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DUFOUR-DOWELL v. COGGER

June 26, 1997

MARCIA DUFOUR-DOWELL, et al., Plaintiffs,
v.
STEPHEN W. COGGER, et al., Defendants.



The opinion of the court was delivered by: HART

 The plaintiffs in this case are Marcia DuFour-Dowell, her husband Paul Dowell, and other relatives of these two plaintiffs who were all minors at the time this case was filed. *fn1" Plaintiffs Yvonne DuFour and John DuFour are children of DuFour-Dowell. Plaintiff Paulette Dowell is the daughter of DuFour-Dowell and Dowell. Plaintiff Ian Kirk is the nephew of DuFour-Dowell. Named as defendants in this case were Stephen Cogger and Robert O'Malley, Village of Hinsdale police officers. *fn2" The village of Hinsdale was also named as a defendant. Rick Morgan, a DuPage County deputy sheriff, was named as a defendant in his individual and official capacities. The County of DuPage was also named as a defendant. The claims against O'Malley and the County of DuPage were subsequently dismissed. Plaintiff presently seeks to amend his complaint to add DuPage County Sheriff Richard Doria in his individual and official capacities. *fn3" The amendment would also update matters in that Yvonne and Ian are now of age and may each bring claims in her or his own name.

 The allegations of plaintiffs' complaints center around an incident that occurred on August 19, 1994. That incident was precipitated by an occurrence on August 11, 1994. On August 11, 1994, outside plaintiffs' home in Hinsdale, Cogger attempted to arrest Yvonne and Ian for curfew violations. DuFour-Dowell instructed Yvonne and Ian to go inside the house. Cogger had issued a citation to another person who had been in a car with Yvonne and Ian, but left without arresting or citing Yvonne or Ian. Cogger, however, did subsequently swear out a complaint against DuFour-Dowell for committing the misdemeanor of obstructing a police officer in violation of 720 ILCS 5/31-1.

 Approximately 12:30 a.m. on August 19, Cogger and Morgan arrived at DuFour-Dowell's residence to attempt to serve the arrest warrant that had been issued. No attempt was made to serve the warrant earlier in the day or to inquire as to whether DuFour-Dowell would voluntarily surrender at the police station. Plaintiffs claim that excessive force was employed in arresting DuFour-Dowell. It is also claimed that Yvonne and Paulette were assaulted by Morgan. Dowell's, John's, and Ian's claims are based on witnessing the assaults upon the other plaintiffs. It is also claimed that Yvonne was temporarily restrained. Only DuFour-Dowell was formally arrested. In addition to the obstruction charge based on the August 11 incident, DuFour-Dowell was charged with committing battery and resisting a police officer during the August 19 incident. The obstruction charge was subsequently dismissed and DuFour-Dowell was found not guilty of battery. She was found guilty of resisting arrest.

 Presently pending are plaintiffs' motion to amend their complaint and defendants' motions for summary judgment. Also pending are various motions to supplement, amend, or strike briefs or supporting pleadings. *fn4" The motion to amend will be considered first.

 Discovery in this case was to close on May 11, 1996. However, due to numerous discovery disputes that continued beyond that date, discovery was not substantially completed until September 1996, with some discovery also occurring in October. On September 11, 1996, submission of the final pretrial order was set for October 17, 1996. On October 3, the pretrial order submission date was reset to October 24. The parties were informed the pretrial order requirement would be postponed if either side filed a fully supported summary judgment motion by the deadline for the pretrial order. On October 24, defendants presented their motions for summary judgment and plaintiffs moved to amend their complaint.

 The proposed amended complaint drops certain counts and clarifies the nature of other counts, particularly in clarifying against whom particular claims are made. It adds some additional factual allegations, but does not change the nature of the claims. The only substantive addition appears to be the adding of Doria as a defendant in his individual capacity. The claims against Doria in his individual capacity, however, are based on his personal participation in promulgating official policy or custom. Since that was already an issue as to the official capacity claim against Morgan, adding Doria as a defendant would not require additional discovery. Moreover, to any extent that Doria's personal participation in the formation of policy was not adequately investigated in discovery, it is plaintiffs who are without information; Doria does not need discovery into his own conduct. No meritorious basis is shown for denying leave to amend based on undue prejudice to any defendant. The only issue is whether adding a claim against Doria in October 1996, more than two years after the underlying incidents, is beyond the statute of limitations and therefore a futile gesture. The claims against Doria are pursuant to 42 U.S.C. § 1983, which has a two-year statute of limitations. Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir. 1996), cert. denied, 136 L. Ed. 2d 840, 117 S. Ct. 952 (1997). Plaintiffs contend the claims against Doria relate back to the filing of the original complaint. *fn5" See Fed. R. Civ. P. 15(c).

 The original complaint named Morgan in his official capacity, which is a claim against the DuPage County Sheriff in his official capacity. Therefore, Doria was in this case from the beginning and he does not dispute that he had notice of the suit from the beginning. The only question is whether adding claims against Doria in his individual capacity relate back. The Seventh Circuit has held that substituting for or adding to official capacity claims with individual capacity claims may relate back. See Woods v. Indiana University-Purdue University at Indianapolis, 996 F.2d 880 (7th Cir. 1993); Hill v. Shelander, 924 F.2d 1370 (7th Cir. 1991). See also Kirk v. Cronvich, 629 F.2d 404 (5th Cir. 1980) (cited favorably in Woods & Hill); Household Commercial Financial Services, Inc. v. Trump, 863 F. Supp. 735, 741-42 (N.D. Ill. 1994). This rule may be applied even when the original complaint contained only official capacity claims and misnamed the government entity. See Kirk, supra. See also Woods, 996 F.2d at 888 n.12. Here, Doria had adequate notice of the suit and was not in any way prejudiced by the earlier misnomer. Leave to file the amended complaint will be granted. *fn6"

 The counts of the amended complaint are labeled as follows. (I) DuFour-Dowell's § 1983 claim against Cogger and Morgan *fn7" for false arrest and excessive force. (II) DuFour-Dowell's § 1983 claim against Cogger for malicious prosecution of the obstructing a police officer charge. (III) DuFour-Dowell's § 1983 claim against Morgan for malicious prosecution of the battery charge. (IV) DuFour-Dowell's supplemental state law claim against Cogger and Morgan for false arrest. (V) DuFour-Dowell's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress. (VI) Dowell's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress. (VII) Yvonne's § 1983 claim against Morgan for excessive force. (VIII) Yvonne's supplemental state law claim against Morgan for false imprisonment and false arrest. (IX) Yvonne's supplemental state law claim against Morgan for intentional infliction of emotional distress based on Morgan's alleged battery of her. (X) Yvonne's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress based on witnessing defendants' conduct toward DuFour-Dowell. (XI) John's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress. (XII) Paulette's supplemental state law claim against Morgan for intentional infliction of emotional distress based on Morgan's alleged assault of her. (XIII) Paulette's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress based on witnessing defendants' conduct toward DuFour-Dowell. (XIV) Ian's supplemental state law claim against Cogger and Morgan for intentional infliction of emotional distress. (XV) DuFour-Dowell's supplemental state law claim against Cogger and Morgan for assault and battery. (XVI) Yvonne's supplemental state law claim against Morgan for assault and battery. (XVII) Paulette's supplemental state law claim against Morgan for assault and battery. (XVIII) DuFour-Dowell's § 1983 claim against the Village of Hinsdale based on Cogger's conduct being pursuant to a custom or policy of failing to adequately discipline and train police officers. (XIX) DuFour-Dowell's § 1983 claim against Sheriff Doria in his individual and official capacities based on Morgan's conduct being pursuant to a custom or policy of failing to adequately discipline and train police officers. (XX) Yvonne's § 1983 claim against Sheriff Doria in his individual and official capacities based on Morgan's conduct being pursuant to a custom or policy of failing to adequately discipline and train police officers.

 Before turning to the merits of the summary judgment motions, the various motions to supplement and strike will be addressed. After plaintiffs had answered the motions for summary judgment, defendants Cogger and Hinsdale moved to supplement their Local Rule 12(M) Statement, allegedly to make it more clear as to what facts were undisputed. That, however, would require reopening the briefing and permitting plaintiffs to file a new Rule 12(N) Statement. This motion to supplement [206] will be denied. Defendants were not precluded from responding to plaintiffs' 12(N) Statement either within their reply brief or by filing a separate pleading responding paragraph-by-paragraph to plaintiffs' 12(N) Statement. Construed narrowly, Local Rule 12(M) only provides for a reply to the nonmovant's statement of additional facts, that is, the Local Rule 12(N)(3)(b) Statement. *fn8" However, also replying to the nonmovant's Local Rule 12(N)(3)(a) Statement is certainly well within the spirit of Rules 12(M) and 12(N). Plaintiffs' motions [212 & 213] to strike defendants' replies to the Rule 12(N)(3)(a) Statement will be denied.

 Morgan also moves to supplement his Rule 12(M) Statement [207]. Morgan, however, primarily seeks to correct citations to the record and to specifically incorporate into his Rule 12(M) Statement facts already asserted in his brief and/or in Cogger's and Hinsdale's Rule 12(M) Statement. Morgan does not seek to add any facts for which plaintiffs have not had the opportunity to respond. This motion will be granted. *fn9"

 Defendants also filed motions to supplement the record [220] and supplement their briefs [222]. These motions seek to cite two cases decided after the initial briefing was completed. Those motions will both be granted.

 Last, plaintiffs move to strike parts of defendants, reply briefs [211] on the ground that issues are improperly raised for the first time in the replies. To the extent any arguments are improperly raised for the first time in the replies, no relief will be granted based on any waived arguments. However, briefs will not be stricken. This motion to strike will be granted in part and denied in part.

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Id. at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which she or he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

 
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

 The federal claims will be considered first. Those are DuFour-Dowell's § 1983 claims for false arrest (Count I), excessive force (Count I), and malicious prosecution (Counts II and III); Yvonne's § 1983 claim for excessive force (Count VII); and these same claims as against the respective municipalities and Doria (Counts XVIII through XX).

 DuFour-Dowell contends Cogger and Morgan lacked probable cause to arrest her for obstructing a police officer and battery. She does not dispute that they had probable cause to arrest her for resisting arrest. *fn10" The existence of probable cause is to be determined objectively based on the information known by the arresting officer. Calusinski v. Kruger, 24 F.3d 931, 935 (7th Cir. 1994). "Probable cause need not have existed for the charge for which the plaintiff was arrested, so long as probable cause existed on a closely related charge." Biddle v. Martin, 992 F.2d 673, 676 (7th Cir. 1993). Accord Jones v. Watson, 106 F.3d 774, 780 n.10 (7th Cir. 1997); Richardson v. Bonds, 860 F.2d 1427, 1430-31 (7th Cir. 1988); Nielsen v. Village of Lake in the Hills, 948 F. Supp. 786, 792 n.6 (N.D. Ill. 1996); Fink v. Gonzalez, 911 F. Supp. 332, 336 (N.D. Ill. 1996). DuFour-Dowell was charged with resisting being arrested for the other two charges for which she contends there is no probable cause. The resisting arrest charge clearly is a related charge. The resisting arrest charge was not an ex post facto or novel justification for an otherwise improper arrest; DuFour-Dowell was contemporaneously charged with that offense and ultimately convicted of resisting arrest. See Biddle, 992 F.2d at 676.

 Since defendants had probable cause to arrest DuFour-Dowell on at least one of the charges, it is unnecessary to determine whether there was probable cause for the other two charges. DuFour-Dowell's Count I false arrest claim will be dismissed.

 Next to be considered are DuFour-Dowell's § 1983 malicious prosecution claims. The precise nature of such claims, even whether any such claim is recognized by the law, is still an open question in this circuit. See Reed v. City of Chicago, 77 F.3d 1049, 1051-53 (7th Cir. 1996). Fortunately, resolution of the § 1983 malicious prosecution claims in this case do not require resolving the full parameters of such claims.

 Defendants also contend that probable cause for the resisting arrest charge defeats the malicious prosecution claims. It is certainly clear that probable cause to arrest a person is an absolute bar to a § 1983 malicious prosecution claim based on the same offense. See Fernandez v. Perez, 937 F.2d 368, 371 (7th Cir. 1991). In Biddle, it was held that probable cause existed for two of three charges and that it was therefore unnecessary, for false arrest purposes, to consider whether probable cause existed to arrest Biddle for the third offense. Biddle, 992 F.2d at 677. As to malicious prosecution, the Seventh Circuit held, with little discussion, that the existence of probable cause was an absolute bar to that claim. Biddle, 992 F.2d at 678. As to malicious prosecution, the Seventh Circuit did not expressly address whether the finding of probable cause on the two related charges was sufficient for the third charge. Biddle, however, has been read as having an implicit holding to that effect. Brindisi v. Village of Fox Lake, 1994 U.S. Dist. LEXIS 8101, 1994 WL 270285 *3 (N.D. Ill. June 16, 1994). Unlike, Biddle and Brindisi, the three charges against DuFour-Dowell were presented in separate complaints *fn11" and the obstruction charge was prosecuted separately from the other two charges. Unlike DuFour-Dowell's arrest, which would have occurred even absent probable cause for the charges other than resisting arrest, it would have been improper to proceed with the obstruction and battery charges absent probable cause to believe DuFour-Dowell committed those offenses. It is, however, unnecessary to determine if the present case is distinguishable from Biddle and Brindisi.

 Even assuming probable cause was lacking for the obstruction and resisting arrest charges and that plaintiff can therefore overcome the hurdle of there having been probable cause to arrest her on another ground (resisting arrest), the § 1983 malicious prosecution claim fails for a related reason. As plaintiff concedes, to the extent a federal malicious prosecution claim is viable, it requires proof of a deprivation of liberty. Smart v. Board of Trustees of University of Illinois, 34 F.3d 432, 434 (7th Cir. 1994), cert. denied, 513 U.S. 1129, 130 L. Ed. 2d 885, 115 S. Ct. 941 (1995). Compare also Albright v. Oliver, 975 F.2d 343, 347 (7th Cir. 1992), aff'd on other grounds, 510 U.S. 266, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994); Spiegel v. Rabinowitz, 924 F. Supp. 883, 887 n.4 (N.D. Ill. 1996), aff'd by unpublished order, 116 F.3d 1483 (7th Cir. 1997); Dylak v. Wirth, 1994 WL 273420 *6 n.6 (N.D. Ill. June 15, 1994); Cruz v. Stasinopoulos, 843 F. Supp. 435, 436-37 (N.D. Ill. 1994). Plaintiff contends her liberty was deprived in that she was arrested and transported to the DuPage County Jail where she was booked and bonded out. See Pl. Memo. in Opposition to Summary Judgment [194] at 10, 12-13. However, since she was also arrested for resisting arrest, the arrest and transportation would have occurred regardless of the additional two charges. Therefore, being charged with battery and obstruction cannot be considered a cause of any ...


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