JOE BILLY McDADE, Senior District Judge.
This matter is before the Court on the Defendants' Motion for Summary Judgment on all four counts of Plaintiff's First Amended Complaint. (Doc. 36). The matter has been fully briefed and is ready for disposition. For the reasons stated below, the Motion for Summary Judgment is GRANTED.
On September 27, 2014, at approximately 2:43 A.M., Bloomington Police Officer John Fermon observed a gray vehicle stop over an intersection's crosswalk. After following the vehicle, Officer Fermon saw it cross over the median lines several times. Accordingly, he activated his emergency lights and initiated a traffic stop.
Officer Fermon approached the vehicle and made contact with the driver, Bathsheba Brooks. Rodney Pillows, Brooks' boyfriend, was the front passenger and Plaintiff Salih Baker was the rear passenger sitting behind Brooks. About three weeks prior to this incident, Officer Fermon arrested Plaintiff for possessing cocaine and resisting arrest. (See Doc. 36 at 2-3; Doc. 38 at 7). Officer Fermon took their identification to his vehicle and radioed for K9 Officer Steve Statz to assist. Officer Fermon intended to have Officer Statz and his canine conduct a "free air sniff" of the vehicle. Since the free air sniff required the occupants of the vehicle to exit, Officer Fermon approached the vehicle a second time to explain the K9 procedure and order the occupants out of the vehicle.
As Officer Fermon explained the K9 procedure from the driver side of the vehicle, Officer Fermon noticed an open bottle of Patron tequila on the floor board in front of Plaintiff. Officer Fermon then noticed that Plaintiff seemed to be clenching something in his right hand.
After handcuffing Plaintiff, the officers thoroughly searched Plaintiff's person in an attempt to find the baggie in case Plaintiff did not, in fact, eat it. After finding no evidence of drugs, the officers attempted to remove any substances from Plaintiff's mouth and had Plaintiff spit on the ground, ultimately revealing no drugs. After a search of the vehicle and the ground near where Plaintiff allegedly ate the baggie, the officers found no evidence of drugs, only the open bottle of tequila. Officer Fermon therefore believed that Plaintiff had already swallowed the baggie containing what he believed to be crack cocaine. Officer Fermon then placed Plaintiff in the front seat of his squad car and issued him a citation for illegal transportation of alcohol as a passenger.
Officer Fermon brought Plaintiff to the McLean County Jail where jail officials directed him to take Plaintiff to the hospital to address any medical concerns associated with swallowing crack cocaine. They arrived at St. Joseph Medical Center at approximately 3:42 A.M. The attending doctor, Dr. Darrell Looney, did not notice any symptoms of cocaine ingestion after observation and physical examinations. Nevertheless, the doctor and nurses provided Plaintiff with charcoal and sorbitol; charcoal neutralizes any toxic substances, and sorbitol flushes the digestive system to allow foreign substances or objects to pass through. Plaintiff did not object to taking charcoal and sorbitol because he wanted to show his innocence. Plaintiff also did not object to doctors and nurses taking an x-ray to look for the baggie in his body. After about two hours of waiting, Plaintiff did not pass any baggie of cocaine nor did his x-ray show a baggie's presence in his body.
After bringing Plaintiff back to the jail, Officer Fermon wrote a probable cause statement asserting the existence of probable cause that Plaintiff obstructed justice. At the jail, officials continued to observe Plaintiff for any foreign substances that may pass as a result of taking sorbitol. Plaintiff remained in an observation cell for about one week. Neither drugs nor a baggie were ever recovered.
Later on September 27, 2014, an Assistant State's Attorney, Ashley Scarborough, submitted a verified statement of arrest to a judge. That same day, a judge signed the statement of arrest, thus concluding that Officer Fermon had probable cause to arrest Plaintiff for obstructing justice and to detain him in lieu of bond. On September 28, one day later, Officer Fermon wrote a more detailed police report of the incident.
A grand jury convened on October 8, 2014 to consider whether to indict Plaintiff for obstruction of justice. Officer Fermon did not testify; instead, Sergeant Randall Wikoff testified based on knowledge he obtained from reading reports on this matter. Later that same day, the grand jury returned a bill of indictment charging Plaintiff with obstruction of justice.
On October 14, 2016, Assistant State's Attorney, Patrick Sheehan, entered an order of nolle prosequi regarding Plaintiff's obstruction of justice charge, thus terminating its prosecution.
On March 20, 2017, Plaintiff filed his First Amended Complaint, in which he alleges that Officer Fermon is liable under 42 U.S.C. § 1983 because he violated Plaintiff's Fourth Amendment rights. (Doc. 22). In Count I, Plaintiff alleges unreasonable seizure. (Doc. 22 at 4). In Count II, Plaintiff alleges unreasonable search. (Doc. 22 at 5). And in Count III, Plaintiff alleges unreasonable detention. (Doc. 22 at 6). Plaintiff also states a supplemental state law claim of malicious prosecution against Officer Fermon and the City of Bloomington (Count IV). (Doc. 22 at 6-7).
On May 1, 2018, Defendants filed a Motion for Summary Judgment (Doc. 36) seeking summary judgment on all counts of Plaintiff's First Amended Complaint. (Doc. 36 at 1). Defendants argue that Plaintiff cannot show that Officer Fermon unreasonably seized, searched, and detained Plaintiff on September 27, 2014, as is required to violate the Fourth Amendment. (Id.). Defendants further contend that, even if Plaintiff could establish constitutional violations, qualified immunity bars Plaintiff's claims. (Id.). Defendants lastly argue that Plaintiff cannot succeed in establishing the elements of his state law malicious prosecution claim. (Doc. 36 at 1-2).
Plaintiff timely filed his Response in Opposition to Defendants' Motion for Summary Judgment on May 29, 2018. (Doc. 38). Plaintiff argues that, viewing the evidence in the light most favorable to him, genuine issues of material fact exist as to the underlying facts of Plaintiff's constitutional claims. (Doc. 38 at 1). Specifically, Plaintiff argues that whether Officer Fermon had probable cause to seize, search, and continue to detain Plaintiff (Counts I, II, and III, respectively) rests on an underlying factual dispute. (Id.). Plaintiff further responds that the record supports all elements of his malicious prosecution claim. (See Doc. 38 at 17).
Defendants timely filed their reply on June 12, 2018. Thus, this matter is ripe for decision.
Courts grant summary judgment where "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). A grant of summary judgment is appropriate only where the movant shows that the evidence could not justify a reasonable jury finding in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (defining a
To survive a defendant's properly supported motion for summary judgment, the plaintiff "must show evidence sufficient to establish every element that is essential to its claim and for which it will bear the burden of proof at trial." Life Plans, Inc. v. Security Life of Denver Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Specifically, "[i]n a § 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment." McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010). The plaintiff-nonmovant cannot survive summary judgment by simply asserting that a material fact is genuinely disputed; it must instead "support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In the event a nonmovant fails to meet its burden, courts may "grant summary judgment if the motion and supporting materials . . . show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3); see Celotex Corp., 477 U.S. at 323 (stating that the defendant-movant "`is entitled to judgment as a matter of law'" where "the nonmoving party has failed to make a sufficient showing on an essential element of her case").
Officer Fermon argues that he is entitled to summary judgment on Plaintiff's § 1983 claims on two independent grounds: (1) that the undisputed facts show no constitutional violations, and (2) that he is immune from suit regarding those claims because of qualified immunity. (Doc. 36). Both Defendants argue that they are entitled to summary judgment on Plaintiff's supplemental state law claim of malicious prosecution because Plaintiff cannot present sufficient evidence to establish the elements of his claim. The Court addresses these arguments in turn.
Plaintiff makes three arguments regarding his arrest and detention on September 27, 2014. First, he claims that Officer Fermon unlawfully arrested him because there was no probable cause to arrest him for obstruction of justice (Count I). (Doc. 38 at 12-13). Second, he argues that Officer Fermon unconstitutionally searched him when medical staff conducted an x-ray of his body and provided him with charcoal and sorbitol to drink in order to safely pass evidence of drug possession through his digestive system. (Count II). (Doc. 38 at 15-17). Third, Plaintiff claims that Officer Fermon unlawfully failed to release him from police custody when Officer Fermon uncovered no evidence that Plaintiff swallowed a baggie of cocaine (Count III). (Doc. 38 at 13-15). Because the Court finds that qualified immunity protects Officer Fermon, the Court will not reach the merits of Plaintiff's constitutional claims.
Qualified immunity "shields public officials from civil liability," including police officers. Allin v. City of Springfield, 845 F.3d 858, 862 (7th Cir. 2017). Courts deciding a defendant's motion for summary judgment based on qualified immunity "consider `(1) whether the facts, taken in the light most favorable to the plaintiff [nonmovant], show that the defendant violated a constitutional right; and (2) whether the constitutional right was clearly established at [that] time.'" Estate of Clark v. Walker 865 F.3d 544, 550 (7th Cir. 2017) (quoting Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009)).
Plaintiffs bear the burden of establishing that, even assuming the constitutional violation occurred, that "the right at issue was clearly established." Volkman v. Ryker, 736 F.3d 1084, 1090 (7th Cir. 2013). "A right is clearly established if it is sufficiently clear that any reasonable official would understand that his or her actions violate that right, meaning that existing precedent must have placed the . . . constitutional question beyond debate." Allin, 845 F.3d at 862 (quoting Zimmerman v. Doran, 807 F.3d 178, 182 (7th Cir. 2015)). In other words, "qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law.'" Id. (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)).
In the context of probable cause disputes under the Fourth Amendment, the Seventh Circuit recognizes the doctrine of "arguable probable cause" when determining whether qualified immunity shields police officers from suit. See Hurt v. Wise, 880 F.3d 831, 841 (7th Cir. 2018); Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 459 (7th Cir. 2010) (quoting Williams v. Jaglowski, 269 F.3d 778, 781 (7th Cir. 2001)). "Arguable probable cause" exists where a reasonable officer "in the same circumstances and . . . possessing the same knowledge as the officer in question
Officer Fermon argues that he is entitled to summary judgment on qualified immunity grounds because he had "arguable probable cause" to believe Plaintiff swallowed contraband, thereby obstructing justice. (Doc. 36 at 19-20). Under Illinois law, an officer has probable cause to believe a person obstructs justice where, "with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he or she knowingly... [d]estroys, alters, conceals or disguises physical evidence." 720 ILCS 5/31-4(a)(1). He argues that, even if the Court assumes that Plaintiff did not actually have a baggie of a white powdery substance in his hand, Plaintiff's history with cocaine possession—and Officer Fermon's knowledge of that history—coupled with Officer Statz's assertion that Plaintiff ate something and Plaintiff's swipe of his hand over his mouth, would provide any reasonable officer with sufficient reason to believe that Plaintiff obstructed justice by swallowing contraband. (Doc. 36 at 19-20).
Plaintiff responds that his "right to be free from arrest and search unsupported by probable cause was clearly established at the time of the arrest." (Doc. 38 at 20). He continues that Officer Fermon violated his clearly established rights when Officer Fermon arrested him for obstruction of justice "after medical tests revealed that Plaintiff had no foreign or illegal substances in his body." (Doc. 38 at 21). However, Plaintiff does not respond to Officer Fermon's argument that "arguable probable cause" existed. Since "arguable probable cause" would cloak Officer Fermon's actions, Plaintiff did not meet his burden as the nonmovant on summary judgment. And since the standard of probable cause differs from the "arguable probable cause" standard pursuant to the qualified immunity defense, Burritt v. Ditlefsen, 807 F.3d 239, 250 (7th Cir. 2015), Plaintiff cannot survive summary judgment by simply repeating the same arguments submitted in regard to the alleged lack of
Courts in the Seventh Circuit have addressed issues of "arguable probable cause" regarding obstruction of justice arrests. See, e.g., Morfin v. City of East Chicago, 349 F.3d 989, 1000 n.13 (7th Cir. 2003) (noting that a factual dispute precluded summary judgment over arguments of actual and "arguable probable cause"); Moriconi v. Koester, No. 11-cv-3022, 2014 WL 5609279, at *4 (C.D. Ill. Nov. 4, 2014) (rejecting arguable probable cause because the arresting officer was "on notice that he had no probable cause to arrest [the plaintiff] for obstruction"); Nawrocki v. Scully, No. 05 C 1466, 2006 WL 1735294, at *9-10 (N.D. Ill. June 19, 2006) (finding that an officer could have reasonably, though mistakenly, interpreted facts to establish probable cause); Sagat v. Gramza, No. 98 C 2507, 1999 WL 14499, at *8 (N.D. Ill. Jan. 8, 1999) (finding that qualified immunity shielded the officer from suit where "the facts created an impression that [obstruction of justice] occurred").
In Nawrocki, for example, the court concluded that, since a credible witness relayed information to the police suggesting that the plaintiff failed to tell the truth in an investigation, the police reasonably believed that the plaintiff's dishonesty constituted the crime of obstruction of justice. 2006 WL 1735294, at *10.
Likewise, the Court finds that Officer Fermon is entitled to summary judgment because, even if a jury were to find that Plaintiff never actually possessed drugs on the night in question, no reasonable jury could conclude that Officer Fermon's belief that he had probable cause to believe Plaintiff obstructed justice was unreasonable. In this Court's opinion, any reasonable police officer in Officer Fermon's position would have made the logical connection that Plaintiff probably ate contraband given the following undisputed facts: (1) that Officer Fermon arrested Plaintiff for possessing cocaine (among other charges) a mere twenty days before the arrest in question (Doc. 38 at 7; Doc. 38-1 at 116-18), (2) that Officer Fermon tried to restrain Plaintiff's right hand to see what, if anything, he was holding because thought he saw a substance resembling crack cocaine in his right hand
It seems that Plaintiff thought it sufficient to refute the existence of "arguable probable cause" by simply referring the Court to Officer Fermon's lack of actual probable cause. In other cases, it may very well be that facts relevant to the actual probable cause inquiry are disputed such that a court cannot make a determination of whether "arguable probable cause" exists. See, e.g., Morfin, 349 F.3d at 1000 n. 13. ("Because the facts [within the officer's] knowledge at the time of the arrest are a matter of dispute between the parties, summary judgment on the basis of `arguable probable cause' also is inappropriate."). But here, Plaintiff only states he did not possess any contraband and that Mr. Pillows never saw him with drugs. He does not point to any factual disputes that are relevant to Officer Fermon's belief that Plaintiff held a baggie of contraband. For example, Plaintiff does not address whether in fact his hand was ever clenched. He does not address Officer Fermon's belief that his hand was clenched. He does not mention whether Officer Fermon looked at his hand. He does not dispute that Officer Fermon attempted to grab his right hand after he exited the vehicle. Had Plaintiff mentioned a single disputed fact that would undermine whether Officer Fermon was reasonable to believe Plaintiff held a baggie of contraband, the Court would not find summary judgment to be appropriate. But here, the undisputed facts do not cast any doubt on the reasonableness of Officer Fermon's belief.
Moreover, Officer Statz's statement to Officer Fermon corroborated Officer Fermon's belief that Plaintiff had contraband in his hand that Plaintiff swallowed, even assuming, in hindsight, that his belief was wrong. See Holmes, 511 F.3d at 680 (7th Cir. 2007) (stating that "[f]ellow law enforcement personnel are among the witnesses whose accounts the arresting officer may rely upon" when making an on-scene determination of probable cause); Wollin v. Gondert, 192 F.3d 616, 625 (7th Cir. 1999) (reaffirming that, "[s]o long as a reasonably credible witness . . . informs the police that someone has committed, or is committing, a crime . . . [the officers'] actions will be cloaked with qualified immunity [even] if the arrestee is later found innocent"); Nawrocki, 2006 WL 1735294, at *9 (citing Smith v. Lamz, 321 F.3d 680, 685 (7th Cir. 2003)). Moreover, Pillows confirmed that the officers were discussing Plaintiff swallowing something as he got out of the car. (Doc. 38-1 at 91) ("But I know I heard him saying that he's swallowing something, he's trying to swallow something.").
To be clear, immunity applies to all three of Plaintiff's constitutional claims because they all stem from Officer Fermon's reasonable on-scene determination of probable cause to believe that Plaintiff obstructed justice.
Therefore, for the reasons discussed above, Defendants' Motion for Summary Judgment is GRANTED as to Plaintiff's unreasonable seizure, search, and detention claims (Counts I, II, and III, respectively) on the grounds that qualified immunity shielded Officer Fermon's actions.
Officer Fermon and the City of Bloomington next argue that they are entitled to summary judgment on Plaintiff's state law claim of malicious prosecution. They contend that Plaintiff cannot present sufficient evidence to establish all the elements of the claim. (See Doc. 36 at 13-17).
"To establish a claim for malicious prosecution under Illinois law, plaintiffs must establish five elements: (1) commencement or continuation of an original proceeding [by the defendant]; (2) termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause; (4) malice; and (5) damages." Cairel v. Alderden, 821 F.3d 823, 834 (7th Cir. 2016) (citing Sang Ken Kim v. City of Chicago, 368 Ill.App.3d 648, 654 (2006)). "The absence of any one of these elements bars a plaintiff from pursuing the claim." Johnson v. Saville, 575 F.3d 656, 659 (7th Cir. 2009) (quoting Swick v. Liautaud, 169 Ill.2d 504, 512 (1996)).
The first element of an Illinois malicious prosecution claim—the "commencement or continuation of an original proceeding"—ordinarily refers to the
Defendants argue that Plaintiff cannot present evidence showing "that Officer Fermon pressured, influenced, or made misstatements to the prosecutor," as required by the first element of Plaintiff's claim. (Doc. 36 at 14). They rely primarily on Colbert to argue that, because Officer Fermon did not testify before the grand jury and because Plaintiff cannot produce any evidence suggesting that Officer Fermon otherwise influenced the indictment process through misstatements, the chain of causation required under the first element is broken. (Id.). The Court disagrees.
It is true that Colbert held that absent the production of specific evidence that an officer himself influenced or pressured the indictment process with falsities, a plaintiff will not be able to establish the first element of his malicious prosecution claim. See 851 F.3d at 655. Colbert explained that it is not enough to simply allege that there are false statements in a police report; rather, a plaintiff must provide facts establishing a
In Colbert, an officer made an alleged false statement in an arrest affidavit. Id. That officer did not testify before the subsequent grand jury. Id. The intervening indictment was secured by the testimony of an officer who was also on the scene of the incident. Id. at 655. Importantly, there was no indication before the court that the indictment was secured by the allegedly false statements of the officer. Id.
Unlike in Colbert, there is evidence here of a direct connection between Officer Fermon's statements and the indictment. In this case, the Court can see from the transcript of the grand jury proceedings that the testifying officer, who was not on the scene of Plaintiff's arrest, had nothing to offer the jurors other than what was either explicitly in the reports Officer Fermon prepared or conclusions the testifying officer drew from those reports. It is clear from the transcript the testifying officer's conclusions are based directly on Officer Fermon's reports. Thus, there is a clear connection between the Officer Fermon's reports and the indictment.
A plaintiff must provide facts establishing a
As for the second element of a malicious prosecution claim, the plaintiff bears the burden of proving that the prosecutor terminated the relevant criminal proceedings in the plaintiff's favor. See Thompson v. City of Chicago, 722 F.3d 963, 978 (7th Cir. 2013) (citing Swick, 169 Ill. 2d at 512-13). Here is where Plaintiff's claim stumbles.
"[A] criminal proceeding has been terminated in favor of the accused when a prosecutor formally abandons the proceeding via a nolle prosequi, unless the abandonment is for reasons not indicative of the innocence of the accused." Swick, 169 Ill. 2d at 513. A prosecutor's abandonment of criminal proceedings "is not indicative of the innocence of the accused when the nolle prosequi is the result of an agreement or compromise with the accused." Id. Dismissal of a criminal charge does not imply innocence "when it is part of a plea bargain." Bridewell v. Eberle, 730 F.3d 672, 677 (7th Cir. 2013) (applying Swick, 169 Ill. 2d at 512-513); see also Evans v. City of Chicago, 434 F.3d 916, 923 n.16 (7th Cir. 2006), overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013), (discussing that a guilty plea, in consideration for a nolle prosequi, means that the defendant "believe[s] that if the matter had gone to trial, it would [have] result[ed] in a conviction").
Thus, even though the Court finds Plaintiff has raised sufficient evidence linking Officer Fermon's misstatements to the indictment, his malicious prosecution claim fails because he cannot sustain the second element of the claim. Defendants assert that the nolle prosequi regarding the obstruction of justice claim "was entered in consideration of the Plaintiff's pleas in two other criminal cases." (Doc. 36 at 15) (emphasis in original). Attached to Defendants' Motion is the Affidavit of Patrick Sheehan, the Assistant State's Attorney who entered the relevant nolle prosequi orders. (Doc. 36-6). The affidavit plainly states that "[o]n October 14, 2016, an order of nolle prosequi was entered on [Plaintiff's obstruction of justice charge]" and that the order of nolle prosequi was arranged "as part of, and in consideration of, Plaintiff's pleas" on the other criminal charges. (Doc. 36-6 at 1).
In response, Plaintiff sidesteps the October 14 nolle prosequi order and, instead, argues that "[t]he State's Attorney's indication that it was dismissing [the obstruction of justice charge] is not consistent with the plea agreement it signed with Plaintiff [on August 11, 2016] or the Court transcript from Plaintiff's plea hearing on September 13, 2016." (Doc. 38 at 18). Accordingly, Plaintiff argues that the facts elicited in Affidavit of Patrick Sheehan are disputed because the September 13 hearing transcript shows that the obstruction charge was not part of the plea deal regarding the other criminal proceedings. (Doc. 38 at 12, 18; Doc. 38-2 at 101-02).
The fact that the August 11, 2016, plea deal did not consider the obstruction charge is immaterial. On October 14, 2016, a separate order of nolle prosequi was entered that specifically dismisses the obstruction of justice charge "in consideration for [Plaintiff's] pleas" in the other criminal proceedings.
For these reasons, the Motion for Summary Judgment is GRANTED as to Plaintiff's malicious prosecution claim (Count IV).
For the reasons stated above, Defendants' Motion for Summary Judgment (Doc. 36) is GRANTED. CASE TERMINATED.
SO ORDERED.