UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

CHRISTOPHER RICHARDSON, )

)

Plaintiff, )

) Case No. 2:15-CV-328-JVB

v. )

)

ARTURO AZCONA and CITY OF GARY, )

)

Defendants. )

OPINION AND ORDER

Christopher Richardson, a pro se prisoner, filed a complaint against two defendants

pursuant to 28 U.S.C. § 1983. “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). Nevertheless,

pursuant to 28 U.S.C. § 1915A, this court must review the complaint and dismiss it if the action

is frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant who

is immune from such relief. “In order to state a claim under § 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.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). 

Here, Richardson alleges that Gary Police Officer Arturo Azcona arrested him without

probable cause on September 15, 2010. “Fourth Amendment claims for false arrest or unlawful

searches accrue at the time of (or termination of) the violation.” Dominguez v. Hendley, 545 F.3d

585, 589 (7th Cir. 2008). Thus, this claim accrued when Richardson was arraigned shortly after

he was arrested on September 15, 2010. See id. (“[H]is unlawful seizure was terminated [at] the

time of his arraignment.”). “Indiana’s two-year statute of limitations . . . is applicable to all

causes of action brought in Indiana under 42 U.S.C. § 1983.” Snodderly v. R.U.F.F. Drug
Enforcement Task Force, 239 F.3d 892, 894 (7th Cir. 2001). However, Richardson waited nearly

five years to bring this lawsuit. Because this claim is barred by the statute of limitations, it will

be dismissed with prejudice. 

Richardson also alleges that Officer Azcona coerced Simmuel Mobley into providing

false testimony and knowingly used that testimony against him in a probable cause affidavit. The

Seventh Circuit has “expressly stated that a police officer who manufactures false evidence

against a criminal defendant violates due process if that evidence is later used to deprive the

defendant of his liberty in some way.” Saunders-El v. Rohde, 778 F.3d 556, 560 (7th Cir. 2015)

(quotation marks, brackets, and citation omitted). In addition the use of Moberly’s testimony in

the probable cause affidavit, Mobley also testified at Richardson’s criminal trial. He testified that

Richardson had been his friend for nearly a year. He testified that Richardson (who was 41 years

old) was dating a 14 year old. He testified that he ordered Richardson off his property because

Richardson and the girlfriend were arguing. He testified that later that evening Richardson shot

him in the leg outside of Richardson’s apartment building. Richardson v. State, 968 N.E. 2d 867

(Ind. Ct. App. 2012) (table). Clearly Mobley’s allegedly coerced testimony was used to deprive

Richardson of his liberty. However, in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the

Supreme Court explained that “in order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a

state tribunal authorized to make such a determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” Here, in order to prevail, Richardson would have to

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show that Mobley’s testimony was false and that it was coerced by Officer Azcona. That would

undermine Richardson’s conviction. However, because Richardson’s conviction has not been

reversed or otherwise invalidated, this claim is not yet ripe. Therefore it must be dismissed

without prejudice. 

Though it is usually necessary to permit a plaintiff the opportunity to file an amended

complaint when a case is dismissed sua sponte, see Luevano v. Wal-Mart, 722 F.3d 1014 (7th

Cir. 2013), that is unnecessary where the amendment would be futile. Hukic v. Aurora Loan

Servs., 588 F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad discretion to deny leave to

amend where . . . the amendment would be futile.”) Such is the case here because no amendment

could make the arrest claim timely nor the coerced testimony claim ripe. 

For the foregoing reasons, the arrest claim is DISMISSED WITH PREJUDICE and the

coerced testimony claim is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §

1915A. 

SO ORDERED on September 22, 2015.

 s/ Joseph S. Van Bokkelen 

JOSEPH S. VAN BOKKELEN

UNITED STATES DISTRICT JUDGE

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