Baker v. Officer John Fermon

Filing 63

ORDER entered by Judge Joe Billy McDade on 10/22/2021. IT IS THEREFORE ORDERED that Plaintiff's Motion for Relief from Judgment Pursuant to Rules 60(b)(2) and (6) (doc. 61) is DENIED. Defendant's Motion for Extension of Time to File Response/Reply (doc. 62) is thus MOOT. See full written Order. (VH)

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E-FILED

Friday, 22 October, 2021 01:36:32 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

SALIH BAKER,
Plaintiff,
v.
JOHN FERMON & CITY OF
BLOOMINGTON,
Defendants.

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Case No. 1:16-cv-01358

ORDER
This matter is before the Court on Plaintiff’s Motion for Relief from Judgment
Pursuant to Rule 60(b)(2) and (6). (Doc. 61). For the following reasons, the Motion is
denied sua sponte.
A full recitation of the facts of this case can be found in the Court’s summary
judgment Order. (See doc. 41 at 1–6). The following facts are sufficient to resolve the
pending Motion. After an interaction with Bloomington Police Officer Fermon
wherein Officer Fermon believed he witnessed Plaintiff swallow a small bag of drugs,
Plaintiff was arrested and charged with obstruction of justice; a subsequent grand
jury indictment charged Plaintiff with the same. Following the arrest, Plaintiff was
medically examined and observed, but no bag was recovered from his system.
Approximately two years later, the obstruction charge was dismissed nolle prosequi
in accordance with a plea agreement stemming from unrelated charges. Plaintiff
thereafter filed the instant lawsuit asserting, inter alia, a claim for malicious
prosecution of the obstruction charge. The Court entered summary judgment against

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Plaintiff, finding the nolle prosequi dismissal due to a plea agreement was not
indicative of Plaintiff’s innocence, thus defeating his claim for malicious prosecution. 1
(Doc. 41 at 20–21). The Seventh Circuit affirmed. Baker v. Fermon, 799 F. App’x 921
(7th Cir. 2020).
Plaintiff now seeks relief from judgment under Rules 60(b)(2) and (6) and asks
the Court to reverse its summary judgment decision and reinstate his malicious
prosecution claim based on newly discovered evidence: an August 2021 order in the
underlying criminal case indicating the obstruction charge was dismissed nolle
prosequi because the prosecutor simply “decline[d] to prosecute.” (Doc. 61). The new
order does not indicate the nolle prosequi dismissal stemmed from a plea agreement,
as the previous order did. (Doc. 61 at 3).
Rule 60(b)(2) permits relief from a final judgment or order based on “newly
discovered evidence that, with reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b).” However, a motion under Rule
60(b)(2) must be made within one year of the entry of the challenged judgment or
order. Fed. R. Civ. P. 60(c)(1). The instant Motion challenges an order and judgment
that were entered on June 26, 2018—more than three years ago. Relief under Rule
60(b)(2) is thus unavailable.

“To establish a claim for malicious prosecution under Illinois law, plaintiffs must
establish five elements: (1) commencement or continuation of an original proceeding
[by the defendant]; (2) termination of the proceeding in favor of the plaintiff; (3) the
absence of probable cause; (4) malice; and (5) damages.” Cairel v. Alderden, 821 F.3d
823, 834 (7th Cir. 2016) (citing Sang Ken Kim v. City of Chicago, 368 Ill. App. 3d 648,
654 (2006)).

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Rule 60(b)(6), the residual clause, permits relief for “any other reason that
justifies relief.” However, “if the asserted ground for relief falls within one of the
enumerated grounds for relief subject to the one-year time limit of Rule 60(b), relief
under the residual provision of Rule 60(b)(6) is not available.” Arrieta v. Battaglia,
461 F.3d 861, 865 (7th Cir. 2006). Plaintiff offers no reason for relief other than the
newly discovered evidence (the new nolle prosequi dismissal order). (See doc. 61).
Accordingly, relief under Rule 60(b)(6) is likewise unavailable.
Nevertheless, even if Plaintiff’s request could fall under Rule 60(b)(6), relief
would be foreclosed based on two findings in the Seventh Circuit’s Order affirming
the Court’s summary judgment Order. First, the Seventh Circuit explicitly found
Officer Fermon had probable cause to arrest Plaintiff for obstruction of justice, thus
defeating his malicious prosecution claim. 2 Baker, 799 F. App’x at 924. Second, the
Seventh Circuit explained that, to overcome the grand jury indictment here, Plaintiff
would have to prove it was obtained due to “some improper post[-]arrest action . . .
such as a lie.” Id. at 925 (internal quotation marks omitted). The court went on to
find Officer Fermon was, at most, mistaken in his belief Plaintiff had swallowed a
bag of drugs. Id. Because a mistake is not a lie, the court determined there was no
improper basis for the grand jury indictment, which likewise defeated Plaintiff’s
claim for malicious prosecution. Id. Thus, even if Plaintiff’s arguments could be

As stated, a claimant claiming malicious prosecution must prove the prosecution
occurred absent probable cause. Cairel, 821 F.3d at 834.
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considered under Rule 60(b)(6), his requested relief is foreclosed by the Seventh
Circuit’s binding Order.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Relief from
Judgment Pursuant to Rules 60(b)(2) and (6) (doc. 61) is DENIED. Defendant’s
Motion for Extension of Time to File Response/Reply (doc. 62) is thus MOOT.

SO ORDERED.
Entered this 22nd day of October 2021.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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