IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

RUDELL PETTIFORD, )

)

Plaintiff, )

)

vs. ) NO. 1:13-CV-320

)

MARION POLICE DEPARTMENT, )

et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the complaint filed by

Rudell Pettiford, a pro se prisoner, on November 4, 2013. For the

reasons set forth below, this case is DISMISSED pursuant to 28

U.S.C. § 1915A. 

BACKGROUND

On May 20, 2013, Rudell Pettiford was arrested in his home at

1113 Riga Street in Marion, Indiana. Police came to the

neighborhood in response to reports of shots having been fired.

When they arrived, they were directed to Pettiford’s house by a

crowd of bystanders. Autumn Deloporte told the police that only her

two children were in the house. The children came out of the house,

and she persistently denied that anyone else was in the house.

Nevertheless, witnesses told the police that the person with the

gun had entered the house and not left. While continuing to

case 1:13-cv-00320-RL-RBC document 4 filed 11/12/13 page 1 of 10
question Deloporte, the police saw some unknown person peak out

from around a corner in the living room. With their guns drawn, the

police arrested that person - who was subsequently identified as

the plaintiff in this case: Rudell Pettiford. 

Deloporte refused to consent to a search of the house, so the

police secured the residence and obtained a warrant to search it.

During the search the police found various things including: a

handgun and ammunition, 144 grams of marijuana, 2 digital scales,

a roller, baggies, and $960 in cash. “Pettiford is suing each

defendants for illegal search and seizure, and false arrest . . ..”

DE 1 at 2. 

DISCUSSION

“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, the court must review prisoner

complaints pursuant to 28 U.S.C. § 1915A. A complaint must contain

sufficient factual matter to “state a claim that is plausible on

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). “A claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

“Factual allegations must be enough to raise a right to relief

above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555 (quotation marks, citations and footnote

omitted). “[W]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the

complaint has alleged – but it has not shown – that the pleader is

entitled to relief.” Iqbal, 556 U.S. at 679 (quotation marks and

brackets omitted). Thus, “a plaintiff must do better than putting

a few words on paper that, in the hands of an imaginative reader,

might suggest that something has happened to her that might be

redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403

(7th Cir. 2010) (emphasis in original). 

Pettiford names nine defendants and has also listed the Marion

Police Department in the caption of this case. The police

department is not a suable entity. Smith v. Knox County Jail, 666

F.3d 1037, 1040 (7th Cir. 2012). Therefore the Marion Police

Department must be dismissed. 

The only allegation that Pettiford makes against Chief David

Gilbert is that he is in charge of the department. However, “[t]he

doctrine of respondeat superior can not be used to hold a

supervisor liable for conduct of a subordinate that violates a

plaintiffs’ constitutional rights.” Chavez v. Illinois State

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Police, 251 F.3d 612, 651 (7th Cir. 2001). Here, where the

subordinates have not violated his rights, there is absolutely no

basis for liability and Chief David Gilbert must be dismissed. 

The other eight officers were involved in various aspects of

the search, seizure, and arrest described above. However, because

none of the events described state a claim, they will (for

convenience) merely be described as the police.

Pettiford alleges that he was wrongly arrested as a result of

racial profiling. “Racial profiling, or selective enforcement of

the law, is a violation of the Equal Protection Clause.” Sow v.

Fortville Police Dep’t, 636 F.3d 293, 303 (7th Cir. 2011). However,

in order to state a claim, Pettiford must plausibly allege that the

police “acted or failed to act with a nefarious discriminatory

purpose, and discriminated against [the plaintiff] because of her

membership in a definable class” McPhaul v. Board of Com’rs of

Madison County, 226 F.3d 558, 564 (7th Cir. 2000) (citations,

quotation marks and brackets omitted); see also Sow, 636 F.3d at

303. Here, Pettiford has not alleged any factual basis from which

a discriminatory animus could be plausibly inferred. “[A]

plaintiff’s obligation to provide the grounds of his entitlement to

relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

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When the police arrested Pettiford, they were not looking for

someone of a particular race – they were not profiling. They were

looking in a house where witnesses said that a person with a gun

had fled. They were talking to a woman who was familiar with the

house1 who repeatedly told them that no one was there. Based on the

description of events, Pettiford was arrested after he stuck his

head around the corner in the living room. Nothing about the

described events contains any hint of racial or discriminatory

intent. Based on the facts presented, it is not plausible that any

of these defendants are liable to Pettiford for racial profiling. 

To prevail on his false arrest claim, Pettiford must plausibly

allege that he was arrested without probable cause. See Lawson v.

Veruchi, 637 F.3d 699, 703 (7th Cir. 2011). However, the facts

alleged demonstrate that the police had probable cause to arrest

Pettiford. “Probable cause for an arrest exists if, at the moment

the arrest is made, the facts and circumstances within the

officer[’s] knowledge and of which [he] had reasonably trustworthy

information were sufficient to warrant a prudent person in

believing that an offense has been committed.” Hughs v. Meyer, 800

F.2d 967, 969 (7th Cir. 1989). Here, there had been gun shots fired

in the neighborhood shortly before the police arrived. Witnesses

saw a man with a gun run into the house. Deloporte stated that no

1 Based on the description provided, it is unclear whether she and her

children lived in the house, but since her children were inside and she

repeatedly said that no one else was in the house, it is clear that she was

familiar with it. 

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one (besides her children) had been or were in the house. Then

Pettiford peaked his head around the corner of the living room.

Based on these facts, the police had probable cause to believe that

Pettiford was the man with the gun who had fled into the house and

that he had been involved in the shooting in the neighborhood.

Thus, Pettiford does not state a claim for having been falsely

arrested. 

Pettiford alleges that the police performed an illegal

protective search of the house without a warrant. Pettiford does

not allege that the police did more than a cursory sweep through

the house after they arrested him and before they obtained a

warrant to conduct a full search. 

In [Maryland v.] Buie[, 494 U.S. 325 (1990)], the

Supreme Court recognized an exception to the warrant

requirement for a protective sweep accompanying an

in-home arrest. The Court held that when the police

arrest an individual at his home, they may conduct a

limited search of the premises without a warrant and

without probable cause if there are articulable facts

which, taken together with the rational inferences from

those facts, would warrant a reasonably prudent officer

in believing that the area to be swept harbors an

individual posing a danger to those on the arrest scene.

United States v. Arch, 7 F.3d 1300, 1303 (7th Cir. 1993) (quotation

marks and citation omitted). Here, the police were responding to a

shooting in the neighborhood and Deloporte either did not know who

was in the house or had lied to conceal who was there. Either way,

the police clearly had justification for conducting a protective

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sweep of the house after arresting Pettiford. See Leaf v. Shelnutt,

400 F.3d 1070, 1088 n. 22 (7th Cir. 2005). 

Pettiford alleges that the search of the house and the seizure

of items from the house was illegal. Other than saying that it was

a violation of an unspecified (and undescribed) police department

policy, he does not describe why searching the house with a warrant 

(see DE 1 at 22-23) was illegal. Neither does he allege that any of

the seized items were outside the scope of the warrant. Violations

of police department policy, even if true, do not state a claim

under 42 U.S.C. § 1983. Savory v. Lyons, 469 F.3d 667, 670 (7th

Cir. 2006) (“In order to state a claim under [42 U.S.C.] § 1983 a

plaintiff must allege: (1) that defendants deprived him of a

federal constitutional right; and (2) that the defendants acted

under color of state law.”) 

Pettiford argues that the police “failed to file a supporting

affidavit for the search warrant . . ..” DE 1 at 9. It appears that

he makes this argument because the box on the warrant for “an

affidavit for search warrant was filed” was left unchecked. DE 1 at

22. However, the other box is checked. It indicates that “sworn

testimony was presented to the court.” Id. There is no

constitutional requirement that a court only issue a warrant based

on a written affidavit. Cf. Federal Rules of Criminal Procedure

4.1(a) (“A magistrate judge may consider information communicated

by telephone or other reliable electronic means when reviewing a

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complaint or deciding whether to issue a warrant or summons.”) and

Indiana Code 35-33-5-8 (Authorizing issuance of a warrant upon

sworn testimony and without an affidavit.)

In an attempt to challenge the legitimacy of the warrant,

Pettiford alleges that the judge “failed to place his signature on

the search warrant return that orders disposition of property

seized.” DE 1 at 10. While is it unclear why the copy of the return

that Pettiford submitted was not signed by the State court judge

and also unclear whether the original has ever been signed, it is

clear that nothing about the return could create liability here. In

Malley v. Briggs, 475 U.S. 335 (1986), “the Supreme Court held that

an officer who relies on a subsequently invalidated warrant may be

liable for § 1983 damages only if the warrant application was ‘so

lacking in indicia of probable cause as to render official belief

in its existence unreasonable.’” Junkert v. Massey, 610 F.3d 364,

369 (7th Cir. 2010). Here, nothing about how the return was

processed has anything to do with the warrant application or the

warrant itself. Moreover, nothing about the absence of a judicial

signature on the return gives any hint that the warrant was in any

way invalid. 

Finally, Pettiford argues that the police should not have

sought to have forfeited the $960 in cash that was seized from his

residence because there were no “smoking devices, scales, and

packaging bags located on [his] person” (DE 1 at 11); because there

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is no evidence that the cash was linked to drug sales; and because

it is a violation of Indiana law. However, the drug paraphernalia

he mentions was (like the $960 cash and 144 grams of marijuana)

found in his residence. He does not argue that these items are not

his. But to the extent that he were to make that argument (or any

other argument opposing the forfeiture), he would need to present

it to the State court that is presiding over the forfeiture

proceeding because it has exclusive jurisdiction over the $960

until the conclusion of that proceeding. See United States v.

$79,123.49, 830 F.2d 94 (7th Cir. 1987). Finally, a violation of

Indiana law (if true) is not a basis for a claim under § 1983 which

requires the deprivation of a federal constitutional right. See

Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Though the

Fourteenth Amendment provides that State officials shall not

“deprive any person of life, liberty, or property, without due

process of law”, the forfeiture proceeding provides Pettiford with

due process. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“For

intentional, as for negligent deprivations of property by state

employees, the state’s action is not complete until and unless it

provides or refuses to provide a suitable post deprivation

remedy.”) 

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CONCLUSION

For the reasons set forth above, this case is DISMISSED

pursuant to 28 U.S.C. § 1915A. 

DATED: November 12, 2013 /s/RUDY LOZANO, Judge

United States District Court

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