McCullah v. Gadert, 02-2564.

Citation344 F.3d 655
Decision Date22 September 2003
Docket NumberNo. 02-2564.,02-2564.
PartiesGeorge E. Mccullah, Plaintiff-Appellant v. Mark Gadert and the City of Springfield, Illinois, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

R. John Alvarez, Springfield, IL for Plaintiff-Appellant.

William G. Workman, Office of the Corp. Counsel, Springfield, IL for Defendant-Appellee.

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 suffered both temporary and permanent consequences from 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 Officer 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 altercation between two of McCullah's friends and another patron. 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 threatened 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.

Officer Gadert later approached McCullah a second time, joined by two uniformed officers. The officers asked McCullah 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 February 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 belongings. 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 attorney promptly substituted a misdemeanor charge for obstructing a peace officer. This charge too was later dismissed, 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 misdemeanor charges, McCullah was fired from his job at the Department of Revenue.

McCullah filed three successive complaints against Officer Gadert and the City of Springfield. The district court 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 district court erred in dismissing the part of his complaint alleging that Officer Gadert violated his Fourth Amendment 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 offered 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. 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, 114 S.Ct. 807, 127 L.Ed.2d 114 (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, alleging that detectives had violated his right to substantive due process by offering testimony against him at a preliminary 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 Justice Rehnquist that Albright's claim was cognizable under the Fourth Amendment, but not under substantive due process. Albright, 510 U.S. at 271, 114 S.Ct. 807 (plurality opinion). They relied on the teaching of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), which held that constitutional claims should, where possible, go forward under rights rooted in an explicit textual command of the Constitution rather than more generalized notions of substantive due process. Id. at 395, 109 S.Ct. 1865. 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 Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (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, 114 S.Ct. 807. This rule should be equally applicable, he continued, to cases like Albright's that were nominally brought as substantive due process claims. Id. at 285, 114 S.Ct. 807. The availability of a parallel state-law tort of malicious prosecution in Illinois compelled dismissal of Albright's claim. Id. at 285-86, 114 S.Ct. 807.

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 unlawfully 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, ___ U.S. ___, 123 S.Ct. 2621, 156 L.Ed.2d 630 (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, 97 S.Ct. 990, 51 L.Ed.2d 260 (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 availability 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...

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