policy or custom.” Hill, 924 F.2d at 1372.

The Complaint is ambiguous on this point. In the same paragraph, Flanagan

asserts the Defendants committed constitutional violations “[p]ursuant to the pattern

of practice . . . wherein the defendants and their respective agencies consistently acted

in excess of law, statute, and due process” and that “Defendants were in propriety and

not function under governmental capacity to retain any semblance of privileged

immunity” (Id.).

An official policy may be proved by: (1) an express policy causing constitutional

injury when enforced; (2) a widespread practice so permanent and well-settled that it

constitutes a custom or practice; or (3) an allegation that the constitutional injury was

caused by a person with final policymaking authority. Estate of Sims ex rel. Sims v.

Cty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007). If this action is an official-capacity

suit, it is inadequately pled. First, Flanagan has neither alleged any express policy nor

a permanent and widespread practice amounting to custom. Second, there is no

allegation that the defendants possessed policymaking authority. Because Flanagan

did not allege a policy or custom causing his constitutional injury, see Monell v. New

York City Dept. of Soc. Servs., 436 U.S. 658, 694-95 (1978), the action is DISMISSED

without prejudice for failure to state a claim upon which relief may be granted with

respect to Defendant City of Centralia.

To properly plead an individual-capacity suit, the plaintiff must allege the

defendant was “personally responsible for the deprivation of a constitutional right”

because “he directed the conduct causing the constitutional violation, or it occurred

with his knowledge or consent.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.

2001) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651-52 (7th Cir. 2001)). While

respondeat superior liability is not recognized under section 1983, a person can be held

personally responsible if he was aware of the conduct causing the constitutional injury

and he “facilitate[d] it, approve[d] it, condone[d] it, or turn[ed] a blind eye.” Gentry v.

Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (quoting Jones v. City of Chi., 856 F.2d

985, 992 (7th Cir. 1988)). Because the Complaint lacks allegations that Dodson knew

of or directed White’s challenged conduct, this action is DISMISSED without

prejudice for failure to state a claim with respect to Dodson.

Because the Complaint states facts alleging White was personally responsible

for Flanagan’s constitutional injuries, the Court understands this action as an

individual-capacity suit against White. The claims against White are addressed below.

II. Claim 1: First Amendment Retaliatory Arrest

The First Amendment generally prohibits government officials from retaliating

against persons for engaging in protected speech. Nieves v. Bartlett, 139 S. Ct. 1715,

1722 (2019) (citing Hartman v. Moore, 547 U.S. 250, 256 (2006)). “If an official takes

adverse action against someone based on that forbidden motive, and ‘non-retaliatory

grounds are in fact insufficient to provoke the adverse consequences,’ the injured

person may generally seek relief by bringing a First Amendment claim.” Id. (citing

Crawford-El v. Britton, 523 U.S. 574, 593 (1998)). To plead a First Amendment

retaliatory arrest claim, the complaint must allege that the plaintiff: (1) engaged

activity protected by the First Amendment; (2) suffered a deprivation that would likely

deter First Amendment activity; and (3) the First Amendment activity was at least a

motivating factor in the police officer’s decision. Thayer v. Chiczewski, 705 F.3d 237,

251 (7th Cir. 2012).

While Flanagan does not specifically identify his First Amendment conduct, a

fair reading of the Complaint indicates this claim revolves around his request for

White’s name and badge number. As noted above, a retaliatory arrest claim requires

the unlawful retaliation happen on account of the protected speech. Because Flanagan

grounds this claim in conduct occurring after his arrest, it could not be a motivating

factor for his arrest. For this reason, his First Amendment retaliatory arrest claim is

DISMISSED without prejudice for failure to state a claim.

III. Claim 2: Fourth Amendment False Arrest

The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons . . . against unreasonable searches and seizures.” U.S. CONST. amend.

IV. This guarantee has been incorporated under the Fourteenth Amendment and made

applicable to the states. Mapp v. Ohio, 367 U.S. 643, 655 (1961). While there are

different kinds of Fourth Amendment seizures, a fair reading of the Complaint

suggests that Flanagan asserts that he was unlawfully arrested. The Court will

consider his Fourth Amendment claim only as it concerns his arrest and not the initial

encounter. To make out a Fourth Amendment false arrest claim, the plaintiff must

plead that he was arrested without probable cause. See, e.g., Hurt v. Wise, 880 F.3d

831, 841 (7th Cir. 2018).

A. Arrest

The Court finds that Flanagan adequately pled that the arrest implicated his

Fourth Amendment rights. An arrest is a seizure under the Fourth Amendment, Lopez

v. City of Chi., 464 F.3d 711, 718 (7th Cir. 2006), which occurs “when a reasonable

person in the suspect’s position would have understood the situation to constitute a

restraint on freedom of movement of the degree which the law associates with formal

arrest.” Tebbens v. Mushol, 692 F.3d 807, 816 (7th Cir. 2012) (quoting Ochana v. Flores,

347 F.3d 266, 270 (7th Cir. 2003)). While courts have considered select instances where

handcuffing and placing a suspect in squad car avoids Fourth Amendment scrutiny,

see, e.g., United States v. Glenna, 878 F.2d 967, 968-69 (7th Cir. 1989) (recognizing

limited, fact-specific circumstances where handcuffing does not turn a Terry stop into

a custodial arrest), those circumstances are not implicated upon the face of the

Complaint. The allegations give the Court no reason to consider this situation

exceptional.

B. Probable Cause

A complaint properly pleading false arrest must include facts negating the

existence of probable cause. Neita v. City of Chi., 830 F.3d 494, 497 (7th Cir. 2016). “An

officer has probable cause to arrest if ‘at the time of arrest, the facts and circumstances

within the 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.’” Id. (quoting Thayer, 705

F.3d at 246). Flanagan pleads that his daughter called the police after they both came

upon the man lying in the roadway and that Flanagan was assisting a person whom

he believed was in need when some later time, White arrived (Doc. 2). He asserts he

neither committed nor was committing any criminal offense by the time White

requested his identification (Id.). Under Illinois law, Flanagan’s refusal to self-identify

upon White’s request is not per se illegal.1 While Flanagan’s refusal to identify would

provide probable cause for a lawful arrest if White had reasonably suspected that

Flanagan had committed a crime at the time the demand for identification was made,

Jones v. Clark, 630 F.3d 677, 684 (7th Cir. 2011), the facts alleged do not support the

inference that White had reasonable suspicion to lawfully demand Flanagan’s

identification. The facts alleged only indicate that Flanagan was engaged in actions for

the benefit of stranger in need. (Doc. 2). Since the allegations do not indicate White

was aware of any facts warranting a reasonable belief that Flanagan engaged in

criminality and with due regard for the leniency afforded to pro se plaintiffs, the Court

concludes Flanagan sufficiently pled that no probable cause existed to support the

arrest.

C. Qualified Immunity

Even if a claim is properly pled, it may still be dismissed if the defendant is

immune from damages. 28 U.S.C. § 1915(e)(2)(B)(iii).

Qualified immunity often bars suits brought against law enforcement for

violation of Constitutional rights. Qualified immunity warrants dismissal at the

pleading stage only when the plaintiff’s well-pleaded allegations, “taken as true, do not

‘state a violation of clearly established law.’” Hanson v. LeVan, 967 F.3d 584, 590 (7th

Cir. 2020) (citing Behrens v. Pelletier, 516 U.S. 299, 306 (1996)). To overcome qualified

immunity, Flanagan’s Complaint must contain facts indicating White violated his

1 725 ILCS 5/107-14 provides: “A peace officer . . . may stop any person in a public place for a reasonable

period of time when the officer reasonably infers from the circumstances that the person is committing,

is about to commit or has committed an offense. . .” and may demand the “name and address” of the

person demanded.

constitutional rights and the right violated was clearly established at the time of the

violation. Hanson, 967 F.3d at 590. Because Flanagan sufficiently pleads his false

arrest claim, the Court must determine whether the right to be free from false arrest

was “clearly established” at the time it occurred.

Since the right to be free from false arrest was clearly established at the time of

the events alleged, qualified immunity does not bar this claim. Fox v. Hayes, 600 F.3d

819, 832 (7th Cir. 2010) (citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004)).

Accordingly, Flanagan’s false arrest claim escapes dismissal under section

1915(e)(2)(B)(iii).

IV. Claim 3: State-law Aggravated Kidnapping

In order to commit the crime of aggravated kidnapping, the perpetrator must

“[commit] a kidnapping” under certain attendant circumstances. 720 ILCS § 5/10-2.

Aside from failing to allege facts satisfying the elements2, the offense of

aggravated kidnapping is criminal, not civil. Flanagan is a private person litigating

civil rights claims. Private citizens cannot compel enforcement of criminal law. See

generally Diamond v. Charles, 476 U.S. 54, 64-65 (1986). Flanagan has not cited any

provision of Illinois law authorizing a private right of action over this criminal offense

and the Court is unwilling to imply one. See, e.g., Alexander v. Sandoval, 532 U.S. 275,

286 (2001) (private rights of action begin and end with the statutory text). Flanagan’s

state-law aggravated kidnapping claim is hereby DISMISSED with prejudice for

frivolity.

2 No facts alleged suggest White intended to “secretly confine” Flanagan. 720 ILCS § 5/10-2.

V. Claim 4: False Imprisonment, Due Process, and Presumption of

Innocence Violations

The sole constitutional infraction alleged in claim four is that White violated

Flanagan’s right to a prompt probable cause determination to test the validity of his

warrantless arrest. “Warrantless arrests are permitted but persons arrested without a

warrant must promptly be brought before a neutral magistrate for a judicial

determination of probable cause.” Cty. of Riverside v. McLaughlin, 500 U.S. 44, 53

(1991) (citing Gerstein v. Pugh, 420 U.S. 103, 114 (1975)). While a determination within

forty-eight hours is presumptively reasonable, see Chortek v. City of Milwaukee, 356

F.3d 740, 746 (7th Cir. 2004) (citing McLaughlin, 500 U.S. at 56), a determination

within forty-eight hours of arrest may be unlawful if there was “unreasonable delay.”

McLaughlin, 500 U.S. at 56. Examples of unreasonable delay include “delays for

purpose of gathering additional evidence to justify the arrest, a delay motivated by ill

will against the arrested individual, or delay for delay’s sake.” Id. The Court

acknowledges a “substantial degree of flexibility” for law enforcement is proper since

“unavoidable delays in transporting arrested persons from one facility to another,

handling late-night bookings where no magistrate is readily available, obtaining the

presence of an arresting officer who may be busy processing other suspects or securing

the premises of an arrest, or other practical realities” are likely to occur Id. at 56-57.

The Complaint lacks factual assertions illuminating the existence of a delay or

an opportunity for a more expedient probable cause determination. Because Flanagan

has not pled facts presenting a plausible claim, this claim is DISMISSED without

prejudice for failure to state a claim.

VI. Claim 5: State-Law Assault and Battery

Flanagan claims that he suffered “a series of assaults and batteries” upon his

person “including arrest, shackling, imprisonment, and physical search” in violation of

720 ILCS § 5/12-3.

Like the aggravated kidnapping claim, the offense cited is a criminal one.

Because Flanagan has no legal interest in enforcing the criminal law, see, e.g.,

Diamond, 476 U.S. at 64, and has failed to plead a private right of action over this

offense, this claim is DISMISSED with prejudice for frivolity.

VII. Claim 6: Fraud3

Flanagan simply asserts that “the Public Servant is a fiduciary to the public and

concealing information is a fraud” (Doc. 2). In support of this assertion, he cites

McNally v. United States, 483 U.S. 350 (1987). That case dealt exclusively with

interpreting a term in the federal mail fraud statute. McNally, 483 U.S. at 358-59.

Flanagan has neither alleged a cause of action nor facts in support thereof and so this

claim is DISMISSED with prejudice for frivolity.

VIII. Claim 7: Fraud

Flanagan’s second fraud claim alleges that the body camera footage he received

was edited or falsified “to suppress true facts in evidence” in violation of 18 U.S.C. §

2071.

3 The Complaint accidentally lists the state-law battery and assault claim and the first fraud claim as

“claim 5”; for purposes of this order, “claim 6” will refer to the first fraud claim listed in the Complaint.

The second fraud claim will be referred to as “claim 7” and the “misuse of public office” claim will be

referred to here as “claim 8.”

First, the Complaint fails to allege facts required for a violation of 18 U.S.C. §

2071. The Complaint does not state that the body camera footage was “filed or

deposited with any clerk or officer of any court of the United States, or in any public

office or with any judicial or public officer of the United States.” 18 U.S.C. § 2071.

Second, assuming the footage was deposited properly, Flanagan has not alleged

he holds either an express or implied right of action to enforce this federal crime. As a

private citizen, he has no legally cognizable interest in enforcing the criminal statute.

See Linda R.S., 410 U.S. at 619. Absent statutory right to sue, this Court will not

imply one. See Alexander, 532 U.S. at 286 (“Like substantive federal law itself, private

rights of action to enforce federal law must be created by Congress”). This claim is

DISMISSED with prejudice for frivolity.

IX. Claim 8: Retaliation: Misuse of Public Office

In his final claim, Flanagan asserts that White retaliated against him for

manifesting his intention to file a complaint and that White’s actions of arresting,

detaining, and kidnapping Flanagan were an “egregious abuse of position and

authority” (Doc. 2). This claim does not articulate any specific violation of federal law

or Constitutional right or facts in support thereof. This claim is DISMISSED with

prejudice for frivolity.

CONCLUSION

For the reasons set forth above, Defendants City of Centralia and Greg Dodson

are DISMISSED from the Complaint without prejudice. Claims 1 and 4 are

DISMISSED without prejudice for failure to state a claim and the Court GRANTS

Plaintiff Aron Wayne Flanagan leave to replead by filing an amended complaint within

14 days if he can sufficiently allege that he meets the elements of those claims. If

Flanagan does not file an amended complaint, the suit shall only proceed against

Defendant William White as to Fourth Amendment False Arrest in Claim 2 based on

the current Operative Complaint (Doc. 2). Claims 3, 5, 6, 7, and 8 are DISMISSED

with prejudice for frivolity.

IT IS SO ORDERED.

DATED: March 5, 2021

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge