Rodgers v. Lincoln Towing Service, Inc.

• Decision Date: 15 August 1985
• Docket Number: No. 84-2823,84-2823
• Citation: 771 F.2d 194
• Parties: Steve RODGERS, Plaintiff-Appellant, v. LINCOLN TOWING SERVICE, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 194

771 F.2d 194

2 Fed.R.Serv.3d 1414

Steve RODGERS, Plaintiff-Appellant, v. LINCOLN TOWING SERVICE, INC., et al., Defendants-Appellees.

No. 84-2823.

United States Court of Appeals, Seventh Circuit.

Argued April 22, 1985.

Decided Aug. 15, 1985.

William J. Harte, William J. Harte, Ltd., Chicago, Ill., for plaintiff-appellant.

Sharon Baldwin, Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and TIMBERS, Senior Circuit Judge. ^*

CUMMINGS, Chief Judge.

Plaintiff Steve Rodgers filed the instant suit alleging numerous violations of his civil rights by the various defendants on October 6, 1983. Plaintiff filed an amended complaint on December 1, 1983, ¹ but on March 29, 1984, the district court granted a motion to dismiss for failure to state a claim filed by several of the defendants under Fed.R.Civ.P. 12(b)(6). 596 F.Supp. 13 (N.D.Ill.1984). The trial court also assessed one-third of the defendant's attorney's fees and costs as sanctions against Rodgers' lawyers under Fed.R.Civ.P. 11. Id. at 22. After the district court denied Rodgers' motion for reconsideration, id. at 26, he filed the instant timely appeal. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

For purposes of considering the dismissal of plaintiff's complaint under Rule 12(b)(6), we take the factual allegations of plaintiff's complaint as true. On the evening of October 7, 1982, Rodgers parked his car in the parking lot of Belden Corned Beef Center, on the north side of Chicago, Illinois. When he left the restaurant about an hour later, he found that his car had been towed by Lincoln Towing Service, Inc. ("Lincoln Towing"), a towing operation employed by restaurants and other establishments to remove illegally parked cars from their parking lots. Rodgers retrieved his car that evening, but only after paying a towing fee.

That evening, some unknown person threw paint on the side of Lincoln Towing's building. At about 1:00 a.m. on October 8, Rodgers received an anonymous phone call claiming to be from the police and informing him the police would be "coming to your house for throwing paint on the building." One week later, on October 15, Detective Philip Pagano of the Chicago Police Department telephoned Rodgers concerning the paint-throwing incident, told him he had been identified as the one who had thrown the paint, and requested him to come to the police station to "answer charges." Pagano told Rodgers to bring $100 with which to post bail in case a complaint was filed, and that if he did not come to the police station a warrant would be issued for his arrest.

Rodgers went to the police station on October 18 at 5:20 p.m. There he was questioned for approximately an hour by Pagano, Chicago Police Detective William McGarry, and two employees of Lincoln Towing, Steven Mash and Steven Eisgrau. Neither during this interview nor earlier during the phone call was Rodgers informed of any of his constitutional rights. Rodgers steadfastly maintained his innocence of the accusations.

While he was being questioned, Rodgers saw Mash and Eisgrau, who are personal friends of Pagano's, insisting that Pagano write up a complaint against Rodgers. Pagano did so, and Mash signed the complaint, at which time Rodgers was formally arrested. He was jailed for over ten hours, ² until 5:00 a.m. the next morning, before being allowed to post bail, despite his informing Pagano and other police officers that he had sufficient funds to make bail. Rodgers was never informed of his constitutional rights, nor was he allowed to phone his attorney. Rodgers was acquitted of the charge in subsequent proceedings in state court.

Rodgers alleges in addition, in various memoranda of law he has filed in this case but not in his complaint, that he went to the police station on October 18 pursuant to an interview arranged with Pagano during his phone call three days earlier and that while there he was threatened that if he did not confess to the charge, or pay restitution to Lincoln Towing for the damage caused by the paint, he would be jailed. Rodgers also claims that in a private meeting between Mash, Eisgrau, and Pagano, one or more of them said they would arrest Rodgers "to teach the punk a lesson." Lincoln Towing, Rodgers claims, wanted to make an example of him to all whose cars might be towed by Lincoln Towing. Rodgers also alleges, without factual support, that Mash, Eisgrau, and Pagano all knew the charges against Rodgers were false.

II

We stress that in evaluating the court below's dismissal of the complaint for failure to state a claim, we can consider only the factual allegations of the complaint. See, e.g., Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654-655 (7th Cir.1984). Even the liberal notice pleading allowed by the federal rules requires the complaint to include the operative facts upon which a plaintiff bases his claim. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; Strauss v. City of Chicago, 760 F.2d 765, 767-768 (7th Cir.1985). Consequently Rodgers' allegations that lie outside the complaint--most of which are conclusory and not factual anyway--are irrelevant to our analysis. Even if Rodgers' complaint included these allegations, our determination that dismissal of the complaint was proper would not change.

Pagano frames several allegations under 42 U.S.C. Sec. 1983. ³ The most substantive of these involves his detention overnight without the opportunity to post bond. Rodgers asserts in passing that this detention was a violation of his substantive right to liberty, not a procedural due process violation. Br. at 11. He does not develop this contention, and in fact it is in error. Guenther v. Holmgreen, 738 F.2d 879 (7th Cir.1984), involved a fact pattern almost identical to the case at bar. There we distinguished between holding the plaintiff overnight (for about nine hours) despite the spouse's ability to post bail, which we found implicated only the plaintiff's procedural due process liberty rights, from arresting the plaintiff initially without probable cause, which would have implicated a substantive constitutional right to be free from unreasonable searches and seizures. Id. at 882. Guenther was in fact a more egregious situation. There instead of negligently failing to complete administrative procedures in a timely manner, the police actually had refused the plaintiff's spouse's offer to post bail. Only when the plaintiff was transferred to another jail was the bail offer accepted.

In the case at bar, Pagano had adequate probable cause to arrest Rodgers, see infra pp. 200 - 201, and Rodgers received the first appearance before a magistrate that the Fourth Amendment requires. See Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 ("the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest"); Coleman v. Frantz, 754 F.2d 719 (7th Cir.1985) (eighteen-day detention before first appearance unconstitutional). His complaint is that it took the police ten and a half hours to complete the paperwork necessary to book and formally charge him with the vandalism of Lincoln Towing, and that amount of time is too long. Rodgers has informed us that the Illinois Supreme Court rules recommend that booking procedures take only one hour. Even so, Rodgers has not indicated that the delay was caused by anything but negligence. He has alleged no facts that would suggest that the delay was intentionally or maliciously caused, and ten hours is not so long that it "shocks the conscience" of the court, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). When only random, negligent actions by state officials deprive an individual of procedural due process rights, the availability of adequate state tort remedies to redress the wrong meets constitutional requirements of due process. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Guenther v. Holmgreen, 738 F.2d at 882; State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983); Wolf-Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir.1983). Rodgers' access to state tort claims for false imprisonment and malicious prosecution precludes him from using Section 1983 to compensate him for his injuries.

Rodgers next argues that the police's failure to advise him of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), violated his constitutional right against compelled self-incrimination. This argument is without foundation. First, the Fifth Amendment and Miranda apply only to custodial interrogation, and whether Rodgers was even in custody (at least until his arrest, after which he was not questioned) is arguable. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (suspect not in custody during interview at station house, notwithstanding the fact that "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it"). But even if the questioning were custodial, Rodgers never incriminated himself. Consequently, his right to be free from compelled self-incrimination was never infringed.

Nor can Rodgers' Sixth Amendment claim that he was deprived of his right to counsel stand. The right to counsel does not attach until "at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). Rodgers interprets Kirby to mean that Mash's signing of the citizen's complaint--if not the questioning at the station house--constituted the initiation of such adversary proceedings. This interpretation is a gross overextension of Kirby and similar cases. Rodgers had been identified as a...