Nesbitt v. Browne et al

Filing 72

MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 8/17/2012. Mailed notice(yp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAYMOND NESBITT,
Plaintiff,
v.
RONALD JAISCA # 20420; and
JAMES BROWNE # 20026,
Defendants.

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No. 07 C 2099
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss. [Doc. No. 60.] Pursuant to
Federal Rule of Civil Procedure 12(d), the motion to dismiss has been converted to a
motion for summary judgment. For the reasons below, Defendants’ motion is
granted.
BACKGROUND
On April 12, 2005 Plaintiff was arrested and charged with predatory criminal
sexual assault of a child who was under thirteen years of age when the act was
committed. Plaintiff was indicted on May 11, 2005, on ten counts of aggravated
criminal sexual assault, twenty counts of criminal sexual assault, eight counts of
aggravated criminal sexual abuse and twelve counts of criminal sexual abuse.
These counts related to a series of assaults that were allegedly committed by the
Plaintiff against the Plaintiff’s stepdaughter over a period of four years, beginning

in June 2000 and continuing through June 2004. At trial, Plaintiff was found guilty
on five counts of predatory criminal sexual assault.1 Plaintiff was sentenced to eight
years of incarceration for each count, with the sentences to run consecutively. On
December 18, 2008, Plaintiff filed a notice of appeal for his criminal conviction,
claiming that (1) the trial court erred by not fully admonishing him about the
nature of the charges prior to allowing him to proceed pro se; (2) that the trial court
erred by denying his request for standby counsel; and (3) that the trial court
deprived him of his sixth amendment right to counsel during his sentencing. The
Appellate Court affirmed Plaintiff’s conviction on all five counts for which he was
previously found guilty, but reversed and remanded the case based on a violation of
his Sixth Amendment right to counsel during his sentencing. On remand, on
December 19, 2011, he was sentenced to a total of thirty-seven years.
PROCEDURAL HISTORY
On April 16, 2007, Plaintiff filed a motion to proceed in forma pauperis in the
instant case. [See Doc. No. 3.] The motion was granted on May 31, 2007, and
Plaintiff subsequently filed a pro se complaint against the Chicago Police
Department and the City of Chicago alleging that his civil rights were violated
pursuant to 42 U.S.C. §1983, and that he was not sufficiently informed of his rights,
as required by Miranda v. Arizona, 384 U.S. 436 (1966), after his arrest on April 12,
2005. (See generally Complaint [Doc. No. 7].) On its own motion, pursuant to 28

A judgment of nolle prosequi was entered for the remaining counts prior to
trial on October 21, 2008.
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U.S.C. 1915(e)(2)(B)(ii), the Court dismissed the Plaintiff’s Complaint as to the City
of Chicago and the Chicago Police Department, and ordered Officers Jaisca and
Browne to be added as Defendants. [See Doc. No. 6.] The Court also dismissed
Plaintiff’s Miranda claim, because Plaintiff’s claims did not constitute actionable
grounds for liability under 42 U.S.C. §1983; however, the Court held that Plaintiff
could “proceed on his claim that the officers wrongfully arrested him.” Id. On
August 17, 2007, Defendants moved to dismiss the matter without prejudice or, in
the alternative, to stay the proceedings pending the outcome of Plaintiff’s criminal
trial. [See Doc. No. 13.] The Court entered a stay. [See Doc. No. 16.] In two separate
filings dated October 30, 2008 and November 3, 2008, Defendants and Plaintiff
respectively gave consent to have the case heard by a United States Magistrate
Judge. [See Doc. Nos. 34 & 35.] The case was reassigned to this Court pursuant to
Local Rule 73.1(b) on November 5, 2008. [See Doc. No. 37.] At a status hearing held
on February 29, 2012, Plaintiff indicated that the appeal of his criminal case was
over and that he requested that the stay be lifted. This Court gave Defendants until
March 14, 2012 to file the instant motion, and continued the stay on discovery until
a ruling on the motion had been made. [See Doc. No. 59.] The matter was fully
briefed on June 20, 2012. [See Doc. No. 70.] This order follows.
CONVERSION TO SUMMARY JUDGMENT &
APPLICABLE STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(d), “[i]f, on a motion under
Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded

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by the court, the motion must be treated as one for summary judgment under Rule
56.” Fed. R. Civ. P. 12(d). See also Marques v. Fed. Reserve Bank of Chi., 286 F.3d
1014, 1017 (7th Cir. 2002) (noting the court’s discretion to convert motions to
dismiss to motions for summary judgment where it considers extrinsic evidence).
Here, Plaintiff attached a variety of exhibits to his response to the instant motion,
including a General Offense Case Report. (See Pl.’s Resp., Exh. H [Doc. No. 66].)
Because the Court is not excluding these materials, conversion to summary
judgment treatment is appropriate. Generally, when a court treats a motion to
dismiss as one for summary judgment, Rule 12(d) requires that “[a]ll parties . . . be
given a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed. R. Civ. P. 12(d). However, formal notice to the parties from the Court
of its intent to convert the motion is not always required. The advisory committee
notes to Rule 12 indicate that the notice procedure is necessary “to avoid taking a
party by surprise.” See Burick v. Edward Rose & Sons, 18 F.3d 514, 516 (7th Cir.
1994). Where there is no actual surprise, however, lack of notice is not considered
reversible error. Fleischfresser v. Directors of School Dist., 200, 15 F.3d 680, 684
(7th Cir. 1994). In Fleischfresser, the court held that there was no surprise because
“both parties had every reason to know that extraneous material was being
considered and are held to know that Rule 12(b)(6) compelled the district court to
consider the motion to dismiss as one for summary judgment.” Id. Here, not only is
there no actual surprise, but the parties implicitly requested a conversion of the
motion. Plaintiff submitted extraneous materials and specifically asked the Court
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“to look beyond the 4 corners of the complaint.” (Pl.’s Resp., at 5.) Plaintiff’s
response also makes clear that he knew that the effect of such a request would be
the Court’s conversion of the motion. (See id., at 3) (“If the court on a Rule 12(b)(6)
looks to matters outside the complaint, the court generally must convert motion into
a Rule 56 motion for summary judgment.”). Likewise, Defendants also requested
the Court to consider the extraneous material submitted by Plaintiff, (Def.s’ Reply,
at 4-5), and were on notice that the Court’s consideration of such material would
likely result in conversion of their motion.
Therefore the Court will treat Defendants’ motion as one for summary
judgment. “Summary judgment is appropriate when the evidence to date shows that
there ‘is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.’” Frost v. Rivera, 2010 WL 3718557, at *1
(N.D. Ill. Sept. 8, 2010) (quoting Fed. R. Civ. P. 56(c)). In considering motions for
summary judgement, a court construes all facts and draws all inferences from the
record in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
ANALYSIS
Plaintiff claims that he was the victim of a false arrest. “The Fourth
Amendment protects the ‘right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures.’” United States v.
Jackson, 598 F.3d 340, 346 (7th Cir. 2010) (quoting U.S. CONST. AMEND. IV). “‘The
essential elements of a cause of action for false arrest or false imprisonment are
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that the plaintiff was retained or arrested by the defendant[s], and that the
defendant[s] acted without having reasonable grounds to believe that an offense
was committed by the plaintiff.’” Jones v. Navia, 2010 WL 4878869, at *5 (N.D. Ill.
Nov. 23, 2010) (quoting Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222, 1231
(Ill. 1990)). Defendants contend that Plaintiff’s 42 U.S.C. § 1983 false arrest claim is
barred by the Supreme Court’s decision in Heck v. Humprhey, 512 U.S. 477 (1994).
Defendants also claim that there was probable cause for Plaintiff’s arrest. Finally,
Defendants contend that Plaintiff’s claims that he was “entrapped,” “set up” or
“lured” fail to establish a cognizable § 1983 action.
A.

Heck v. Humprhey
Defendants argue that Plaintiff’s false arrest claim is precluded by the

Supreme Court’s decision in Heck. In that case, the Court held that,
in order to recover 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 determination or called
into question by a federal court’s issuance of a writ of
habeas corpus.
Heck, 512 U.S. at 486. The Court noted that “[h]abeus corpus is the exclusive
remedy for a state prisoner who challenges the fact or duration of his confinement
and seeks immediate or speedier release, even though such a claim may come
within the literal terms of 42 U.S.C.S. § 1983.” Id. However, the Court also
explained that some § 1983 claims do not necessarily imply the invalidity of a
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conviction. Id. at 487. In merely contending that he was falsely arrested, Plaintiff
does not necessarily imply that his conviction is invalid. See Jones, 2010 WL
4878869, at *6. Indeed, it could be that his conviction is valid and that Defendant
Officers arrested him without probable cause. Id. In responding to the instant
motion, Plaintiff argues that his conviction is invalid for a number of reasons.
Admittedly, those various arguments do not support his § 1983 claim, but they do
not preclude it. As such, Heck does not bar Plaintiff’s false arrest claim.
To the extent that Plaintiff does attempt to articulate claims that question or
challenge his conviction, those attempts are in vain. In addition to being incomplete
and initially articulated in his response to the instant motion (rather than in his
Complaint), Plaintiff’s equal protection claim, due process claim, speedy trial
violation claim, ineffective assistance claim, and various similar allegations
constitute collateral attacks on his criminal conviction and fail for this reason.
B.

Probable Cause
An arrest made with probable cause is reasonable. Stokes v. Bd. of Educ., 599

F.3d 617, 622 (7th Cir. 2010). “Probable cause is an absolute bar to a claim of false
arrest asserted under the Fourth Amendment and Section 1983.” Id. (citing
McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009)). Probable cause exists “when
the facts and circumstances that are known to [an officer] reasonably support a
belief that the individual has committed, is committing, or is about to commit a
crime.” Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 679 (7th Cir. 2007).
“Although probable cause is normally a jury question, it can be found as a matter of
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law ‘when no reasonable jury could find that the officer[ ] did not have probable
cause.’” Smith v. Lang, 114 F.3d 1192 (7th Cir. 1997) (quoting Jones v. Webb, 45
F.3d 178, 182 (7th Cir. 1995)). Plaintiff claims that there was no probable cause for
his arrest. Defendant Officers maintain otherwise.
Among the exhibits Plaintiff attached to his response to the instant motion is
a Chicago Police Department General Offense Case Report. (See Pl.’s Resp., Exh.
H.) Plaintiff neither questions the authenticity of the report, nor the accuracy of its
contents. The report was made on March 23, 2005, twenty days before Plaintiff’s
arrest. (Id.) The report indicates that Plaintiff’s stepdaughter alleged that he
sexually assaulted her.2 (Id.) Absent consideration of the accuracy or truthfulness of
the Plaintiff’s stepdaughter’s claims, the fact that she made them to the police
establishes that there was probable cause to arrest Plaintiff. See United States v.
Hayden, 353 Fed. Appx. 55, 57 (7th Cir. 2009) (“[Where] a reasonably credible
victim informs the police that someone has committed a crime, the police have
probable cause to arrest the alleged culprit.”). While Plaintiff cites Mark v. Furay,
769 F.2d 1266 (7th Cir. 1985), for the proposition that private parties who conspire
with arresting officers to have a person arrested on the basis of false information

The report indicates that the victim’s mother (Plaintiff’s wife) initiated
contact with the police. It states that “the parent of the [victim] related that on 22
Mar 05 her daughter the [victm] handed her a letter after being disciplined. The
letter alleges that the [offender], the [victim’s] stepfather has been fondling
(‘touching’) the [victim’s] vagina, masturbating in the presence of the [victim] and
engaging in oral and anal sex with the [victim]. The [victim] alleges these actions
took place. (Pl.’s Resp, Exh. H.)
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act under color of state law, Plaintiff does not allege that his stepdaughter
conspired with police officers. He does not allege that the information his
stepdaughter provided was false–and, more importantly–he does not allege that the
police knew or had reason to know that the information she provided was false.
Because no reasonable jury could find that Defendant Officers lacked probable
cause, Plaintiff’s false arrest claim fails.
C.

Entrapment and Other Allegations
Plaintiff also argues that he was “entrapped,” “set up” and/or “lured” to the

scene of the arrest by the police with the assistance of his wife. It is not clear
whether Plaintiff’s allegations are part of his false arrest claim, or whether they
constitute a separate claim or claims. In either case, Plaintiff fails to state claims
upon which relief may be granted. If the allegations are part of Plaintiff’s false
arrest claim, then they are likely irrelevant due to the existence of probable cause.
See Booker v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996) (stating that probable cause
is an absolute bar to defendant’s § 1983 liability for unlawful arrest, false
imprisonment, or malicious prosecution).
The defense of “entrapment” does not provide a basis for a claim under
Section 1983. In United States v. Russell, 411 U.S. 423, 431-32 (1973), the Supreme
Court held that due process is a possible theory of liability available to a defendant
asserting that he was entrapped Id. But, relief under this theory is limited to
instances where the law enforcement conduct violates “fundamental fairness,
shocking to the universal sense of justice.” Id. The Seventh Circuit has interpreted
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this as “an extremely narrow opportunity . . . to challenge government conduct.”
United States v. Davis, 15 F.3d 1393, 1415 (7th Cir.), cert. denied, 513 U.S. 896
(1994). Because § 1983 does not provide for relief for ordinary violations of state
law, a cause of action exists only where the state law violation is so extreme that it
rises to the level of a due process violation, such as when the state law violation
“create [s] a serious risk of convicting an innocent person.” As the Seventh Circuit
has found in Eaglin v. Welborn, 57 F.3d 496, 501 (7th Cir. 1995) (en banc), cert.
denied, 516 U.S. 965 (1995) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991)),
violations of state entrapment laws do not necessarily create such a serious risk
because the defense of entrapment is an "excuse for, not a denial of, crime," and
thus "does not bear on innocence." Id. See also, Smith v. Lang, 114 F.3d 1192 (7th
Cir. 1997) (probable cause to arrest is not negated by a plaintiff prevailed on an
entrapment defense at a criminal trial -- there is no constitutional violation for §
1983 purposes).
Plaintiff also claims that he was “set up,” but he does not explain what this
means. In citing to Mark v. Furay, he seems to suggest there was some kind of
conspiracy between Defendant Officers and his wife; however, as is mentioned
above, Plaintiff’s allegations fail to call the Officers’ probable cause into question.
Additionally, they do not establish a separate claim. Plaintiff’s claims of a set up
and entrapment are most reasonably interpreted as an allegation that he was lured
to a location under false pretenses so that he could be arrested. Assuming he was
lured to the location of his arrest, this does not change the fact that there was
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probable cause for the arrest; therefore, Plaintiff’s allegation does not in any way
resurrect his false arrest claim. Furthermore, that Defendant Officers lured
Plaintiff somewhere for the purpose of arresting him does not establish a separate
cause of action, as it is perfectly acceptable for law enforcement officers to lure
someone suspected of a crime to a location so that he may be arrested. See People v.
Witherspoon, 576 N.E.2d 1030, 1036 (Ill. App. 1991) (“The use of deception to lure a
defendant from his home in order to effectuate an arrest without a warrant has
been held not to violate fundamental fairness.”), cited in U.S. v. Vasiliavitchious,
919 F. Supp. 1113, 1117 (N.D. Ill. 1996).
CONCLUSION
Plaintiff’s false arrest claim is barred because no reasonable jury could
determine that Defendant Officers lacked probable cause for Plaintiff’s arrest.
Plaintiff’s other allegations fail to state a claim upon which relief may be granted.
Therefore, Defendants’ Motion [Doc. No. 60], converted to one for summary
judgment, is GRANTED.

SO ORDERED.

ENTERED:

DATE: ___August 17, 2012___

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

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