Coleman v. Johnston

• Decision Date: 12 August 1957
• Docket Number: No. 11942.,11942.
• Citation: 247 F.2d 273
• Parties: Rufus COLEMAN, Plaintiff-Appellant, v. Walter JOHNSTON, Justin A. McGowan, Kinzie Bluett and Frank G. Sain, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

247 F.2d 273 (1957)

Rufus COLEMAN, Plaintiff-Appellant, v. Walter JOHNSTON, Justin A. McGowan, Kinzie Bluett and Frank G. Sain, Defendants-Appellees.

No. 11942.

United States Court of Appeals Seventh Circuit.

August 12, 1957.

Richard A. Lewin, Percival E. Thompson, Chicago, Ill., for plaintiff-appellant.

Harry H. Pollack, Asst. Corp. Counsel, Chicago, Ill., John C. Melaniphy, Corp. Counsel of the City of Chicago, Chicago, Ill., for defendants-appellees. Sydney R. Drebin, Asst. Corp. Counsel, Chicago, Ill., of counsel.

Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges.

FINNEGAN, Circuit Judge.

By their motion to dismiss plaintiff Coleman's complaint seeking redress under the Civil Rights Act, 42 U.S.C.A. § 1983, defendant police officers and warden, admitted all facts well pleaded. Chicago & Northwestern Ry. v. First Nat. Bank, 7 Cir., 1952, 200 F.2d 383, 384. Yet the district judge, erroneously we think, dismissed the cause because the complaint failed to state a cause of action under the Civil Rights Act "for the reason that no deprivation of a Constitutional right is alleged." Of course, under the applicable Rule of Federal Civil Procedure findings were unnecessary in this instance. Rule 52(a), 28 U.S. C.A.

We think the following allegations see: McCollum v. Mayfield, D.C. N.D.Cal.1955, 130 F.Supp. 112; Geach v. Moynahan, 7 Cir., 1953, 207 F.2d 714 spelled out enough to prevent the summary disposition.

"4. That on said date the defendants, Walter Johnston and Justin A. McGowan, without any warrant arrested the plaintiff, Rufus Coleman, at or near 5510 South Michigan Avenue in Chicago, Illinois and caused the said Rufus Coleman to be imprisoned in the Bridewell Hospital, the same being part of a certain jail maintained by the City of Chicago, sometimes called the `Bridewell\' and sometimes called the `House of Correction.\' That at the time of said arrest and incarceration as aforesaid it was well known to the defendants, Walter Johnston, Justin A. McGowan, and Kinzie Bluett, that the plaintiff, Rufus Coleman, was suffering from certain bullet wounds in his left leg which had been inflicted upon him immediately prior to his aforesaid arrest.

"5. That upon his arrest as aforesaid the defendants, Walter Johnston, Justin A. McGowan, and Kinzie Bluett, refused to charge the plaintiff, Rufus Coleman, with the commission of any crime, misdemeanor, or violation of any ordinance of the City of Chicago but on the contrary arrested and held the said plaintiff on what in police terminology is called an `open\' charge, which means that the plaintiff was not charged by the police or by any one else with the commission of a crime, misdemeanor, or violation of any ordinance.

"6. That on September 5, September 6, and September 7, 1955, the defendants, Walter Johnston and Justin A. McGowan, were requested by the plaintiff\'s sister to either place a charge of the commission of a crime or misdemeanor or other offense against the plaintiff or to bring him before an examining magistrate so that bond could be set for him, or to set for him, a bond for him themselves, all of which the defendants, Walter Johnston and Justin A. McGowan, acting with the acquiescence, knowledge and approval of the defendant, Kinzie Bluett, failed, neglected and refused to do, persisting in holding the plaintiff upon the so-called `open\' charge.

"7. That at all times mentioned herein the aforesaid jail where the plaintiff was incarcerated, the same being variously called the `House of Correction,\' `Bridewell,\' or `Bridewell Hospital,\' was in charge of a warden or overseer, who is and was the defendant, Frank Sain. That the said defendant Frank Sain, wrongfully held the plaintiff at the request of the other defendants without any

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