United States District Court, N.D. Illinois, Eastern Division
November 1, 2005.
NILDA GOMEZ, Plaintiff,
LT. RICCIO, GEORGE MELANIS, JORGE RIVERA, and the CITY OF CHICAGO, Defendants.
The opinion of the court was delivered by: JOHN GRADY, District Judge
Before the court is defendants' motion for summary judgment.
For the reasons explained below, the motion is granted in part
and denied in part.
This is a civil rights action by plaintiff Nilda Gomez against
the City of Chicago (the "City"), Chicago Police Lieutenant
Anthony Riccio, and Chicago Police Officers George Melanis and
Jorge Rivera. Plaintiff claims that after her arrest for domestic
battery, she was falsely charged with felony battery to police
officers, detained, and subjected to a strip search and a body
cavity search in retaliation for having previously filed a civil
rights suit against defendant Riccio, among others.
Many of the relevant facts, which follow, are undisputed. In
August 2000, Nilda lived in the second floor unit at 3725 West Lyndale in Chicago. Her sister, Midna Noriega, lived in the first
floor unit with her husband, Ricardo Noriega, and their children.
On the evening of August 17, 2000, around 7:30 p.m., Nilda was
downstairs in Midna's unit and began verbally arguing with Midna.
Ricardo, who worked a night shift and had been sleeping, awakened
and heard Nilda and Midna yelling. Ricardo then called 911, said
that there was a family dispute, and requested that police
officers come to the residence. Some sort of confrontation
between Ricardo, Midna, and Nilda ensued. Shortly thereafter,
Nilda went upstairs to her apartment.
After Nilda went upstairs, Officers Melanis and Rivera arrived
in response to the 911 call. The officers came into the front
room of the first-floor apartment and asked Ricardo what was
going on. Ricardo said that he had called the police because
Nilda had been starting trouble and would not leave the
apartment. The officers asked if anyone was hurt and noted that
Ricardo had a bloody cut on his wrist. Ricardo replied, "[T]hat
must have been when [Nilda] swung at me." (Tr. of Dep. of Ricardo
Noriega at 37, Defendants' Local Rule 56.1 Statement of Facts,
Ex. F.) The officers asked whether the Noriegas wanted to file
complaints against Nilda, and they responded that they did. They
understood that Nilda would be arrested if they filed these
complaints. Ricardo signed a complaint for domestic battery,
stating that Nilda pushed and grabbed his arms and scratched him,
causing his wrist to bleed and redness on his arms. Midna signed a separate complaint for
domestic battery, stating that Nilda had grabbed and squeezed
Nilda then came downstairs again, at which the point the
officers placed her in handcuffs and led her outside to their
police car. According to the officers, the Noriegas, and a
neighbor who was a witness, Nilda resisted being moved from the
residence to and into the car by refusing to move her feet,
squirming, and kicking the officers. The officers could not get
her into their car, so they called for a paddy wagon. Nilda, on
the other hand, claims that she did not resist arrest in any way,
and also disputes that the officers tried to put her in their
Nilda was transported to the police station. Around 9:30 p.m.,
Officers Melanis and Rivera completed an arrest report that
charged her with the following crimes: domestic battery (two
counts); resisting a peace officer (one count); and aggravated
battery to a peace officer (two counts). (The charges of domestic
battery and resisting a peace officer were misdemeanors, and the
aggravated battery charges were felonies.)
According to the arrest report, the charges were approved by
defendant Lieutenant Anthony Riccio. At that time, Lieutenant
Riccio, along with other police officers, was a defendant in a
suit that had previously been brought by plaintiff in the Circuit
Court of Cook County, entitled Harris v. Nikeas.*fn1 (At the
time of the filing of the Second Amended Complaint in this
action, the Harris case was still pending.) Officers Melanis
and Rivera are not parties to the Harris case.
Plaintiff asserts that Lieutenant Riccio caused or directed a
strip search and a body cavity search of plaintiff for the sole
purpose of harassing her and that Lieutenant Riccio came into her
holding cell to harass and taunt her. Plaintiff was booked at the
Cook County Jail and held in custody pending a bond hearing on
the aggravated battery charges.
The resisting a peace officer and domestic battery charges were
eventually dropped, but Nilda went to trial on the aggravated
battery charges. She was acquitted by a jury. According to
plaintiff, the aggravated battery charges are based on false
claims that plaintiff intentionally kicked Officers Melanis and
Rivera in the course of the domestic battery arrest and are in
retaliation for plaintiff's suit against Lieutenant Riccio.
Plaintiff claims that the defendants "have fabricated `evidence'
in support of their claims, including witness statements, have
communicated false and misleading information to various Cook
County State's Attorneys, and have withheld exculpatory
information from various Cook County State's Attorneys." (Second
Amended Complaint, ¶ 12.) Plaintiff filed this action on August 19, 2002. The current
complaint is the Second Amended Complaint, which was filed on
October 27, 2004. The Second Amended Complaint sets forth the
following claims: § 1983 claims for violation of plaintiff's
Fourth, Fourteenth, and First Amendment rights (Counts I-III);
intentional infliction of emotional distress ("IIED") (Count IV);
malicious prosecution (Count V); assault and battery (Count VI);
and violation of 725 ILCS 5/103-1, a state statute setting forth
the rights of an arrestee (Count VII). The Officers, who are sued
in their individual capacities, are named as defendants in all of
the counts. The City is named as a defendant in Counts IV, V, VI,
and VII under a respondeat superior theory. Plaintiff seeks
nominal, compensatory, and punitive damages as well as attorney's
Defendants now move for summary judgment.
Summary judgment "shall be rendered forthwith if 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). In considering such a motion, the court construes the
evidence and all inferences that reasonably can be drawn
therefrom in the light most favorable to the nonmoving party.
See Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999).
"Summary judgment should be denied if the dispute is `genuine':
`if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'" Talanda v. KFC Nat'l Mgmt.
Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court will
enter summary judgment against a party who does not "come forward
with evidence that would reasonably permit the finder of fact to
find in [its] favor on a material question." McGrath v. Gillis,
44 F.3d 567, 569 (7th Cir. 1995).
We will first address plaintiff's contention that defendants'
motion must be stricken because defendants have attached only
excerpts of deposition testimony as exhibits to their motion, and
"[p]roviding the court with full copies of deposition transcripts
cited in a motion for summary judgment is proper pleading
practice." (Plaintiff's Response at 1.) We reject this argument.
Although we can conceive of cases in which it may be necessary
for a party to provide entire deposition transcripts, this is not
one of them. We know of no authority that justifies striking an
entire motion where excerpts of transcripts are provided. Our
Local Rules do not require that full transcripts be provided in
conjunction with a motion for summary judgment, and the case
cited by plaintiff in support of her argument addressed only the
state of the briefing in that particular case.*fn2 Moreover, plaintiff was free to
attach to her response any other transcript excerpts counsel
believed to be pertinent.
We also note at the outset that some of defendants' arguments
do not go to whether there are genuine issues of fact for trial,
but rather are those that more properly would have been made on
their motion to dismiss. They are attempting to get a second bite
at the apple, but we will address all of their arguments anyway.
A. Fourth Amendment (Count I)
Defendants' first argument is that they are entitled to summary
judgment to the extent that Count I is premised on false arrest.
Defendants previously moved to dismiss the false arrest claim
because plaintiff was initially arrested on the domestic battery
charges and did not appear to contest the existence of probable
cause to arrest her on those charges. We rejected defendants'
argument, noting that the law in the Seventh Circuit was that
"there must be probable cause for a charge closely related to
the charge upon which the plaintiff was ultimately prosecuted."
(Memorandum Opinion of July 7, 2004 at 6.) We found that the
existence of probable cause to arrest plaintiff on the domestic
battery charges did not bear on whether there was probable cause
for the felony battery charges and associated proceedings because the two types of charges were based on completely different
purported conduct and therefore were not "closely related."
(Id. at 6-7.)
Defendants now call our attention to a Supreme Court opinion
that was issued a few months after our ruling in this case,
Devenpeck v. Alford, 543 U.S. 146 (2004). In Devenpeck, the
Supreme Court held that a warrantless arrest by a police officer
is lawful under the Fourth Amendment as long as there is probable
cause to believe that any criminal offense has been or is being
committed. See id. at 593-94. The Court stated: "The rule
that the offense establishing probable cause must be `closely
related' to, and based on the same conduct as, the offense
identified by the arresting officer at the time of arrest is
inconsistent with  precedent." Id. at 594.*fn3
Defendants contend that pursuant to Devenpeck, they are
entitled to summary judgment on the false arrest claim because
there is no genuine issue that there was probable cause to arrest
plaintiff for domestic battery. "Probable cause has been defined
as facts and circumstances sufficient to warrant a prudent man in
believing that the suspect had committed or was committing an
offense." Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir.
2000) (quotation marks and brackets omitted). "Contrary to what its name might seem to suggest, probable cause demands even less
than probability; it requires more than bare suspicion but need
not be based on evidence sufficient to support a conviction, nor
even a showing that the officer's belief is more likely true than
false. Applying this standard, we have consistently held that an
identification or a report from a single, credible victim or
eyewitness can provide the basis for probable cause." Id.
(internal quotation marks and citations omitted).
When the parties were briefing the motion to dismiss, it did
not appear that plaintiff was claiming that she was falsely
arrested for domestic battery. Now, however, she argues that
there is a genuine issue of material fact regarding probable
cause for her arrest for domestic battery.
Plaintiff's first contention is that she "does not have
sufficient information to make a conclusive determination as to
whether the officers had probable cause to arrest even on
domestic battery." (Plaintiff's Response at 2.) Plaintiff asserts
that "[t]he Defendant officers have not yet been deposed and it
would be helpful to know what information was given to the
officers prior to Plaintiff's arrest and what facts the officers
relied upon in making their alleged probable cause
Although plaintiff does not invoke Federal Rule of Civil
Procedure 56(f), that is the applicable rule when a non-movant
requests additional discovery in order to respond to a summary judgment motion. The rule provides: "Should it appear from the
affidavits of a party opposing [a summary judgment] motion that
the party cannot for reasons stated present by affidavit facts
essential to justify the party's opposition, the court may . . .
order a continuance to permit . . . depositions to be taken or
discovery to be had." Fed.R.Civ.P. 56(f).
Plaintiff's argument is rejected for several reasons. Plaintiff
does not present an affidavit and thus does not make a proper
Rule 56(f) argument. More importantly, she fails to explain why
she has not yet taken the depositions of the officers in this
case that has been pending since 2002, and fails to indicate that
she even desires to take those depositions. It is significant
that plaintiff does not ask for additional time to take the
officers' depositions in order to respond to the summary judgment
motion, but merely contends that the fact that she has not
conducted those depositions somehow creates a genuine issue of
material fact. Furthermore, it is not as if there is no testimony
from the officers. We have the transcript of plaintiff's
aggravated battery trial, at which both Officers Melanis and
Rivera testified regarding the circumstances of the arrest.
The evidence is as follows: Ricardo Noriega called the police.
Officers Melanis and Rivera went to the Noriegas' home in
response to a call from the dispatcher notifying them of a
domestic disturbance there. When the officers arrived, they asked
what was going on. Ricardo told them that Nilda had been starting trouble.
The officers noticed a cut on Ricardo's wrist, and Ricardo stated
that it must have been the result of Nilda swinging at him. The
officers were also informed that Nilda grabbed Midna in the
course of the fight. Plaintiff admits that the officers asked the
Noriegas if they wanted to press charges against Nilda, and the
Noriegas both answered in the affirmative. It is undisputed that
Ricardo signed a complaint for domestic battery stating that
Nilda had pushed, grabbed, and scratched him and that Midna also
signed a complaint for domestic battery, stating that Nilda had
grabbed and squeezed her. After the Noriegas agreed to sign
complaints against Nilda, the officers arrested Nilda.
"[S]o long as a reasonably credible witness or victim informs
the police that someone has committed a crime, the officers have
probable cause to place the alleged culprit under arrest."
Woods, 234 F.3d at 987. It is undisputed that the Noriegas
informed Officers Melanis and Rivera that Nilda had committed
domestic battery against them and that they wished to sign
complaints against her for that conduct. Plaintiff's brief
contains a lengthy discussion of what may have actually happened
between Nilda and the Noriegas before the officers arrived;
plaintiff argues that Ricardo "was the perpetrator." (Plaintiff's
Response at 7.) But the truth of that incident is irrelevant to
what the officers knew and what they were told when they arrived
on the scene. "[O]nce . . . a reasonably credible complaint has been made, the existence of
probable cause to arrest does not depend upon the actual truth of
the complaint." Woods, 234 F.3d at 987 (citing Kelley v.
Myler, 149 F.3d 641, 647 (7th Cir. 1998) ("Probable cause does
not depend on the witness turning out to have been right; it's
what the police know, not whether they know the truth that
Plaintiff also fails to raise a genuine issue that Ricardo and
Midna were "reasonably credible" witnesses. Plaintiff makes much
of the fact that Ricardo "far exceeded Plaintiff in size, weight
and strength." (Plaintiff's Response at 7.) In our view,
Ricardo's physical stature has no bearing on the credibility of
his statement to the officers about Nilda's actions. The evidence
is not that Ricardo told the officers that Nilda beat him up or
overpowered him; it is simply that she swung at him and scratched
Plaintiff has failed to come forward with any evidence creating
a genuine issue for trial on her false arrest claim. Accordingly,
defendants are entitled to summary judgment on that claim.
Plaintiff's Fourth Amendment claim in Count I is not solely
based on false arrest; plaintiff also alleges that the search of
her person and the length of her detention violated the Fourth
Amendment.*fn4 Defendants's briefs devote much attention to
false arrest but fail to discuss the search at all*fn5 and give
short shrift to the detention.*fn6 Furthermore, defendants'
statement of material facts does not include any fact statements
or citations to supporting evidence regarding the events that
occurred after plaintiff was arrested and charged. Because
defendants have failed to properly support their motion, it will
be denied as to the Fourth Amendment claims relating to the
search and detention.
B. First Amendment (Count III)
In Count III, plaintiff alleges that the initiation of false
charges in retaliation for her having filed the Harris suit
against Lieutenant Riccio deprived her of the rights secured to
her by the Petition Clause of the First Amendment. Defendants
attempt to extend their Devenpeck argument regarding false arrest to this
claim with no citation to authority whatsoever that Devenpeck
extends to a First Amendment claim. We agree with plaintiff that
whether the officers had probable cause to arrest plaintiff is
not relevant to her allegations that defendants retaliated
against her for having filed the Harris suit by fabricating
evidence on the aggravated battery charges. Defendants' motion
for summary judgment will be denied as to Count III.
C. Fourteenth Amendment Due Process (Count II)
In Count II, plaintiff alleges that defendants violated her
constitutional right to a fair trial by fabricating evidence,
including witness statements, and by lying to and withholding
information from various Cook County assistant state's attorneys.
Defendants' first argument regarding Count II is that
"[p]laintiff's assertions that the Officers instigated the
proceedings against her belies her own statements that she was
arrested on the signed complaints of her sister and
brother-in-law and that those charges were not withdrawn by
them." (Defendants' Joint Memorandum in Support of Motion at 8.)
This contention misses the point, as plaintiff was tried on the
aggravated battery charges, which were undisputedly instigated by
the Officers, not the Noriegas. Defendants fail to cite any
authority for their suggestion that probable cause for arrest on
the domestic battery charges somehow bars the due process claim pertaining to the
aggravated battery charges.*fn7
Defendants also maintain that "[t]he decisions about which, if
any, charge would proceed to trial is within the discretion of
the prosecutor and not the police," id., without any
explanation of why this entitles them to summary judgment on
plaintiff's claim. The argument is rejected because the basis for
plaintiff's claim is not the charging decision itself, but the
officers' alleged misrepresentations upon which the decision was
based, as well as the officers' other alleged conduct relating to
the evidence after the charging decision was made.*fn8
Defendants' next argument is that because plaintiff was
acquitted, she has no constitutional claim that she was denied a
fair trial. Plaintiff disagrees. There are two cases on point
from this district; one supports defendants' position, and one
supports plaintiff's.*fn9 We adopt the well-reasoned
analysis of the case cited by plaintiff, Carroccia v. Anderson,
249 F. Supp. 2d 1016 (N.D. Ill. 2003) (Kennelly, J). In
Carroccia, an acquitted murder defendant alleged that police
officers concealed and fabricated evidence, thereby violating his right to a fair trial.
Rejecting the defendants' contention that the acquittal barred
plaintiff's due process claim for a violation of Brady v.
Maryland, 373 U.S. 83 (1963), Judge Kennelly stated:
[A] trial is not rendered fair simply because it
ultimately results in an acquittal. As the Court
stated in Brady, "our system of the administration
of justice suffers when any accused is treated
unfairly. . . . A prosecutor that withholds evidence
on demand of an accused which, if made available,
would tend to exculpate him or reduce the penalty
helps shape a trial that bears heavily on the
defendant.". . . If courts prohibit a criminal
defendant from making a civil claim for concealment
of material exculpatory evidence simply because his
trial resulted in an acquittal, we tolerate law
enforcement misconduct simply because the defendant
was able to overcome it by other means. . . . The
question is whether, at the time the evidence is
concealed, it could be expected to affect the outcome
of the case. An eventual acquittal may suggest that
the withheld evidence was not material. But an
acquittal alone does not show that police officers
complied with Brady or that the defendant's trial
was fair. . . . The constitutional value at stake . . .
is due process: the means, not the ends of his
trial. . . . If exculpatory evidence was wrongly
withheld, [plaintiff's] acquittal did not eliminate
the due process violation that had already occurred
by the time of the acquittal.
249 F. Supp. at 1023-24 (citation omitted).*fn10
Defendants' final argument regarding Count II is that plaintiff
has no evidence that the officers lied or withheld information.
However, plaintiff's testimony at her trial was that she did not
kick the officers and in fact did not resist arrest at all. That testimony is sufficient to create a genuine issue of
fact for trial.
Defendants' motion for summary judgment will be denied as to
D. Previously-Dismissed Claims
In our Memorandum Opinion of July 7, 2004, we dismissed
plaintiffs' claims for assault and battery (Count VI) and for
violation of 725 ILCS 5/103-1 (Count VII) as time-barred by the
Illinois Tort Immunity Act's one-year statute of limitations.
We also noted that although none of the numbered counts of the
Amended Complaint were explicitly labeled as Sixth Amendment
claims, there were references to the Sixth Amendment in
paragraphs 1 and 14(a). To the extent that plaintiff was
attempting to allege a violation of her Sixth Amendment rights,
it was dismissed for failure to state a claim.
The Second Amended Complaint re-alleges Counts VI and VII and
contains the same references to the Sixth Amendment. Those claims
are again dismissed.*fn11
E. Qualified Immunity
Defendants' final argument is that they are entitled to
qualified immunity on plaintiff's claims. They rely again on Devenpeck, without explanation, and their argument is too
conclusory to warrant analysis.
Defendants' motion for summary judgment is granted in part and
denied in part. The motion is granted as to plaintiff's Fourth
Amendment false arrest claim. The motion is denied as to
plaintiff's Fourth Amendment search and detention claims as well
as to Counts II, III, IV, and V.
Counts VI and VII are dismissed with prejudice, and to the
extent that plaintiff is attempting to allege a violation of her
Sixth Amendment rights, that claim is dismissed with prejudice.
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