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March 14, 1995

WILLIAM BRESNAHAN, #20337, PATRICK MCDONALD, #29335 and JAMES RILEY, #20250, Defendants.

The opinion of the court was delivered by: RUBEN CASTILLO

 On November 25, 1992, Plaintiff filed his original pro se complaint. At the time of plaintiff's filing, the instant lawsuit was assigned to Judge Holderman. Plaintiff's original complaint, brought under 42 U.S.C. § 1983 related to his arrest on August 18, 1992 for the aggravated criminal sexual assault of Ms. Diane Wooten. As a result of this assault, Ms. Wooten apparently jumped from a second floor window and suffered two broken arms. On September 8, 1992, a Cook County Grand Jury indicted the plaintiff.

 On August 5, 1993 a jury of the Circuit Court of Cook County, Illinois, found plaintiff guilty of aggravated criminal sexual assault. On September 7, 1993, Circuit Court of Cook County Judge William Hibbler sentenced plaintiff to fifty years imprisonment at the Illinois Department of Corrections.

 On September 21, 1993, pursuant to a previous order entered by Judge Holderman, the defendants filed a motion for partial summary judgment on plaintiff's false arrest claim. On November 22, 1993, plaintiff filed a response but failed to serve defendants with a copy of this pleading. Thereafter, this Court allowed the plaintiff to file an amended complaint on August 15, 1994. *fn1"

 Plaintiff's amended complaint contains essentially the same three allegations as his original complaint as well as the additional new claims of malicious prosecution and denial of counsel. Plaintiff brings his cause of action under 42 U.S.C. § 1983 for alleged violations of his rights under the Fourth, Sixth and Fourteenth Amendments to the United States Constitution. Plaintiff claims that his arrest on August 18, 1992, and subsequent prosecution and conviction for aggravated criminal sexual assault were unlawful because defendants did not have a warrant for his arrest. Additionally, plaintiff claims that defendants denied him his right to counsel, that defendant Riley lied to the Grand Jury and that defendants conducted an unlawful search of his residence.

 Before this Court is the defendants' supplemental motion for summary judgment which was filed on October 5, 1994. Defendants seek summary judgment on all of plaintiff's amended claims.


 Federal Rule 56(c) Summary Judgment is appropriate when there remains no genuine issue of material fact upon which a reasonable jury could find in favor of the non-moving party, or the moving party is entitled to judgment as a matter of law. "One of the principle purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 322-27, 106 S. Ct. 2548, 2552-55, 91 L. Ed. 2d 265 (1986). Thus, although the moving party on a motion for summary judgment is responsible for demonstrating to the Court why there is no genuine issue of material fact, the non-moving party must go beyond the face of the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file, to demonstrate through specific evidence, that there remains a genuine issue of material fact and show that a rational jury could return a verdict in the non-moving party's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-27, 106 S. Ct. 2548, 2552-55, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986); Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986). Consequently, the inquiry on summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury, or whether the evidence is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52. Disputed facts are material when they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). A metaphysical doubt will not suffice. Matsushita, 475 U.S. at 586. Nonetheless, the Court must view all inferences to be drawn from the facts in the light most favorable to the opposing party. Anderson. 477 U.S. at 247-48; Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). If the evidence is merely colorable, or is not significantly probative, or is no more than a scintilla, summary judgment may be granted. 477 U.S. at 249-250.


 Plaintiff claims that his arrest by defendants was unlawful because they did not possess a warrant for his arrest. There is no question that police officers who have probable cause to believe that an individual committed a crime can arrest an individual without a warrant. If probable cause exists for an arrest, that probable cause serves as an absolute bar to a Section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution. Schertz v. Waupaca County, et al., 875 F.2d 578, 582 (7th Cir. 1989). In this case, plaintiff was arrested by defendants pursuant to both the oral and written statements of Ms. Diane Wooten. Ms. Wooten's complaint provided the probable cause for the defendant's arrest. These statements constituted reasonably trustworthy information sufficient to warrant a prudent person in believing that the plaintiff had committed the offense he was arrested for. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1246 (7th Cir.), cert. denied, 130 L. Ed. 2d 882, 115 S. Ct. 937 (1994); Hughes v Meyer, 880 F.2d 967, 969 (7th Cir. 1989), cert. denied, 495 U.S. 931, 110 S. Ct. 2172, 109 L. Ed. 2d 501 (1990). Because probable cause existed for plaintiff's arrest, plaintiff is barred from bringing a Section 1983 claim against defendants for false arrest. *fn2"

 Moreover, the fact that the plaintiff was convicted in the underlying criminal trial precludes his ability to bring a federal or state law claim for malicious prosecution. Heck v. Humphrey, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994). In Heck, the Supreme court changed the law governing prisoners' civil rights cases and required that a prisoner who charges that his conviction was procured by unconstitutional conduct establish as a threshold matter that his conviction has been invalidated, either on direct appeal, in a habeas corpus proceeding, or otherwise. See Bell v. Peters, 33 F.3d 18, 19 (7th Cir. 1994). See also Hajawii v. Venture Stores, Inc., 125 Ill. App. 3d 22, 80 Ill. Dec. 461, 465 N.E.2d 573 (1st Dist. 1984); Joiner v. Benton Community Bank, 82 Ill. 2d 40, 44 Ill. Dec. 260, 411 N.E.2d 229, 232 (1980). This aspect of the favorable termination requirement reflects the "principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Heck, 114 S. Ct. at 2372.

 Plaintiff's amended complaint purports to add a claim against defendants for the denial of plaintiff's sixth amendment right to counsel. Plaintiff alleges that following his arrest on August 18, 1992, he "...was takeing[sic] to a interviewing room and handcuffed to a wall, petitioner ask for a telephone call for representation of counsel and was refuse by police officer..." (Plaintiff's Amended Complaint, p. 4B attached Exhibit B).

 The United States Supreme Court has repeatedly held that the sixth amendment right to counsel attaches only after the initiation of formal charges. See Moran v. Burbine, 475 U.S. 412, 431, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986) (citing Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972) and United States v. Gouveia, 467 U.S. 180, 187, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984) for said proposition.) In United States v. Craig, 573 F.2d 455, 475 (7th Cir. 1977) cert. denied, 439 U.S. 820, 99 S. Ct. 82, 99 S. Ct. 83, 58 L. Ed. 2d 110 (1978), the Seventh Circuit adhered to Kirby and held that the sixth amendment right to counsel attaches once an adversarial judicial proceeding has commenced against a defendant. The court found that the right to counsel attached only to those "critical stages of the government's prosecution. Id. at 475 n. 14; see also United States v. Jackson, 886 F.2d 838, 843 (7th Cir. 1989) (finding that the sixth amendment right to counsel is triggered by initiation of adversarial proceedings but applies ...

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