United States District Court, Northern District of Illinois, Eastern Division
March 30, 2001
DAVID PENN, PLAINTIFF,
CHICAGO STATE UNIVERSITY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Leinenweber, District Judge
MEMORANDUM OPINION AND ORDER
David Penn was arrested and allegedly beaten by Chicago State
University police. He is suing Chicago State University ("Chicago
State"), Veronica Harris, Melvin Jones, Wendell Mack, and unknown
supervisors (the "officers") under
28 U.S.C. § 1983 and 1988 for
violating his Fourth, Fifth, and Eighth Amendment rights, malicious
prosecution, and false arrest. Before the Court is Mack's Rule 12(b)(6)
motion to dismiss all of Penn's claims against him and Harris and Jones'
motion for summary judgment on Counts V (conspiracy) and XIV (false
arrest and malicious prosecution).
During the fall semester of 1998, Penn was a full-time student
at Chicago State. In the early morning hours of December 10, 1998, a
fire alarm sounded in Penn's dormitory, which was evacuated. Officers
Harris, Jones, and Mack were employed as Campus Police Officers on
December 10, 1998, and assisted in the dormitory's evacuation. The fire
alarm proved to be a false one, but the students remained outside for
about forty-five minutes. Seeing no reason to continue standing in the
cold with little clothing, the students became agitated and sought
readmittance to the dormitory. The crowd of almost 300 students grew
angry, and Penn and others began yelling and beating on the windows.
Harris motioned for Penn to come inside. Once he was inside, the
officers allegedly beat and kicked him. The officers arrested
Penn and charged him with battery against Harris. Penn was held for
several hours and released on a personal recognizance bond. Penn's
battery charge was later stricken with leave to reinstate.
The officers contend that Penn was engaging in disorderly conduct by
inciting the crowd outside. They brought Penn inside to separate him
from the others and allegedly had probable cause to arrest him for
disorderly conduct. Arguing that the disputed events occurring inside
the dormitory are irrelevant for summary judgment purposes, the officers
do not articulate their version of the events once Penn was inside the
Penn contends that he was not acting differently than the rest of the
crowd and that he was not inciting anyone to violence. Feeling
cold, sick, and suffering from asthma, Penn yelled and pounded on the
windows to get the attention of those inside. Once inside, Penn
maintains that the officers began beating him for no reason and concocted
a reason for his arrest after his unprovoked beating. Penn also
maintains that Harris failed properly to fill out the police report
detailing his arrest.
MACK'S MOTION TO DISMISS
In considering defendant Mack's motion to dismiss, the Court "must
accept as true all well-pleaded factual allegations and draw reasonable
inferences in favor of the plaintiff." Capitol Leasing Co. v. FDIC,
999 F.2d 188, 191 (7th Cir. 1993).
Defendant Mack seeks dismissal of all counts directed at him, arguing
that the statute of limitations bars all such claims. Mack states
that the statute of limitations is two years for all claims against him,
which arise from the events of December 10, 1998. Penn did not name Mack
as a defendant until December 17, 2000, when Penn filed his second
amended complaint. As a result, Mack asserts that Penn's claims against
him are barred.
The two-year statute of limitations for personal injury claims applies
to Penn's § 1983 and Illinois state claims against Mack. 735
ILCS 5/13-202. Manley v. City of Chicago, 236 F.3d 392, 395 (7th Cir.
2001). All of Penn's claims against Mack, with the exception of the
malicious prosecution claim, accrued on December 10, 1998. Mack was
not identified as a defendant until Penn filed his second amended
complaint on December 19, 2000. Unless Penn's second amended complaint
relates back to the original complaint filed December 12, 1999, Penn's
claims against Mack are barred.
Federal Rule of Civil Procedure 15(c) allows an amendment to the
pleadings to relate back to the date of the original pleading
(1) relation back is permitted by the law that
provides the statutes of limitations applicable to the
action, or (2) the claim asserted in the amended
complaint arose out of the conduct, transaction or
occurrence set forth in the original pleading, or (3)
the amendment changes the party or the naming of the
party against whom a claim is asserted if the
foregoing provision (2) is satisfied and, of the
summons and complaint, the party to be brought in by
amendment (A) has received such notice of the
institution of the action that the party will not be
prejudiced in maintaining a defense on the merits, and
(B) knew or should have known that, but for a mistake
concerning the identity of the proper party, the
action would have been brought against the party.
FED.R.CIV.P. 15(c). The Seventh Circuit has interpreted Rule 15(c)(3)
to permit an amendment to relate back to the original complaint only
where an error was made concerning the identity of the proper party and
where that party is chargeable with knowledge of the mistake. King
v. One Unknown Federal Correction Officer, 201 F.3d 910, 914 (7th
Cir. 2000) (citations omitted).
When plaintiffs fail to sue the correct party because they lack
knowledge of the identity of the proper party, they fail to satisfy the
requirements of Rule 15(c) and an amendment naming the correct party
does not relate back to the filing of the original complaint. Id.
Such is the case here. Penn did not mistakenly sue the wrong party; he
simply did not know the identity of the correct party. His second
amended complaint cannot cure this discrepancy, and therefore all of
Penn's claims directed at Mack, except the malicious prosecution claim,
are dismissed for failure to state a claim.
Penn's claim for malicious prosecution, on the other hand, would not
have accrued until the charges were dismissed. The Court takes
judicial notice that the criminal charge against Mack was stricken
with leave to reinstate on March 29, 1999.
Henson v. CSC Credit Services, 29 F.3d 280
, 284 (7th Cir. 1994) (A
court may take judicial notice of matters of public record.). Thus, the
statute of limitations does not bar Penn's malicious prosecution claim
directed at Mack.
Before analyzing Mack's motion to dismiss the malicious prosecution
claim, however, the Court notes that Penn did not specifically respond to
the motion to dismiss. The motion to dismiss was filed at the same time
as the motion for summary judgment, to which Penn did respond. It is
unclear whether Penn's response was directed solely to the summary
judgment motion or to both the summary judgment motion and the motion to
dismiss. It is unclear whether Penn had no objection to dismissing the
claims against Mack entirely, or wished to resolve the motion to
dismiss as a motion for summary judgment.
Nevertheless, the Court will consider the malicious prosecution
claim directed at Mack with the malicious prosecution claims addressed
below in the motion for summary judgment. A district court may
consider a claim for summary judgment even though neither party has moved
for it. Eliasen v. Itel Corporation, 82 F.3d 731, 738 (7th Cir. 1996).
Although the court must not do so without giving the party against whom
the court proposes to enter summary judgment notice of what is in store
for that party, id., this is not a problem here. The malicious
prosecution claims at issue rest upon the identical factual predicate and
legal arguments, which
Penn has laid out in full in his response to the summary judgment motion.
HARRIS AND JONES' MOTION FOR SUMMARY JUDGMENT
Summary judgment is proper when "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED.R.CIV.P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine
issue of material fact exists, the Court construes all facts in the light
most favorable to the non-moving party and draws all reasonable and
justifiable inferences in favor of that party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). "Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge, whether he is ruling
on a motion for summary judgment or for a directed verdict." Freeman v.
Madison Metropolitan School District, 231 F.3d 374, 379 (7th Cir. 2000),
quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
Malicious Prosecution and False Arrest Claims
To proceed under his malicious prosecution claim under § 1983, Penn
must establish that (1) he has satisfied the Illinois' requirements
for a state law malicious prosecution claim; (2) the malicious
prosecution was committed by state actors; and (3) he was deprived of
liberty. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996).
"To state a claim for malicious prosecution under Illinois law, a
plaintiff must allege that: (1) he was subjected to judicial
proceedings; (2) for which there was no probable cause; (3) the
defendants instituted or continued the proceedings maliciously; (4) the
proceedings were terminated in his favor; and (5) there was an injury."
Id. (citation omitted).
The officers maintain that Penn cannot satisfy the fourth prong of a
state malicious prosecution claim requiring that he prove the charges
were terminated in his favor. On March 29, 1999, the battery charge
against Penn was stricken with leave to reinstate ("SOL"). Courts in this
district disagree whether the SOL order of criminal charges
constitutes a favorable termination of the case for purposes of a
malicious prosecution claim. Compare David v. Village of Oak Lawn,
954 F. Supp. 1241, 1244 (N.D.Ill. 1996) with Devine v. Rubel, No. 96 C
7619, 1997 WL 392170 (N.D.Ill. 1997). This Court need not enter the
debate on whether the SOL disposition constitutes a favorable termination
of Penn's charge, however, as Penn cannot establish that the officers
lacked probable cause for his arrest.
The existence of probable cause for Penn's arrest is a
complete defense to Penn's false arrest and malicious prosecution
actions under both Illinois and federal law. Schertz v. Waupaca
County, 875 F.2d 578, 582 (7th Cir. 1989); Burghardt v. Remiyac,
207 Ill. App.3d 402, 565 N.E.2d 1049, 1052 (1991). The determination of
probable cause is a mixed question of law and fact. Ornelas v. United
States, 517 U.S. 690, 696, 116 S.Ct. 1657, (1996); Cervantes v. Jones,
188 F.3d 805, 811 (7th Cir. 1999). But when facts sufficient to create
probable cause are undisputed, probable cause is a question of law.
Cervantes, 188 F.3d at 811; People v. Cooke, 299 Ill. App.3d 273,
701 N.E.2d 526, 529 (1998). Of course, a dispute concerning some facts
relevant to the probable cause analysis does not preclude a finding of
probable cause so long as the finding
survives after adopting the
plaintiff's version of the disputed facts for which there is some support
in the record. Cervantes, 188 F.3d at 811. Probable cause means "the
existence of such facts and circumstances as would excite the
belief, in a reasonable mind, acting on the facts within the knowledge
of the prosecutor, that the person charged was guilty of the crime for
which he was prosecuted." Id. (citation omitted); see Frye v. O'Neill,
166 Ill. App.3d 963, 520 N.E.2d 1233, 1241 (1988). This analysis is
based on "`factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.'" Humphrey v.
Staszak, 148 F.3d 719, 726 (7th Cir. 1998) (quoting Brinegar v. United
States, 338 U.S. 160, 175, 69 S.Ct. 1302 (1949)). Importantly, the
official's subjective belief as to the legal basis of the prosecution is
irrelevant; the test for probable cause is an objective one.
Graham v. Connor, 490 U.S. 386, 398, 109 S.Ct. 1865 (1989) ("The Fourth
Amendment inquiry is one of `objective reasonableness' under the
circumstances . . . ."); Potts v. City of Lafayette, 121 F.3d 1106, 1113
(7th Cir. 1997); Sheik-Abdi v. McClellan, 37 F.3d 1240, 1247 (7th Cir.
Illinois law provides that a person commits disorderly conduct
when he "[d]oes any act in such unreasonable manner as to alarm or
disturb another and to provoke a breach of the peace . . . ."
720 ILCS 5/26-1. "Disorderly conduct has never had a precise
definition; the types of conduct that may be disorderly conduct `almost
defy definition.'" Biddle v. Martin, 992 F.2d 673, 677 (7th Cir. 1993)
(citations omitted). Whether particular conduct is disorderly therefore
depends not only on the conduct itself but also on the conduct's
unreasonableness in relation to the surrounding circumstances. Id.
Three elements are required: the defendant's conduct must (a) be
unreasonable, (b) disturb or alarm another, and (c) threaten to provoke
or provoke a breach of the peace. Id.
Although arguing with a police officer may not by itself be a
violation, other circumstances may lead to the conclusion that an
individual's behavior does constitute disorderly conduct. Id.
"[T]he reasonableness of a person's behavior is necessarily tied to the
facts and circumstances of the situation in which he or she is placed[,
and]. . . an officer on the job need not have proof beyond a reasonable
doubt in order to make an arrest." Id. (citation omitted).
Penn does not dispute that he was standing outside with 300 hundred
other students who were increasingly angry that they were being
kept outside in the cold. He does not dispute that he began banging
on the windows and yelling at the officers inside the building. Penn
argues that he and the crowd had a legitimate reason to be upset about
being kept outside in the cold. He states that others were yelling and
banging on the windows as well. He also argues that he was not inciting
the crowd. Even if these facts are accepted as true, they do not negate
Penn's individual actions. The undisputed facts establish that the
officers had a sufficient basis for probable cause to arrest Penn for
Penn asserts that the officers did not have probable cause for his
arrest. Although he was charged with battery, the officers maintain that
probable cause existed that Penn was engaging in disorderly conduct.
Proof of probable cause to arrest Penn on a charge closely related to
charge upon which he was ultimately prosecuted is sufficient to defeat
his malicious prosecution and false arrest claims. Kelley v. Myler,
149 F.3d 641, 647-48 (7th Cir. 1998). Penn argues that battery is not
related to disorderly conduct because disorderly conduct is
not a lesser included offense of battery. Penn misinterprets the law
on this point, however. Disorderly conduct need not be a lesser included
offense of battery for the charges to be closely related for purposes
of determining whether probable cause existed. Id. (finding that
criminal trespass and resisting a law enforcement officer sufficiently
In this case, the officers motioned for Penn to come inside because of
his behavior outside the dormitory. The events inside the dormitory
remain disputed, but they were set in motion by Penn's undisputed
behavior outside. Given the circumstances, the two charges are
sufficiently related for purposes of determining whether probable cause
existed for his arrest.
Even if probable cause did not actually exist for Penn's arrest,
qualified immunity may shield the officers from liability if
reasonable officers would have believed that probable cause existed to
arrest Penn. Id. at 648. In determining whether qualified
immunity applies, this court considers: "(1) whether the plaintiff has
asserted a violation of a federal constitutional right, and (2)
whether the constitutional standards implicated were clearly established
at the time in question." Eversole v. Steele, 59 F.3d 710, 717 (7th
Cir. 1995). Although qualified immunity is a defense to a § 1983
suit, the burden of meeting the elements of this two-part test rests on
the plaintiff. See Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir.
Because qualified immunity protects all "but the plainly incompetent
or those who knowingly violate the law," a law enforcement officer
will be immune to claims based on an arrest without probable cause unless
"it is obvious that no reasonably competent officer" would have believed
that there was probable cause to arrest. Malley v. Briggs, 475 U.S. 335,
341, 106 S.Ct. 1092 (1986). Thus, qualified immunity applies to
officials who correctly determine that probable cause to arrest exists
and to those who reasonably but mistakenly conclude that it does.
Spiegel, 196 F.3d at 723. In this context, the law tolerates reasonable
error because officials should not err always on the side of caution
because they fear being sued. Id. (internal quotation marks and citation
omitted). Their actions will be cloaked with qualified immunity even if
the arrestee is later found innocent. Jenkins v. Keating, 147 F.3d 577,
585 (7th Cir. 1998). Thus, the reviewing court should ask whether an
official "acted reasonably under settled law in the circumstances."
Humphrey, 148 F.3d at 725 (7th Cir. 1998).
Penn's right to be free from arrest without probable cause was clearly
established at the time he was arrested. Moreover, the officers faced a
crowd of 300, growing angrier by the minute, and confronted individuals
yelling and pounding on the windows. As discussed above, these officers
could reasonably believe that Penn's behavior constituted probable
cause to arrest him for disorderly conduct, entitling them to qualified
Penn also fails to demonstrate that he suffered an unconstitutional
deprivation of liberty. To succeed on his malicious prosecution
claim, Penn must show that he suffered incarceration or some
other palpable injury. Spiegel v. Rabinovitz, 121 F.3d 251, 255 (7th
Cir. 1997). His incarceration immediately following arrest is not
enough, however. "An arrest and incarceration until an accused can post
bail does not constitute a sufficient constitutional deprivation of
liberty to meet the deprivation of liberty element of a malicious
prosecution claim." See Mizwicki v. City of Naperville, No. 96 C 5508,
1999 WL 413501 *11 (N.D.Ill. 1999). See also
Sneed v. Rybicki,
146 F.3d 478, 481 (7th Cir. 1998) ("A plaintiff who alleges only that he
was arrested and detained without probable cause has only pled false
Penn argues that he suffered physical injuries from the officers'
actions while subduing him. He further alleges that he suffered mentally
and had to see a psychologist as a result. Any physical injuries suffered
by Penn, however, are related to his excessive force claim, and did not
result from the criminal prosecution. Penn also fails to cite any
authority in support of his proposition that psychological treatment for
depression resulting from a malicious prosecution constitutes a
constitutional deprivation of liberty. In any event, it is difficult
to conceive of voluntary psychological treatment as a deprivation of
liberty in any sense, and certainly not a deprivation of
Penn alleges in Count V of his complaint that the officers conspired to
violate his civil rights. The officers point out that Penn further
alleges in the complaint that the officers conspired to violate Penn's
statutory rights in violation of § 1983. The officers argue that
Penn has not identified any statutory rights violated by the
officers other than § 1983 itself. Section 1983 is not a source of
substantive rights, they assert, and therefore cannot serve as a basis
for Penn's conspiracy claim. Penn's response, however, makes clear that
he is alleging that the officers conspired to batter him and to accuse
him falsely of battering a police officer.
To state a claim under 42 U.S.C. § 1983 for conspiracy, Penn must
allege "that the defendants directed themselves toward an
unconstitutional action by virtue of a mutual understanding" and must
support this with allegations of a "meeting of the minds." Kunik v.
Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991). Unlike other types
of claims, conspiracy is subject to a heightened pleading standard;
the plaintiff must allege facts in support of the cause of action.
However, Penn need only plead "sufficient facts from which a conspiracy
may be inferred; the facts detailing the conspiratorial agreement
can be pleaded generally, while those facts documenting the overt acts
must be pleaded specifically." Quinones v. Szorc, 771 F.2d 289, 290 (7th
Cir. 1985). Nonetheless, a plaintiff must also allege that he has
suffered an injury over and above the underlying torts at issue. See
Mendez v. Franklin Park Police Officers, No. 98 C 2694, 1999 WL 202907 *4
In Niehus v. Liberio, 973 F.2d 526, 530-32 (7th Cir. 1992), the court
upheld the trial courts' withdrawal from the jury of conspiracy and
malicious prosecution counts in a § 1983 action alleging excessive
force by police officers because plaintiff had failed adequately to
allege he suffered injury. Plaintiff, who was arrested for drunken
driving, alleged that police officers attempted to deprive him of
his civil rights by conspiring to suppress at trial evidence of mug
shots, taped interviews, and eyewitness testimony in order to cover up
the physical brutality he suffered during his arrest. The court
observed that plaintiff did not allege that the conspiracy and malicious
prosecution inflicted any injury beyond that of the excessive force
itself. Id. at 531. Absent injury there is no tort, concluded the
court, "and this is true of constitutional as of ordinary torts." Id. at
"A party may not cry `conspiracy' and throw himself on the jury's
mercy." Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 436 (7th Cir.
1986). In this case, Penn fails to allege any injury beyond the injuries
sustained in his battery and false
arrest claims. As a result, his civil conspiracy claim must fail.
For the reasons stated above, Wendell Mack's motion to dismiss
is granted. All claims directed against him are dismissed. Harris and
Jones' motion for summary judgment is granted. Counts V and XIV of
Penn's complaint are dismissed.
IT IS SO ORDERED.
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