ORDER

JOHN J. THARP, JR., District Judge.

For the reasons set forth in the statement below, the defendants' motion to dismiss the plaintiffs' amended complaint [57] is granted in part and denied in part. A status hearing will be held on March 20, 2019 at 9:00 a.m.

STATEMENT

The original complaint in this case was dismissed, largely without prejudice, by Judge St. Eve on May 11, 2018. Order, ECF No. 37. Shortly thereafter, it was reassigned to this Court's calendar due to Judge St. Eve's appointment to the Court of Appeals. Familiarity with the original complaint and Judge St. Eve's dismissal order are assumed, but as relevant here, Judge St. Eve dismissed the plaintiff's federal claims pursuant to Rule 12(b)(6), agreeing with the defendants that the allegations failed adequately to allege the individual participation of the defendants in the constitutional violations alleged. To be clear, however, and contrary to the defendants' characterization, the dismissal was not on account of "group pleading" by the plaintiff; to the contrary, the dismissal order acknowledged that "group pleading" is not improper per se. Order, ECF No. 37, at 4 ("group pleading does not violate Fed. R. Civ. P. 8 so long as the complaint provides sufficient detail to put the defendants on notice of the claims") (internal quotation marks omitted). Complaints must provide constitutionally minimal notice to each defendant as to the nature of the claim(s) asserted; doing so does not require a pleading that catalogs every individual act taken by an individual defendant in the course of an incident that involves multiple officers. Alleging that "the Defendants" or "the Responding Officers" all participated in unlawful conduct may, if plausible, suffice to provide adequate notice.

In response to Judge St. Eve's ruling, the plaintiffs filed an Amended Complaint ("AC"). ECF No. 42. In the AC, however, they have done little to address the lack of detail that prompted dismissal of the plaintiffs' federal claims. Here, verbatim, are the fact allegations as stated by Judge St. Eve in ruling that the complaint failed to provide sufficient notice to the defendants:

In response to the dismissal order, the plaintiffs have essentially repeated their prior fact allegations and added a handful of new allegations, most pertaining only to Officer Wojtowicz. Here are the new allegations in the Amended Complaint:

While these new allegations remedy the complete dearth of allegations about Officer Wojtowicz in the original complaint, they do little to cure the deficiencies of the original complaint with respect to the allegations against the other defendant officers. That does not mean, however, that the entire complaint should be dismissed. While Judge St. Eve did not find it necessary, given the grant of leave to replead, to parse through the adequacy of the allegations as to each defendant, in reviewing the plaintiffs' allegations, the Court concludes that they suffice to state plausible claims against various subsets of the defendants, as discussed in detail below.

In Count I, the plaintiffs assert claims based on alleged violations of their Fourth Amendment rights. Lattimore alleges that he was subjected to an unlawful search based on a search warrant procured with false statements,1 that he was arrested without probable cause, and that his property—specifically two firearms, unspecified property turned over to police by Rivera, and his car—were unlawfully seized. Hutton-Lattimore asserts that she was unlawfully searched and arrested, but the complaint includes no fact allegations relating to a search of Hutton-Lattimore or her property, so the Court construes her claim to be for unlawful arrest only. These are all cognizable Fourth Amendment claims.

With respect to the search of Lattimore's car, the AC alleges that Officer Klein procured the search warrant by falsely stating in the warrant application that Lattimore's concealed carry license and FOID card had been revoked. It does not allege, however, that any other defendant was involved in procuring the warrant or even knew that a warrant had been obtained, much less that they knew that the warrant application included false statements. Rather, the AC includes a conclusory allegation that all of "the Defendant Officers" caused the illegal search and seizure, but (as Judge St. Eve previously ruled) that statement is not adequate to provide notice as to what role each officer played with respect to the search and seizure of Lattimore's vehicle. Moreover, since the AC alleges that only five of the defendants comprise "the Responding Officers," the implication is that not all of the defendants (i.e., those who did not respond to the January 26 scene) participated in, or were even aware of, the search and seizure of Lattimore's car on that date.2 Accordingly, the only defendant that the AC adequately alleges bears responsibility for the search and seizure of the car and the firearm it allegedly contained, is Officer Klein. The AC fails to state a claim for relief based on an unlawful search of the car against any other defendant.

By contrast, however, the AC adequately alleges the participation of "the Responding Officers" in Lattimore's arrest. It alleges that each of those officers participated in interviews of the occupants of the house, knew that the plaintiffs lived in the Residence and that Rivera and her son had no right to exclude Lattimore from the Residence, and knew that Lattimore was lawfully armed, but Lattimore was nevertheless arrested. Thus, in contrast to the allegations about the search and seizure, which do not plausibly allege the involvement of even all of the Responding Officers, with respect to Lattimore's arrest, it is reasonable to infer that each of the discrete group of Responding Officers participated, or at a minimum, acquiesced, in Lattimore's arrest for home invasion and unlawful use of a weapon knowing that there was not probable cause to believe that he had committed either crime.

As to the arrest of Hutton-Lattimore, the AC concedes that she was not arrested nor charged with committing any crime on January 26, 2015. It alleges that Officer Wojtowicz was assigned the next day to investigate the events of January 26 and that the following day, January 28, he arrested, or assisted in the arrest of, Hutton-Lattimore. It also alleges that Officers Gallagher, Barnes and Zeigler also assisted in the "arrest, processing and investigation" of the home invasion charges against both Lattimore and Hutton-Lattimore. But none of these officers are alleged to have been among the group of "Responding Officers" on January 26 and other than Wojtowicz, none are alleged to have been aware of the circumstances that, the plaintiffs allege, made it patent to the Responding Officers that the plaintiffs were not committing a home invasion. The allegations of the participation of Officers Gallagher, Barnes, and Zeigler therefore fail to plausibly allege that they participated in, or could have prevented, the allegedly unlawful arrests of the plaintiffs. Wojtowicz, however, is alleged to have sworn out a false criminal complaint against both plaintiffs, AC ¶ 58, so the AC adequately identifies his personal participation in the plaintiffs' arrests.3

In Count II, the plaintiffs attempt to set forth a Fourth Amendment claim based on "malicious prosecution." The gist of this claim is that the defendants initiated and pursued criminal charges against the defendants based on false statements and reports created in connection with the events of January 26, 2015. As the Supreme Court and Seventh Circuit have now made clear, however, there is no such thing as a "Fourth Amendment malicious prosecution" claim. Rather, to the extent that the plaintiffs allege that they were detained in custody based on fabricated evidence—and they do—they have a Fourth Amendment claim for a seizure unsupported by probable cause, not a "malicious prosecution" claim. Manuel v. City of Joliet, 137 S.Ct. 911 (2017) (Manuel I); Lewis v. City of Chicago, 914 F.3d 472 (7th Cir. 2019). The plaintiffs allege that they were both "transported to jail and were wrongfully incarcerated," ¶ 45, presumably on the days they were arrested, and they supplement that allegation in their brief, noting that the plaintiffs were held in custody until they bonded out, Lattimore on February 13, 2015, and Hutton-Lattimore on February 4, 2015.

Those are the dates on which the statute of limitations for the plaintiffs' Fourth Amendment claims for unlawful seizure of their persons began to run. Manuel v. City of Joliet, 903 F.3d 667, 669 (7th Cir. 2018) (Manuel II) ("We hold that Manuel's claim accrued on May 5, when he was released from custody."). As the plaintiffs concede, the applicable limitations period is two years; their Fourth Amendment personal seizure claims were therefore untimely after February 13, 2017 (Lattimore) and February 4, 2017) (Hutton-Lattimore), respectively. The original complaint in this case was not filed until November 30, 2017, however, so the plaintiffs' Fourth Amendment seizure claims set forth in Count II are time-barred.4

The plaintiffs attempt to salvage their "malicious prosecution" theory by asserting that notwithstanding Manuel I, Manuel II, and Lewis, they have a timely claim based on fabrication of evidence because the "wrong" caused by the allegedly fabricated evidence continued until the charges against them were dismissed. In other words, they maintain that they have a due process claim based on the fabrication of evidence based not on their unlawful detentions but because they were wrongfully charged. That argument fails, however. As the Seventh Circuit has repeatedly explained, "there is no such thing as a constitutional right not to be prosecuted without probable cause." Manuel II, 903 F.3d at 670 (quoting Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013)). Absent a deprivation of liberty (which, per Manuel I, would be actionable only under the Fourth Amendment), there can be no due process deprivation caused by the use of fabricated evidence.

Perhaps the Circuit's clearest explanation of the point can be found in Judge Sykes' opinion for the court in Bianchi v. McQueen:

Id., 818 F.3d 309, 319-20 (7th Cir. 2016) (some citations and internal punctuation omitted). As Judge Sykes' exegesis makes plain, the plaintiffs' have no cause of action under the Due Process Clause based on a theory that their prosecution was wrongful because it was premised on fabricated evidence. The plaintiffs were deprived of their liberty for a period, but that claim is time-barred. They were not deprived of an opportunity to contest the charges against them, however, and they prevailed. That does not make out a claim for denial of due process. Accordingly, the plaintiffs cannot proceed on either a Fourth Amendment of Due Process theory as to the charges brought against them against them.

In Count III, Lattimore purports to assert a due process violation arising from the deprivation of property he suffered. As such, this count merely attempts to set forth another theory of recovery for the government's seizure of property in violation of the Fourth Amendment. The right to be vindicated is the right to be free from unreasonable seizures of property and, consistent with the rationale of Manuel I, it is in the Fourth Amendment rather than the Fourteenth Amendment that the claim should be grounded.

In Count IV, the plaintiffs also invoke the Fourteenth Amendment as ground for a claim based on their unlawful eviction from the Residence on January 26, 2015. The AC alleges that the defendants conspired to, and did, deprive "Plaintiffs of their lawful Residence and personal property without a Court order with notice to the Plaintiffs, a hearing, or any other process that Plaintiffs would otherwise been afforded by law when being evicted from a residence. . . ." AC ¶ 91. That sounds like a seizure of the residence, or a seizure of Lattimore,5 and as such would be actionable, if at all, under the Fourth Amendment. Circuit law is clear, however, that the failure of state actors to comply with the state eviction procedures does not, in itself, violate the Fourth Amendment. See, e.g., Hurem v. Tavares, 793 F.3d 742, 746-47 (7th Cir 2015) (the remedy for a violation of state law that imposes requirements beyond those of the Fourth Amendment lies in state court); Gordon v. Degelmann, 29 F.3d 295, 301 (7th Cir. 1994) ("failure to afford a hearing required by state law, but not by the fourth amendment, violates only that state law"). But the defendants do not argue that a wrongful eviction under state law cannot give rise to a constitutional claim for deprivation of due process, however, so there is no need for this Court to consider whether in this context the Due Process Clause provides an alternative to a Fourth Amendment claim.

There is another problem with the plaintiffs' due process claim, however. As the defendants argue, it is untimely. The putative eviction occurred on January 26, 2015, and as the statute of limitations for § 1983 actions in Illinois is two years, a claim based on the wrongful eviction was time-barred by January 26, 2017. The original complaint was filed in this case on November 30, 2017, some eleven months too late. The plaintiffs contend that their eviction claim did not accrue until their rights to exclusive possession of the Residence were restored in state court in April 2016 as the result of a civil proceeding, but that date is, as the defendants observe, irrelevant. A § 1983 claim generally accrues "when the plaintiff knows or has reason to know of the injury that is the basis of his action." Wallace v. Kato, 549 U.S. 384, 391 (2007) ("Under the traditional rule of accrual . . . the tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages. The cause of action accrues even though the full extent of the injury is not then known or predictable.") (quoting 1 C. CORMAN, LIMITATION OF ACTIONS § 7.4.1, pp. 526-527 (1991) (footnote omitted)). That was, as the defendants assert, the day of the putative eviction; at that point, the plaintiffs knew that they were being deprived of their right to remain in the Residence and so knew that they were being injured by the conduct of the responsible defendants. The acts giving rise to the eviction claim were complete as of that date (or perhaps by the time that the plaintiffs were released from custody a few weeks later, if the basis of the unlawful eviction claim is the Fourth Amendment); that the injury arising from the allegedly unlawful eviction continued does not toll the limitations period. McCormick v. Indep. Life & Annuity Co., 794 F.3d 817, 820 (7th Cir. 2015) ("[O]ngoing injury . . . differs from a new claim. New injury from an old wrong does not affect the period of limitations.").

The plaintiffs invoke the claim accrual rule of Heck v. Humphrey, 512 U.S. 477 (1992), in hopes of preserving the timeliness of their claim. That rule holds that a § 1983 claim that would imply the invalidity of a criminal conviction "does not accrue until the conviction or sentence has been invalidated." Id. at 489-90. Heck rested on the common law precept "that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Id. at 486 (emphasis added). The plaintiffs do not argue that prevailing on their § 1983 claim for unlawful eviction would have undermined a conviction in their criminal cases (neither was convicted), but rather that it could have been inconsistent with the state court judgment in a civil proceeding they pursued to regain exclusive possession of the Residence. They cite no authority for extending the domain of the Heck accrual rule to civil litigation, however, and the Court is aware of none. Further, and in any event, a conviction on the home invasion and weapons charges would not necessarily be inconsistent with Lattimore's claim that he was arrested on January 26, 2015 without probable cause. See, e.g., Wallace v. Kato, 549 U.S. 384, 393-94 (2007); Manuel II, 903 F.3d at 669) (pre-custody events like arrest can be litigated without awaiting vindication on criminal charges "because they do not deny the validity of any ensuing custody"). Accordingly, even if the Heck accrual rule could apply in the context of a § 1983 claim that would imply the invalidity of a state court civil judgment, it would not apply here. The plaintiffs' unlawful eviction claim is time-barred.

To sum up, then, it appears that all of the plaintiffs' claims are time-barred, but the defendants have forfeited, on this motion, a limitations argument as to the claims asserted in Count I. As to those claims:

The dismissal of the time-barred claims is with prejudice. Ordinarily, the Court would be inclined to permit further amendment of the surviving claims to the extent that additional evidence pertaining to the involvement of other Officers may be obtained in discovery. In this case, however, further amendment may be futile because even the surviving claims appear to be time-barred. A status hearing will be held on March 20, 2019 at 9:00 a.m. to discuss this issue further.