United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY UNITED STATES DISTRICT JUDGE
Wesley Sellers III, a prisoner without a lawyer, filed a
complaint. “A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Nevertheless, pursuant to 28 U.S.C.
§ 1915A, the court must review the merits of a prisoner
complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.
complaint, Sellers alleges that, on January 19, 2018, Officer
Bustos pulled over Sellers purportedly because the Chevrolet
Tahoe operated by Sellers did not have a license plate, even
though the Tahoe had a license plate. Officer Stewart
detained Sellers on the front hood of a police vehicle as
Officer Bustos searched the Tahoe without his consent and
found a firearm. Later, Officer Wardrip prepared a probable
cause affidavit, which was filed in this court when Sellers
was charged with unlawful possession of a firearm. See
United States v. John Wesley Sellers III, 2:18-CR-29
(N.D. Ind., filed March 1, 2018). Because of this affidavit,
Sellers has been incarcerated for more than seven months
since the date the complaint was filed. Officer Bustos did
not disclose how he knew that there was a firearm in the
Fourth Amendment protects individuals from unreasonable
searches and seizures. However, “[i]t is well settled
that the actual existence of probable cause to arrest
precludes a § 1983 suit for false arrest.”
Morfin v. City of E. Chicago, 349 F.3d 989, 997 (7th
Cir. 2003). “Police officers have probable cause to
arrest an individual when the facts and circumstances within
their knowledge and of which they have reasonably trustworthy
information are sufficient to warrant a prudent person in
believing that the suspect had committed an offense.”
Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th
conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment-subject only to a few specifically
established and well-delineated exceptions.”
Arizona v. Gant, 556 U.S. 332, 338 (2009). These
exceptions include search incident to arrest, consent, and
the automobile exception. Id.; Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); Chambers v.
Maroney, 399 U.S. 42, 52 (1970). Here, Sellers alleges
that Officer Bustos stopped him without probable cause. He
further alleges that Officer Bustos searched the vehicle
without consent and that Officer Stewart facilitated this
search with knowledge that it was unlawful. Therefore, the
complaint alleges a plausible Fourth Amendment claim against
Officer Bustos and Officer Stewart.
asserts a claim of malicious prosecution against Officer
Wardrip because Officer Wardrip knew that the search was
unlawful but did not mention this detail in the probable
cause affidavit. Malicious prosecution is a tort recognized
under Indiana law, but the Indiana Tort Claim Act does not
allow such claims to proceed against governmental employees.
Serino v. Hensley, 735 F.3d 588, 595 (7th Cir.
2013); Ind. Code. § 34-13-3-3(6). A claim of malicious
prosecution may also be brought under federal law, but this
is rarely appropriate because “individuals do not have
a federal right not to be summoned into court and prosecuted
without probable cause, under either the Fourth Amendment or
the Fourteenth Amendment's Procedural Due Process
Clause.” Ray v. City of Chicago, 629 F.3d 660,
664 (7th Cir. 2011). “[T]o state a viable malicious
prosecution claim under § 1983, a plaintiff must allege
a violation of a particular constitutional right, such as the
right to be free from unlawful seizures under the Fourth
Amendment, or the right to a fair trial under the Due Process
Clause.” Welton v. Anderson, 770 F.3d 670, 673
(7th Cir. 2014). Because Sellers alleges that Officer
Wardrip's omission resulted in more than seven months of
incarceration, the complaint states a plausible Fourth
Amendment claim against Officer Wardrip.
also asserts a claim under Brady v. Maryland, 373
U.S. 83 (1963), against Officer Bustos for not disclosing how
he knew about the firearm in the Tahoe. “To establish a
Brady violation, [a plaintiff] must show three
elements: “(1) the evidence at issue is favorable to
the accused because it is either exculpatory or impeaching;
(2) the evidence has been suppressed by the government,
either willfully or inadvertently; and (3) the suppressed
evidence resulted in prejudice.” Harris v.
Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007).
“Prejudice exists if there is a reasonable probability
that the suppressed evidence would have produced a different
verdict.” Id. Here, Sellers has not alleged
that the information he seeks would have likely resulted in a
different outcome for his criminal case, nor could he do so
because his criminal case remains pending. Therefore, Sellers
may not proceed on this claim.
also names the Hobart Police Department as a defendant.
Because the Hobart Police Department has no separate legal
existence from the City of Hobart, the police department is
not a suable entity. See Fain v. Wayne Cty. Auditor's
Office, 388 F.3d 257, 261 (7th Cir. 2004); Argandona
v. Lake Cty. Sheriff's Dep't, 2007 WL 518799, at
*3 (N.D. Ind. 2007); Hobart Ordinance § 30.01, available
at http://www.cityofhobart.org/ index.aspx?NID=242. As a
result, Sellers cannot proceed against it, and this defendant
final matter, Sellers has filed a motion seeking to vacate
the order dismissing this case. However, no such order was
entered, and this motion is denied as unnecessary.
these reasons, the court:
DENIES as UNNECESSARY the motion to vacate
(DE # 12);
GRANTS John Wesley Sellers III leave to
proceed against Officer Bustos and Officer Stewart for
allegedly conducting an unlawful search on January 19, 2018,
in violation of the Fourth Amendment;
GRANTS John Wesley Sellers III leave to
proceed against Officer Wardrip for allegedy filing a false
probable cause affidavit resulting in an unlawful seizure in
violation of the Fourth Amendment;
DISMISSES the Hobart ...