McCullah, George E. v. Gadert, Mark

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2564

GEORGE E. MCCULLAH,

Plaintiff-Appellant,

v.

MARK GADERT and the CITY OF

SPRINGFIELD, ILLINOIS,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 00-C-3325—Jeanne E. Scott, Judge.

____________

SUBMITTED JANUARY 15, 20031—SEPTEMBER 22, 2003

____________

Before MANION, KANNE, and DIANE P. WOOD, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. This case arose after a

barroom altercation was broken up by an off-duty police

officer, Mark Gadert, and charges were brought against

one of the bar’s patrons, George McCullah. Although

these charges eventually were dismissed, McCullah suf-

fered both temporary and permanent consequences from

1

The court granted appellant’s motion to waive oral argument

in an order dated January 10, 2003. Thus, the appeal is submit-

ted on the briefs and the record.

2 No. 02-2564

them: he was incarcerated, he had to pay for a lawyer, and

he lost his job. None of this would have happened, he

believes, had Officer Gadert not provided false testimony

supporting the charges in a post-incident report and at

a preliminary hearing. McCullah therefore sued both Of-

ficer Gadert and the Springfield Police Department under

42 U.S.C. § 1983, claiming among other things that his

Fourth Amendment rights had been violated; he also raised

supplemental claims under Illinois law. The district

court dismissed McCullah’s § 1983 claims and refused to

retain jurisdiction over the state-law claims. McCullah

now appeals that dismissal along with the district court’s

denial of leave to amend the complaint. We affirm in part

and remand in part for further proceedings.

I

Tempers flared one December evening in 1999 at the

Brew Haus in Springfield, Illinois, leading to an alterca-

tion between two of McCullah’s friends and another pa-

tron. Officer Gadert intervened, though he was off-duty

at the time. Entering the fray, McCullah interfered with

Gadert’s efforts to halt the argument, although the extent

of the interference is disputed. Officer Gadert claims that

McCullah repeatedly interfered physically and verbally

with Gadert’s efforts to break up the fight, that he threat-

ened to have Gadert audited (perhaps a credible threat, as

McCullah then worked for the Illinois Department of

Revenue), and that McCullah attempted to impersonate a

police officer. McCullah denies all of this. According to

McCullah, he simply asked Gadert to identify himself

but never heard a response. At one point, McCullah also

alleged that he observed Gadert brandishing a City of

Springfield police badge, but McCullah’s original and

amended complaints are inconsistent on this matter.

No. 02-2564 3

Officer Gadert later approached McCullah a second time,

joined by two uniformed officers. The officers asked Mc-

Cullah to step outside, subjected him to questioning, and

told him that he could not re-enter the bar. Again, what

transpired next is unclear. The parties dispute whether

Gadert identified himself as a police officer. Nevertheless,

everyone agrees that at no time did Gadert threaten

McCullah with arrest or criminal citation.

As required under departmental regulations, Gadert

wrote up the incident in a report. The report convinced

the Sangamon County State’s Attorney’s Office to file

criminal felony charges against McCullah. In short order,

McCullah was summoned to a court appearance on Feb-

ruary 9, 2000, a $5,000 bond was set, and McCullah was

taken to the Sangamon County Jail. At the jail, he was

subjected to the usual battery of mugshots, fingerprints,

and the surrender and inventory of his personal belong-

ings. Authorities clothed him in an orange jumpsuit and

placed him in a holding cell. All told, McCullah was at

the jail for approximately seven hours prior to his posting

of bond and release.

The court held a preliminary hearing on the felony

charges on March 6, at which Officer Gadert testified about

the events in question. At the conclusion of the hearing

the court dismissed the felony charges; the state’s attor-

ney promptly substituted a misdemeanor charge for ob-

structing a peace officer. This charge too was later dis-

missed, this time before a hearing could be held. In the

meantime, however, McCullah had to retain counsel to

secure the dismissal of both sets of charges. Worse yet from

his perspective, several weeks after the dismissal of the

felony charges but prior to the dismissal of the misde-

meanor charges, McCullah was fired from his job at the

Department of Revenue.

McCullah filed three successive complaints against Offi-

cer Gadert and the City of Springfield. The district court

4 No. 02-2564

dismissed each of these complaints for failure to state

a claim, the last time with prejudice. In each, Counts I

and III leveled state-law malicious prosecution claims

against Gadert and the City, respectively. Counts II and IV

advanced § 1983 claims against these same defendants.

The only difference among the three complaints was that

the initial version alleged violations of the Due Process

Clauses of the Fifth and Fourteenth Amendments, while

the second and third iterations asserted § 1983 claims

under the Fourth Amendment. McCullah now appeals

both the dismissal of the third complaint and the denial

of leave to amend yet again.

II

McCullah’s principal claim on appeal is that the dis-

trict court erred in dismissing the part of his complaint

alleging that Officer Gadert violated his Fourth Amend-

ment rights by providing false information about him, both

in the incident report that Gadert filed shortly after the

Brew Haus altercation and also through testimony of-

fered at the preliminary hearing on the felony charges. We

review the district court’s decision to grant a motion to

dismiss for failure to state a claim de novo, accepting as

true all well-pleaded factual allegations and drawing

all reasonable inferences in McCullah’s favor. See Albany

Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971

(7th Cir. 2002).

A

The district court rested its dismissal of McCullah’s

Fourth Amendment claim on two recent decisions of this

court that substantially altered our approach to malicious

prosecution claims brought under § 1983. See Ienco v. City

of Chicago, 286 F.3d 994 (7th Cir. 2002); Newsome v.

No. 02-2564 5

McCabe, 256 F.3d 747 (7th Cir. 2001) (“Newsome I”). Those

cases built upon the Supreme Court’s decision in Albright

v. Oliver, 510 U.S. 266 (1994)—a decision in which there

was no single opinion of the Court. We must decide here

whether, under those cases, McCullah has stated a claim

on which relief can be granted.

In Albright, the plaintiff brought a § 1983 action, alleg-

ing that detectives had violated his right to substantive

due process by offering testimony against him at a pre-

liminary hearing on criminal charges that were later

dismissed. The plaintiff claimed that his right to be free

from criminal prosecution except upon probable cause

had been violated. The four Justices that made up the

plurality concluded in an opinion written by Chief Jus-

tice Rehnquist that Albright’s claim was cognizable un-

der the Fourth Amendment, but not under substantive

due process. Albright, 510 U.S. at 271 (plurality opinion).

They relied on the teaching of Graham v. Connor, 490 U.S.

386 (1989), which held that constitutional claims should,

where possible, go forward under rights rooted in an ex-

plicit textual command of the Constitution rather than

more generalized notions of substantive due process. Id.

at 395. Because Albright had not alleged a violation of

his Fourth Amendment rights, the plurality concluded that

his suit could not go forward.

In arriving at the same result, Justice Kennedy—joined

by Justice Thomas—adopted a different approach. Justice

Kennedy looked to the line of cases extending from Par-

ratt v. Taylor, 451 U.S. 527 (1981), which held that the

federal Constitution does not supply a damages remedy

for violations of procedural due process where the state

provides an adequate postdeprivation remedy. Justice

Kennedy reasoned that the “commonsense teaching” of

Parratt is that constitutional torts do not arise except

where state law does not provide a parallel remedy. Id. at

284. This rule should be equally applicable, he continued,

6 No. 02-2564

to cases like Albright’s that were nominally brought as

substantive due process claims. Id. at 285. The availabil-

ity of a parallel state-law tort of malicious prosecution

in Illinois compelled dismissal of Albright’s claim. Id.

at 285-86.

In Newsome I, this court was faced with the task of

distilling the operative rule from Albright that emerged

from the various separate opinions. Newsome had been

arrested for a murder and armed robbery in 1979. He was

convicted after a trial, but eventually the state courts

vacated his conviction and he was pardoned on grounds

of actual innocence. He then sued five officers of the

Chicago Police Department, claiming that they had un-

lawfully procured witness identifications that led to his

detention and had otherwise violated his rights. Newsome

I, 256 F.3d at 749; see also Newsome v. McCabe (II),

319 F.3d 301 (7th Cir. 2003), cert. denied, 123 S.Ct. 2621

(2003). We began by concluding that Justice Kennedy’s

concurring opinion represented the narrowest ground for

decision, and thus it set forth the governing law. Newsome

I, 256 F.3d at 751 (citing Marks v. United States, 430 U.S.

188, 193 (1977)). Second, we noted that Newsome had

a potential Fourth Amendment claim for a wrongful arrest

and detention, but that any such claim was long since

barred by the statute of limitations. Id. at 750. That left

his substantive due process claim, which we found could

not be brought, given Albright, because of the availabil-

ity of a parallel state-law tort of malicious prosecution in

Illinois. Id. at 751. In short, we found that the existence

of a state-law tort remedy “knocks out” any constitutional

tort under due process for the same conduct. Id. at 751

(emphasis added).

Ienco sheds further light on the line we drew in Newsome

I. There, the plaintiff brought suit under § 1983, attempt-

ing to raise a constitutional claim based on malicious

prosecution. Ienco, 286 F.3d at 996. Ienco asserted that the

No. 02-2564 7

two City of Chicago police officers who had arrested him

had violated his substantive due process rights when they

withheld exculpatory information and lied to the federal

prosecutors who then, relying on those lies, initiated crim-

inal proceedings against him. Id. at 1000. We reversed the

district court’s award of summary judgment to the defen-

dants, noting that our intervening decision in Newsome I

came after the district court’s grant of summary judgment

to defendants. This “unique procedural posture,” we con-

cluded, was enough to justify giving Ienco one last op-

portunity to amend his complaint to raise a claim under the

Due Process clause that complied with the strictures of

Newsome I. Id. at 998-99. We also found that the officers

were not entitled to absolute testimonial immunity, be-

cause the claim did not rely on the existence of perjured

testimony, and that the record was insufficient to evalu-

ate the claim of qualified immunity. Id. at 1000-01.

B

It is important to recall that the district court’s dismiss-

als in this case were all under Fed. R. Civ. P. 12(b)(6). The

fact that McCullah has changed legal theories from com-

plaint to complaint is thus not important, because it is

well established that plaintiffs are under no obligation to

plead legal theories. See, e.g., Slaney v. Int’l Amateur

Athletic Found., 244 F.3d 580, 600 (7th Cir. 2001); Bartholet

v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th

Cir. 1992). From the start, the only question has been

whether McCullah satisfied the notice pleading stan-

dards of Rule 8 and if the facts he has presented would

entitle him to relief under any applicable legal theory.

In the discussion that follows, we confine ourselves for the

sake of simplicity to the district court’s evaluation of the

third and final complaint.

8 No. 02-2564

The first lesson we take from Albright, Newsome I, and

Ienco, is that it is possible to state a § 1983 claim that

relies on the Fourth Amendment. In Newsome I, we ob-

served that Newsome did have a potential Fourth Amend-

ment claim, but that it could not be pursued because

the statute of limitations had run. Newsome I, 256 F.3d at

750. The Fourth Amendment was barely mentioned in

Ienco, and then only in passing. Ienco, 286 F.3d at 1000.

Looking back directly to Albright, we find nothing in

the various opinions that would require dismissal of Mc-

Cullah’s Fourth Amendment claim. The Rehnquist plural-

ity thought that Albright’s claims against the arresting of-

ficers should be judged under the Fourth Amendment.

See Albright, 510 U.S. at 271. And while the plurality

was at pains later in the opinion to express “no view as to

whether petitioner’s claim would succeed under the Fourth

Amendment,” its stated reason for reserving judgment

was that Albright had failed to present the question in

his petition for certiorari. Id. at 275. It would be an unwar-

ranted stretch to interpret this language as foreclosing

all claims for wrongful arrest under the Fourth Amend-

ment, regardless of the particular facts at issue. Nor did

Justice Kennedy’s concurring opinion conclude that the

Parratt rule forecloses claims brought under the Fourth

Amendment. Justice Kennedy’s concern was with the

misuse of due process theories and the proper line between

state remedies and federal constitutional remedies. His

focus was understandable, as Albright had brought his

claims only under substantive due process.

In order to evaluate McCullah’s complaint, we must

now decide whether the Parratt rule must be applied to

foreclose all constitutional claims for which there is a

parallel remedy under state law, even if they are brought

under a textually specific part of the Constitution, or if

it applies only in the due process area. Our sister cir-

cuits have disagreed about the answer to this question. At

No. 02-2564 9

least one circuit appears to have adopted a broad reading

of Parratt. See Reid v. New Hampshire, 56 F.3d 332, 341

(1st Cir. 1995) (holding that the Parratt rule forecloses a

claim of false arrest under the Fourth Amendment be-

cause of the availability of a parallel cause of action under

state law). Three other circuits take a narrower approach.

See Taylor v. Meacham, 82 F.3d 1556, 1560 (10th Cir.

1996); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1303

(5th Cir. 1995); Singer v. Fulton County Sheriff, 63 F.3d

110, 114-15 (2d Cir. 1995).

We agree with the latter group. A more expansive ver-

sion of the Parratt rule would be directly contrary to the

teaching of Carey v. Piphus, 435 U.S. 247 (1978), that

“[i]n some cases, the interests protected by a particular

branch of the common law of torts may parallel closely

the interests protected by a particular constitutional

right.” Id. at 258. The Court has never held that § 1983

is available only for cases with no state analog; indeed,

it has specifically underscored that the contrary is true.

See, e.g., Zinermon v. Burch, 494 U.S. 113, 124 (1990)

(“[O]verlapping state remedies are generally irrelevant

to the question of the existence of a cause of action under

§ 1983.”); Daniels v. Williams, 474 U.S. 327, 338 (1986)

(stating that if the claim is a violation of one of the spe-

cific constitutional guarantees of the Bill of Rights, “a

plaintiff may invoke § 1983 regardless of the availability

of a state remedy”). Furthermore, the core of Parratt’s

holding is that a post-deprivation hearing (in a court) is

sometimes all the process that is “due”; in contrast, no

amount of process can support an arrest without prob-

able cause. Parratt has nothing to say about a Fourth

Amendment claim.

III

The district court thus should not have held that Al-

bright, Newsome, and Ienco required dismissal of Mc-

10 No. 02-2564

Cullah’s claims. The only remaining question is whether

we must remand this case for further proceedings, or if

we can or should resolve it here. There are a number of

legal questions that must be addressed before the court

can be confident that McCullah has stated a claim on

which relief can be granted, none of which has been briefed

or explored in any meaningful way before this court. We

think it best to allow further proceedings on these points,

rather than to reach out and decide issues that have not

been fully developed. We add only a few words about

these issues, to clarify exactly what we have decided

and what remains open.

McCullah’s complaint focuses on government conduct

that occurred both pre-arrest (i.e. the incident report

containing allegedly fabricated information), and also post-

arraignment (i.e. the allegedly false testimony given by

Officer Gadert at the preliminary hearing). The incident

report may be actionable if McCullah can show that it

contains fabricated information, as opposed to showing

that it omits allegedly exculpatory facts. The report led

directly to McCullah’s detention at the conclusion of his

initial court appearance, which was the initial termina-

tion of his freedom of movement, see Brower v. County of

Inyo, 489 U.S. 593, 597 (1989), and was in no sense the

continuation of a seizure that had already occurred, see

Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989).

Later McCullah wound up in custody, when he complied

with the summons he received. Among the important

questions to be resolved is whether this kind of summons

is the equivalent of a seizure within the meaning of the

Fourth Amendment, compare United States v. Dionisio, 410

U.S. 1, 9-10 (1973) (response to grand jury subpoena

not covered by the Fourth Amendment), with Albright, 510

U.S. at 279 (Ginsburg, J., concurring), and Evans v. Ball,

168 F.3d 856, 860-61 (5th Cir. 1999) (summons plus

additional liberty restrictions, including bond requirements,

No. 02-2564 11

restrictions on travel, or mandatory reporting to pretrial

services, constitutes a seizure for Fourth Amendment

purposes); Gallo v. City of Philadelphia, 161 F.3d 217, 222

(3d Cir. 1998) (same); Murphy v. Lynn, 118 F.3d 938, 946

(2d Cir. 1997) (same); Mahoney v. Kesery, 976 F.2d 1054,

1060 (7th Cir. 1992) (suggesting that a required court

appearance could be characterized as a constitutional tort

only when combined with “traumatic” or “dramatic” acts

like being subjected to a search, handcuffing, fingerprint-

ing, or being photographed). Another important question

is whether Gadert individually is immune from suit be-

cause McCullah appeared in court pursuant to a sum-

mons rather than as a result of a custodial arrest ex-

ecuted by Gadert.

The part of McCullah’s complaint that focuses on post-

arrest conduct also raises complex legal issues. His claim

about Officer Gadert’s allegedly false testimony at the

preliminary hearing implicates this circuit’s past rejec-

tion of the concept of continuing seizure in the Fourth

Amendment context. See Reed v. City of Chicago, 77 F.3d

1049, 1052 n.3 (7th Cir. 1996); Wilkins, 872 F.2d at 194; see

also Fontana v. Haskin, 262 F.3d 871, 880 n.5 (9th Cir.

2001) (collecting cases from other circuits). On the other

hand, Newsome I expressly left undisturbed claims brought

directly under the Due Process clause that alleged var-

ious kinds of trial-based government misconduct, such as

the exculpatory evidence rule set forth in Brady v. Mary-

land, 373 U.S. 83 (1963). Newsome I, 256 F.3d at 752.

In Ienco, the appellant was allowed to amend his com-

plaint on remand and assert a due process claim that “the

officers withheld information or evidence necessary for

the fair and impartial trial guaranteed by the U.S. Consti-

tution.” Ienco, 286 F.3d at 999. We drew a careful distinc-

tion between claims directed at allegedly perjurious tes-

timony, which are trial-based and thus foreclosed by

absolute immunity, see, e.g., Briscoe v. LaHue, 460 U.S.

12 No. 02-2564

325, 335-36 (1983), and claims based on the withholding

of exculpatory information or the initiation of constitu-

tionally infirm criminal proceedings, which are outside

of trial and not subject to that particular immunity, see,

e.g., Ienco, 286 F.3d at 1000; Jones v. City of Chicago, 856

F.2d 985, 994-95 (7th Cir. 1988).

These and other legal questions are still open for ex-

ploration on remand, and nothing in this opinion should

be read as a limitation on the district court’s authority to

resolve them.

IV

That leaves two loose ends to tie up. First, the district

court correctly concluded that McCullah has failed to al-

lege a policy or practice that can establish municipal

liability. We therefore affirm its dismissal of McCullah’s

§ 1983 claim against the City and its police department. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978);

Kujawski v. Bd. of Comm’rs, 183 F.3d 734, 737 (7th Cir.

1999). Second, although the district court declined to

exercise supplemental jurisdiction over McCullah’s state-

law claims pursuant to 28 U.S.C. § 1367(a), our reinstate-

ment of his Fourth Amendment claim against Officer

Gadert under § 1983 will necessarily require the district

court to revisit the issue of supplemental jurisdiction on

remand.

V

For the reasons stated above, we AFFIRM in part and

REVERSE in part the judgment of the district court dis-

missing McCullah’s complaint and REMAND for further

proceedings consistent with this opinion.

No. 02-2564 13

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-22-03