In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3211
JOSEPH FELTON,
Plaintiff‐Appellant,
v.
CITY OF CHICAGO, ET AL.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14‐cv‐6857 — Milton I. Shadur, Judge.
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ARGUED FEBRUARY 16, 2016 — DECIDED JUNE 28, 2016
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Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Joseph Felton sued the City of
Chicago and its police superintendent, alleging that police of‐
ficers used excessive force in arresting him. The district judge
consulted newspaper accounts of the arrest and then, without
requiring an answer from the defendants, dismissed the suit
as frivolous. But the suit was not frivolous and the judge
2 No. 14‐3211
should not have dismissed it by relying on newspaper stories.
We reverse.
I. BACKGROUND
We recite the facts assuming the truth of Felton’s allega‐
tions. On March 15, 2014, Felton was in a car in Harvey, Illi‐
nois, when he was approached by an unmarked car with
“black tinted windows.” This caused Felton, who was un‐
armed, to fear for his life. He fled, turning onto the express‐
way and heading toward Chicago. Chicago police officers
“chased” him along the expressway and fired their guns at
him (but Felton does not say he was hit). The officers then
“ram[med]” their cars into his, causing him to “swerve out of
control” and crash. At some point, he was “shot by 6 different
stu[n] guns.” As a result of the officers’ actions, Felton was
“put into critical condition” and suffered broken bones,
bruises, a concussion, lost vision, and other injuries. He un‐
derwent several surgeries and suffered “excruciating pain
and mental anguish.” He brought this suit under 42 U.S.C.
§ 1983, alleging the officers used constitutionally excessive
force.
Because Felton was incarcerated when he filed suit, the
district judge conducted an initial screening of the complaint.
See 28 U.S.C. § 1915A. The judge noted that the allegations
were insufficient to state claims against the only defendants
that Felton named—the City of Chicago and its police super‐
intendent (in his official capacity). Because that problem
could be cured by an amendment (naming the officers who
were actually involved in the incident), the judge moved on
to what he saw as “more grievous problems.”
No. 14‐3211 3
The judge found it “painfully obvious” that Felton’s com‐
plaint “had omitted critical facts” which would “cast more
light” on whether the officers caused Felton’s injuries, or
whether his injuries “resulted from his own flight in what ap‐
peared from his narrative to be a high‐speed chase.” So the
judge consulted three newspaper accounts of Felton’s arrest.
“Instead of expending further resources in recapping what
those newspaper accounts reflected,” the judge merely at‐
tached them as exhibits to his order. Then, without explana‐
tion, the judge declared that Felton was trying “like the alche‐
mists of the Middle Ages, to transmute base metal into gold.”
So the judge dismissed the entire suit as “frivolous.” See 28
U.S.C. § 1915A(b)(1).
Felton appealed and we appointed him an attorney.
Though the City did not participate in the proceedings below,
we invited it to file an appellate brief. It declined, so we ap‐
pointed an amicus curiae to defend the judgment.
II. ANALYSIS
District judges must screen prisoner complaints as soon as
practicable and must “dismiss the complaint, or any portion
of the complaint, if the complaint is frivolous, malicious, or
fails to state a claim upon which relief may be granted.” 28
U.S.C. § 1915A(b)(1). Felton’s complaint was dismissed as
“frivolous,” which means “lack[ing] an arguable basis either
in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The judge did not say whether the fatal flaw was factual
or legal, so we consider each possibility. We review a dismis‐
sal for factual frivolousness for an abuse of discretion. Gladney
v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002). Al‐
legations are not frivolous unless they are “clearly baseless,”
4 No. 14‐3211
“fanciful,” “fantastic,” “delusional,” “irrational,” or “wholly
incredible.” Denton v. Hernandez, 504 U.S. 25, 32–33 (1992). Fel‐
ton’s allegations—that when he fled officers along an express‐
way, they chased him, rammed his car, and used stun guns on
him—were not frivolous. See id. at 33 (allegations that are
merely “unlikely,” “improbable,” or “strange” do not meet
the frivolousness standard). If the judge dismissed the suit as
factually frivolous, he abused his discretion.
A claim is legally frivolous if it is “based on an indisputably
meritless legal theory.” Neitzke, 490 U.S. at 327–28. Our review
is plenary. Billman v. Ind. Dep’t of Corrs., 56 F.3d 785, 787 (7th
Cir. 1995). Felton’s theory is familiar: he says officers used ex‐
cessive force in arresting him, which violates the Fourth
Amendment (applicable to the states through the Fourteenth).
As an initial matter, Felton’s suit would lack “even an argua‐
ble basis in law” if his injuries were self‐inflicted and the of‐
ficers caused him no harm. That may be what the district
judge concluded after reading the newspapers. But when
screening for frivolousness, “the complaint is the entire rec‐
ord of the case.” Billman, 56 F.3d at 788. The “frivolousness
determination, frequently made sua sponte before the defend‐
ant has even been asked to file an answer, cannot serve as a
factfinding process for the resolution of disputed facts.” Den‐
ton, 504 U.S. at 32; see also Williams v. Wahner, 731 F.3d 731, 733
(7th Cir. 2003). Felton says the judge relied on the newspapers
to dismiss his suit. And though the City did not file a brief, it
sent a letter to the court, agreeing with Felton that the district
court dismissed the suit “based on the court’s independent re‐
search into newspaper accounts of the underlying incident.”
If the judge did so, that is unjustifiable, no matter how defer‐
ential our review. In our analysis, we credit Felton’s allegation
that the officers caused his injuries.
No. 14‐3211 5
Felton argues that the legal viability of his suit depends on
facts that could not have been determined at the screening
stage. For example, he asks “whether the police were justified
in chasing [him] in the first place.” But that’s irrelevant be‐
cause “pre‐seizure conduct is not subject to Fourth Amend‐
ment scrutiny.” Carter v. Buscher, 973 F.2d 1328, 1332–33 (7th
Cir. 1992); see also California v. Hodari D., 499 U.S. 621, 626–27
(1991).1 Felton also questions whether the officers had “some
other purpose,” aside from stopping his flight. But the Fourth
Amendment analysis is objective, so the officers’ intentions do
not matter. Scott v. Harris, 550 U.S. 372, 381 (2007); Graham v.
Connor, 490 U.S. 386, 397 (1989) (“An officer’s evil intentions
will not make a Fourth Amendment violation out of an objec‐
tively reasonable use of force … .”).
Objectively, at least one part of Felton’s complaint was le‐
gally viable: his allegation that he was shot by multiple stun
guns. Nothing in the complaint says that this happened dur‐
ing the car chase. A reasonable inference is that it happened
afterward. And nothing in the complaint says whether Felton
was subdued, passively resisting, or actively resisting at the
time. Discovery may reveal that he was actively resisting, but
at the screening stage the judge was required to draw the rea‐
sonable inference that Felton was subdued or only passively
resisting. In that case, shooting him with stun guns could vi‐
olate clearly established law. E.g., Abbott v. Sangamon County,
1 For a similar reason, the allegation that officers fired their guns, though
potentially troubling depending on the circumstances, is irrelevant be‐
cause Felton does not allege he was hit or that the shooting made him stop
his flight. See Hodari D., 499 U.S. at 626–27 (no seizure if an officer’s show
of force does not physically touch the individual or compel him to submit
to the officer’s authority).
6 No. 14‐3211
705 F.3d 706, 732–33 (7th Cir. 2013); Cyrus v. Town of
Mukwonago, 624 F.3d 856, 862–63 (7th Cir. 2010). Dismissing
these allegations as frivolous was an abuse of discretion.
As to the legal effect of Felton’s allegations that officers
rammed his car, the parties were correct to focus on the objec‐
tive dangerousness of the car chase. Officers are allowed to
end a highly dangerous car chase by ramming the fleeing car.
Scott, 550 U.S. at 386 (“A police officer’s attempt to terminate
a dangerous high‐speed car chase that threatens the lives of
innocent bystanders does not violate the Fourth Amendment,
even when it places the fleeing motorist at risk of serious in‐
jury or death.”). But, as Felton stresses, the complaint does not
say that the chase was dangerous. Felton’s chase might have
been like O.J. Simpson’s: low‐speed, on a deserted express‐
way, with officers following at a safe distance. If Felton posed
no danger but officers rammed his car, a Fourth Amendment
claim would not be frivolous. Cf. Mullenix v. Luna, 136 S. Ct.
305, 312 (2015) (per curiam) (describing dangerousness of car
chase before concluding that officers did not violate the
Fourth Amendment); Plumhoff v. Rickard, 134 S. Ct. 2012, 2022
(2014) (same); Scott, 550 U.S. at 378–81 (same).
It might be fair to say that a car chase along an expressway
is usually dangerous, so the inference that the chase was O.J.‐
like is not reasonable. And if the chase in this case was not dan‐
gerous, Felton should have said that in his complaint. But
even if that was the case, when a plaintiff—especially a pro se
plaintiff—fails to state a claim in his first complaint, he should
ordinarily be given a chance to amend. Tate v. SCR Med.
Transp., 809 F.3d 343, 346 (7th Cir. 2015). And because Felton’s
stun gun allegations stated a claim, the case must be returned
to the district court. Because Felton did not name the specific
No. 14‐3211 7
officers involved in his arrest, he must amend his complaint,
so he will have the opportunity to add detail to his car chase
allegations.
On remand, the parties should know that in Scott v. Harris,
the Supreme Court refused to accept the non‐movant’s ver‐
sion of the facts at summary judgment because that version
was clearly contradicted by a video of the chase. 550 U.S. at
378–80. If video exists that clearly contradicts Felton’s story,
an early and cost‐efficient motion for summary judgment
might be appropriate. Of course, as the Scott dissent noted, id.
at 395–96, video may not tell the whole story and reasonable
people can sometimes draw different conclusions from the
same video. If the defendants move for summary judgment,
the parties should know that Federal Rule of Civil Procedure
56(d) allows non‐movants to argue that further discovery is
necessary to resolve the motion.
III. CONCLUSION
For the foregoing reasons, we REVERSE the judgment and
REMAND for proceedings consistent with this opinion. Circuit
Rule 36 shall apply on remand.