McCullah, George E. v. Gadert, Mark ( 2003 )

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