Mays v. City Of Chicago et al

Filing 347

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 9/30/2023: For the reasons stated in the accompanying Memorandum Opinion and Order, Defendants' joint motion to partially dismiss Plaintiff's Third Amended Complaint [1 83] and Motion of Defendants' Barnett, Chibe and Panosh to dismiss Plaintiff's third amended complaint in its entirety 200 are granted. Plaintiff's applications for attorney representation at Dkt. Nos. 261 and 312 are terminated as moot in light of the request at Dkt. No. 316 . The latter motion will be addressed at the next status hearing. Telephonic status hearing set for 10/12/2023 at 9:30 AM. Defense counsel shall arrange for Plaintiff to be made available by phone. To ensure public access to court proceedings, members of the public and media may call in to listen to telephonic hearings. The call-in number is [phone] and the access code is 3547847. Counsel of record will receive an email 30 minutes prior to the start of the telephonic hearing with instructions to join the call. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice (cn).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RANDOLPH MAYS,
Plaintiff,
v.
KEVIN OSTAFIN, et al.,
Defendants.

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No. 15-cv-01439
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiff Randolph Mays was stopped by two Chicago Police Department (“CPD”)
officers in August 2014. The ensuing pat-down search uncovered Mays’s identification, which
when run through a CPD database led to the discovery of an investigative alert for Mays relating
to a 2013 shooting. Mays was then arrested, later charged, and eventually found guilty in state
court of various offenses related to the shooting. In this federal lawsuit, Mays now challenges,
among other things, the CPD officers’ reliance on the investigative alert as providing probable
cause for his arrest. His Third Amended Complaint (“3AC”), which is now the operative
complaint, asserts various claims for violations of his constitutional rights against the City of
Chicago (“City”) and a number of individual CPD officers. Before the Court are Defendants’
motions to dismiss all but one count as to one officer pursuant to Federal Rule of Civil Procedure
12(b)(6). (Dkt. Nos. 183, 200.) For the reasons stated below, Defendants’ motions are granted in
part and denied in part.
BACKGROUND
For purposes of the motions to dismiss, the Court “accept[s] all well-pleaded facts as true
and draw[s] all reasonable inferences in favor of the non-moving party.” Bell v. City of Country
Club Hills, 841 F.3d 713, 716 (7th Cir. 2016). In addition, because Mays is proceeding pro se,

the Court construes his complaint “liberally, holding it to a less stringent standard than formal
pleadings drafted by lawyers.” Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (internal
quotation marks omitted). The 3AC alleges as follows.
On August 2, 2014, two CPD officers searched Mays and arrested him without a warrant
based on an investigative alert. (3AC ¶¶ 11, 46, Dkt. No. 172.) Mays alleges that the officers,
Kevin Ostafin and Scott Workman, had blocked traffic with their police vehicle and were
stopping and searching any passersby. (Id. ¶ 12.) When they stopped Mays, Ostafin questioned
him about narcotics and conducted a pat down. (Id. ¶¶ 13, 15.) During the pat down, Ostafin
found Mays’s identification, which he removed and handed to Workman to run through the
CPD’s Criminal History Records Information System (“CHRIS”). (Id. ¶¶ 15–16.) At that point,
Workman gestured to Ostafin to detain Mays. (Id. ¶ 17.) The sole basis for detention was an
investigative alert discovered when Workman entered Mays’s name into CHRIS. (Id. ¶¶ 54, 68.)
The alert had been issued on September 29, 2013—almost a year before the stop. (Id. ¶ 68.)
Mays raises several issues regarding the propriety of the investigative alert. First, he
alleges that the issuing officer had admitted that there was no probable cause to issue the alert
(albeit without alleging how or in what manner the officer made the admission); rather, the alert
was issued because Mays was linked to the underlying crime by the victim’s uncle, who Mays
claims did not witness the incident. (Id. ¶¶ 73–74.) Next, Mays alleges that the alert had expired
by the time of his arrest. (3AC ¶¶ 20, 23, 61; Pl.’s Resp. to Mot. to Dismiss (“Pl.’s Resp.”) at 23–
25, Dkt. No. 228.) Finally, Mays alleges that when Workman entered his information into
CHRIS, the investigative alert that appeared stated there was “No Probable Cause to Arrest
(EXPIRED).” (3AC ¶ 20.) According to Mays, Workman then changed the text of the alert to
read that there was probable cause to arrest. (Id. ¶ 21.) The change in the alert’s probable cause

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status occurred either during or shortly after Workman placed a phone call to CPD Detective
Dewilda Gordon to confirm whether there was probable cause to arrest Mays. (Id. ¶¶ 58–60.)
After the call with Gordon—and after they allegedly changed the status of his
investigative alert—the officers took Mays to the station for an interrogation, which was
conducted by Gordon and CPD Detective Paul Galiardo. (Id. ¶ 62.) The detectives read Mays his
Miranda rights when he refused to speak, leaving him in the interrogation room for an hour
before moving him to a holding cell, and then placed him in a physical line-up. (Id. ¶¶ 24–25.)
The 3AC asserts several claims based on the above events. Each count, unless otherwise
specified, implicates all Defendants. All are brought pursuant to 42 U.S.C. § 1983. Count I
alleges a violation of Mays’s Fourth Amendment rights due to his unlawful initial stop. Count II
alleges a violation of his Fourth Amendment rights due to the unlawful search following the stop.
Count III alleges false arrest and false imprisonment in violation of his Fourth Amendment
rights. And Count IV alleges an illegal seizure also in violation of his Fourth Amendment rights.
In addition, Count V seeks to hold the City liable under Monell v. Department of Social Services,
436 U.S. 658, 694 (1978), claiming that the investigative alert policy violates his Fourth and
Fourteenth Amendment rights. Count VI asserts a claim against the City for alleged violations of
Mays’s Fourteenth Amendment equal protection and due process rights. Finally, Count VII
alleges a violation of Mays’s Fourth Amendment right to receive a timely probable cause
determination as articulated in Gerstein v. Pugh, 420 U.S. 103 (1975).
Defendants have filed two motions to dismiss the 3AC. The first, brought by the City,
Ostafin, Workman, Gordon, and Galiardo, asserts that all seven counts—with the exception of
Count II as to Ostafin—should be dismissed for failure to state a claim. (Dkt. No. 183.) The
second, brought by Defendants Thomas Barnett, Lisa Chibe, and Edward Panosh, joins the first

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motion and additionally asserts that Mays’s claims against those three Defendants are barred by
the statute of limitations. (Dkt. No. 200.)
DISCUSSION
To survive a motion under Rule 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
pleading standard does not necessarily require a complaint to contain detailed factual
allegations. Twombly, 550 U.S. at 555. Rather, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728
(7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
I.

Counts I, III, and IV—Unlawful Stop, False Arrest, and Unreasonable
Seizure

Defendants argue that Counts I, III, and IV of Mays’s 3AC are barred by the doctrine of
collateral estoppel because the issues they raise were previously litigated in connection with a
motion to suppress in Mays’s state court criminal proceeding. In addition, Defendants contend
that Counts III and IV are barred by Heck v. Humphrey, 512 U.S. 477 (1994), that Mays’s arrest
was supported by probable cause, and that they are entitled to qualified immunity.
A.

Mays’s Fourth Amendment Claims

As an initial matter, Mays’s claims in Counts I through IV center around the validity of
the investigative alert and whether it provided probable cause for his arrest. There are two types
of investigative alert: one that provides probable cause to arrest, and another that does not.
Taylor v. Hughes, 26 F.4th 419, 436 (7th Cir. 2022). The system effectively operates to impute
probable cause to arrest from the officer issuing the investigative alert to the CPD as a whole

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because “one officer’s determination of probable cause may be imputed to other officers in the
department, who may arrest on the basis of the first officer’s finding.” Id. Warrantless arrests
supported by probable cause are constitutionally permissible. United States v. Watson, 423 U.S.
411, 417–24 (1976). Thus, investigative alerts allow an officer who has found probable cause to
arrest a particular person to enter that information into a CPD-wide system, which other officers
are able to access and, if those other officers encounter that person, they may arrest him even if
the arresting officer’s encounter does not independently establish probable cause to arrest.
Count I addresses Mays’s initial stop on August 2, 2014; specifically, Mays contends that
the officers did not have reasonable suspicion to stop him. Reasonable suspicion “exists when an
officer can point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant” a limited intrusion into privacy. United States v.
Richmond, 924 F.3d 404, 411 (7th Cir. 2019) (internal quotation marks and alterations omitted).
Mays alleges that Ostafin and Workman stopped him without reasonable suspicion when he was
not doing anything wrong. Instead, according to Mays, Workman had blocked traffic with his
vehicle, and Ostafin was “randomly stopping and searching everyone in his path.” (3AC ¶ 12.)
Following the initial stop, Ostafin searched Mays. Mays challenges this search in Count
II, which Defendants do not contend is barred by collateral estoppel and which is discussed in
greater detail below. Count III centers on what happened next: Ostafin recovered Mays’s
identification in the search, after which the officers ran Mays’s name, handcuffed him, and
placed him in the police vehicle without administering Miranda warnings. (Id. ¶¶ 16–18.) Mays
claims that this constituted a false arrest and false imprisonment. Notably, an officer may arrest a
person without an arrest warrant only if they have probable cause to arrest, which exists “if at the
time of arrest the facts and circumstances within the arresting officer's knowledge and of which

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[he] has reasonably trustworthy information would warrant a prudent person in believing that the
suspect had committed or was committing an offense.” Gower v. Vercler, 377 F.3d 661, 668 (7th
Cir. 2004). Probable cause to arrest can be imputed from one officer to another “[w]hen law
enforcement officers are in communication regarding a suspect.” United States v. Sawyer, 224
F.3d 675, 680 (7th Cir. 2000). Mays alleges that he was arrested because of an investigative alert
discovered when the officers ran his name. (3AC ¶ 19.) And he claims that there was neither a
warrant nor probable cause for his arrest. (Id. ¶ 46.)
Count IV is labeled a claim for unreasonable seizure. It is not entirely clear what
distinction Mays intends to draw between the false arrest/false imprisonment claim in Count III
and the unreasonable seizure claim in Count IV. But it appears that Count III focuses on the
alleged inability of an investigative alert to provide probable cause for an arrest in the absence of
a warrant, while Count IV suggests something more akin to a claim for fabrication of evidence.
Specifically, in support of Count IV, Mays alleges that when the officers arrived at the police
station with Mays, he noticed that his investigative alert was labeled: “NO PROBABLE CAUSE
TO ARREST (EXPIRED).” (Id. ¶ 20.) But then, Workman placed a phone call to Gordon to
confirm the alert’s status, during which Workman began speaking in hushed tones and the
investigative alert was altered to read that there was, in fact, probable cause to arrest. (Id. ¶ 60.)
Claims that officers falsified evidence leading to pretrial detention are governed by the Fourth
Amendment. Young v. City of Chicago, 987 F.3d 641, 645 (7th Cir. 2021).
B.

Collateral Estoppel

Defendants argue that Counts I, III, and IV are barred by the doctrine of collateral
estoppel based on a suppression hearing in Mays’s state court criminal proceeding. To determine
the preclusionary effect of the state court’s ruling, this Court must look to Illinois law. Sanchez v.

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City of Chicago, 880 F.3d 349, 356 (7th Cir. 2018). Under Illinois law, a party may not relitigate
an issue if (1) the issue in the present litigation is identical to that in the prior litigation, (2) “there
was a final judgment on the merits in the prior adjudication,” and (3) “the party against whom
estoppel is asserted was a party . . . to the prior adjudication.” Id. at 357 (quoting Du Page
Forklift Serv., Inc. v. Material Handling Servs., Inc., 744 N.E.2d 845, 849 (Ill. 2001)). Illinois’s
preclusion law applies to pre-trial rulings in criminal trials. People v. Owens, 464 N.E.2d 252,
255 (Ill. 1984). This includes motions to suppress, unless “‘additional evidence’ or ‘exceptional
circumstances’ are present.” Brimage v. Fowler, No. 15 C 4970, 2020 WL 5979605, at *3 & n.7
(N.D. Ill. Oct. 8, 2020) (quoting People v. Miller, 464 N.E.2d 1197, 1199 (Ill. App. Ct. 1984)).
According to Defendants, because a state court judge found in the suppression hearing
that the investigative alert provided probable cause to arrest Mays, he cannot relitigate that issue
here. As support, they have included with their motion to dismiss a partial transcript from
Mays’s suppression hearing in state court,1 which they contend establishes that he has already
litigated three issues: the propriety of the investigative alert, whether his arrest was supported by
probable cause, and whether police approaching Mays violated his constitutional rights. Mays
was a party in his state court criminal case and there was a final adjudication on the merits. So
the question for collateral estoppel purposes is whether Mays now raises identical issues as
raised in the state court motion hearing. If the state court ruling in fact established that the
officers had probable cause to arrest Mays, his false arrest and imprisonment claims are not

1

The Seventh Circuit has approved of taking judicial notice of state court transcripts. White v. Gaetz, 588
F.3d 1135, 1137 n.2 (7th Cir. 2009). State court transcripts may also be used in connection with motions
to dismiss to evaluate collateral estoppel claims. Cameron v. Patterson, No. 11 C 4529, 2012 WL
1204638, at *3–4 (N.D. Ill. Apr. 10, 2012). As such, the Court may consider the transcript from the
suppression hearing in connection with Defendants’ motion to dismiss without converting it to a motion
for summary judgment. Fosnight v. Jones, 41 F.4th 916, 922 (7th Cir. 2022).

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cognizable. Abbott v. Sangamon County, 705 F.3d 706, 713–14 (7th Cir. 2013); see also Holmes
v. Village of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007) (“[S]o long as there is a
reasonable basis for the arrest, the seizure is justified on that basis even if any other ground cited
for the arrest was flawed.”).
When asked at the hearing what he sought to suppress, Mays’s counsel responded that
“we are challenging the investigative alert itself.” (Mot. to Dismiss, Ex. E (“Suppression Hr’g
Tr.”) at 5:2–3, Dkt. No. 183-6.) The basis for the challenge was that the investigative alert was
issued roughly one year before Mays’s August 2014 arrest, but on the day of his arrest, officers
had no probable cause to approach Mays, let alone arrest him. (Id. at 6:12–19.)2 Although the
propriety of the investigative alert was directly raised in the suppression hearing, Mays’s counsel
did not question Ostafin about whether the alert was active or expired. She did ask what an
investigative alert is and how they are issued; and Ostafin, at one point, answered that he had
confirmed with Gordon that it was a valid investigative alert and that Gordon instructed Ostafin
to bring in Mays for processing. (Id. at 10:13–11:22.)
Mays alleges here that it was during or shortly after the conversation with Gordon that his
investigative alert was altered from one without probable cause to arrest to one with probable
cause to arrest. (3AC ¶¶ 20–21.) Mays seems to believe that at the point in the suppression
hearing when Ostafin said the investigative alert provided probable cause to arrest, his attorney
should have raised the issue of the officers changing the probable cause determination. But his
attorney’s failure to challenge the alert’s validity on that ground, or a newfound desire on Mays’s

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It is unclear why Mays’s defense counsel implied that probable cause was necessary for the officers to
“approach” Mays, when no cause for suspicion is necessary for officers to approach a person for a
consensual encounter, United States v. Nobles, 69 F.3d 172, 180 (7th Cir. 1995), and only reasonable
suspicion (a lesser standard than probable cause) is needed for officers to conduct a brief investigatory
stop. See United States v. Eymann, 962 F.3d 273, 282 (7th Cir. 2020) (citing Terry v. Ohio, 392 U.S. 1
(1968)).

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part to do so now, cannot avoid preclusion—particularly where the new argument is based on
evidence that was within Mays’s knowledge at the time of the suppression hearing. Miller, 464
N.E.2d at 1199 (“[I]t is not sufficient that the defense has discovered a new argument.”).
The transcript of the oral ruling from the suppression hearing establishes that the state
court judge held:
Regardless to whether the detectives had an arrest warrant or not,
the investigative alert was issued in the year before and there was
ongoing investigation. It is entered into the system and there is no
reason to suppress the investigative alert and there is no need—there
was nothing in the [F]ourth [A]mendment of—any violation of the
[F]ourth [A]mendment preventing them to approach.
(Suppression Hr’g Tr. At 23:2–10 (emphasis added).) The state court, then, had the issue of the
propriety of the initial stop squarely before it, ruling that there was no “violation of the [F]ourth
[A]mendment preventing them to approach.” (Id. at 23:6–10.) Indeed, Mays’s counsel expressly
raised the propriety of the stop. (Id. at 6:17–19 (“The officers arresting him did not have any
probable cause to approach him on that day, let alone arrest him.”).) While two pages directly
preceding the ultimate ruling are not included in the transcript, the testimony and ultimate ruling
on this point are easily discernible: the initial stop was permitted because of a valid investigative
alert. Accordingly, Mays is precluded from relitigating the validity of the initial stop in Count I
of the 3AC.
But it is not so clear from the current record that the state court judge actually found that
the investigatory alert provided probable cause to arrest Mays, which is the subject matter of
Counts III and IV. When Defendants submitted the state court transcript as an exhibit to their
motion to dismiss, they submitted a version missing the two pages directly preceding the state
court’s ruling. Given this gap, it is not clear whether the state court went any further than finding
that the officers had reasonable suspicion to stop Mays.

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Put simply, officers must have probable cause to arrest a person without a warrant, and
contrary to Defendants’ assertions, the Court cannot determine from the incomplete record
before it whether the state court determined that Ostafin and Workman had probable cause to
arrest Mays. While the partial transcript shows that the state court judge found that “there is no
reason to suppress the investigative alert,” (Suppression Hr’g Tr. at 23:7), and that the alert was
issued “in the year before” (id. at 23:4), it is silent on whether the state court found that the alert
provided probable cause to arrest. As noted above and illustrated by the CPD’s policy on
investigative alerts, also submitted by Defendants as an exhibit,3 there are two types of
investigative alert: one that provides probable cause to arrest and one that does not. (Mot. to
Dismiss, Ex. K (“Special Order S04-16”) § IV.A, Dkt. No. 183-12.) Drawing inferences in
Mays’s favor, it is plausible that there was an investigative alert issued in the year before his
arrest that did not provide probable cause for arrest—indeed, this is precisely what he alleges.
Without a complete transcript from the state court, the Court cannot find that Counts III and IV
are barred by collateral estoppel, particularly at the motion to dismiss stage.
C.

Heck v. Humphrey

Defendants also argue that Counts III and IV are barred under Heck, which requires that a
district court dismiss a § 1983 suit brought by a state prisoner if “judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the plaintiff
can show that the underlying conviction was already invalidated in some way. Heck, 512 U.S. at

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The 3AC references the CPD policy at issue, Special Order S04-16, by name. (E.g., FAC ¶ 79.) The
policy is thus “referred to in the plaintiff’s complaint and . . . central to his claim,” and the Court may
consider it in connection with the motion to dismiss without converting it to one for summary judgment.
Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013).

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487. Mays responds that his claims address the propriety of his arrest and do not necessarily
undermine his conviction if successful.
Because Mays does not argue that his underlying conviction has already been invalidated,
the question is whether a ruling in Mays’s favor would necessarily imply his conviction’s
invalidity. Tolliver v. City of Chicago, 820 F.3d 237, 242 (7th Cir. 2016). It would not. In Counts
III and IV, Mays challenges the constitutionality of his arrest, not his conviction itself. “Because
an illegal search or arrest may be followed by a valid conviction, a conviction generally need not
be set aside in order for a plaintiff to pursue a § 1983 claim under the Fourth Amendment.”
Simpson v. Rowan, 73 F.3d 134, 136 (7th Cir. 1995); see also Dominguez v. Hendley, 545 F.3d
585, 589 (7th Cir. 2008) (“Fourth Amendment claims as a group do not necessarily imply the
invalidity of a criminal conviction, and so such claims are not suspended under the Heck bar to
suit.”). As the Court reads Mays’s complaint, he does just that: challenge the validity of his arrest
rather than argue that he should not have been convicted. Accordingly, Heck does not provide a
basis on which to dismiss Counts III and IV.
D.

Additional Arguments

Defendants raise several other arguments in support of dismissing Counts III and IV. For
the most part, those arguments ignore Mays’s allegation that the investigative alert’s probable
cause designation was changed after Workman and Ostafin detained him from an alert without
probable cause to one with probable cause.4
First, Defendants argue that Mays has pleaded himself out of court by alleging that they
had probable cause to arrest him. This argument fails. Although Defendants contend that the

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The Court observes that Ostafin’s testimony at the suppression hearing confirms that he called Gordon
after seeing the investigative alert for Mays. (Suppression Hr’g Tr. at 11:9–22.)

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issue was previously litigated in state court, for reasons explained above, the Court does not so
find. Defendants also argue that Workman and Ostafin confirmed with Gordon that the
investigative alert provided probable cause to arrest Mays. But this argument ignores Mays’s
allegations suggesting that the officers decided to change the basis for the alert after picking him
up. True, he alleges that they called Gordon to confirm the alert. But he also alleges that during
or shortly after that call, the officers altered the alert to one with probable cause attached.
Drawing all reasonable inferences in Mays’s favor, as the Court must at the motion to dismiss
stage, it is plausible to infer that the officers took Mays into custody based on an investigative
alert without probable cause and, when they realized what they had done, falsified his
investigative alert’s probable cause designation to justify their unlawful arrest.
Next, Defendants argue that the investigative alert justified the arrest. For similar reasons,
this argument fails. Defendants again rely on a selective reading of Mays’s complaint—he does
not simply allege that Workman and Ostafin confirmed there was probable cause to arrest him;
rather, he alleges that they changed the designation of his investigative alert from one without
probable cause to one with probable cause. Next, Defendants point to the investigative alert
itself, which Mays references in the 3AC and which Defendants also submitted as an exhibit.
(Mot. to Dismiss, Ex. J (“Investigative Alert”), Dkt. No. 183-11.)5 But the fact that the
investigative alert as it exists today indicates that there is probable cause to arrest Mays does not
definitively resolve the issue. Indeed, Mays himself alleges that the alert said this—after officers
falsified it to read that there was probable cause. That the investigative alert matches his
allegations does not undermine his account of how it ended up in that status. In addition, the

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Mays references his investigative alert throughout his complaint and it is central to his claims.
Therefore, the Court may consider it without converting his motion to dismiss into one for summary
judgment. Burke, 714 F.3d at 505.

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investigative alert states that it is “EXPIRED.” (Id.) Neither Defendants’ brief nor Special Order
S04-16 explain what “EXPIRED” means. Drawing all inferences in Mays’s favor, Defendants’
exhibit supports his allegations and does not merit dismissal.
Finally, Defendants raise undeveloped qualified immunity arguments. They go no further
than to state that qualified immunity protects Ostafin and Workman because their reliance on
investigative alerts is appropriate and, elsewhere, that “[s]ince there was a basis for a reasonable
officer to conclude there was probable cause to arrest Plaintiff based on the investigative alert,
qualified immunity bars claims that there was not.” (Mot. to Dismiss at 8, Dkt. No. 183.) But
once again, this claim ignores Mays’s allegations that the “expired” investigative alert did not
state that there was probable cause to arrest him until after Ostafin and Workman conspired to
change it. The Court also notes that Defendants’ argument is cursory and undeveloped, despite
the fact that they bear the burden to establish qualified immunity. See Hood v. Smith, 15 C 7945,
2017 WL 2404974, at *3 (N.D. Ill. June 1, 2017) (“Beyond citing the qualified immunity
standard, [defendant] barely addresses qualified immunity for [plaintiff’s] failure to protect
claim, which is insufficient to put the defense at issue.”).
For these reasons, Defendants’ motion to dismiss is denied as to Counts III and IV.
II.

Count II—Illegal Search

As noted above, Defendants do not argue that Count II, in which Mays asserts that the
search pursuant to which Ostafin found his identification violated the Fourth Amendment, is
barred by collateral estoppel. Rather, they argue that it should be dismissed as to any Defendant
for whom Mays has failed to allege personal involvement. The 3AC specifically names four
officers or detectives in Count II: Ostafin, Workman, Gordon, and Galiardo. (3AC ¶¶ 33, 39.)
But the only allegations involving Gordon are that Ostafin and Workman spoke to him over the
radio after searching and detaining Mays. (Id. ¶¶ 20–21.) And Mays only alleges that Galiardo
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was present during his interrogation, which took place at the station house well after the search.
(Id. ¶¶ 23–24.)
Under § 1983, “[a] government official is liable only if he personally caused or
participated in a constitutional deprivation.” Milchtein v. Milwaukee County, 42 F.4th 814, 824
(7th Cir. 2022). So to survive a motion to dismiss, Mays must allege that the defendant, by his or
her own actions, violated his Constitutional rights. Id. Yet Mays has not alleged any personal
involvement in either the stop or the search by Gordon, Galiardo, Barnett, Chibe, or Panosh.
Indeed, the only officers who participated in the stop or the search were Ostafin and Workman.
And even then, Mays alleges only that Workman submitted Mays’s identification to the CPD’s
CHRIS system and signaled to Ostafin to detain Mays. (3AC ¶¶ 16–17.) While this might
sufficiently allege Workman’s personal involvement in Mays’s allegedly unlawful arrest and
seizure (Counts III and IV), it does not support a plausible inference that Workman was directly
involved in the search.
Count II is thus dismissed as to all Defendants except Ostafin because Mays has failed to
plausibly allege their personal involvement in his constitutional harm.
III.

Additional Individual Defendants

What is more, although Mays’s 3AC includes Barnett, Chibe, and Panosh as Defendants,
its fails to allege any personal involvement in his constitutional injury by any of the three. As
noted above, Count II is dismissed as to Barnett, Chibe, and Panosh. But Mays also fails to state
valid claims against them based on any other theory. The only action Mays alleges that Barnett
took was issuing the original investigative alert. (3AC ¶¶ 69–75.) But according to the 3AC, the
investigative alert when issued was designated “No Probable Cause to Arrest” and Mays does

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not challenge the original basis to issue that alert. Even if he had, such a challenge would be
barred by collateral estoppel based on the state court suppression hearing.
Meanwhile, the only allegation against Panosh is that he was aware of the alleged
practices underlying Mays’s equal protection claim (id. ¶ 114(d)), and the only allegation against
Chibe is that she did not correct the practices underlying his equal protection claim (id. ¶ 114(e)).
As discussed below, however, the equal protection claim is dismissed in its entirety for failure to
state a claim. And in any case, it is well-established that neither Chibe nor Panosh can be held
liable in their roles as supervisors. Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000)
(rejecting § 1983 claims against individual defendants premised on respondeat superior liability
because Ҥ 1983 does not allow actions against individuals merely for their supervisory role of
others”).
Because Mays does not allege sufficient involvement in his alleged constitutional harms
by any of Barnett, Panosh, and Chibe, his claims against them are dismissed. As a result, the
Court need not reach the statute of limitations argument raised by those Defendants.
IV.

Count V—Monell Claim

To plead a claim under § 1983 against a municipality, Mays must adequately allege that
the “execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflict[ed] the injury.” Monell,
436 U.S. at 694. The Seventh Circuit recognizes three types of municipal liability: “(1) an
express policy that causes a constitutional deprivation when enforced; (2) a widespread practice
that is so permanent and well-settled that it constitutes a custom or practice; or (3) an allegation
that the constitutional injury was caused by a person with final policymaking
authority.” Bohanon v. City of Indianapolis, 46 F.4th 669, 675 (7th Cir. 2022) (internal quotation
marks omitted). A plaintiff must also show that “the policy or custom demonstrates municipal
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fault,” and that “the municipality’s action was the moving force behind the federal rights
violation.” Id. (internal quotation marks omitted).
Mays’s claim against the City principally relies on the first prong of Monell, alleging that
the City’s express policy regarding investigative alerts unconstitutionally permits officers to
arrest suspects without arrest warrants and probable cause. (3AC ¶¶ 78–80.) Specifically, Mays
complains that “an investigative alert has been elevated to the status of an arrest warrant, without
the constitutional safeguards provided by a judicial determination of probable cause.” (Id. ¶ 80.)
The Seventh Circuit recently considered such a Monell challenge to the constitutionality of the
City’s investigative alert policy. It concluded that, “[o]n its face . . . the investigative alerts
system does not offend the Fourth Amendment.” Taylor, 26 F.4th at 436. That is because
warrantless arrests supported by probable cause are constitutional, and probable cause can be
imputed from one CPD officer to another. Id. Post-Taylor, Mays’s central argument that it is
unconstitutional for the CPD to rely on investigative alerts rather than always obtaining arrest
warrants fails as a matter of law.
In Taylor, the Seventh Circuit also discussed a second possible path to Monell liability
based on “‘gaps in express policies’ or through ‘widespread practices that are not tethered to a
particular written policy’—situations in which a municipality has knowingly acquiesced in an
unconstitutional result of what its express policies have left unsaid.” Id. at 435 (quoting Calhoun
v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005). But Mays has not pleaded a claim under this
approach either. Even construed liberally, his Monell claim goes no further than to claim that
investigative alerts resemble stop orders, they are not arrest warrants, therefore they cannot
provide probable cause for an arrest, and warrantless arrests without probable cause violate the
Fourth Amendment. True, Mays does go on elsewhere in the 3AC to claim that in his particular

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case the arresting officers changed a “no probable cause” investigative alert to a “probable
cause” investigative alert to justify his arrest; however, he does not allege either (1) that the
City’s investigative alert policy authorizes officers to manipulate alerts in this manner; or (2) the
existence of any other instances when officers have done the same thing to other suspects, such
that a plausible inference could be drawn that there is a widespread practice “in which a
municipality has knowingly acquiesced in an unconstitutional result of what its express policies
have left unsaid.” Id.
Because Mays does not plausibly allege that the investigative alert system constitutes an
unconstitutional policy, pattern, or practice, his Monell claim against the City in Count V is
dismissed.
V.

Count VI—Equal Protection and Due Process Claims

Count VI asserts a different version of his Monell claim against the City by invoking the
Equal Protection and Due Process Clauses of the Fourteenth Amendment.6
A.

Equal Protection Claim

The Court first considers Mays’s equal protection claim, in which he alleges that the City
uses the investigative alert system in a manner that has a disparate impact on Black and Latino
communities in Chicago. (3AC ¶¶ 96–97.) Mays contends that officers are authorized,
encouraged, and trained to use investigative alerts in these communities. As noted above, the
Seventh Circuit has found the investigative alert system facially constitutional. But when an
otherwise permissible law is enforced selectively against a particular class of people, it can

6

Mays also invokes 42 U.S.C. § 1981, but § 1981 does not apply to this case. “[S]ection 1981 itself
provides a remedy for violations committed by private actors, but an injured party must resort to § 1983
to obtain relief for violations committed by state actors.” Campbell v. Forest Preserve Dist., 752 F.3d
665, 667 (7th Cir. 2014) (citing Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 731–35 (1989)). Thus, any
claim against the City pursuant to § 1981 is dismissed.

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nonetheless violate the Equal Protection Clause. Conley v. United States, 5 F.4th 781, 788–89
(7th Cir. 2021).
To begin, while Mays refers to his claim as a disparate impact claim, such theories are
not cognizable under § 1983. Bond v. Atkinson, 728 F.3d 690, 692–93 (7th Cir. 2013). Therefore,
the Court construes his claim as asserting a selective enforcement theory. Conley, 5 F.4th at 788–
89. Under such a theory, the enforcer’s awareness that there may be—or even will be—an
unbalanced result will not, by itself, sustain an equal protection claim. Rather, a plaintiff must
show “that the defendants’ actions had a discriminatory effect and were motivated by a
discriminatory purpose.” Id. at 789 (internal quotations marks omitted). Mays’s claim must also
meet Monell’s standard, which requires alleging an unconstitutional policy or practice, “that the
policy demonstrates municipal fault,” and that the policy or practice is the moving force behind
the plaintiff’s injury. Bohanon, 46 F.4th at 675.
Mays’s equal protection claim falters for multiple reasons. First, he has not adequately
pleaded that the City’s investigative alert policy has a discriminatory effect and is motivated by a
discriminatory purpose. To allege a discriminatory effect, Mays must plead three things: “that he
is a member of a protected class, that he is otherwise similarly situated to members of the
unprotected class, and that he was treated differently from members of the unprotected class.”
Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005) (internal quotation marks omitted); Sharma v.
Bd. of Trs., 404 F. Supp. 3d 1183, 1200 (N.D. Ill. 2019). Mays, a Black man, meets the first
requirement. With respect to differential treatment, he alleges that the CPD focuses its use of
investigative alerts on Black and Latino communities; he alleges nothing about how investigative
alerts are used in other communities but, in his response brief, states in conclusory fashion that
investigative alerts are not used in majority White or Asian neighborhoods of Chicago. (3AC

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¶ 98; Pl.’s Resp. at 101.) The pertinent question, however, is whether “[Mays] was treated
differently from a similarly situated member of the unprotected class.” Alston v. City of Madison,
853 F.3d 901, 907 (7th Cir. 2017). And Mays offers no factual allegations from which to infer
that a different practice is used in other parts of Chicago or against non-Black and non-Latino
people in general, let alone similarly-situated ones.
Mays also must plead discriminatory intent or purpose. Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); see also Hlinak v. Chi. Transit Auth., 13 C
9314, 2015 WL 361626, at *5 (N.D. Ill. Jan. 28, 2015) (requiring a plaintiff to plead both
discriminatory effect and discriminatory purpose to state an equal protection claim). Mays argues
that intent may be inferred from practice: arrests pursuant to investigative alerts occur in
“disproportionately underserved and poor communities.” (3AC ¶ 98.) But “[d]iscriminatory
purpose means more than simple knowledge that a particular outcome is the likely consequence
of an action; rather, discriminatory purpose requires a defendant to have selected a particular
course of action at least in part because of its adverse effects upon an identifiable group.” Alston,
853 F.3d at 907 (internal quotation marks and alterations omitted). The facts Mays has pleaded
fall short of this standard.
Finally, Mays has not adequately pleaded that the allegedly discriminatory policy or
practice of using investigative alerts in Black and Latino communities was the moving force
behind his injury. As noted above, Taylor rejected the argument that the use of an investigative
alert with probable cause to effect an arrest, in and of itself, violates the Fourth Amendment. And
so that cannot have been the moving force behind any constitutional injury Mays suffered.
However, Mays has also alleged that the arresting officers relied on an “expired”
investigative alert and that the alert did not indicate that there was probable cause to arrest him

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until after they changed it. Thus, the moving force behind his alleged constitutional injury was
the use of an “expired” investigative alert with no probable cause attached (which was then
allegedly altered to reflect probable cause) to effect his arrest. And Mays does not allege that the
officers changed the investigative alert’s probable cause designation because of his race or the
community of which he is a member. Nor has he alleged that non-protected persons were treated
differently than him in this respect. As such, Mays has failed to state an equal protection claim.
B.

Due Process Claim

In Count VI, Mays also invokes the Due Process Clause of the Fourteenth Amendment,
although it is unclear what basis he claims for an alleged violation of his due process rights.
In his response brief, Mays suggests a wide-ranging due process argument, contending that the
investigative alert system as a whole violates suspects’ due process rights because it does not
allow for consideration of exculpatory evidence, it allows for department-wide determinations of
probable cause that can lead to pretextual stops, and investigative alerts are easier for police to
obtain than arrest warrants, among other things. (Pl.’s Resp. at 46–49.) These arguments,
however, are foreclosed by Taylor, in which the Seventh Circuit addressed Mays’s concerns by
explaining that the system does have an audit process, imputation of probable cause is a wellestablished doctrine, and warrantless arrests supported by probable cause are constitutionally
permissible. See Taylor, 26 F.4th at 436. It also bears noting that an arrest pursuant to an
investigative alert—like other warrantless arrests—is subject to the procedural safeguard that a
probable cause determination be made by a judicial officer within a reasonable time period after
the arrest. Gerstein v. Pugh, 420 U.S. 103, 126 (1975). Count VI is dismissed as well.
VI.

Count VII—Gerstein Claim

In the final count of his 3AC, Mays alleges that he was held for four days before
receiving a probable cause determination in violation of Gerstein.
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When a defendant is arrested without a warrant, Gerstein requires that a probable cause
determination occur within a reasonable time after the arrest. Id. at 126. This requirement
generally demands that a probable cause hearing be held within forty-eight hours of a warrantless
arrest. See County of Riverside v. McLaughlin, 500 U.S. 44, 58 (1991); Mitchell v. Doherty, 37
F.4th 1277, 1282 (7th Cir. 2022). As the Seventh Circuit has explained, “generally, a jurisdiction
that provides judicial determinations of probable cause within 48 hours will comply with the
promptness requirement of Gerstein, but an arrestee can still prove that his or her probable cause
determination was delayed unreasonably when, for example, the delays were for the purpose of
gathering additional evidence to justify the arrest, a delay motivated by ill will against the
arrested individual, or delay for delay’s sake.” Id. at 1280 (internal quotation marks and
alterations omitted).
Here, Mays alleges in Count VII that he was arrested and detained from August 2, 2014
to August 6, 2014 without a probable cause determination—a period of four days. (3AC ¶ 122.)
This allegation, however, is belied by the court record, which shows that Mays did, in fact,
receive a timely probable cause determination. The City has submitted a signed court order,
dated August 3, 2014 at 4:05 p.m. and entered on August 4, 2014, finding probable cause to
detain Mays on aggravated battery charges. (City Mot., Ex. C at 2, Dkt. No. 183-4.)7 The
warrantless arrest occurred on the morning of August 2, 2014. (3AC ¶ 11.) That is within the
presumptively reasonable forty-eight hour period, and Mays has not alleged any circumstances
plausibly suggesting that his probable cause determination was nonetheless unreasonably

7

While a motion to dismiss is generally decided solely on the four corners of the complaint, a court may
also consider “documents that are attached to the complaint, documents that are central to the complaint
and are referred to in it, and information that is properly subject to judicial notice.” Williamson v. Curran,
714 F.3d 432, 436 (7th Cir. 2013). Here, the Court takes judicial notice of the facts contained within the
August 3, 2014 court order, including times and dates. Fosnight, 41 F.4th at 922.

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delayed. Accordingly, Mays’s claimed Gerstein violation cannot proceed and Count VII is
dismissed.
CONCLUSION
For the reasons stated above, Defendants’ motions to dismiss (Dkt. Nos. 183, 200) are
granted in part and denied in part as follows. Counts I, V, and VI are dismissed as to all
Defendants. Count II is dismissed as to all Defendants other than Ostafin. All other claims
against Barnett, Panosh, and Chibe are also dismissed. The motions are denied as to Counts III
and IV against Ostafin, Workman, Gordon, and Galiardo. Thus, in sum, Count II may proceed
against Ostafin, and Counts III and IV may proceed against Defendants Ostafin, Workman,
Gordon, and Galiardo.
ENTERED:

Dated: September 30, 2023

__________________________
Andrea R. Wood
United States District Judge

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