Holmes v. City of Chicago et al

Filing 217

MEMORANDUM OPINION AND ORDER: the Court grants in part Defendants' motion for summary judgment 178 . The Court dismisses all of Plaintiff's claims against Defendants Herrera, Matich, and Coffee and also dismisses Plaintiff's claims against "Unknown Officers." The Court also dismisses Plaintiff's federal due process and conspiracy claims against Defendant Acosta as well as Plaintiff's state law claims for abuse of process, battery, assault, and conspiracy a gainst Defendant Acosta. Plaintiff's false arrest/imprisonment (state and federal), malicious prosecution, and intentional infliction of emotional distress claims remain pending against Defendant Acosta. The Court also grants Plaintiffs motion for leave to file a sur-reply 208 . This case is set for further status hearing on August 26, 2014, at 9:00 a.m. Signed by the Honorable Robert M. Dow, Jr on 8/6/2014. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HUGO HOLMES,
Plaintiff,
v.
CITY OF CHICAGO, ET AL.,
Defendants.

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Case No.: 09-CV-2481
Judge Robert M. Dow, Jr.,

MEMORANDUM OPINION AND ORDER
Plaintiff Hugo Holmes sued the City of Chicago and Chicago Police Officers Michelle
Acosta, Eugene Herrera, Jr., Jonathan Matich, Veronica Coffee, Marilyn Drish, and Patricia
Ferraro for violations of state and federal law stemming from his arrest on April 25, 2008. On
November 12, 2013, Officers Marilyn Drish and Patricia Ferraro were dismissed from this case
pursuant to stipulation by the parties. The remaining Defendants have moved for summary
judgment on all counts (Counts II and III) against Officers Herrera, Matich, and Coffee, but
concede that factual issues exist with respect to certain of Plaintiff’s claims against Officer
Acosta (also Counts II and III).1 For the reasons set forth below, the Court grants in part
Defendants’ motion for summary judgment [178] and also grants Plaintiff’s motion for leave to
file a sur-reply [208].

1

Count I alleges liability on the part of Defendant City of Chicago. Defendant City of Chicago moved to
bifurcate [50] Plaintiff’s Monell claims against the City from the constitutional claims against the
individual Defendant Police Officers and to stay discovery against it on the Monell claims until the
resolution of all claims against Defendant Officers. On April 14, 2011, the Court granted the City’s
motion pursuant to the parties’ agreement to bifurcate discovery. See [52].

I.

Factual Background2
On the morning of April 25, 2008, Plaintiff Hugo Holmes was arrested and charged with

solicitation of a sex act. At the time of Plaintiff’s arrest, Officers Michelle Acosta, Eugene
Herrera, Jonathan Matich and Veronica Coffee were conducting a “prostitution solicitation
sting,” in which the officers make arrests of persons who are alleged to have solicited a sex act
from a police officer who is impersonating a prostitute. Officer Acosta’s role was to act as a
“decoy” prostitute and signal in the event that a person solicited her for a sex act. Officer Acosta
testified that she would have “flagged” Officer Herrera if a deal had been made, and Officer
Herrera testified that Officer Acosta “would wave her hand, take her hat off, blow a kiss,
whatever we determined that day we were going to do” to signal that she had probable cause to
arrest an individual for solicitation. Officer Acosta testified that she did not wear a wire or have
a radio on her person on the morning of April 25.3 Officer Herrera’s role was to watch for
Officer Acosta’s signal in the event a person solicited a sex act.4 His role was also to protect
Officer Acosta’s safety. Although he does not recall where he stood during this incident, Officer
Herrera typically would position himself so that he could see Officer Acosta while at the same
time not be detected as a police officer by a person who might solicit a sex act from Officer
Acosta. Officers Matich and Coffee were to park in their unmarked police car out of sight of a
2

Plaintiff has supplemented his deposition testimony with an affidavit. Plaintiff’s affidavit does not
appear to materially contradict his deposition testimony such that his affidavit should be disregarded. See
Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir. Ill. 2005) (“Although at the summary judgment stage
we must interpret the evidence in the light most favorable to [the plaintiff] that does not allow her to
contradict deposition testimony with later-filed contradictory affidavits.”). If portions of his affidavit did
contradict, rather than supplement, his deposition testimony, and also were material to the Court’s
analysis, those portions of his affidavit would be disregarded.

3

Plaintiff admits that when Officer Acosta solicited him on April 25, 2008, Plaintiff did not see a police
radio, cell phone, or any device that could record or transit the audio of their interaction. However,
Plaintiff testified that he heard Officer Acosta’s voice transmitting audio after he was arrested and placed
in the squad car.

4

Officer Herrera testified that he trained Officers Acosta and Coffee.

2

potential offender and wait for a radio transmission from Officer Herrera indicating that a person
had solicited a sex act from Officer Acosta.
On April 25, 2008, at approximately 8:30 a.m., Plaintiff Hugo Holmes was driving his
2006 GMC pickup truck eastbound on 47th Street. Plaintiff was a Field Service Supervisor of
the Chicago Department of Transportation’s (CDOT’s) Division of Infrastructure Management,
for CDOT’s Central District. In the course of performing his field monitoring and inspections,
Plaintiff used his own vehicle and was reimbursed by CDOT for his mileage. On April 25, 2008,
Plaintiff was working in the Central District, which included the intersection of 47th Street and
Washtenaw Avenue. After passing the intersection of 47th and Washtenaw, Plaintiff drove
around the block as follows: he took a left turn on Talman Avenue (the next block east from
Washtenaw) and proceeded one block north to 46th Street, Plaintiff turned left and proceeded
one block west on 46th Street to Washtenaw Avenue, and Plaintiff then took another left turn
and proceeded one block southbound on Washtenaw Avenue until he came to a stop at
approximately 4658 S. Washtenaw Avenue.
Plaintiff testified that a woman walked toward his pickup truck while he was stopped on
Washtenaw and 47th Street and stated “$20 for a blowjob?” Plaintiff denies that he solicited a
sex act and further testified that he ignored Officer Acosta’s solicitation with disgust and a
dismissive gesture, telling her “I’m working.” Officer Acosta testified that Plaintiff offered her
$20 in exchange for “head” and to “lick her titty.” Plaintiff did not see Officer Acosta wave or
gesture with her hand when he was stopped and he did not look back at her when he drove away.
Officer Acosta testified that she signaled to Officer Herrera that Plaintiff had solicited her for a
sex act. Officer Herrera then told Officers Matich and Coffee over the radio that Officer Acosta

3

was solicited for a sex act by Plaintiff (although they did not know Plaintiff’s name at the time).
According to Defendant Officers, Herrera would have identified Plaintiff’s vehicle.
Officers Matich and Coffee had backed their unmarked police car into an alley off of
Washtenaw south of 47th Street.

Plaintiff drove his pickup truck across 47th Street and

southbound on Washtenaw. Officers Matich and Coffee pulled their unmarked police car out of
the alley and stopped Plaintiff. Officers Matich and Coffee advised Plaintiff that he was under
arrest, and Officer Matich put the handcuffs on Plaintiff and placed him into the back seat of the
police car. Plaintiff was transported to the 9th District Police Station by Officers Marilyn Drish
and Patricia Ferraro. Plaintiff was charged with solicitation of a sex act in violation of 720 ILCS
5/11-14.1-A, and his car was impounded pursuant to Chapter 8-8-060 of the Chicago Municipal
Code. Plaintiff remained in police custody until he posted bond at approximately 4:00 p.m. on
April 25, 2008.
Officer Acosta prepared and signed the vice case report. Officer Matich is listed as the
attesting officer on the arrest report. Officer Acosta was identified as the “first arresting officer”
on the arrest report and Officer Herrera was identified as the “second arresting officer.” Officers
Matich and Coffee are identified as “assisting arresting officers.” Officer Matich relied upon
Officer Acosta’s statement as to the communication between her and Plaintiff to complete the
substantive part of the narrative of the arrest report relative to the solicitation of a sex act.
Subsequent to the arrest of Plaintiffs, Defendant Officers’ supervisors instructed Defendant
Officers to discontinue prostitute solicitation sting operations.
On September 29, 2008, the case of People v. Hugo Holmes, No. 08-1-222-705-01 was
called in Branch 46 of the Circuit Court of Cook County, Municipal Department, 555 W.
Harrison Street, Chicago, Illinois. The case was passed by the Court after a discussion on the

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record. The docket indicates the case was recalled and stricken with leave to reinstate later that
same day. Officer Acosta testified she was present in court that morning.
II.

Standard of Review
Summary judgment is proper where “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Factual
disputes that are irrelevant to the outcome of the suit “will not be counted.” Palmer v. Marion
County, 327 F.3d 588, 592 (7th Cir. 2003) (quotation marks and citations omitted). In
determining whether there is a genuine issue of fact, the Court “must construe the facts and draw
all reasonable inferences in the light most favorable to the nonmoving party.” Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party
must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks
and citation omitted).
A genuine issue of material fact exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. at 248. The party seeking summary
judgment has the burden of establishing the lack of any genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against “a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. The
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). In other words, the “mere existence of a scintilla of evidence in support of the [non-

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movant’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.
III.

Analysis
A.

Plaintiff’s False Arrest and Malicious Prosecution Claims

Plaintiff brings a § 1983 claim against Defendant Officers for false arrest in violation of
the Fourth Amendment and state law claims for false arrest/imprisonment and malicious
prosecution. To prove a claim under § 1983 against the officers, Plaintiff must show that a
person acting under color of state law deprived him of a right, privilege, or immunity secured
either by the Constitution or federal law. See, e.g. Lugar v. Edmondson Oil Co., 457 U.S. 922,
929 (1982). Defendant Officers do not dispute that they were acting under color of state law at
the time of Plaintiff’s arrest. Further, Defendant Officer Acosta concedes that a question of fact
exists as to whether Plaintiff solicited a sex act from her on April 25, 2008, and therefore
summary judgment is not appropriate as to Plaintiff’s false arrest or malicious prosecution claims
against Defendant Acosta. However, the remaining Defendants argue that they had probable
cause for Plaintiff’s arrest and seek summary judgment as to Plaintiff’s state and federal claims
for false arrest and malicious prosecution.
“Probable cause to arrest is an absolute defense to any claim under Section 1983 against
police officers for wrongful arrest, false imprisonment, or malicious prosecution.” Mustafa v.
City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006) (citing Potts v. City of Lafayette, 121 F.3d
1106, 1113 (7th Cir. 1997)). “This is so even where the defendant officers allegedly acted upon
a malicious motive.” Id. (citing Simmons v. Pryor, 26 F.3d 650, 654 (7th Cir. 1993)). Police
officers have probable cause to arrest an individual when “the facts and circumstances within
their knowledge and of which they have reasonably trustworthy information are sufficient to

6

warrant a prudent person in believing that the suspect had committed” an offense. Kelley v.
Myler, 149 F.3d 641, 646 (7th Cir. 1998). The Court evaluates probable cause “not on the facts
as an omniscient observer would perceive them,” but rather “as they would have appeared to a
reasonable person in the position of the arresting officer—seeing what he saw, hearing what he
heard.” Id.; see also Woods v. City of Chicago, 234 F.3d 979, 987 (7th Cir. 2000); United States
v. Reis, 906 F.2d 284, 289 (7th Cir. 1990) (courts determine the existence of probable cause by
applying an objective standard; it is the mindset of the “reasonable officer” and not of the actual
arresting officer that matters). The test, an objective one, is whether a reasonable officer would
have believed the person had committed a crime. If the test is satisfied “the arrest is lawful even
if the belief would have been mistaken.” Kelly, 149 F.3d at 646. Thus probable cause has been
described as a zone within which reasonable mistakes will be excused. Id.
When law enforcement officers are in communication regarding a suspect, the knowledge
of one officer can be imputed to the other officers under the collective knowledge doctrine. The
collective knowledge doctrine provides:
The police who actually make the arrest need not personally know all of the facts
that constitute probable cause if they reasonably are acting at the direction of
another officer or police agency. In that case, the arrest is proper so long as the
knowledge of the officer directing the arrest, or the collective knowledge of the
agency he works for, is sufficient to constitute probable cause.
Tangwall v. Stuckey, 135 F.3d 510, 517 (7th Cir. 1998) (emphasis removed) (quoting United
States v. Valencia, 913 F.2d 378, 383 (7th Cir. 1990)); see also United States v. Williams, 627
F.3d 247, 252 (7th Cir. 2010) (“The collective knowledge doctrine permits an officer to * * *
arrest a suspect at the direction of another officer * * * even if the officer himself does not have
firsthand knowledge of facts that amount to the necessary level of suspicion to permit the given
action.”) (citing United States v. Hensley, 469 U.S. 221, 232–33 (1985)); U.S. v. Nicksion, 628

7

F.3d 368, 376 (7th Cir. 2010) (same). The doctrine derives from the Supreme Court’s decision
in United States v. Hensley, 469 U.S. 221 (1985), where the Court held that “effective law
enforcement cannot be conducted unless police officers can act on directions and information
transmitted by one officer to another and that officers, who must often act swiftly, cannot be
expected to cross-examine their fellow officers about the foundation for the transmitted
information.” Id. at 231 (citations omitted). The Seventh Circuit has recognized two situations
where the collective knowledge doctrine usually applies: where police departments or agencies
transmit information across jurisdictions, and where officers communicate with each other at the
scene of an arrest. See United States v. Parra, 402 F.3d 752, 764 (7th Cir. 2005). The present
case involves the latter situation.
Defendants maintain that Officers Herrera, Matich, and Coffee are entitled to summary
judgment on Plaintiff’s false arrest claim because they had probable cause to arrest Plaintiff
based on the signal from Officer Acosta. As Defendants point out, none of these officers
participated in the conversation between Plaintiff and Officer Acosta that led to Plaintiff’s arrest
for solicitation. Instead, Officer Herrera relied on Officer Acosta’s signal that Plaintiff had
solicited a sex act, and Officer Herrera then radioed to Officers Matich and Coffee that Plaintiff
solicited Acosta. Officers Matich and Coffee then arrested Plaintiff based on Officer Herrera’s
radio call indicating that Acosta had signaled that Plaintiff solicited her. Further, Officer Matich
wrote the arrest report based upon the statement of Officer Acosta that Plaintiff had offered $20
for “head” and to “lick titty.” Thus, even though Officers Herrera, Matich, and Coffee did not
hear for themselves the conversation between Plaintiff and Acosta, Defendants contend that
Officer Acosta’s hand signal (a signal that Officer Herrera knew meant a solicitation had
occurred) was a sufficient basis for Officer Herrera to believe that there was probable cause to

8

arrest Plaintiff and to communicate that probable cause determination to Officers Matich and
Coffee. See United States v. Tharp, 2013 WL 6524631, at *6-7 (E.D. Wis. Dec. 12, 2013)
(applying the collective knowledge doctrine and concluding that arresting officers, who were
waiting a block away from the decoy officer, properly arrested the plaintiff for solicitation based
only on the decoy officer’s hand signal).
Plaintiff contends that under the collective knowledge doctrine, if Officer Acosta did not
have probable cause to arrest Plaintiff, then none of the other officers had probable cause to
arrest plaintiff. Plaintiff claims that the other officers are “bound by Officer Acosta’s own
knowledge,” even if only the probable cause signal, and not the underlying facts, were
communicated to them. Pltf.’s Resp. at 3. That principle is true when collective knowledge is
applied in a criminal case—if the facts observed by the initial officer do not support a finding of
probable cause, then there was no probable cause, even if the later-arriving arresting officer was
reasonable in his belief that there was probable cause based on the initial officer’s
communication of her conclusion. See Parra, 402 F.3d 752, 764 (7th Cir. 2005); Nafzger, 974
F.2d at 911. But for purposes of civil liability, the issue is not whether the information actually
possessed by the observing officer is sufficient to support probable cause, but whether each
individual defendant officer reasonably believed there was probable cause to arrest plaintiff. See
Gray v. Burke, 466 F. Supp. 2d 991, 996 (N.D. Ill. 2006). Here, a question of fact exists as to
whether Officer Acosta’s probable cause determination was reasonable. However, what was
known by Officer Herrera (and then subsequently conveyed to Officers Matich and Coffee) was
that Acosta signaled the existence of probable cause for Plaintiff’s arrest. Officer Acosta’s
liability will hinge on whether she actually had probable cause, but the civil liability as to
Officers Herrera, Matich, and Coffee rests on “the facts and circumstances within their

9

knowledge and of which they have reasonably trustworthy information are sufficient to warrant a
prudent person in believing that the suspect had committed” an offense. Kelley v. Myler, 149
F.3d 641, 646 (7th Cir. 1998). Unlike in the criminal context, the test here is an objective one:
whether a reasonable officer would have believed the person had committed a crime. If the test
is satisfied, “the arrest is lawful even if the belief would have been mistaken.” Kelly, 149 F.3d at
646.
Stated slightly differently, the reasonableness of a seizure turns on what the officer
“knew” at the time of the arrest, “not whether he knew the truth or should have known more.”
Carmichael v. Village of Palatine, 605 F.3d 451, 457-58 (7th Cir. 2010) (officer who maintained
that reason for stopping car was because of inoperative tail and brake lights did not have
probable cause to effectuate arrest of Plaintiff for tinted windows and absence of front license
plate because there was no evidence that arresting officer knew the car had tinted windows or
was missing a front license plate); see also Reynolds v. Jamison, 488 F.3d 756, 765 (7th Cir.
2007) (“The fact that an officer later discovers additional evidence unknown to her at the time of
the arrest * * * is irrelevant—we only care about what the officer knew at the time the decision
was made.”). Here, what was known to Officers Herrera, Matich, and Coffee was that Officer
Acosta had signaled that Plaintiff solicited her for sex. As explained by the Supreme Court in
Whren v. United States, whether an action is reasonable under the Fourth Amendment is
determined objectively “whereby, ‘the fact that the officer does not have the state of mind which
is hypothecated by the reasons which provide the legal justification for the officer’s action does
not invalidate the action taken as long as the circumstances, viewed objectively, justify that
action.’” Thus, a court looks at whether a reasonable officer with the same information known to
Defendant Officers at the time of incident would have had probable cause to arrest Plaintiff.

10

Here, what was “known” to Officers Herrera, Matich, and Coffee was that probable cause had
been established. See also People v. Bramlett, 793 N.E.2d 203, 211-12 (Ill. App. Ct. 1st Dist.
2003) (“When officers are working in concert, probable cause to arrest can be established from
all the information collectively received by the officers even if that information is not
specifically known to the officer who makes the arrest.”); Carter v. City of Chicago, 2004 WL
1093718, at *3 (N.D. Ill. May 3, 2004) (“When officers are working in concert on an
investigation, probable cause for an arrest may be established by information possessed by any
of those officers.”).
Viewing all of the evidence presented at summary judgment, the Court concludes that the
moving Defendants’ belief that there was probable cause was consistent with their perception of
the events leading to Plaintiff’s arrest. Plaintiff makes attenuated inferences regarding what the
officers were able to observe at the scene, but the reasonable inferences made from Plaintiff’s
own account of the incident do not undercut the evidence of record. See DeValk Lincoln
Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987) (a court is not required to
draw every conceivable inference; it should draw only reasonable inferences). For instance,
Plaintiff relies upon his allegation that, while sitting in Officer Matich and Coffee’s squad car
after his arrest, he heard a radio transmission relating to a subsequent arrest. Plaintiff claims he
heard Officer Acosta saying: “here comes another one and, oh, no, he’s going through the – oh,
no, he’s going about his business” and “here comes a black Marquis * * * it’s a go, black
Marquis,” and “here comes another one * * * walking * * * oh, he touched me * * * it’s a go
* * * he’s walking down the street.” See Pl.’s Facts ¶ 28. He also claims to have heard a male
voice, but does not identify anything that the male voice said.

11

Plaintiff’s allegations regarding a separate arrest do not show, even by inference, that
Officers Herrera, Matich, and Coffee were able to hear Plaintiff’s interaction with Officer
Acosta. Even assuming (without the necessary foundation) that it was Acosta’s voice being
transmitted via the radio, Plaintiff’s contention about subsequent arrests does not create an issue
of fact with respect to his arrest. There simply is no evidence in the record that Acosta was
transmitting audio at the time of her interaction with Plaintiff. The fact that Plaintiff claims that
he heard Officer Acosta’s voice on the subsequent arrests of other people does not prove
anything with respect to Plaintiff’s arrest. Moreover, the statements allegedly made by Acosta
appear to relate to events that would have occurred before and after she was actually being
solicited (e.g., “here comes another one” and it’s a go * * * he’s walking down the street”).
Further, Plaintiff does not claim to have heard any statements by the other offenders. Thus, the
evidence of what Plaintiff overheard, if true, shows only that Officer Acosta had access to a
radio, not necessarily her own, before and after her interactions with other solicitors. At best,
this leads to an inference that Officer Acosta had access to a radio to use before and after
Plaintiff’s solicitation. Any further inference would be impermissible speculation. There simply
is insufficient evidence that Officers Herrera, Matich, and Coffee overheard the interaction
between Plaintiff and Officer Acosta and thus would have had knowledge of Plaintiff’s version
of the interaction.5
Having determined that Officers Herrera, Matich, and Coffee had probable cause to arrest
Plaintiff based on what they “knew” at the time of his arrest, the Court need not reach the
question of whether these Defendants are entitled to the “additional layer of protection against
civil liability” provided by qualified immunity. See Carmichael, 605 F.3d at 459. However, it is
5

It undisputed that Plaintiff did not see a police radio, cell phone, or any other audio recording or
transmitting device on Officer Acosta. Further, Officer Acosta testified without contravention that she
was not wearing a wire and did not have a radio on her person at the time of her interaction with Plaintiff.

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worth noting that that some courts have conflated the collective knowledge and qualified
immunity doctrines and held that “[i]n a civil case for an arrest without probable cause,
the collective knowledge doctrine means a defendant is entitled to qualified immunity if he relied
in objective good faith on another officer as to the justification for the arrest.” See Graham v.
Blair, 2011 WL 6888528, at *6 (S.D. Ill. Dec. 28, 2011); see also Crawford v. City of Chicago,
2014 WL 1661720, at *6 (N.D. Ill. 2014); McCoy v. City of Fort Wayne, 2012 WL 1714355, at
*11-13 (N.D. Ind. 2012). Thus, as set forth below, even if this Court’s probable cause inquiry is
erroneous, and the inquiry instead should focus on the qualified immunity doctrine, Officers
Herrera, Matich, and Coffee all would be entitled to qualified immunity.
The doctrine of qualified immunity shields from liability police officers who perform
discretionary duties and who act in ways they reasonably believe to be lawful. See Chelios v.
Heavener,520 F.3d 678, 690–91 (7th Cir. 2008). “The defense provides ‘ample room for
mistaken judgments' and protects all but the ‘plainly incompetent and those who knowingly
violate the law.’” Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir. 2008) (citing Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986))). In
short, qualified immunity works as a shield if a reasonable officer could have believed Plaintiff’s
arrest to be lawful in light of clearly established law and the information that Herrera, Matich,
and Coffee possessed. Id. As the Supreme Court reaffirmed in Pearson v. Callahan, two
questions are pertinent to the defense of qualified immunity: whether the alleged facts show that
the state actor violated a constitutional right and whether that right was clearly established at the
time of the alleged violation. 555 U.S. 223, 232 (2009) (discussing Saucier v. Katz, 533 U.S.
194 (2001)).

Therefore, if the facts alleged show that the state actors did not violate a

13

constitutional right, or if that right was not clearly established at the time of the alleged violation,
the defense of qualified immunity applies. Id. at 232–33.
As

the

Court

concluded

above,

Officers

Herrera,

Matich,

and

Coffee

had probable cause to arrest Plaintiff for solicitation. Nonetheless, even if they somehow did not
have probable cause to arrest Plaintiff, they still would be entitled to qualified immunity. While
“[t]here is no question that [Plaintiff’s] right to be free from arrest without probable cause was
clearly established at the time of the incident,” “a defendant is entitled to qualified immunity in
a false-arrest case when, if there is no probable cause, ‘a reasonable officer could have
mistakenly believed that probable cause existed.’” Fleming v. Livingston Cnty., Ill., 674 F.3d
874, 879–80 (7th Cir. 2012) (quoting Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998)).
“[W]here a police officer makes an arrest on the basis of oral statements by fellow officers, an
officer will be entitled to qualified immunity from liability in a civil rights suit for unlawful
arrest provided it was objectively reasonable for him to believe, on the basis of the statements,
that probable cause for the arrest existed.” Duran v. Sirgedas, 240 F. App'x 104, 115 (7th Cir.
2007) (unpublished) (quoting Rogers v. Powell, 120 F.3d 446, 455 (3d Cir. 1997)).
The question therefore becomes whether it was objectively reasonable for Officers
Herrera, Matich, and Coffee to rely on Acosta’s signal as a basis for believing
that probable cause existed for Plaintiff’s arrest. Id. Herrera personally observed Plaintiff stop
his truck in front of Acosta, Acosta approach Plaintiff, and then Acosta give the signal for
solicitation. Because Defendant Officers had performed this operation numerous times, and
Herrera knew what signal to look for, it was objectively reasonable for him to believe that
Acosta’s signal for solicitation meant in fact that Plaintiff has solicited her and there was
probable cause to arrest Plaintiff. Moreover, since Plaintiff was inside his vehicle and could

14

easily drive away, Officers Matich and Coffee did not have much time to reflect or make further
inquiries concerning the existence of probable cause if they were expected to apprehend Plaintiff.
Accordingly, because it was objectively reasonable for Defendant Officers Herrera, Matich, and
Coffee to believe that probable cause existed for Plaintiff’s arrest, they also are entitled to
qualified immunity.
“Probable cause to arrest is an absolute defense to any claim under Section 1983 against
police officers for wrongful arrest, false imprisonment, or malicious prosecution.” Mustafa, 442
F.3d at 547. Thus, the Court grants summary judgment to Defendant Officers Herrera, Matich,
and Coffee on Plaintiff’s state and federal false arrest/imprisonment and malicious prosecution
claims. Alternatively, the Court concludes that Defendant Officers Herrera, Matich, and Coffee
are entitled to qualified immunity for their conduct during Plaintiff’s arrest and subsequent
prosecution. Plaintiff’s false arrest and malicious prosecution claims against Defendant Acosta
remain pending.6
B.

Due Process Claims

In Count II of the complaint, Plaintiff alleges that he was deprived of rights under the
United States Constitution, “including but [sic.] limited to, the Fourth and Fourteenth
Amendments thereof.” Compl. ¶ 28. Notably, Plaintiff failed to address Defendants’ arguments
in support of summary judgment on the portion of Count II that alleges a Fourteenth Amendment
due process violation. Therefore, Plaintiff has waived any argument in opposition to summary

6

Defendants briefly challenge Plaintiff’s malicious prosecution claim against Defendant Acosta,
claiming that the proceedings against Plaintiff were not terminated in a manner indicative of innocence.
Defendants’ argument is not persuasive at this juncture. At a minimum, there is a question of fact as to
why the proceedings were terminated, and therefore summary judgment is not appropriate on Plaintiff’s
malicious prosecution claim against Defendant Acosta. Further, although Plaintiff’s state law false
arrest/imprisonment claim appears duplicative of his federal false arrest claim, the Court will not grant
summary judgment on the claim at this time. If it is indeed duplicative, Defendants may move to strike
the claim prior to trial.

15

judgment on this claim. See Ienco v. Angarone, 429 F.3d 680, 684 (7th Cir. 2005) (finding that
plaintiff waived claims by failing to develop them in response to the defendant’s motion for
summary judgment); Tyler v. Runyon, 70 F.3d 458, 464 (7th Cir. 1995) (“We have made it clear
that a litigant who fails to press a point by supporting it with pertinent authority, or by showing
why it is sound despite a lack of supporting authority, forfeits the point.”); see also Otto v.
Variable Annuity Life Ins. Co., 134 F.3d 841, 854 (7th Cir. 1998) (“This court has refused to
consider unsupported or cursory arguments.”).
In any event, any such claim could not survive summary judgment on this record. First,
Plaintiff has not identified any material and exculpatory evidence that the Defendant Officers
allegedly withheld. Plaintiff claims he did not solicit a sex act and the charges against him were
based on a false arrest report. The alleged false arrest report cannot be considered evidence that
was suppressed because it was available to Plaintiff. Carvajal v. Dominguez, 542 F.3d 561, 567
(7th Cir. 2008) (noting that officers “were accessible to the defense for the hearing on the motion
to suppress the identification in the criminal case”); see also Harris v. Kuba, 486 F.3d 1010,
1015 (7th Cir. 2007) (holding that evidence was not suppressed where evidence was “available
to Harris and his counsel with minimal research or discovery through the exercise of reasonable
diligence.”); U.S. v. Seifling, 504 F.3d 672, 679 (7th Cir. 2007). Plaintiff has not identified any
material evidence that was suppressed, and there is none in the record. Second, even if Plaintiff
could show the suppression of material evidence, a due process claim still would not be viable
because Plaintiff did not face trial on the prostitution charge against him. See Alexander v.
McKinney, 692 F.3d 553, 557 (7th Cir. 2012) (clarifying that a defendant’s due process rights are
not violated unless fabricated evidence is used to wrongfully convict or incarcerate him);
Albright v. Oliver, 510 U.S. 266, 274 (1994). Thus, even under the most strained interpretation

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of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, Plaintiff simply does not have a due
process claim.
C.

Conspiracy Claims

In their motion for summary judgment, Defendant Officers contend that Plaintiff has
failed to adduce any evidence of a conspiracy. In his response, Plaintiff does not address his
conspiracy claims and he therefore has waived any argument in opposition to summary
judgment. See Ienco v. Angarone, 429 F.3d 680, 684 (7th Cir. 2005) (finding that plaintiff
waived claims by failing to develop them in response to the defendant’s motion for summary
judgment). Further, “conspiracy is not an independent basis of liability in § 1983 actions.” See
Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008). In the Seventh Circuit, if a plaintiff fails to
establish an underlying constitutional violation, any corresponding conspiracy claim also
necessarily fails. See Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). As set
forth above, the evidence does not support a claim of a constitutional violation against Officers
Matich, Herrera, or Coffee.
Moreover, Plaintiff has failed to come forward with any evidence that Defendant Officers
entered into an express or implied agreement with each other to deprive Plaintiff of his
constitutional rights and that there was an actual deprivation of those rights in the form of overt
acts in furtherance of the agreement. Lyons v. Adams, 257 F. Supp. 2d 1125, 1134 (N.D. Ill.
2003) (citing Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988)); Buckner v. Atlantic Plant
Maintenance, Inc., 182 Ill.2d 12, 23 (Ill. 1998) (noting that to prevail on a state law conspiracy
claim, plaintiff must demonstrate “a combination of two or more persons for the purpose of
accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful
means”). The evidence of record does not demonstrate how Defendant Officers formed a

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conspiracy against Plaintiff. Because Plaintiff has failed to adduce any evidence of a conspiracy
among any of the Defendant Officers, including Officer Acosta, summary judgment is granted in
favor of all Defendants on Plaintiffs’ conspiracy claims under § 1983 and state law.
D.

State Law Claims

All of the Defendants also have moved for summary judgment on Plaintiff’s claims for
abuse of process, battery, and assault, and Defendants Herrera, Matich, and Coffee additionally
have moved for summary judgment on Plaintiff’s claim of intentional infliction of emotional
distress. Once again, Plaintiff has failed to address these arguments. Rather than addressing the
merits of the claims, Plaintiff argues that he cannot adequately address the state law claims in his
summary judgment response due to page limit constraints. Yet Plaintiff did not seek leave to file
excess pages, a request that the Court routinely grants. Further, Plaintiff contends that he was
deprived of evidence in support of his state law claims due to the Court’s bifurcation of the
Monell claim. See Pl.’s Resp. at 14. Yet Plaintiff does not identify what further evidence is
needed. Nor did Plaintiff raise this issue during the discovery period. Moreover, Plaintiff’s
argument tacitly suggests that he intends to improperly use policy and practice evidence in
support of his state law claims against the individual defendants. Plaintiff’s hollow attempt to
avoid summary judgment on these state law claims fails. Thus, the Court will enter summary
judgment in favor of all Defendants on Plaintiff’s state law claims for abuse of process, battery,
assault, and conspiracy. Additionally, the Court will enter summary judgment in favor of
Defendants Herrera, Matich, and Coffee on Plaintiff’s state law claims for malicious prosecution,
false arrest/imprisonment, and intentional infliction of emotional distress.

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E.

“Unknown Officers”

In addition to the named Defendants, Plaintiff also has sued “Unknown Officers.”
Dismissal of unknown defendants is appropriate where a plaintiff fails during the discovery
period to identify the unknown parties. See Williams v. Rodriguez, 509 F.3d 391, 402 (7th Cir.
2007) (noting that discovery is a plaintiff’s opportunity to identify unknown and unnamed
defendants and that the failure to do so before discovery closed warranted dismissal of unknown
and unnamed defendants from the case); Strauss v. City of Chicago, 760 F.2d 765, 770 n. 6 (7th
Cir. 1985) (concluding that dismissal was proper where plaintiff did not name “John Doe”
defendant and noting that a plaintiff has the responsibility of taking the steps necessary to
identify the officer responsible for his injuries); Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir.
1997) (noting that it is “pointless to include lists of anonymous defendants in federal court”).
Here, discovery is closed and Plaintiff has not identified any unknown officers or pointed to any
misconduct of any unknown officer. Plaintiff also has not offered any argument in opposition to
the dismissal of all claims against these “Unknown Officers.” Therefore, the Court dismisses the
“unknown officers” from this case.
III.

Conclusion
For these reasons, the Court grants in part Defendants’ motion for summary judgment

[178]. The Court dismisses all of Plaintiff’s claims against Defendants Herrera, Matich, and
Coffee and also dismisses Plaintiff’s claims against “Unknown Officers.”

The Court also

dismisses Plaintiff’s federal due process and conspiracy claims against Defendant Acosta as well
as Plaintiff’s state law claims for abuse of process, battery, assault, and conspiracy against
Defendant Acosta.

Plaintiff’s false arrest/imprisonment (state and federal), malicious

prosecution, and intentional infliction of emotional distress claims remain pending against

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Defendant Acosta. The Court also grants Plaintiff’s motion for leave to file a sur-reply [208].
This case is set for further status hearing on August 26, 2014, at 9:00 a.m.

Dated: August 6, 2014

____________________________________
Robert M. Dow, Jr.
United States District Judge

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