Collins v. Sposeep, 91-1965
| Decision Date | 14 October 1992 |
| Docket Number | No. 91-1965,91-1965 |
| Citation | 978 F.2d 1261 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Robert A. COLLINS, Plaintiff/Appellant, v. Michael L. SPOSEEP, et al., Defendants/Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before FLAUM, MANION and KANNE, Circuit Judges.
The district court dismissed Robert Collins's suit filed under 42 U.S.C. § 1983 for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). He appeals that dismissal. The district court addressed Collins's complaints quite adequately and we affirm its decision for the reasons stated in the order of the district court, which is attached. To the extent that Collins appeals the court's denial of his motion for a change of venue, we also affirm. Collins did not file a timely and sufficient affidavit to support his motion, 28 U.S.C. § 144, so the court correctly denied the motion. The judgment of the district court is AFFIRMED, and Collins's request for sanctions under Circuit Rules 31(c) & (d) is DENIED.
MICHAEL L. SPOSEEP, et al., Defendants.
March 28, 1991
MEMORANDUM AND ORDERPlaintiff Robert Allen Collins has filed this civil rights action pro se pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution were violated in the course of his arrest for drunk driving and ensuing state criminal proceedings. He sues the state trial judge and prosecutor, the county sheriff's department and four of its officers, and his attorney. This court has jurisdiction over this action pursuant to 28 U.S.C. § 1343. Each defendant has moved to dismiss, and Mr. Collins has filed a motion for discovery pursuant to Federal Rules of Civil Procedure 34 and 35. For the reasons that follow, the court grants the dismissal motions, rendering the discovery motion moot.
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of complaints that state no actionable claim. In the separate motions to dismiss of the defendants, the court will consider Mr. Collins' factual allegations as true and viewed in a light most favorable to him. Scheuer v. Rhodes, 416 U.S. 232 (1974); Gomez v. Illinois State Board of Education, 811 F.2d 1030 (7th Cir.1987); Vaden v. Village of Maywood, Ill., 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908 (1987); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir.1973), cert. denied, 415 U.S. 917 (1974). The motions to dismiss will not be granted under these circumstances unless it appears beyond doubt that Mr. Collins can prove no set of facts which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69 (1984); Conley v. Gibson, 355 U.S. 41 (1957); Gomez v. Illinois State Board of Education, 811 F.2d 1030 (7th Cir.1987); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047 (1986); French v. Heyne, 547 F.2d 994 (7th Cir.1976).
The following facts have been submitted, in large part, by Mr. Collins. For purposes of the dismissal motions, the court presumes the truth of Mr. Collins' factual allegations.
On August 8, 1989, at approximately 12:00 midnight, Mr. Collins was returning from the Allen County Library in Fort Wayne, Indiana when he stopped at a Wabash County restaurant for coffee and a "bite to eat". Upon entering the restaurant, Mr. Collins noticed Wabash County Police Officers John Blakely and Darrell Stanley and another individual whom he later discovered was Reserve Officer Brian Haupert. Mr. Collins took a seat and placed his order. Six to eight patrons were in the restaurant at that time.
While Mr. Collins awaited his order, Officer Blakely made some "smart remarks" and looked in Mr. Collins' direction. Mr. Collins walked over to where the officers were seated at the counter and inquired about the training of officers in making lawful arrests. Officer Blakely then referred to Mr. Collins as
... the asshole pro se attorney with the knowledge of knowing he had been used as a witness against me as defendant in one State Criminal Prosecution, which required several of his personal appearance in the Wabash County Court, and Blakely was again used in a Civil Case in Wabash Circuit Court as a witness against me ...
During Mr. Collins' conversation with the officers, he reports that they insulted him, reprimanded him for bothering them on their break, and used intimidating language towards him, including threatening to arrest him.
After some time, Mr. Collins walked away from the officers and proceeded to the bathroom. He then returned to his table, ate his meal, drank several cups of coffee, and proceeded to the counter to pay his tab. While he waited to settle his bill, the officers stood up and waited behind him to pay their bill. Mr. Collins decided not to leave because he heard one of the officers remark, "wait until we get outside", in relation to him. Mr. Collins again sat at his table and ordered more coffee.
After the officers left the restaurant and Mr. Collins had consumed several more cups of coffee, he paid his bill and left the restaurant. He reports that approximately one half hour elapsed between the officers' exit and his own. As Mr. Collins drove his car from the restaurant's parking lot, he noticed that Officer Stanley was following him. The officers tailed him for about six miles, after which Officer Blakely's vehicle signaled for Mr. Collins to pull over. Officer Blakely then arrested him for
Mr. Collins alleges that during this arrest, Officer Blakely threatened the plaintiff and used physical force.
Following his arrest, Mr. Collins was taken to the Wabash County Jail where he was incarcerated pending an initial appearance before a judge. Officer Blakely filed an affidavit of probable cause for the arrest with the Wabash County Court Clerk on August 8, 1989, which recites:
On August 8, 1989 at approximately 1:00 a.m. while working as a full time deputy for the County of Wabash, I observed and took the following action: I was in the area of US 24 and SR 13 when Officer Stanley called me by radio advising me of a vehicle east bound on US 24 in the westbound lane. I proceeded east on 24 along with Officer Stanley in front of me as we were attempting to catch up with the above mentioned vehicle. We then turned northbound on CR 100 East and the above 1984 Brown Chev was a high rate of speed, I was having extreme difficulty catching up with the vehicle. The vehicle then turned eastbound on CR 200 North still exceeding 80 mph I turned on my red lights and siren and called dispatch to advise I was in pursuit of the above vehicle. The Brown Chev then ran the stop sign located CR 200 N and CR 300 E, and proceeded southbound on CR 300 East, continuing at a high rate of speed, as I continued with red lights and siren on and blinking my headlights off and on, the vehicle then pulled over slowly approx one-half mile south of CR 200 N on CR 300 E. I paced the vehicle approx 3 miles in excess of 80 mph. I pulled in front of the vehicle, to block him off and Stanley pulled behind the suspect vehicle. I told the driver to get out of his vehicle and put his hands on the car. He did so but very slowly. I advised him to give me his license and registration, and told him he was under arrest for fleeing the police, Mr. Collins had a strong odor of alcoholic beverage on his breath, bloodshot eyes, unsteady on his feet, and slurred speech.
Deputy Stanley offered Mr. Collins a breath test but he would not blow into the alcha sensor, Mr. Collins was cuffed and Stanley transported Mr. Collins to the jail where he was read the Miranda and Implied Consent. Mr. Collins advised he would take the breath test. He was also given a field test that he failed. Mr. Collins gave Stanley two insufficient samples then on the third try he tested .15BAC and was arrested for DWI. Mr. Collins was uncooperative, and kept threatening to sue everyone.
He was also arrested for reckless driving, unreasonable high speed, disregarding the stop sign at 200 N and 300 E, fleeing the police, left of center when not permitted, traveling eastbound on US 24 in the westbound lane.
There were several empty Budweiser beer cans found in the Collins vehicle, and four full ones.
Officer Blakely completed informations for two criminal charges against Mr. Collins on August 8, 1989: operating a vehicle while intoxicated, a Class "A" misdemeanor, and operating a vehicle with .10% or more blood alcohol, a Class "C" misdemeanor.
Mr. Collins came before Judge Michael Sposeep on August 8, 1989 at which time the judge suspended the plaintiff's driver's license for 180 days. Judge Sposeep was a named defendant in four civil rights actions pending in the Northern District of Indiana (Cause Nos. S85-709, S86-478, S86-673, and S90-75) and had presided over other criminal cases in which Mr. Collins was a defendant in the Wabash County Court, namely WCC 84-622, 623, 624, WCC 86-1048 and 1049.
Mr. Collins remained incarcerated pending the criminal trial proceedings in his case. Upon Mr. Collins' request for counsel, the court appointed Attorney Alan Zimmerman to represent him in the proceedings and rejected Mr. Collins' request for counsel from the State Public Defender's Office. Trial in the criminal case arising from the above events was delayed four times upon the prosecutor's motion. During those delays, Mr. Collins was moved from "detention at C.I.C."...
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