Franklin v. Askew et al

Filing 61

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 11/21/2022:For the reasons set forth in the accompanying Memorandum Opinion and Order, the defendants' motion for summary judgment 49 is granted. Judgment will be entered for the defendants. Civil case terminated. Mailed notice(air, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARTINEZ FRANKLIN,
Plaintiff,
v.
HARVEY CITY DETECTIVE
RASHEED ASKEW STAR #944, DET.
JOSE GOMEZ STAR #1010, and CITY
OF HARVEY, a Municipal Corporation,
Defendants.

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No. 19-CV-04375
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
After the dismissal of his indictment for attempted murder, Martinez Franklin sued the City
of Harvey and two Harvey detectives for constitutional violations, including unlawful detention,
false arrest, and malicious prosecution, under 42 U.S.C. § 1983. The defendants moved for
summary judgment. Based on the undisputed material facts, probable cause justified Martinez 1’s
detention and prosecution: the victims of a drive-by shooting—reasonably credible witnesses—
identified Martinez and his brother as the perpetrators. Bullet holes that peppered the witnesses’
car, but not the van that Martinez was driving, bolstered the witnesses’ accounts and undermined
Martinez’s claim that he and his brother were the real victims. Because Martinez has not identified
anything in the record to rebut the facts supporting probable cause, the Court grants defendants’
motion for summary judgment.

1

The Court refers to Martinez Franklin and his brother, Marlon Franklin, by their first
names to avoid confusion.

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BACKGROUND
The Court draws the relevant background from defendants’ statement of material facts,
filed pursuant to Local Rule 56.1. Martinez has admitted all of the facts that the defendants have
submitted to the Court. “When a responding party’s statement fails to dispute the facts set forth in
the moving party’s statement in the manner dictated by the rule, those facts are deemed admitted
for purposes of the motion.” Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009).
Therefore, except where otherwise noted, the Court relies on the defendants’ statement of material
facts to determine whether summary judgment is proper.
On the afternoon of December 2, 2016, Sergeant Shane Gordan 2 of the Harvey Police
Department pulled over a gray Mitsubishi for speeding. Five men—Donnell Martin, Jaquon Doby,
Lamari Battle, Jeremiah Dixon, and Shamar McGhee—were in the car. Martin, the driver,
explained to Gordan that a maroon van had shot at the passengers of the Mitsubishi at the
intersection of 154th Place and Robey and that he was speeding to Ingalls Hospital because
McGhee had been shot in the abdomen. Gordan then followed the Mitsubishi to Ingalls Hospital.
When Gordan and the passengers arrived at the hospital, McGhee was taken inside to
receive treatment. Gordan and the Mitsubishi parked, and Gordan interviewed the four remaining
passengers. As the Mitsubishi passengers were describing what happened, a maroon van pulled up
next to the Mitsubishi. The passengers in the Mitsubishi identified the maroon van as the vehicle
from which the shots had been fired.
The plaintiff, Martinez Franklin, was driving the maroon van, and his brother, Marlon
Franklin, was in the front passenger seat. Marlon had been shot in his right hand, so Martinez got

2

Although the defendants’ Local Rule 56.1 statement spells the Sergeant’s last name as
“Gordon,” the underlying affidavit, which the Sergeant signed, spells it “Gordan.”
2

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out of the van and took him to the emergency department. As Martinez was leaving the hospital, a
Harvey police officer arrested him and transported him to the Harvey Police Department. The
police also took the four uninjured Mitsubishi passengers to the Harvey Police Department for
questioning. At the police station, one of those passengers, Lamari Battle, identified Martinez in a
photo lineup as the driver of the maroon van.
Meanwhile, Detective Rasheed Askew, a defendant in this case, was called to the scene of
the shooting, 154th Place and Robey. Askew reviewed the crime scene area and collected five
spent .45-caliber shell casings as evidence. When Askew went back to the Harvey Police
Department, another police officer informed him that Martinez had been arrested at Ingalls
Hospital.
At the Harvey Police Department, police interviewed Martinez and Marlon, as well as the
passengers of the Mitsubishi. The police recorded the interviews with Martinez and Marlon.
According to Martinez, he was driving the maroon van with the windows down and Marlon in the
front seat when a gray car pulled up quickly behind them. During the interview, Martinez explained
that when he pulled over to his left to let the gray car pass, the occupants of that car began shooting
at him and his brother at 154th Place and Robey. After Marlon was shot in the hand, Martinez
drove to Ingalls Hospital. Martinez could not identify who fired the shots at his brother and him
or explain why and how the shooting occurred. He also failed to explain why the Mitsubishi was
riddled with bullet holes when it arrived at Ingalls Hospital while the maroon van—the putative
target of the shots, according to Martinez, remained unscathed.
Based on this information and because he lacked authority to initiate felony charges,
Askew requested that the Assistant State’s Attorney, Erika Hamer, review the evidence. Hamer
conducted her own investigation and independently interviewed the witnesses in the case,

3

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including Martinez. At that point, another Mitsubishi passenger, Donnell Martin, identified
Martinez as the driver of the maroon van that shot at the Mitsubishi and Marlon as the shooter.
Without input or influence from Askew, Hamer decided to charge Martinez for attempted
murder. A grand jury indicted Martinez. After an Illinois state court found that Askew made a
material misrepresentation of evidence to the grand jury, however, the court dismissed the
indictment. According to Martinez’s sole submission of material fact—which the defendants
dispute—Askew received a letter from the Chief Deputy State’s Attorney, informing Askew that
the State’s Attorney must disclose Askew’s misleading grand jury testimony transcript should
Askew testify again. Martinez asserts—and Askew again disputes—that Askew resigned about a
month after receiving that letter.
In June 2019, Martinez sued the City of Harvey, Askew, and another detective, Jose
Gomez, for violations of his constitutional rights. According to the complaint only (and crucially,
nowhere in any of plaintiff’s summary judgment filings), Askew lied during grand jury
proceedings. The Complaint alleges that Askew falsely told the grand jury that Martinez and
Marlon “wouldn’t say” how Marlon “g[ot] the bullet hole in his hand.” Compl. ¶ 27, ECF 1.
Allegedly, Marlon had told officers that he injured his hand because someone with dreadlocks shot
at him from a gray car and that he threw up his hands to shield himself. The complaint also alleges
that Askew materially misrepresented a fact to the grand jury by testifying that a spent .9 caliber
shell casing was found on the floor of the maroon van, while failing to inform the grand jury that
he had found spent .45 caliber shell casings at the scene.
According to Martinez’s allegations, after Martinez filed a motion to dismiss the
indictment, the State’s Attorney’s Office recognized the problems with Askew’s testimony and

4

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sought to re-indict Martinez. Detective Gomez testified before the grand jury and Martinez was
reindicted. The state court then granted Martinez’s motion to dismiss.
Martinez sued the defendants; his complaint sets forth five counts: fourth amendment
unreasonable detention under 42 U.S.C. § 1983 (Count I); federal malicious prosecution and
fourteenth amendment due process (Count II); respondeat superior (Count III); indemnification
pursuant to 745 ILCS 10/9-102 (Count IV); and state-law malicious prosecution (Count V).
Defendants now move for summary judgment.
DISCUSSION
Summary judgment is appropriate when 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). The moving party
has the initial burden of establishing that there is no genuine dispute as to any material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the non-moving party has the ultimate burden
of persuasion at trial, the moving party’s initial burden is “not onerous.” Modrowski v. Pigatto,
712 F.3d 1166, 1168 (7th Cir. 2013). All that the moving party must do is point out to the district
court that no evidence supports the plaintiff’s claim. Id.; see also Celotex, 477 U.S. at 323.
Defendants discharged their burden by filing a statement setting forth the undisputed material facts
pursuant to Local Rule 56.1 and showing that Martinez’s claims fail under those facts.
The burden then “shifts to the non-moving party to provide evidence of specific facts
creating a genuine dispute.” See Carroll v. Lynch, 698 F.3d 561, 565 (7th Cir. 2012). To satisfy
this burden, the non-moving party must “identify[] specific, admissible evidence showing that
there is a genuine dispute of material fact for trial.” Grant v. Trustees of Indiana Univ., 870 F.3d
562, 568 (7th Cir. 2017). The Court must view facts “in the light most favorable to the nonmoving
party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380

5

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(2007). As explained below, by failing to identify anything in the record to raise a genuine dispute
of fact, Martinez has not satisfied his burden.
I.

Fourth Amendment Unreasonable Detention Claim
Martinez first alleges that the defendant officers seized and detained him without probable

cause in violation of the Fourth Amendment. Defendants argue that they cannot be liable for any
Fourth Amendment violations because they did not participate in Martinez’s arrest. Only an
individual who personally participates in a constitutional deprivation is subject to liability under
§ 1983. Jenkins v. Keating, 147 F.3d 577, 583 (7th Cir. 1998). That participation need not be direct.
For example, an officer may still face liability for false arrest even without “personally plac[ing]
the handcuffs on an arrestee” if that officer “undert[ook] some action prior to, or perhaps at the
time of” the allegedly wrongful arrest. Chagolla v. City of Chicago, No. 07 C 4557, 2012 WL
403920, at *4 (N.D. Ill. Feb. 8, 2012) (quoting Jenkins, 147 F.3d at 583-84). Nevertheless, some
action on the part of the officer must precipitate the constitutional violation to warrant § 1983
liability. See, e.g., id. (denying summary judgment to officer who participated in officer group
huddle prior to plaintiff’s unlawful arrest); Perkins v. O’Shaughnessy, No. 10 C 5574, 2014 WL
902685, at *5 (N.D. Ill. Mar. 7, 2014) (denying summary judgment to officer who was involved
in investigation that led to plaintiff’s arrest based on false information).
As an initial matter, Martinez points to absolutely nothing in the record to support
defendant Gomez’s direct or indirect involvement in any constitutional deprivation. In fact, neither
Martinez’s response to the motion for summary judgment nor his response to the defendants’ Rule
56.1 statement mentions Gomez at all. Without any evidence that Gomez was at all involved in
this case and in light of Martinez’s failure to develop any argument as to Gomez, the Court
dismisses all of Martinez’s claims against him. See Gross v. Town of Cicero, 619 F.3d 697, 705
(7th Cir. 2010) (declining to address perfunctory and undeveloped arguments).
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The Court further agrees that Martinez has presented no evidence that Detective Askew
was involved in the initial decision to arrest Martinez. Indeed, Martinez admits that Askew only
learned of Martinez’s arrest from another officer when he arrived at the police station after visiting
the scene of the shooting. Askew therefore could not have “undertaken some action prior to, or
perhaps at the time of” the arrest to be subject to liability. Chagolla, 2012 WL 403920, at *4. To
the extent that Martinez asserts a false arrest claim against Askew, it cannot proceed.
That does not end the Court’s inquiry, however, because Martinez’s unlawful seizure and
detention claim fairly encompasses more than his wrongful arrest without probable cause.
Continuing to detain a suspect violates the Fourth Amendment when post-arrest investigation
dissipates probable cause. See BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986); accord Hull v.
City of Chicago, No. 13 C 1563, 2014 WL 5024141, at *4 (N.D. Ill. Oct. 7, 2014). Moreover, the
Supreme Court has made clear that “the Fourth Amendment governs a claim for unlawful pretrial
detention even beyond the start of legal process.” Manuel v. City of Joliet, 580 U.S. 357, 137 S.
Ct. 911, 920 (2017). Count I of Martinez’s complaint alleges “unreasonable detention,” and that
defendants “arrested and charged” Martinez, “causing him to be imprisoned” despite having “no
probable cause to arrest Plaintiff and initiate and/or pursue criminal charges against him.” Compl.
¶¶ 48-49, ECF No. 1. Martinez’s complaint encompasses not only wrongful arrest but also
wrongful detention and pursuit of charges without probable cause, a claim that supports a federal
malicious prosecution theory. See Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022) (“[T]he
gravamen of the Fourth Amendment claim for malicious prosecution, as this Court has recognized
it, is the wrongful initiation of charges without probable cause.”) 3

3

On remand from the Supreme Court’s decision in Manuel v. City of Joliet, 580 U.S. 357,
137 S. Ct. 911, 920 (2017), the Seventh Circuit interpreted that opinion as holding that “Fourth
Amendment malicious prosecution’ is the wrong characterization” and that the only viable Fourth
7

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Certainly, Askew was involved in investigating the basis for charges brought against
Martinez. According to the undisputed facts, Askew interviewed Martinez and Marlon as well as
the four men in the Mitsubishi and requested felony review from the Assistant State’s Attorney.
That is enough to at least constitute “involvement” in Martinez’s continuing detention and decision
to pursue charges against him. See Perkins, 2014 WL 902685, at *5. But an officer’s involvement
in a person’s detention or prosecution alone does not subject him to § 1983 liability. Probable
cause is an absolute defense to a Fourth Amendment unlawful detention claim, whether it is for
wrongful arrest, false imprisonment, or malicious prosecution. See Mustafa v. City of Chicago,
442 F.3d 544, 547 (7th Cir. 2006). To survive summary judgment, Martinez must raise a genuine
dispute of material fact to support the absence of probable cause. See Logan v. Caterpillar, Inc.,
246 F.3d 912, 926 (7th Cir. 2001) (burden is on nonmoving party to show absence of probable
cause).
The undisputed facts show that probable cause supported Martinez’s detention and
prosecution, and Martinez cites to nothing in the record to convince the Court otherwise.
“[P]robable cause is a common-sense inquiry requiring only a probability of criminal activity; it
exists whenever an officer or a court has enough information to warrant a prudent person to believe
criminal conduct has occurred.” Young v. City of Chicago, 987 F.3d 641, 644 (7th Cir. 2021)
(quoting Whitlock v. Brown, 596 F.3d 406, 411 (7th Cir. 2010)). When facts supporting probable
cause are not in dispute, the Court determines whether probable cause exists. Maxwell v. City of
Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993).

Amendment claim is the absence of probable cause to justify detention. Manuel v. City of Joliet,
903 F.3d 667, 670 (7th Cir. 2018). Recently, however, the Supreme Court in Thompson v. Clark
recognized Fourth Amendment claims under § 1983 for malicious prosecution. 142 S. Ct. at 1337.
Whatever the characterization of Martinez’s claim, Martinez must prove that officers lacked
probable cause to detain him or press charges against him.
8

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Martinez does not dispute that, before requesting felony review from Assistant State’s
Attorney Hamer, Askew considered that (1) the men in the Mitsubishi provided a detailed
explanation about the circumstances of the shooting, the identity of the shooters, and a description
of the van in which the shooters were driving; (2) just a few minutes after obtaining this report,
Martinez and Marlon pulled up in a van matching that description and which the men in the
Mitsubishi identified as the van driven by the shooters; (3) though Martinez and Marlon claimed
they had been shot at, neither identified who shot at them; (4) there were bullet holes in the
Mitsubishi, no bullet holes in the van that Martinez was driving, and five shell casings of the same
caliber at the intersection where the shooting occurred; and (5) Lamari Battle identified Martinez
as the driver of the car that shot at the passengers in the Mitsubishi from a photo lineup. From this
information, a reasonable officer in Askew’s position could believe that Martinez committed
attempted murder. See Coleman v. City of Peoria, 925 F.3d 336, 351 (7th Cir. 2019) (holding that
even questionable witness identification supported probable cause determination); Allen v. City of
Des Plaines, 262 F. Supp. 3d 727, 732 (N.D. Ill. 2017) (finding that witness’s statement and
corroborating physical evidence justified officers’ conclusion that probable cause existed). With
Donnell Martin’s additional identification of Martinez as the driver of the van and Marlon as the
shooter, there is no question that the state had probable cause to charge Martinez with attempted
murder. 4

4

That is so notwithstanding that Marlon was shot in the hand. It is undisputed that multiple
shots were fired at and hit the Mitsubishi and that the van was not hit by gunfire; it had no bullet
holes. Even if one of the Mitsubishi passengers fired a single shot, hitting Marlon, it would not be
unreasonable for an officer to infer that the instigator of this incident was more likely than not the
vehicle that launched a barrage of gunfire rather than the vehicle from which a single shot was
fired.
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Despite admitting all of defendants’ facts and presenting no relevant facts of his own,
Martinez attempts to manufacture a factual disagreement. He argues that the two competing
versions of events that he, his brother, and the Mitsubishi passengers recounted present a genuine
dispute of material fact. That argument misapprehends the relevant inquiry. It may be true that the
parties dispute the facts surrounding the shooting, but the question of whether probable cause
justified Martinez’s continued detention and charge is distinct from the question of what happened
on the afternoon of December 2. Even if a genuine dispute of fact remains regarding the latter
question—indeed, even if it were undisputed that Martinez is innocent of attempted murder—
Askew would still prevail if probable cause existed to detain and charge Martinez. See Mustafa,
442 F.3d at 548 (“The existence of probable cause does not depend on the actual truth of the
complaint.”). The probable cause inquiry focuses on what a reasonable officer in Askew’s position
would have done with the facts known to Askew at the time, not what actually happened. See
Reynolds v. Jamison, 488 F.3d 756, 765 (7th Cir. 2007). And the undisputed facts known to Askew
at the time established probable cause.
Martinez’s argument that this Court should not evaluate the credibility of the witnesses
who told Askew that the Franklins shot at them fails for the same reason. The Seventh Circuit has
repeatedly held that an officer may rely on a reasonably credible witness when evaluating probable
cause. See Reynolds, 488 F.3d at 765 (collecting cases). That is what Askew did here in relying on
the Mitsubishi passengers’ detailed description of events, which was corroborated by physical
evidence: the bullet holes in their car (and their absence in the maroon van). Given that the
passengers’ portrayal was reasonably believable, Askew had no further duty to validate their
accounts. Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003). Even though, as
Martinez points out, Askew’s subjective evaluation of the passengers’ credibility is irrelevant to

10

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the probable cause inquiry, Whren v. United States, 517 U.S. 806, 813 (1996), the objective
reasonableness of Askew’s credibility evaluation is relevant.
Of course, an officer cannot ignore other facts that would invalidate probable cause. See
Fox v. Hayes, 600 F.3d 819, 834-35 (7th Cir. 2010); Beauchamp, 320 F.3d at 743. Martinez is free
to challenge the reasonableness of Askew’s credibility determination by pointing to facts that cast
doubt upon it. But Martinez does not provide or cite to any evidence at all, much less any evidence
that supports a contrary version of events or renders Askew’s assessment of the relative credibility
of the participants objectively unreasonable. In his response brief, Martinez argues that his
“version of events must carry the day.” Pl.’s Resp. Br. at 10, ECF No. 54. Again, Martinez’s
version of events does not determine the existence of probable cause; the relevant facts are not
what happened during the shooting but what information police had about the shooting when they
arrested Martinez. Martinez does not dispute what information Askew collected in his
investigation, nor does he cite to anything in the record to call into question the reliability of that
information. See Fed. R. Civ. P. 56(c)(1)(A). Without pointing to evidence in the record that
creates a genuine dispute about what information Askew knew, Martinez merely declares that a
fact dispute exists because Askew had to assess the credibility of witnesses who told different
tales. That is not enough to defeat summary judgment. As the Seventh Circuit has explained,
“[p]olice officers are constantly faced with reluctant witnesses,” but they are “not required to use
the rules for summary judgment and draw inferences in favor of the suspects. Where a reasonable
person would have a sound reason to believe the suspect committed a crime, the police may arrest
and allow the criminal justice system to determine guilt or innocence.” Coleman, 925 F.3d at 351
(cleaned up).

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Finally, Askew has raised a qualified immunity defense, which means that he prevails if
there was at least an “arguable” basis for a probable-cause finding. Burritt v. Ditlefsen, 807 F.3d
239, 250 (7th Cir. 2015). In other words, an officer is entitled to qualified immunity if “a
reasonable officer could have mistakenly believed that probable cause existed.” Id. (quoting
Fleming v. Livingston County, 674 F.3d 874, 875, 880 (7th Cir. 2012)). Even if Askew were
mistaken that Battles’s positive identification of Martinez, the detailed accounts of the Mitsubishi
passengers, and the bullet holes in the Mitsubishi supplied him with probable cause, the existence
of probable cause was at least arguable. See Jenkins, 147 F.3d at 585 (holding officers are entitled
to qualified immunity if a reasonably credible witness informs police that a crime occurred, and
the officers are later mistaken). Askew’s belief in probable cause was especially reasonable given
that—as Martinez admits—Assistant State’s Attorney Hamer independently decided to charge
Martinez with attempted murder without relying on Askew’s assessment. See Burritt, 807 F.3d at
251 (finding officer’s belief reasonable when prosecutor independently determined that probable
cause existed). Because the undisputed facts show that probable cause supported Martinez’s
detention and prosecution and Martinez has not cited to any facts supporting a contrary result, the
Court grants summary judgment on Count I. 5

5

Defendants also argue that Martinez’s claim is time-barred under the relevant statute of
limitations governing § 1983 claims. The parties dispute when Martinez’s claim accrued, and
consequently whether his claim is timely. The Supreme Court’s holding in Thompson, decided
after briefing in this case, muddied these waters. After Thompson recognized the existence of
malicious-prosecution claims grounded in the Fourth Amendment, 142 S. Ct. at 1337, the Seventh
Circuit held that a malicious prosecution claim grounded in the Fourth Amendment accrues when
the underlying prosecution is terminated, Smith v. City of Chicago, No. 19-2725, 2022 WL
2752603, at *1 (7th Cir. July 14, 2022). The parties have not submitted any supplemental briefing
regarding the effects of those legal developments. Without input from the parties, the Court
declines to take up the statute-of-limitations issue. Assuming, without deciding, that Martinez’s
claim was timely, it still fails because of the reasons stated in the preceding section.
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II.

Fourteenth Amendment Malicious Prosecution Claim
Count II asserts a “Federal Malicious Prosecution and Fourteenth Amendment due process

claim.” Compl. at 8, ECF No. 1. In this count, Martinez alleges that the defendant officers “made
false allegations” against Martinez in police reports, criminal complaints, and during testimony,
causing Martinez’s detention and malicious prosecution. Id. ¶¶ 53-57. Characterizing the law as it
stood at the time of briefing, the defendants argued that this claim must fail because “[t]here is no
claim for malicious prosecution under federal law.” Memo in Supp. S. J. at 10, ECF No. 50. Any
claims regarding pre-trial seizure, defendants argued, are Fourth Amendment, rather than
Fourteenth Amendment claims. And under Seventh Circuit precedent, according to defendants,
there is no right not to be prosecuted without probable cause under the Fourteenth Amendment.
See Welton v. Anderson, 770 F.3d 670, 674 (7th Cir. 2014); Serino v. Hensley, 735 F.3d 588, 593
(7th Cir. 2013) (“There is no such thing as a constitutional right not to be prosecuted without
probable cause.”).
With the Supreme Court’s recent decision in Thompson v. Clark, 142 S. Ct. 1332 (2022),
the legal landscape surrounding federal malicious prosecution claims has changed somewhat, but
not enough to rescue Martinez’s claim. In Thompson, the Supreme Court recognized the existence
of a Fourth Amendment malicious prosecution claim, overruling contrary Seventh Circuit
precedent, id. at 1337, but declined to comment on the existence of a malicious prosecution claim
grounded in the Fourteenth Amendment’s Due Process Clause, id. at 1337 n.2. As other courts in
this district have explained, however, Thompson did not overrule Seventh Circuit precedent
holding that a plaintiff subject to a prosecution under Illinois law cannot bring a Fourteenth
Amendment malicious prosecution claim (because Illinois law permits malicious prosecution
claims; see Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011)). See, e.g., Sneed v. Vill. of

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Lynwood, No. 22-CV-00266, 2022 WL 5116464, at *3 (N.D. Ill. Oct. 4, 2022); Navarro v. City of
Aurora, No. 21 C 6288, 2022 WL 1988990, at *2 (N.D. Ill. June 6, 2022).
The upshot is that Martinez may bring a Fourth Amendment malicious prosecution claim
to challenge a seizure without probable cause but may not bring a Fourteenth Amendment
malicious prosecution claim to challenge a denial of his liberty without due process. As explained
in the previous section, the existence of probable cause defeats any Fourth Amendment malicious
prosecution claim that Martinez brings. Mustafa, 442 F.3d at 547. This is so even accepting as true
Martinez’s claims that Askew lied to the grand jury; there was already probable cause to prosecute
Martinez. Even if Martinez had presented evidence to show that Askew’s alleged
misrepresentations influenced a grand jury to indict him—and to be clear, Martinez did not adduce
any such evidence—the independent existence of probable cause defeats any Fourth Amendment
malicious prosecution claim. See Wade v. Collier, 783 F.3d 1081, 1087 (7th Cir. 2015) (holding
that “[p]robable cause is a complete bar to a malicious prosecution claim,” notwithstanding
argument that grand jury indictment was based on false information).
Martinez, moreover, does not respond to defendants’ argument that a Fourteenth
Amendment malicious prosecution claim is not viable in this circuit. In fact, Martinez does not
attempt to defend his Fourteenth Amendment theory at all in his response brief. A party who fails
to address an argument in response to a summary-judgment motion forfeits the issue. See Harper
v. Vigilant Ins. Co., 433 F.3d 521, 528 (7th Cir. 2005) (collecting cases). Having abandoned his
claim and faced with unfavorable precedent, Martinez cannot prevail on his second count. 6

6

Because Martinez has not provided a basis for holding Askew liable for his allegedly false
statements to the grand jury, the Court need not address his argument that he is absolutely immune
from any lawsuit based on grand-jury testimony.
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III.

State Law Claims
Martinez’s remaining claims—respondeat superior, indemnification, and state law

malicious prosecution—are based in Illinois state law. 7 Having dismissed all of Martinez’s claims
to the extent that they arise from federal law, the Court has the discretion not to exercise
supplemental jurisdiction over his state-law claims. See 28 U.S.C. § 1367(c)(3). That said,
however, the Court finds it appropriate to adjudicate those claims as well. Given that the events at
issue in this case occurred some six years ago, that the plaintiff has requested this Court to retain
jurisdiction and to adjudicate this motion as to the state law claims, and because resolution of those
claims is straightforward and does not raise any novel or complex issue of state law, the Court will
address the state law claims on the merits.
In view of the Court’s rulings on the unlawful seizure and detention claim and the malicious
prosecution claim, each of the remaining state law claims fails. Notwithstanding that Illinois
recognizes malicious prosecution as a viable legal claim, it fails here because, as noted above,
probable cause supported Martinez’s prosecution. See Young v. City of Chicago, 987 F.3d 641,
646 (7th Cir. 2021).
As for the respondeat superior and indemnification claims, both necessarily fail because
no claim against either of the individual defendants has survived. See id., 987 F.3d at 646. Having
no viable claim against either of the individual defendants, there can be no derivative liability as

7

The Court construes Martinez’s respondeat superior claim as arising under state, rather
than federal law. Compl. ¶ 62, ECF No. 1 (“City of Harvey is liable for the acts of its agents and
employees and is therefore liable for malicious prosecution and any other state law claim that
arises out of the incident that is the subject of this complaint.” (emphasis added)). To avoid any
doubt, however, the Court notes that a municipality cannot be vicariously liable for the
constitutional torts of its employees or agents under § 1983. Monell v. Dep’t of Soc. Servs. of City
of New York, 436 U.S. 658, 692 (1978). To the extent that Count III hinges upon any federal claims,
summary judgment is granted to the City.
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Case: 1:19-cv-04375 Document #: 61 Filed: 11/21/22 Page 16 of 16 PageID #:520

to the City of Harvey under a theory of respondeat superior and there will be no adverse judgment
against which the city must indemnify the defendants.
*

*

*

In responding to the defendants’ motion, Martinez has failed to meet his burden on
summary judgment. By failing to identify any evidence at all, much less evidence sufficient to
support a genuine dispute of material fact to support his claims, Martinez has not identified any
questions that a jury should resolve. Accordingly, the defendants are entitled to judgment as a
matter of law; a trial is unwarranted.

Dated: November 21, 2022

John J. Tharp, Jr.
United States District Judge

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