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TREJO v. VILLAGE OF ITASCA

United States District Court, N.D. Illinois, Eastern Division


November 15, 2004.

JOSE DIAZ TREJO, Plaintiff,
v.
VILLAGE OF ITASCA, OFFICER JACK PEARSON, and UNKNOWN OFFICERS, Defendants.

The opinion of the court was delivered by: MARK FILIP, District Judge

MEMORANDUM OPINION AND ORDER

Jose Diaz Trejo ("Trejo" or "Plaintiff") brings this action against the Village of Itasca as a municipal entity and Itasca Police Officer Jack Pearson (collectively "Defendants"). Plaintiff has filed a six-count amended complaint (D.E. 22) that alleges excessive force against Defendants in violation of 42 U.S.C. § 1983 ("Section 1983") (Count I), state law assault and battery (Count II), state law malicious prosecution (Count III), false arrest/unlawful seizure pursuant to Section 1983 (Count IV), state law respondeat superior (Count V), and state law indemnification (Count VI). Defendants have previously advanced several of the arguments opposing the state law claims in 2003 and 2004 in motions to dismiss. This Court rejected the 2004 motion largely on the grounds that Defendants advanced the bulk of their arguments in a procedurally improper manner and that many of Defendants' arguments potentially implicated factual issues and therefore were more properly resolved in the summary judgment setting. See Trejo v. Village of Itasca, No. 02-C-1193 (N.D. Ill. Apr 15, 2004) (Filip, J.) (D.E. 47). Defendants have now moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. As explained below, Defendants' motion is granted in part and denied in part.*fn1

I. FACTS*fn2

  Defendant Village of Itasca is an Illinois municipal corporation organized under the Illinois municipal code. (Defendants' Statement of Undisputed Facts ("Def. SF") ¶¶ 1-2.) Defendant Jack Pearson is a police officer employed by Itasca and has been trained at the Police Academy and through a variety of continuing education seminars throughout his time as a police officer. (Id. ¶ 2, 56.) Plaintiff is a 55-year-old resident of Itasca. (Id. ¶ 3.)

  For the sake of clarity, the recitation of the facts occurs in two parts. Part A discusses the relevant facts which relate to Plaintiff's arrest on March 7, 2000. Part B discusses the procedural history of this case in this Court.

  1. Events Relating to Plaintiff's Arrest on March 7, 2000

  Events began in the Fall of 1999, when Plaintiff, a fifty-five year old man who states that he lives with his mother, first met and first spoke with Jessica Galvez, a young woman who worked at the Itasca Bank as a teller during the relevant time period. (Id. ¶ 9-10.) On February 14, 2000, Ms. Galvez reported to an Itasca police officer that Trejo had spoken to her at her teller window, during which time Trejo asked if she had a boyfriend, asked for Ms. Galvez's phone number, and told Ms. Galvez that he had heard that she was a victim of kidnap and rape. (Id. ¶ 12.)*fn3 One week later, Ms. Galvez reported to Officer Pearson that Plaintiff had come into the bank saying that she was in danger of being kidnapped and that she should give him her telephone number. (Id. ¶ 15.)*fn4 Soon after this incident, Officer Pearson went to Plaintiff's home and explained to Plaintiff that he should not have any further contact with Ms. Galvez. (Id. ¶ 17.) In late February 2000, Trejo wrote numerous letters to several businesses, the Itasca Bank, the DuPage County State's Attorney, and the Itasca Police Department requesting videotapes of and documents concerning rapes occurring on business premises (including, in particular, any rapes of "Jessica G. ((teller at Itasca Bank and Trust Co.))"), and threatening legal action against the Itasca Bank. (Id. ¶ 18.)*fn5

  On March 7, 2000, Ms. Galvez again complained to Officer Pearson of Plaintiff's conduct towards her, and she signed a complaint for disorderly conduct against him. (Id. ¶ 19.) In that sworn complaint, Ms. Galvez states that Trejo told Ms. Galvez that he had heard she was a victim of a kidnapping and rape, asked if she had a boyfriend, sent numerous letters to the Itasca Bank and Itasca Police Department stating that he was Ms. Galvez's fiancé, stated that he had the right to protect her by using deadly force, and explained that Trejo had been asked to leave the Itasca Bank for causing a disturbance. (Id. ¶ 20. & Def. Ex. J.) Later that day, Ms. Galvez accompanied Officer Pearson to the DuPage County Courthouse, where Judge Minton issued a warrant for Plaintiff's arrest and a "no-contact" order. (Id. ¶ 21.)

  Based on Judge Minton's issuance of the warrant, Officer Pearson, Sergeant Moersch, and Officer Kauther of the Itasca Police Department drove separately to Plaintiff's residence to arrest him. (Id. ¶ 22.) As explained further below, the parties disagree about the particulars of the arrest, with Defendants contending that Trejo unlawfully resisted arrest and Trejo contending that he was the victim of excessive force that left him with a bruises on his arm and a strained finger. It is undisputed, however, that ultimately the police placed Plaintiff in handcuffs, placed him in the back of a police car, and took him to the Itasca Police Station. (Id. ¶¶ 27-38.) At the station, Trejo was fingerprinted, photographed, and released on bond. (Id. ¶ 38.) When Trejo returned home, he took no medication to relieve any pain from the bruises on his arm or his strained finger, and he thought the conditions would go away. (Id. ¶ 39.) The next day, March 8, 2000, Plaintiff sought medical attention for a bruised arm and injured finger at the emergency room of Alexian Brothers Hospital. (Id. ¶ 40.)

  After the arrest on March 7, Officer Pearson filed a criminal complaint against Plaintiff charging that he resisted arrest. (Id. ¶ 52.) This charge was added to the prior disorderly conduct charge that was the subject of the arrest warrant.

  Criminal proceedings were pursued by the DuPage County State's Attorney against Trejo in the Illinois state courts. On April 4, 2000, Plaintiff improperly attempted to remove his state-court criminal prosecution to federal court by filing a Notice of Removal, which was assigned Case No. 00-C-2199. (Id. ¶ 57-58.) That "notice of removal" — which was some 140 pages in length with all of the related attachments — included within it a "counter-claim" in which Plaintiff purported to assert various causes of action against Ms. Galvez and Officer Pearson relating to the April 2000 arrest and subsequent criminal prosecution, including a claim under Section 1983. (D.E. 1 in Case No. 00-C-2199.). Judge Matthew Kennelly of this Court, who was assigned Case No. 00-C-2199, remanded the case on May 3, 2000, to the Eighteenth Judicial Circuit Court in DuPage County, Illinois, for lack of federal jurisdiction. (Def. SF ¶ 58.) At the time of the remand in May 2000, Judge Kennelly informed Trejo that the criminal prosecution against him could not be removed under 28 U.S.C. §§ 1441-43. (D.E. 55, Exhibit V at 2.) At that same time — i.e., in May 2000, or well before the statute of limitations for state law claims had run under Illinois law — Judge Kennelly advised Trejo that, with respect to the civil "counterclaims" to the criminal prosecution that Plaintiff purported to remove to federal court, Plaintiff might "be able to maintain a civil lawsuit against the police officers or others claimed to have violated his rights, but he may do this only by filing a civil action, not by trying to remove the pending state criminal cases to federal court." (Id.) Following remand, in the Illinois courts, Ms. Galvez's complaint of disorderly conduct was nolle prossed. Plaintiff was tried on a charge of resisting a peace officer and found guilty by a jury of his peers on May 16, 2001. (Def. SF ¶ 53.)

  Not surprisingly, the bulk of the differing accounts of the facts surround what transpired after the officers arrived at Plaintiff's house and before Plaintiff arrived at the police station. Defendants contend that Officer Pearson and Sergeant Moersch made their presence known by ringing Plaintiff's doorbell and telling Plaintiff that they had a warrant for his arrest. (Id. ¶¶ 24-25.) Officer Pearson then showed the warrant to Plaintiff. (Id. ¶ 25.) When Plaintiff answered the door, he began shouting profanities at the officers and attempted to close the screen door. (Id. ¶¶ 26-28.) When Plaintiff began closing the screen door, Officer Pearson and Sergeant Moersch held the door open and stepped inside to arrest him. (Id. ¶ 28.) Defendants allege that Plaintiff vigorously resisted arrest by pushing and shoving the officers, swearing at the officers, grabbing hold of the handcuffs as Officer Pearson attempted to place them on him, and pushing Officer Pearson against a wall. (Id. ¶¶ 29-30.) After the struggle, Sergeant Moersch was able to handcuff Plaintiff's left wrist, but the cuff kept flailing because Plaintiff tried to keep his arm away from Sergeant Moersch. (Id. ¶ 32.) Finally, the officers were able to pull Plaintiff out the front door. (Id. ¶ 35.) Once outside the front door, Sergeant Moersch and Officer Pearson were finally able to secure handcuffs on both of Plaintiff's wrists. (Id. ¶ 37.)

  Plaintiff, on the other hand, claims that Officer Pearson and Sergeant Moersch did ring the doorbell to alert him of their presence, but at no time did they state that they had a warrant for his arrest, nor did they show him a warrant. (D.E. 63 ¶¶ 24-25.) Nonetheless, Plaintiff immediately opened the door in response to the officers. (D.E. 54 ¶ 41.) He became agitated at not being served a document at his front door and told Officer Pearson to "[j]ust get the fuck out." (Id. ¶¶ 42-43.) According to Trejo, Officer Pearson then yelled "[g]et him," and the police officers forced open the door, catching Plaintiff's finger in the latch. (Id. ¶¶ 44-45.) Once the officers entered the house, Officer Pearson and Sergeant Moersch slammed Plaintiff up against a wall in the foyer, and Officer Kauther charged into his sternum. (Id. ¶¶ 46-47.) Then, as Plaintiff was holding out his arm, Sergeant Moersch placed a handcuff on it and started "ratcheting his arm, up and down on his wrist and whole arm, with an open handcuff." (Id. ¶ 48.) Although Officer Pearson told Sergeant Moersch to stop, the sergeant continued. (Id. ¶ 49.) Plaintiff alleges that he cooperated fully with the police and did not struggle, swear, or resist arrest whatsoever. (D.E. 63 ¶ 29-34.) Plaintiff then walked out onto the porch by himself, and then someone (presumably an officer) forced his head down on his chest and fastened the handcuffs. (Id. ¶ 50.) Plaintiff was then transported to the station. (Id. ¶ 51.)

  2. Procedural history in this court On February 20, 2002, Plaintiff filed a pro se complaint in this Court, alleging various causes of action against the Village of Itasca relating to his 2000 arrest and criminal prosecution. (D.E. 1.) The filing was denominated as a "Complaint," and the case was assigned case number 02-C-1193 and assigned to the calendar of Judge Marovich. (Id.)

  On January 27, 2003, Plaintiff, then represented by an attorney, filed an Amended Complaint, which added as Defendants Officer Pearson and other "Unknown Officers" of the Itasca Police Department. (D.E. 22.) The Amended Complaint alleged a variety of state and federal causes of action. (Id.) Count One advances an excessive force claim against the officers and a related failure to train claim against Itasca under Section 1983; Count Two is a state law "assault and battery" claim against "Defendant Officers"; Count Three is a state law malicious prosecution claim against "Defendant Officers"; Count Four is a Section 1983 claim for false arrest and unlawful seizure against "Defendant Officers"; and Counts Five and Six are state law claims against Itasca alleging liability under the theories of respondeat superior and indemnification. (Id.) On April 15, 2004, this Court denied Defendants' second motion to dismiss because it was procedurally defective and contained issues that were more properly resolved at the summary judgement stage. (D.E. 47.)

  On May 26, 2004, Defendants moved for summary judgment on all counts of the Amended Complaint. (D.E. 52.)*fn6 First, they argue that Plaintiff's state law claims are barred as a matter of law by the one-year statute of limitations under the Illinois Tort Immunity Act, 745 Ill. Comp. Stat. 10/8-101, because Plaintiff's 2002 federal suit (Case No. 02-C-1193, assigned initially to Judge Marovich) does not relate back to the Plaintiff's defective April 4, 2000, notice of removal (Case No. 00-C-2199, assigned to Judge Kennelly), as Plaintiff contends. (D.E. 53 at 5.) As to the assault and battery claim, Defendant Pearson also maintains that he enjoys qualified immunity from the lawsuit. (Id. at 22.) Defendant Pearson argues that the malicious prosecution claim must fail because probable cause existed for Plaintiff's arrest and because the prosecution against Plaintiff did not terminate in his favor. (Id. at 20-21.) Defendants assert that the Section 1983 claim alleging excessive force and failure to train must fail given the standards set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and because no proof exists that any misconduct was part of an official policy or custom, respectively. (Id. at 12-14.) Finally, Defendant Pearson argues that Plaintiff's unlawful arrest allegation against him must fail because the Itasca police had probable cause under a valid arrest warrant, or, alternatively, that qualified immunity protects Officer Pearson from the claim in any event. (Id. at 9-11.)

  In response, Plaintiff first argues that the 2002 Complaint in Case No. 02-C-1193 "related back" under Federal Rule of Civil Procedure 15 to Trejo's April 2000 Notice of Removal (Case No. 00-C-2199), in which, as a criminal defendant, Trejo attempted to remove his state law charge of resisting arrest to the Northern District of Illinois. (D.E. 64 at 2.) Trejo responds to Defendants' other arguments by arguing that factual disputes exist such that it would be improper for this Court to grant summary judgment at this time (D.E. 64 at 12, 16, 20) and that the wanton and willful nature of Defendants' conduct precludes a finding of qualified immunity. (Id. at 8.) II. SUMMARY JUDGMENT STANDARD

  Summary judgment is proper where "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). The nonmovant cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 936 (7th Cir. 1999) (citation omitted). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere "metaphysical doubt as to the material facts" does not amount to a genuine issue for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court views the record and all reasonable inferences drawn therefrom in the light most favorable to the nonmovant. See Fed R. Civ. P. 56(c); Foley 359 F.3d at 928. The party opposing summary judgment may not rest upon the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 248. There is no genuine issue for trial unless there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id.

  III. DISCUSSION

  A. State Law Claims and the Statute of Limitation

  1. The 2002 Lawsuit Does Not "Relate Back" to Plaintiff's 2000 "Notice of Removal" of His State Court Criminal Prosecution. It is now appropriate for this Court to rule on Defendants' argument that the state law claims are barred by the one-year statute of limitations that clearly ran unless Plaintiff's 2002 complaint (Case No. 02-C-1193) "relates back" to his defective "notice of removal" of his state court criminal prosecution in 2000 (Case No. 00-C-2199). Rule 15(c) permits a plaintiff to amend the pleadings to add a claim involving an existing party or a new party that, if filed as a new lawsuit, would be barred by the statute of limitations. See Jones v. Wysinger, 815 F. Supp. 1127, 1129 (N.D. Ill. 1993).

  As this Court has previously explained, Judge Marovich in an opinion of December 9, 2003, rejected Defendants' contention that Trejo's state law claims were barred by the one-year limitations period under Illinois law. (D.E. 37 at 5-7.) In that opinion, the Court stated that "the Plaintiff asserts that under 15(c) of the Code of Civil Procedure, relation back to the original pleading filed by Trejo, pro se, on April 7, 2000, is proper. This Court agrees." (Id. at 5-6.) In the December 9, 2003, opinion, the Court stated that "Trejo's pleading, filed on April 7, 2000, contains essentially the same claims against the parties identified in his Amended Complaint filed January 24, 2003. Moreover, the facts and events detailed in Trejo's pleading of April 7, 2000, arose out of the same occurrence as the Amended Complaint." (Id. at 6.)

  Following this decision, the Defendants filed a second motion to dismiss before Judge Marovich, which was in essence akin to a motion for reconsideration. (D.E. 45 at 2 (Defendants stating that the second motion was warranted "to draw the Court's attention to the highly unusual circumstances of plaintiff's relation-back argument to save his state-law claims.").) During the briefing on that motion, Defendants cited three circuit court precedents, in which, they contended, similar relation-back theories were rejected by federal courts of appeal, including the Seventh Circuit. (Id. at 2-3.) (While the issue was squarely presented in prior briefing, the issue was not the subject of extensive citation of caselaw by either side, so Judge Marovich was not apprised of this court of appeals authority.) This Court, following reassignment of the case to its docket, denied this second motion without prejudice on procedural grounds, in part because Defendants also made fact-sensitive arguments on certain issues that needed to be addressed in a summary judgment setting. At that time, this Court noted that Defendants had "presented substantial authority casting doubt on the legal propriety of . . . [the] December 2003 ruling under Rule 15(c)" concerning the relation-back issue. (D.E. 47 at 7.) For reasons explained further below, the Court at this time finds that precedent instructs that Trejo's state law claims are indeed time-barred.

  Plaintiff has never cited a supporting case concerning a remotely analogous circumstance — i.e., one in which a plaintiff was allowed to circumvent a statute of limitations by "relating back" an otherwise-untimely suit to a dismissed and patently defective "notice of removal" of a state criminal prosecution that also improperly purported to add civil "counterclaims" by the criminal defendant. (The law, of course, does not allow a criminal defendant to conflate proceedings by adding civil claims of his own; nor does the law provide that a criminal defendant like Trejo may remove his state law criminal prosecution to federal court.) Nor has plaintiff ever cited any case where a plaintiff was able to "relate back" an entirely new complaint with a new case number to a dismissed filing that was assigned a separate case number and was assigned to a separate judge. The opinion of December 2003 also cited no supporting authority in the course of its analysis.

  In contrast, numerous cases teach that Trejo's "relation back" argument is flawed. Taken together, they teach that Trejo should not fairly be allowed to escape the statute of limitations under Illinois law by "relating back" his otherwise untimely claims raised in his Amended Complaint of January 24, 2003 in Case No. 02-C-1193 to his defective "notice of removal" of his state court criminal prosecution filed and quickly dismissed in Case. No. 00-C-2199 before another judge in this district. This conclusion is supported by the fact that Judge Kennelly expressly told Trejo at the time his "notice of removal" was rejected (and long before the Illinois statute of limitations ran) that Trejo needed to file a civil complaint if he wanted to assert such claims.

  As indicated, many cases reflect that Trejo's relation back argument is non-meritorious. For example, in Bailey v. Northern Ind. Pub. Serv. Co., 910 F.2d 406 (7th Cir. 1990), the Seventh Circuit rejected a relation-back theory and stated that "rule 15(c), by its terms, only applies to amended pleadings in the same action as the original, timely pleading." Id. at 413. In Bailey, the plaintiff's Section 1981 claim needed to be brought, under the applicable statute of limitations, by October 12, 1986. Id. at 412. The plaintiff filed suit in November 1986, but he argued that the complaint in the November 1986 action "related back" under Fed.R. Civ. P. 15(c) to the complaint in an earlier lawsuit plaintiff filed against the defendant-employer that also alleged acts of employment discrimination. Id. at 412-13. Notwithstanding that the two suits even were partially consolidated for trial (id. at 407), the Seventh Circuit rejected the "relation back" argument, again stating that Rule 15(c), "by its terms, only applies to amended pleadings in the same action as the original, timely pleading. Because the simulator claim was not contained in amended pleading in Suit 1 but in a second, separate complaint, Rule 15(c) is inapplicable." Id. at 413 (footnote omitted). Accord, e.g., Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) ("[A] separately filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim."); Bui v. IBP, Inc., 205 F. Supp.2d 1181, 1184085 (D. Kan. 2002) ("Plaintiff cites no cases, and the court has found none, supporting his unusual assertion that Rule 15 should be applied to permit a pleading in one case to `relate back' to a pleading in a separate case. . . . The rule permits amended pleadings to relate back to original pleadings in the same case, not in a separate one."); Bamberg v. SG Cowen, 236 F. Supp. 2d 79, 87 (D.Mass. 2002); In re Bausch & Lomb, Inc. Sec. Litig. 941 F.Supp. 1352, 1363-65 (W.D.N.Y. 1996) (holding that plaintiff's new claim in pending case could not relate back to the date of original filing of separate case with which plaintiff's later case was consolidated); Morin v. Trupin, 778 F.Supp. 711, 733-34 (S.D.N.Y. 1991) (same).*fn7

  Nor is pro se status enough to excuse a litigant from compliance with these basic principles. For example, in Worthams v. Atlanta Life Ins. Co., 533 F.2d 994 (6th Cir. 1976), a pro se litigant filed a timely complaint that was dismissed without prejudice for failure to state a claim. Id. at 996. Approximately one year later, the pro se plaintiff, now aided by counsel, filed what they denominated an "amended complaint" and explicitly set forth the various causes of action, including an action for libel that raised issues not presented by the prior filing. Id. The Sixth Circuit rejected the notion that they new complaint "related back" to the first action that was dismissed, reasoning that

The original complaint was disposed of by order of dismissal, without prejudice, for failure to alleged sufficient facts to constitute a cause of action against the insurance company. The second complaint was entitled "amended complaint" and Worthams undertook to use the same civil action number as the first suit. The record shows that the word "amended" has been stricken and a new civil action number assigned. The January 5, 1973, complaint must be viewed as a new cause of action and not as an amended complaint.
Id.

  Similarly, in Marsh v. Soares, 223 F.3d 1217 (10th Cir. 2000), the Tenth Circuit joined the Second, Third, Fifth, Ninth, and Eleventh Circuits and held that a subsequently filed pro se habeas petition cannot relate back under Fed.R. Civ. P. 15(c) to an otherwise timely pro se habeas petition previously dismissed without prejudice for failure to comply with the strictures attending habeas corpus litigation. Id. at 1220. The Tenth Circuit stated

 

Fed.R. Civ. P. 15(c) permits the relation back of an "amendment of a pleading." However, Mr. Marsh's second habeas petition was more than an amendment; it was a separate filing, some three years after the first petition. "[A] separate filed claim, as opposed to an amendment or a supplementary pleading, does not relate back to a previously filed claim."
Marsh, 223 F.3d at 1219 (quoting Benge, 17 F.3d at 1288). Thus, in addition to the Sixth Circuit's Worthams decision cited above, other federal courts have rejected the idea that pro se status is a sufficiently compelling consideration to disregard otherwise applicable rules concerning "relation back" — even in the setting of habeas corpus litigation, where the issues at stake reach to the petitioner's life and liberty.*fn8

  The facts of this case confirm the equities in rejecting Trejo's attempt to "relate back" his untimely claims to his notice of removal. At the time Trejo's "removal" of his state court criminal prosecution was remanded to state court in Case No. 00-C-2199, Judge Kennelly specifically told Trejo that if he wanted to file civil claims, he could not do so by attempting to interject them into a state court criminal prosecution, but instead needed to file a civil complaint. Judge Kennelly told this to Trejo long before the Illinois statute of limitations ran. The fact that Trejo thereafter was dilatory in proceeding is not a basis for thinking that he was treated unfairly under the law.

  Finally, the Court respectfully rejects Trejo's suggestion that Defendants have no statute of limitations defense because they had proper notice of putative claims against them through Trejo's ill-conceived "notice of removal" of the state court criminal case. "Notice" alone is not enough to toll a statute of limitation, otherwise a letter or phone call would be enough. Trejo's "notice of removal" was a sprawling, 140-page document (including exhibits) whose caption referenced the Circuit Court of DuPage County, Illinois, and named as putative parties the "People of the State of Illinois," the Itasca Bank & Trust Co., and Jessica Galvez, along with Jack Pearson, the Village of Itasca Police Department, and an open-ended "et al" designation. It references a hodge-podge of semi-coherent legal theories and includes photocopies of, inter alia, state court records, federal criminal code provisions, and letters Trejo had written. The "notice of removal" cannot fairly be taken to have provided either of the Defendants (nor Ms. Galvez, nor the Itasca Bank & Trust Co., nor the "People of the State of Illinois," all of whom presumably under Trejo's theory still could be subject to suit in future cases that might "relate back" to the "notice of removal" in Case No. 00-C-2199) that they were the subject of a valid (or at least coherent) civil suit. Accordingly, the Court rejects any suggestion that Trejo complied with the requirement under the Federal Rules of Civil Procedure that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.

  For all of these reasons, the Court holds that the Plaintiff's initial pro se Complaint in Case No. 02-C-1193, filed on February 20, 2002, does not relate back to the April 7, 2000, Notice of Removal in Case No. 00-C-2199.

  2. Equitable Tolling is Not Appropriate.

  Plaintiff also argues in the alternative that if the complaint does not relate back to the Notice of Removal, the statute of limitations should be equitably tolled. (D.E. 64 at 6.) Plaintiff maintains that, as a pro se plaintiff, he should be allowed enough leeway to bring the state law claims, since in his view the "notice of removal" of the state law criminal charges and putative civil "counterclaims" essentially raised all claims and named all parties reasonably diligently. (Id. at 7.) Failing to equitably toll the statute of limitations, Plaintiff maintains, would "elevate? form over substance." (Id. at 8.) This argument is also unconvincing.

  The doctrine of equitable tolling "permits a plaintiff to sue after the statute of limitations has expired if through no fault or lack of diligence on his part he was unable to sue before, even though the defendant took no active steps to prevent him from suing." Donald v. Cook County Sheriff's Dept. 95 F.3d 548, 561-62 (7th Cir. 1996) (quoting Singletary v. Cont'l Ill. Nat'l Bank and Trust Co. of Chicago, 9 F.3d 1236, 1241 (7th Cir. 1993)). Equitable tolling applies where "despite the exercise of reasonable diligence, [the plaintiff could not] have discovered all the information he needed in order to be able to file his claim on time." Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999). Precedent teaches that equitable tolling "is granted sparingly." United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990)). "Extraordinary circumstances far beyond the litigant's control must have prevented timely filing." Marcello, 212 F.3d at 1010 (collecting cases).

  To be sure, district courts have a responsibility to construe pro se complaints generously. See, e.g., Donald, 95 F.3d at 555. However, a plaintiff's pro se status does not, of its own accord, provide an independent basis for equitable tolling. See, e.g., Cosby v. United Air Lines, Inc., No. 95-C-6655, 1996 WL 204323, at *3 (N.D. Ill. Apr. 24, 1996) (citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)). Even pro se plaintiffs have to abide by procedural rules; leeway is not synonymous with absolution from procedural requirements or statutes of limitation that embody societal balancing assessments about when claims must be brought, when evidence is likely to become stale and unreliable, and when putative defendants (including putative pro se defendants) should be absolved from the threat of litigation. See, e.g., Jackson v. Carpenters Local Union #1, No. 02 C 9091, 2004 WL 2191584, at *3 (N.D. Ill. Sep. 24, 2004) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)).

  The Court finds that Plaintiff did not exercise reasonable diligence in filing an actual complaint and providing notice to Defendants. First, as discussed above, Plaintiff's ill-conceived "notice of removal" that attempted to remove his state court prosecution to federal court and add into the criminal prosecution his own civil counterclaims did not amount to a federal complaint in this court, and the "notice of removal" failed to appraise adequately parties of claims against them. Furthermore, the alleged activity that gave rise to Plaintiff's complaint took place on March 7, 2000. (D.E. 54, ¶ 22.) Plaintiff filed the "notice of removal" that was dismissed with the criminal prosecution remanded to state court on May 3, 2000. (Id. ¶¶ 57-58). However, Plaintiff waited almost two full years, until February 21, 2002, to file his original complaint with the Court (or almost a full year after the statute of limitations had run for state law claims). (D.E. 1.) Such a delay is unreasonable in light of the fact that Trejo was free to conduct his own investigation and pursue the case as vigorously as he chose. See, e.g., Taliani, 189 F.3d at 598 (requiring a litigant seeking to invoke equitable tolling to have exercised reasonable diligence and to have done so in a setting where plaintiff could not have discovered all the information he needed to be able to timely file the claim).

  Moreover, and most important on the facts of this case, Judge Kennelly expressly told Trejo that his "notice of removal" was insufficient to be considered a complaint. In this regard, Judge Kennelly told Plaintiff in writing that he would be able to maintain a civil lawsuit "only by filing a civil action, not by trying to remove the pending state criminal cases to federal court." (D.E. 55, Exhibit V at 2.) Trejo did not timely heed this directive, and instead waited until the state law statute of limitations had run. Equitable tolling applies when a person does not and cannot learn the facts on which he or she bases a claim. Plaintiff, however, knew all of the facts relevant to his claim in 2000. He does not even allege that he learned anything subsequent to the date of the incident. See, e.g., Bishop v. Washington, No. 98-C-8023, 2000 U.S. Dist. LEXIS 18874, at *4-5 (N.D. Ill. Dec. 18, 2000) (holding, in circumstances similar to the instant case, that "ignorance of the limitations period is no excuse"). Therefore, because the record does not show that Trejo exercised reasonable diligence in filing his Complaint, the Court will not equitably toll the statute of limitations and, thus, he may not avoid the statutory bar.

  As a result, the Court finds that Plaintiff's state law claims, specifically Counts II, III, V, and VI have been brought beyond the statute of limitations. Defendants are granted summary judgment on those claims.*fn9 B. Count I: § 1983 Claim for Use of Excessive Force

  Defendants argue that Plaintiff's Section 1983 claim of excessive use of force is barred by Heck v. Humphrey, 512 U.S. 477 (1994), because findings on those claims would "necessarily imply that [Plaintiff's] criminal conviction was wrongful." (D.E. 53 at 12.) In Heck, the Supreme Court held that:

In order to recover damages for . . . harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.
Heck, 512 U.S. at 486-87. This, according to Defendants, is the consequence of Plaintiff's conviction for resisting a peace officer. (D.E. 55 at 12.) There is an exception to the Heck rule, however, "[i]f the district court determines that the plaintiff's [Section 1983] action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff." Id. at 487. The Illinois statute criminalizing resist of a peace officer, the crime of which Plaintiff was convicted, states that:
A person is not authorized to use force to resist an arrest which he knows is being made either by a police officer or by a private person summoned and directed by a police officer to make an arrest, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.
720 Ill. Comp. Stat. 5/31-1 (2004).*fn10 In the caselaw of the Northern District of Illinois courts, there appears to be a split (or at least substantial tension) concerning whether Heck bars a claim of excessive force in light of a conviction for resisting arrest or resisting a peace officer. For example, Holder v. Ivanjack, 93 F. Supp. 2d 933 (N.D. Ill. 2000) (Alesia, J.), held that Heck barred cases such as the instant one. In Holder, an arrestee brought a Section 1983 action against police officers alleging excessive use of force, among other claims. Holder, 93 F.Supp. 2d at 935. In 1997, police officers responding to a shooting incident in Holder's neighborhood saw Holder in a nearby backyard, and they ordered him to leave the yard, but he did not. See id. The police then arrested Holder for resisting or obstructing a police officer. See id. In his state court criminal trial, Holder alleged self-defense: he claimed that because five to ten police officers punched, kicked, and beat him with flashlights and batons during the arrest, Holder was entitled to a self-defense jury instruction. See id. at 935-36. The trial judge refused such an instruction. See id. Holder appealed his conviction, but the appellate court affirmed, stating that the judge's refusal to give a self-defense jury instruction was proper. See id. at 936. On Holder's later civil complaint alleging the police used excessive force, the district court ruled that Heck barred Holder's claim:
In this case, for Holder to succeed on his § 1983 claim, the trier of fact would have to find that the police officers used excessive force to effectuate Holder's arrest. However, in their affirmation of Holder's conviction for resisting or obstructing a peace officer, the Illinois Appellate Court stated that if the jury had found that the police officers involved used unreasonable or excessive force, then the jury from Holder's criminal trial would have found the arrest unlawful and Holder not guilty. However, that did not occur. The jury found Holder guilty of resisting or obstructing a peace officer. Thus, Heck bars Holder's § 1983 claim because a successful prosecution of Holder's excessive force claim would necessarily imply that the police officers used unreasonable force and, therefore, Holder's criminal conviction for resisting or obstructing a peace officer was wrongful. Accordingly, the court grants the defendants' motion for summary judgment on Count I of Holder's amended complaint.
Id. at 939 (internal citations omitted).

  Similarly, Loveday v. Village of Villa Park, No. 02-C-6549, 2004 WL 1878837 (N.D. Ill. Aug. 17, 2004) (Der-Yeghiayan, J.), found Heck to bar an excessive force claim where the plaintiff had been convicted of resisting arrest. In relevant part, the police officer defendant claimed that he sprayed the plaintiff with pepper spray because the plaintiff was being uncooperative and belligerent and was refusing to extend his arms and submit to arrest. Loveday, 2004 WL 1878837, at *1. Loveday held that the plaintiff could not "contest the lawfulness of the pepper spray incident [because] Loveday was convicted in state court for resisting arrest. Therefore, he cannot now challenge the lawfulness of the conviction in this Section 1983 action." Id. at *5 (citing Heck, 512 U.S. at 486-87).

  Other cases, however, have refused to find a Heck-bar in cases where a plaintiff who was previously convicted of resisting arrest (or resisting a peace officer) later filed a lawsuit alleging excessive force against the police officers who arrested him. For example, in Gregory v. Oliver, 226 F.Supp.2d 943, 947 (N.D. Ill. 2002) (Shadur, J.), the plaintiff was arrested for possession of drug paraphernalia. In the midst of the arrest, the plaintiff fell with a police officer onto a couch and, once there, was punched and beaten by a stick. Gregory, 226 F. Supp. 2d at 947. After being handcuffed, defendants alleged that the plaintiff tried to kick the officer, and another officer responded by pulling the plaintiff down by the handcuffs, which eventually resulted in the plaintiff's ankle breaking. See id. at 947. Judge Shadur refused to grant summary judgment based on the defendant's claim that under Heck the plaintiff's guilty plea to charges of resisting arrest barred the excessive force claim:

But that suggested one-to-one correlation between (1) a conviction for resisting arrest or aggravated assault and (2) the absence of a viable claim of excessive force is simply nonexistent. It is apparent that in some instances a Section 1983 claim does not contradict the events that resulted in a plaintiff's convictions — two obvious examples would be an officer's unjustified imposition of excessive force in an overreaction to an arrestee's assault, or the imposition of excessive force after the event that led to a resisting-arrest conviction.
Id. at 952 (internal citations omitted).

  Likewise, DuFour-Dowell v. Cogger, 969 F. Supp. 1107 (N.D. Ill. 1997) (Hart, J.), ruled that "under the facts of the present case, a finding of excessive force is not necessarily inconsistent with the validity of DuFour-Dowell's resisting arrest conviction. Heck does not bar DuFour-Dowell's excessive force claim." DuFour-Dowell, 969 F. Supp. at 1118. In DuFour-Dowell, the defendant police officers attempted to serve an arrest warrant (for obstruction of a police officer) on the plaintiff at approximately 12:30 in the morning. See id. at 1110. Apparently, the plaintiff did not submit to arrest quietly, and she was thereafter also charged with (and later only convicted of) resisting arrest. See id. at 1111. The plaintiff filed suit, alleging, among other claims, that she was subjected to excessive force during her arrest. The defendants moved for summary judgment, claiming that Heck barred the plaintiff's claim. See id. at 1115. The district court rejected that argument because "the jury was not required to specify on what basis it found DuFour-Dowell guilty of resisting arrest, so the jury "could have found that the acts of resisting arrest occurred subsequent to and not in direct relation to any excessive force." Id. at 1118. Consequently, self-defense to excessive force would not have been a defense to the conviction, because "the circumstances of the criminal conviction do not permit a determination as to the pertinent facts found by the jury." Id. at 1118. Thus, the plaintiff's excessive force claim was not Heck-barred. See id. at 1118.

  The Court need not attempt to resolve any tensions in the caselaw to resolve this issue in Plaintiff's favor in this case. First, more general Seventh Circuit teaching instructs that whether a particular claim in Heck-barred turns on whether the plaintiff's actual claim as framed by the facts alleged would be inconsistent with the underlying state court criminal conviction. Specifically, in Okoro v. Callaghan, 324 F.3d 488 (2003) — which was not an excessive force case, but the same principles would seem to apply — the Seventh Circuit instructed that a putative plaintiff's civil claim is Heck-barred at least to the extent that any allegations he makes would imply the invalidity of his prior criminal conviction. Id. at 490. In this regard, a district court should not proceed in the abstract, trying to see whether there is a "theoretical possibility" that one might posit a set of facts in which the plaintiff's civil claim and the existing criminal conviction could stand together. Id. Instead, the key is that Heck bars, at a minimum, "allegations that are inconsistent with the conviction's having been valid." Id.

  If one takes a fact-sensitive assessment of the Heck-issue in this case in relation to the resisting a peace officer conviction, it appears reasonably clear that Trejo could prevail on at least some of his factual allegations without undermining or calling into question the legitimacy of his state court criminal conviction. Even if a resisting-arrest conviction might invalidate an excessive force claim relating to force used in effecting the arrest — because under Illinois law, a criminal defendant may claim self-defense through justifiable use of force to a charge of resisting arrest if an officer uses excessive force in effecting that arrest*fn11 — the conviction for resisting arrest would not necessarily undermine a claim of excessive force for police officers' actions that occurred after Plaintiff was arrested. Plaintiff alleges multiple occurrences amounting to excessive force — some of which appear to have occurred after he was arrested. Therefore, at a minimum, based on Plaintiff's factual allegations, he could prevail on at least some excessive force claim.*fn12

  Second, the fact that Judge Marovich previously reject Defendants' Heck argument is material. Defendants' request for this Court effectively to reverse Judge Marovich's prior ruling implicates a "variant of the law of the case doctrine that relates to the re-examination of a prior ruling by a different member of the same court." Best v. Shell Oil Co., 107 F.3d 544, 546 (7th Cir. 1997). Precedent teaches that "the presumption [in] such cases is that earlier rulings will stand." Id. While presumptions are rebuttable, of course, Defendants have not presented a sufficient basis to depart from Judge Marovich's prior ruling concerning the issue of a potential Heck-bar to Plaintiff's excessive force claim. Judge Marovich took a decisive stand on the Heck-bar issue, stating that "[i]t is possible, under the language of this statute, that an officer could use excessive force in response to, and despite, a plaintiff's resisting arrest." Trejo v. Village of Itasca, No. 02-C-1193, 2003 WL 22922152, at *2 (N.D. Ill. Dec. 10, 2003). Judge Marovich concluded that "it is not evidence that if Trejo prevails, this result would necessarily render the [sic] his conviction for resisting arrest invalid." Id. at *2. In the absence of further guidance from the Seventh Circuit on this precise issue, Judge Marovich's prior assessment is at least generally consistent with that of at least two other members of this court, and Defendants do not offer any sufficiently compelling argument to depart from the earlier ruling in this case.*fn13 As a result, Defendant Pearson's motion for summary judgment on Plaintiff's claim of excessive force is denied.

  C. Count I: § 1983 Claim for Failure to Train

  Defendant Itasca maintains that it cannot be held liable for any alleged misconduct of its police officers in the instant case, since no dispute of material fact exists that would suggest the misconduct was undertaken pursuant to a policy or practice of the Itasca Police Department to fail to train, supervise, or control its officers. (D.E. 53 at 15.) Plaintiff contends that the failure to train claim should not be dismissed, because factual questions regarding the adequacy of the officers' training remain. (D.E. 64 at 16.) A local government "may not be sued under Section 1983 for an injury inflicted solely by its employees or agents." Arlotta v. Bradley Ctr., 349 F.3d 517, 522 (7th Cir. 2003). In this regard, Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), teaches that municipalities are liable under Section 1983 only when it can be shown that the municipality, in executing its official policy or practice, has caused the constitutional violation. Id. at 64; accord, e.g., Arlotta, 349 F.3d at 521-22 ("Significantly, a plaintiff must show a direct causal link between the municipal policy and the constitutional deprivation. The policy or custom must be the moving force behind the alleged constitutional deprivation.") (internal quotation marks and citations omitted); Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir. 1994) ("§ 1983 states that liability will attach only when a governmental entity causes the violation, and proceeding against a municipality under a theory of respondeat superior falls short of establishing this level of causation.") (citing Monell, 436 U.S. at 692-94; emphasis in original). To ensure "that isolated instances of misconduct are not attributable to a generally adequate police or training program, [the Seventh Circuit] require[s] a high degree of culpability on the part of the policymaker." Cornfield, 991 F.2d at 1327. Culpability, combined with the causation requirement, teaches that "liability [must] be based on a finding that the policymakers have actual or constructive notice that a particular omission is likely to result in constitutional violations." Id. Given this strict framework, "an allegation of `failure to train' is available only in limited circumstances." Palmquist v. Selvik, 111 F.3d 1332, 1344 (7th Cir. 1997) ("Taken together, these two considerations amount to a requirement that liability be based on a finding that the policymakers have actual or constructive knowledge that a particular omission . . . is likely to result in constitutional violations.") (citing Cornfield, 991 F.2d at 1327). Plaintiff is claiming municipal liability under Section 1983 based on an omission — in this case, a failure to train. To prove a claim of failure to train, a party must prove that the failure caused the violation. "To prove causation, . . . [a plaintiff] must demonstrate that this omission evidences `a deliberate choice to follow a course of action . . . from among various alternatives by city policymakers.'" Hirsch, 40 F.3d at 903 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). The omission will yield liability where the failure to train is so great that it amounts to "deliberate indifference to the rights of people with whom the police come into contact." Hirsch, 40 F.3d at 904 (citing Harris, 489 U.S. at 389); see also id. (stating that plaintiff needed "to show that the defendants were on notice of a pattern of constitutional violations resulting from the inadequate training of the police. . . .").

  Deliberate indifference may be shown in one of two ways. See Dunn v. City of Elgin, 347 F.3d 641, 646 (7th Cir. 2003). First, a municipality shows indifference when it fails to train its employees to handle a recurring situation that presents an obvious potential for a constitutional violation and this failure to train results in a constitutional violation. See id. (citing Bd. of Cty. Comm'rs of Bryan County v. Brown, 520 U.S. 397, 409 (1997)). Second, a municipality will be held to have been deliberately indifferent if it fails to provide further training after learning of a pattern of constitutional violations by the police because of inadequate training. See Palmquist, 111 F.3d at 1346.

  In the instant case, Plaintiff has made no mention of (or offered any evidence of) a pattern of prior constitutional violations which might have resulted from inadequate training, or any policy or practice of committing such violations. Hence, Plaintiff's claim of Itasca's "deliberate indifference" must be based on a failure to train employees to handle a recurring situation with an obvious potential for a constitutional violation. When analyzing the level of training in a recurring situation allegation, "the focus must be on the program, not whether the particular officers were adequately trained." Palmquist, 111 F.3d at 1345 (citing City of Canton, 489 U.S. at 390-31). In determining the adequacy of training, the Court must make sure not to "ignore the training the officers did receive from other sources, including the police academy." Manzella v. Village of Bridgeview, No. 01-C-8202, 2004 WL 1794923, at *6 (N.D. Ill. Aug 6, 2004) (quoting Palmquist, 111 F. 3d at 1345).

  Plaintiff contends that Itasca's training of the police officers sent to arrest him was inadequate, because at the date of the arrest, Officers Pearson and Kauther had not been trained in the use of force in six years, and Sergeant Moersch "does not appear to have ever received any training specifically and exclusively dedicated to the use of force." (D.E. 64 at 16.) Essentially, this claim boils down to an allegation that the Village of Itasca showed deliberate indifference by failing to provide adequate training regarding the use of force. However, Plaintiff appears to ignore the training the officers did receive. Plaintiff does not dispute the extensive training Defendants obtained in myriad post-academy seminars (D.E. 55, Exhibit R) relevant to using force when placing a party under arrest (even if not "specifically and exclusively dedicated to the use of force"), and he appears to ignore the training the officers received from the police academy (D.E. 54 ¶ 56) and other sources. Moreover, Plaintiff has not pointed to any facts regarding any deficiency in Itasca's training program that officers receive in the application of force during an arrest, other than apparently that it is supposedly not frequent enough. See Manzella, 2004 WL 1794923, at *6. But Plaintiff does not even suggest what frequency of training would in his view be more appropriate or suggest how the current frequency of the training is inadequate. Likewise, Plaintiff makes no meaningful argument as to any purported deficiencies in the content of Itasca's training program — other than Plaintiff's apparent willingness to mock training that the officers received in other subjects such as leadership development and what appears to be communications skills. Simply, Plaintiff has not alleged that anything that Itasca has either done or failed to do in terms of training its officers in the use of force rises to the level of deliberate indifference, nor that Itasca had any notice, real or constructive, that its training (or lack thereof) was likely to result in constitutional violations. Moreover, even if one takes as true Plaintiff's version of "the single incident at issue in this case," there is nothing about the alleged altercation that makes any "lack of training so obvious, and any [alleged] inadequacy therein so likely to result in a violation of constitutional rights," that Itasca can "be said to have been deliberately indifferent to a purported need." Palmquist, 111 F.3d at 1347 (7th Cir. 1997).

  Simply put, Plaintiff provides no meaningful evidence implicating Itasca or its police force on the failure to train claim. Defendant Itasca's motion for summary judgment as to Plaintiff's failure to train claim is therefore granted.

  D. Count IV: § 1983 Claim for Unlawful Arrest/Unlawful Seizure

  Finally, Defendants allege that probable cause did exist under a valid arrest warrant such that the arrest of Plaintiff was lawful. (D.E. 53 at 9, 10-11.) Alternatively, Defendants maintain that even if there is a factual issue regarding the existence of probable cause, Defendants enjoy qualified immunity from lawsuit in this case. (Id. at 9) In response, Plaintiff asserts that Officer Pearson should enjoy neither complete nor total immunity, since he lacked probable cause for the arrest and acted pursuant to a warrant that a reasonably trained officer would have known was inappropriate under the circumstances. (D.E. 64 at 8-10.)

  The threshold inquiry in a qualified immunity analysis is whether the plaintiff's allegations, if true, establish a constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If a plaintiff can establish that he has suffered a constitutional violation, a court then examines whether the right was clearly established. See id. As the Supreme Court explained in Saucier, qualified immunity operates "to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Id. at 206.

  As a general rule, a plaintiff cannot base a Fourth Amendment claim on an arrest made pursuant to a valid warrant. Baker v. McCollan, 443 U.S. 137, 143-44 (1979); accord, e.g., Neiman v. Keane, 232 F.3d 577, 579 (7th Cir. 2000). In this regard, irrespective of any alleged motives of a defendant-officer towards a particular plaintiff, the existence of probable cause for arrest is an absolute bar to a Section 1983 claim for unlawful arrest. See, e.g., Mark v. Furay, 769 F.2d 1266, 1269 (7th Cir. 1985) (citing Terket v. Lund, 623 F.2d 29, 31 (7th Cir. 1980)). The mere existence of a warrant is not an automatic bar against suit — because, for example, a warrant may be clearly defective on its face. Nonetheless, in this regard, "the officer procuring the warrant is immune from a suit for damages unless it can be shown that the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Neiman, 232 F.3d at 579-80 (internal quotation and citation omitted). In addition, if the finding of probable cause embodied in the warrant is based on the defendant's intentional misrepresentation or concealment of material facts, the plaintiff may be able to proceed on a Fourth Amendment claim challenging the reasonableness of an arrest. Schertz v. Waupaca County 875 F.2d 578, 582 (7th Cir. 1989); accord Neiman, 232 F.3d at 580. Plaintiff at no point accuses Officer Pearson of intentional misrepresentation or concealment of facts. What Plaintiff does allege is that Officer Pearson harassed him (D.E. 64 at 9) and that the warrant was inappropriately granted because Ms. Galvez's complaints did not allege all three necessary elements to a disorderly conduct charge.*fn14 (Id. at 8.) Consequently, Plaintiff is forced to rely on his argument that Officer Pearson is not immune from suit for his conduct because the warrant was issued under circumstances that "a reasonably trained officer should have known was inappropriate." (D.E. 64 at 8.)

  Once a police officer defending a claim of false arrest "moves for summary judgment on the ground that his actions were supported by probable cause and submits that a duly authorized judicial officer found probable cause, the defendant has necessarily put probable cause at issue, and the plaintiff must thus come forward and show that there is an issue of fact as to the existence of probable cause to survive summary judgment." Simmons v. Pryor, 26 F.3d 650, 653 (7th Cir. 1993). Probable cause is "a commonsense determination, measured under a reasonableness standard, and is present if at the time of the arrest the facts and circumstances within the arresting officer's knowledge and of which [h]e has reasonably trustworthy information would warrant a prudent person in believing that the suspect had committed or was committing an offense." Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999) (internal punctuation and citations omitted). The complaint of a single witness or putative victim alone generally is sufficient to establish probable cause to arrest unless the complaint would lead a reasonable officer to be suspicious, in which case the officer has a further duty to investigate. See Beauchamp v. City of Noblesville, Ind. 320 F.3d 733, 743 (7th Cir. 2003) (collecting cases); Spiegel, 196 F.3d at 723 ("[A]s long as a reasonably credible witness or victim informs the police that someone has committed, or is committing, a crime, the officers have probable cause to place the alleged culprit under arrest, and their actions will be cloaked with qualified immunity if the arrestee is later found innocent.") (internal quotation marks and citation omitted). The Court evaluates probable cause "not on the facts as an omniscient observer would perceive them but on the facts as they would have appeared to a reasonable person in the position of the arresting officer — seeing what he saw, hearing what he heard." Booker v. Ward, 94 F.3d 1052, 1057-58 (7th Cir. 1996). Generally, whether there is probable cause is a jury question, but "when there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them," a court may decide the issue. Id. at 1058.

  Following the Simmons directive, this Court must first ascertain whether the Defendant claims that his actions were supported by probable cause and submits that a duly authorized judicial officer found probable cause. Defendant argues, at length, the existence of probable cause in the issuance of the warrant and his actions as a part of obtaining the warrant and executing it. (D.E. 53 at 10-11.) He also argues that the warrant was duly issued by Judge Minton (id. at 11) after receiving Ms Galvez's signed complaint and speaking with Ms. Galvez personally. (D.E. 54 ¶ 20-21.) Consequently, the Court holds that the Defendant has put probable cause at issue, and it is now up to the Plaintiff to "come forward and show that there is an issue of fact as to the existence of probable cause." Simmons, 26 F.3d at 653.

  It is unclear exactly how Plaintiff attempts to allege the lack of probable cause. He notes the facts that all conversations between Ms. Galvez and Plaintiff occurred in the bank, during normal business hours, and were of the "regular business type." (D.E. 64 at 9.) While these statements maybe could go towards undermining Ms. Galvez's credibility, they do not take away from the fact that she made specific and damning allegations in her duly filed complaint:

Defendant knowingly told Jessica Galvez that he heard that she had been a victim of a kidnapping and rape and then asked her if she had a boyfriend, has sent numerous correspondence [sic] to the Itasca Bank and Itasca Police Department stating that he is her fiancé . . . and has the right to protect her even if he has to use deadly force, and has been asked to leave the bank for causing disturbances while Jessica Galvez was working.
(D.E. 55, Exhibit J.) Furthermore, Plaintiff alleges generically that the warrant lacked probable cause because "Plaintiff's conduct did not provoke or threaten to provoke a breach of the peace." (D.E. 64 at 10.) Presumably this stems from Plaintiff's related assertion that "Ms. Galvez never alleged nor was Defendant Pearson aware that Plaintiff had ever made any physical threats against her." (Id. at 9.) Such a position, however, is clearly erroneous. In her complaint, Ms. Galvez alleged that "Trejo has done this in such an unreasonable manneras [sic] to alarm and disturb Jessica Galvez, and provoke a breach of the peace." (D.E. 55, Exhibit J.) Plaintiff has admitted that these allegations existed in Ms. Galvez's complaint. (D.E. 63 at 2.) No reasonable adult could read the sworn allegations in Ms. Galvez's complaint (even putting entirely aside the bizarre statements and menacing intimations in Trejo's letters to local businesses and law enforcement authorities that Trejo acknowledges writing) and not have an immediate sense that Trejo was an unstable and dangerous individual whose statements and actions constituted a threat to Ms. Galvez and the peace of the community generally.

  Trejo also perhaps suggests that Ms. Galvez might not be credible, or that the police officers may have overreacted to her allegations. The Court respectfully disagrees. As to credibility, Ms. Galvez would be considered a model witness for the prosecution — in comparison to, for example, numerous familiar witnesses such as rival gang members, paid informants, and cooperating defendants attempting to earn leniency in return for their testimony. Any attack on Ms. Galvez's credibility also rings hollow in light of the documentary evidence in the case that Trejo admits to writing at approximately the same time as Ms. Galvez's complaints — documentary evidence that corroborates her testimony in substantial part. In any event, Officer Pearson was not required to assess whether the complainant's testimony was beyond question or reproach; instead, he was required not to obtain the arrest warrant or to execute it if it was clearly without foundation. Trejo does not come close to passing that hurdle.

  Finally, Plaintiff appears to suggest that Officer Pearson harassed Plaintiff prior to Ms. Galvez's filing a complaint. (D.E. 64 at 9.) This allegation appears to rest on the idea that it was objectionable for Officer Pearson to tell Trejo to leave Ms. Galvez alone when no judicial restraining order was in place at the time. This argument appears misplaced for at least two reasons. First, Trejo offers no authority for the counterintuitive proposition that street officers are prohibited from instructing a member of the community to cease from engaging in behavior that clearly appears to be the subject of reasonable anxiety on the part of putative a victim-citizen like Ms. Galvez. This is particularly true given that, according to by all appearances (and contemporaneous documentary evidence Trejo concedes to have written, in addition to Ms. Galvez's testimony), Trejo presented a picture of an unstable individual variously referencing "rape" and "deadly force" in the course of interacting with Ms. Galvez. Second, and independently, Trejo's allegation of harassment is irrelevant to the instant case. Plaintiff has not alleged a harassment complaint; harassment is neither an element of nor a mitigating factor for a disorderly conduct charge; and any alleged harassment does not have any impact on the existence of probable cause for the arrest, because all probable cause came from Ms. Galvez's sworn statement and Judge Minton's issuance of a warrant for Plaintiff's arrest. Accord Mark, 769 F.2d at 1269 (alleged motives of officer procuring warrant are irrelevant if probable cause for arrest exists).

  Since Plaintiffs have failed to show that there is a difference of opinion as to an issue of fact relevant for determining probable cause, the Court holds that probable cause did exist for the warrant. Furthermore, the warrant was valid and amply supported by probable cause for its issuance. As a result, Officer Pearson enjoys qualified immunity from Plaintiff's Section 1983 unlawful arrest claim. Therefore, the Court grants Defendants' motion for summary judgment as to Count IV of Plaintiff's complaint. IV. CONCLUSION

  For the reasons set forth above, Defendants' motion for summary judgment is granted in part and denied in part. The Court grants summary judgment for Defendants on Counts II-VI and denies summary judgment on Count I as against Defendant Pearson only. All claims against the Village of Itasca are dismissed.

  So Ordered.


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