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November 1, 2005.

NILDA GOMEZ, Plaintiff,

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 her.

  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 police car.

  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 fees.

  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 ...

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