Anderson v. Kelly et al

Filing 86

MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 3/2/2015. Mailed notice. (etv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM ANDERSON (#R-22868),
Plaintiff,
v.

MIKE KELLY and DAN GALLAGHER,
Defendants.

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No. 09 C 6765
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff William Anderson (hereinafter “Plaintiff”), brought this pro se civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff alleges that on November 27, 2007, City of Chicago
Police Detectives Mike Kelly and Dan Gallagher 1 violated his Fourth Amendment rights when he
was arrested. Defendants have moved for summary judgment and Plaintiff has responded. For
the reasons explained below, Defendants’ motion is granted and Plaintiff’s motion in opposition
is denied. 2
BACKGROUND
The following facts are drawn from the pleadings and the Defendants’ Local Rule 56.1
submission. On November 18, 2007, Derrick Smith was shot and killed in the hallway of a
Chicago Housing Authority residence located at 1936 W. Washington Boulevard.

(Defs.’

56.1(a)(3) [42] ¶ 2.) The victim and his twin brother, Erick Smith, were confronted in the hallway
on the first floor of the building by two men later identified as Plaintiff and Bennie Casey (also
known as “Little B”). (Tr. of Test. of Erick Smith, Ex. B to Defs.’ Mot. for Summ. J. [40], at 781

Plaintiff named this Defendant as Gallenger; the court has corrected the spelling.

2

In this opinion the court rules exclusively on Plaintiff’s claim of false arrest. On
February 4, 2013, the court granted judgment in favor of Defendants on Plaintiff’s Fourth
Amendment challenge to a search conducted at the time of his arrest. The court declined to
rule on Plaintiff’s false arrest claim because an appeal from the criminal conviction was pending
in state court at that time. See Younger v. Harris, 401 U.S. 37, 53 (1971). As Plaintiff has now
exhausted his state court appeals, the court lifted the stay of this case on November 14, 2014.

82.) Bennie Casey pointed a gun at Erick Smith and ordered him out of the building. (Id.) Erick
exited the building and realized his brother Derrick was no longer with him. (Id. at 82-83.) Erick
reentered the building and saw Bennie Casey shoot his brother. (Id. at 83-85.)
City of Chicago Police Homicide Detectives Mike Kelly and Dan Gallagher (collectively
“Defendants”) investigated the shooting.

(Defs.’ 56.1(a)(3) ¶ 1.)

Though Erick Smith had

witnessed the shooting, he told officers that he did not know the identity of the two men
involved.

(Defs.’ 56.1(a)(3) ¶¶ 2-3; Tr. of Test. of Erick Smith at 150.)

Erick Smith told

Detective Kelly that Nina Boyd and a woman nicknamed “Turk,” whom Defendants later
identified as Tongula Ayers, might have information about his brother’s murder.

(Defs.’

56.1(a)(3) ¶ 3.) Detective Kelly spoke with Ms. Boyd, who told him—based on a description of
the individuals provided by Erick Smith—that she believed she knew the two men involved in
the murder. (Id. ¶ 4.) Ms. Boyd told Detective Kelly that she believed the two men were William
Anderson and a man known by the nickname “Little B.” (Id.)
Detective Kelly ran a search through the Chicago Police Department data warehouse for
photographs of men named William Anderson.

(Id. ¶ 5.)

Detective Kelly showed the

photographs to Ms. Boyd, and she identified Plaintiff as the William Anderson she believed
matched the description of one of the two men involved in the murder of Derrick Smith. (Id.)
Witnesses Erick Smith, Tongula Ayers, and Shanice Wright all later identified Plaintiff in photo
arrays. (Id. ¶ 6.)
Plaintiff was released from Stateville Correctional Center on July 19, 2007. At the time
of Derrick Smith’s murder, and the subsequent arrest Plaintiff now challenges, Plaintiff was on
parole under the terms of a mandatory supervised release agreement ("MSR"). (Aff. of Parol
Agent Charles Victor (hereinafter “Victor Aff.”), Ex. C to Defs.’ Mot. for Summ. J., ¶ 2; see MSR,
Ex. C-2 to Defs.’ Mot. For Summ. J.)

Under the terms of his MSR agreement, Plaintiff

consented to the search of his person, property, and residence, and he was required to submit
to in-person visits from his parole agent. (MSR ¶¶ 4, 10.)

2

On November 22, 2007, Detective Gallagher contacted Plaintiff’s parole agent, Charles
Victor, and advised Agent Victor that Plaintiff had been identified as involved in the murder of
Derrick Smith.

(Victor Aff. ¶ 4.)

On November 27, 2007, Agent Victor notified Detective

Gallagher that he had a monthly house check with Plaintiff scheduled later that day. (Id. ¶ 5.)
Defendants met Agent Victor at Plaintiff's residence. (Id. ¶¶ 6-7.) Defendants did not have a
warrant for Plaintiff's arrest or to search his residence, but when Plaintiff answered Agent
Victor’s knock on the door, Defendants placed Plaintiff under arrest for his alleged involvement
in Derrick Smith’s murder. (Defs.’ Answer [39] ¶¶ 2, 4; Victor Aff. ¶ 7; see Parole Violation
Report, Ex. C-1 to Defs.’ Mot. for Summ. J.) Plaintiff claims that Defendants searched his
residence. (Pl.'s Compl. [1], at 4.) Defendants deny this (Defs.’ Answer ¶¶ 3-4), and Agent
Victor confirmed that although he searched Plaintiff’s bedroom pursuant to the terms of the
MSR agreement, Defendants did not participate in any search of the residence. (Victor Aff.
¶ 10.) Agent Victor did not discover anything during his search. (Id. ¶ 9.)
In subsequent in-person line-ups, witnesses Smith, Ayers, and Wright identified Plaintiff
as being involved in Derrick Smith’s murder. (Defs.’ 56.1(a)(3) ¶ 11.) Thereafter, Plaintiff was
charged with first-degree murder, pursuant to 720 ILCS 5/9-1(a)(1). (See Certified Statement of
Conviction/Disposition (hereinafter “Statement of Disposition”), Ex. D to Defs’ Mot. for Summ. J.)
On October 26, 2009, Plaintiff filed the complaint in this case, pursuant to 42 U.S.C.
§ 1983, alleging that Defendants violated his Fourth Amendment rights when he was arrested
and his residence searched on November 27, 2007, without a warrant. (See Pl.’s Compl.)
Plaintiff was convicted on May 19, 2010; Plaintiff has completed one full round of state court
appeals and his conviction has been affirmed. See People v. Anderson, 2013 IL App (1st)
102852-U, 2013 Ill. App. Unpub. LEXIS 2584 (2013); People v. Anderson, 380 Ill. Dec. 507
(May 28, 2014) (petition for leave to appeal denied).

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DISCUSSION
The standards that govern this motion are familiar. Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Jajeh v. County of Cook, 678
F.3d 560, 566 (7th Cir. 2012).

In considering a motion for summary judgment, this court

construes the facts and draws all reasonable inferences in favor of the non-movant, Jajeh, 678
F.3d at 566, but where the moving party demonstrates the absence of a disputed issue of
material fact, the non-moving party bears the burden of presenting “evidence of specific facts
creating a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). A genuine
issue of material fact exists only if there is evidence “to permit a jury to return a verdict for” the
nonmoving party. Egonmwan v. Cook County Sheriff's Dep’t, 602 F.3d 845, 849 (7th Cir. 2010).
Consistent with this court’s local rules, in support of their motion, Defendants filed a
Local Rule 56.1(a)(3) Statement of Material Facts [42], citing evidentiary material in support of
each statement. Defendant also filed and served the appropriate notice to pro se litigants [43],
explaining the requirements of Local Rule 56.1. 3 Though notified of the requirements, Plaintiff
did not submit a Local Rule 56.1(b)(3)(C) statement of additional facts, responded to only four of
Defendants’ L.R. 56.1 statements of fact, and cited to portions of the record in support of his
denials of Defendant’s statements in only three of the four responses. 4 Plaintiff also submitted a
motion opposing entry of summary judgment [81] and a memorandum in support.
Although pro se plaintiffs are entitled to lenience, compliance with procedural rules is
required. Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (“[R]ules apply to uncounseled

3

The Clerk of Court sent Plaintiff another copy of the L.R. 56.2 notice when the
court renewed the motion for summary judgment on November 25, 2014.
4

Plaintiff cites to exhibits for his responses to Defendants’ L.R. 56.1 statements of
fact 1 through 3. In none of the responses, however, does Plaintiff clearly deny the fact
presented. He objects to 3 and 4, but in none of his responses does he effectively create a
material question of fact. Plaintiff does not respond to Defendants’ statements of fact 5 through
14.
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litigants and must be enforced”); Jones v. Phipps, 39 F.3d 158, 163 (7th Cir.1994); Fischer v.
Ameritech, No. 98 C 7470, 2002 WL 1949726, *4 (N.D. Ill. Aug. 23, 2002) (Pallmeyer, J.). To
the extent Plaintiff failed to respond to Defendants’ L.R. 56.1 statements of fact with references
to the record properly in support of denial, the statements are deemed admitted.
Notwithstanding these admissions, the court construes Plaintiff’s submissions, and the record
evidence, in the light most favorable to him.
It is well settled that the existence of probable cause to arrest precludes a § 1983 suit for
false arrest. See, e.g., Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006); Morfin v.
City of East Chicago, 349 F.3d 989, 997 (7th Cir. 2003). Probable cause exists where the facts
and circumstances known to the officer are sufficient in themselves to warrant a person of
reasonable caution in the belief that an offense has been or is being committed. U.S. v. Faison,
195 F.3d 890, 893 (7th Cir. 1999); see also Lawson v. Veruchi, 637 F.3d 699, 703 (7th Cir.
2011) (probable cause is an absolute defense to a Fourth Amendment claim of false arrest).
The evidence here confirms that in the course of the investigation of Derrick Smith’s
murder, using a photo array including a photograph of Plaintiff, Defendants procured three
witness statements identifying Plaintiff as being involved in the murder. Generally, once a
credible eyewitness identifies a suspect, the officer has probable cause to arrest him. See, e.g.,
Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003); Woods v. City of Chicago,
234 F.3d 979, 996-97 (7th Cir. 2000); Tangwall v. Stuckey, 135 F.3d 510, 519 (7th Cir. 1998);
see also United States v. Daniels, 64 F.3d 311, 314 (7th Cir. 1995) (probable cause established
where two unnamed witnesses identified suspect in a photo array).

And while an unduly

suggestive photographic array cannot be used to establish probable cause, see Phillips v. Allen,
743 F. Supp. 2d 931, 941 (N.D. Ill. 2010), Plaintiff does not argue that the array in this case was
overly suggestive, thus abandoning the issue, see Beauchamp, 320 F.3d at 742; Robin v. Espo
Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).

5

Plaintiff argues that Informant Nina Boyd did not know him, could not have had
information about him, and did not identify Plaintiff in the photo array. He has not supported
those assertions with any evidence, however, and therefore has not established a dispute of
material fact. Even assuming that Boyd’s identification is suspect, the court notes that Plaintiff
was identified by three other witnesses (Erick Smith, Tongula Ayers, and Shanice Wright) in the
photo array. The three independent identifications via photo array established probable cause,
and the record supports a finding that Defendants are entitled to judgment on the false arrest
claim. Daniels, 64 F.3d at 314.
Defendants have made two additional arguments: First, they contend that the false
arrest claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). This argument was raised for
the first time in Defendants’ reply memorandum, however, and the court declines to address it,
beyond observing that because a false arrest claim need not imply the invalidity of a later
conviction, many Fourth Amendment challenges to an arrest may proceed even where the
plaintiff has been convicted.

See, e.g., Easterling v. Moeller, 334 F. App’x 22, 23 (7th Cir.

2009) (case citations omitted). Defendants also urge that they are entitled to qualified immunity.
As Plaintiff has not established a violation of his rights, however, the court need not address this
argument, either.
CONCLUSION
Defendants’ motion for summary judgment [40] is granted and Plaintiff’s motion in
response to the motion for summary judgment [81] is denied. The Clerk is directed to enter
judgment in favor of Defendants pursuant to FED. R. CIV. P. 56. All of Plaintiffs’ claims have
now been resolved, and this ruling is final and appealable.
ENTER:

Dated:

March 2, 2015

___________________________________
REBECCA R. PALLMEYER
United States District Judge

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