550 F.3d 613 (7th Cir. 2008), 08-1102, Smith v. Gomez

Docket Nº:08-1102.
Citation:550 F.3d 613
Party Name:Tommy SMITH, Jr., Plaintiff-Appellant, v. Moises GOMEZ, et al., Defendants-Appellees.
Case Date:December 15, 2008
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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550 F.3d 613 (7th Cir. 2008)

Tommy SMITH, Jr., Plaintiff-Appellant,


Moises GOMEZ, et al., Defendants-Appellees.

No. 08-1102.

United States Court of Appeals, Seventh Circuit.

December 15, 2008

Submitted June 18, 2008.[*]

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[Copyrighted Material Omitted]

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Tommy Smith, Jr. (submitted), Oshkosh, WI, pro se.

Grant F. Langley, Attorney, Susan E. Lappen, Attorney, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellees.

J.B. Van Hollen, Attorney, Mark A. Neuser, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Dawn Davenport, Defendant-Appellee.

Before COFFEY, RIPPLE, and SYKES, Circuit Judges.

COFFEY, Circuit Judge.

Tommy Smith, a Wisconsin prisoner, sued a number of law enforcement officers including officers of the Milwaukee Police Department (MPD) and employees of the Wisconsin Division of Community Corrections (DCC) and the Wisconsin Division of Hearings and Appeals (DHA), as well as the governmental entities themselves, arguing under 42 U.S.C. § § 1983, 1985(3), and 1986 that the defendants conspired to deprive him of his constitutional rights to “ freedom, liberty, full due process, and equal protection" after he was arrested for being a felon in possession of a firearm and for attempted armed robbery. As a result of the arrest, his parole was revoked. The trial court resolved all claims in favor of the governmental authority on various grounds, including their absolute immunity as well as their qualified immunity. Smith appeals, essentially repeating the same claims he made in the trial court. We affirm.

The events leading to Smith's complaint began on February 13, 1999, when Milwaukee police detectives found a handgun while investigating an unsuccessful armed robbery. Some four days later on February 17, 1999, they were able to trace the gun back to Smith's cousin, (Sharon Lewis), using its serial number. Detective Moises Gomez and another detective, defendant Michael Grogan, questioned Lewis about the gun. Initially she told the officers during questioning that she owned the gun and that it had been stolen. According to her testimony she claims that the officers advised her that if she was truthful and cooperative they would not arrest her. In response, Lewis stated to the officers that on February 8 she had ordered a gun for Smith, because he could not purchase one as a convicted felon. Lewis told the police that on February 10, she and Smith went to pick up the gun, she had purchased it and turned it over to him. He later reimbursed her for the weapon. Smith told Lewis to hide the gun above a ceiling tile in her bedroom. On February 12, Smith retrieved the gun from Lewis's home. Two days later, “ Mike G," who, like, Smith, was a member of the “ Gangster Disciples gang," told Lewis that the gun had been lost during an attempted car robbery. Based on these facts, Gomez determined that Smith should be arrested for attempted armed robbery and possessing a firearm while in the status of a convicted felon. Smith was arrested without incident and charged with attempted armed robbery as well as being a felon in possession of a firearm on February 24 and sentenced to a concurrent term of one year and nine months' imprisonment. This sentence occurred as a direct result of his parole violation and was related to his 1992 conviction for armed robbery. While

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in prison, he filed a petition for a writ of habeas corpus concerning the circumstances of his arrest and subsequent parole revocation, and released from confinement before a decision was rendered.

The substance of Smith's lawsuit centers around his contention that he was arrested without probable cause and that there was a conspiracy against him to deprive him of his civil rights. Smith claimed that Gomez obviously did not believe Lewis was telling the truth when she said it was her gun since Gomez gave her a warning about truthfulness. Smith argues that his arrest, which was prompted by the story Lewis told the police, was false. According to Smith, Officers Gomez, Grogan, and a third police detective, Jon Sell, conspired with his parole agent, defendant Dawn Davenport of the DCC, to deprive Smith of his constitutional rights when they placed a parole hold on him. Davenport put a parole hold on Smith after receiving authorization from her supervisor, defendant Irving Suesskind. Subsequently, defendant Andrew Riedmaier, an Administrative Law Judge, held a hearing and ordered the revocation of Smith's parole for possessing a firearm as a felon, and defendant William Lundstrom, Assistant Administrator of the DHA, sustained the revocation.

At the initial screening, the trial court dismissed Smith's complaint without prejudice. See 28 U.S.C. § 1915A. The court reasoned that because Smith's claims are all based on his...

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