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December 13, 2005.


The opinion of the court was delivered by: JAMES MORAN, Senior District Judge


Plaintiff Lawrence Griffin brought this action against the City of Chicago and Carlos Mota, alleging violations of his Fourth and Fourteenth Amendment rights arising from his arrest for criminal trespass to a vehicle and prosecution for possession of a controlled substance. Defendant Mota has moved for summary judgment. For the following reasons, defendant's motion is denied in part and granted in part.


  The following factual background is based on the statements submitted by the parties pursuant to Local Rule 56, and, for purposes of the summary judgment motion, we construe the facts in plaintiff's favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Bledsoe v. City of Chicago, 1996 WL 406647, *2 (N.D.Ill. 1996) (stating that only reasonable inferences, not all conceivable inferences, will be drawn in favor of the non-moving party). At some date prior to November 5, 2001 — the date of the incident at the heart of this dispute — Dollar Rent a Car entered into a contractual lease with Kyra Hickobottom for a four-door gold Chrysler Concorde, bearing the license plate number D321239. When the car was not returned upon the lease's expiration on October 30, 2001, Dollar Rent a Car filed a formal police report, which was then entered into a police department computer system. On November 5, 2001, as part of a special investigation of auto thefts, defendant Mota and Sergeant Grand entered an Amoco gas station to run license plate numbers, checking for stolen vehicles. During that stop Mota and Grand ran the plate of a gold Chrysler Concorde, license number D321239, in which plaintiff was a passenger. Although the car's physical appearance did not indicate that it was stolen, the police computer generated a report that the Concorde had been reported as stolen. Therefore, Mota and Grand exited their vehicle and approached the Concorde. At that time the driver, Emmett Hudson, was returning to the car, plaintiff was seated in the passenger seat and a woman, Joyce Davis, was seated in the back seat.

  At this point the parties' versions of the facts differ slightly. Although we construe the facts in the light most favorable to the plaintiff, we note the differences for the sake of clarity.*fn1 Plaintiff contends that upon approaching the vehicle, defendant Mota ordered plaintiff out of the car. Plaintiff obeyed, exiting the vehicle with his hands out and palms open to show that he was unarmed. Mota ordered plaintiff to get on his knees, repeating the orders to Davis. Grand then had a discussion with Hudson, which resulted in Hudson also being ordered to his knees. Upon a search of Davis, a female police officer who was called in for backup found a plastic bag on her person, presumed to contain drugs. Thereafter, Davis, Hudson and plaintiff were handcuffed and transported to the police station, at which time plaintiff was informed that he was being charged with possession of a controlled substance. Plaintiff alleges that defendant Mota framed him on the drug charges, subsequently filed a false report, and testified falsely at plaintiff's criminal trial.

  Mota recites a different version of the facts surrounding plaintiff's arrest. He claims that upon approaching the Concorde, Grand questioned Hudson about the ownership of the car. After giving unsatisfactory answers, Hudson was arrested for criminal trespass to a vehicle. Defendant then asked plaintiff to exit the car so that he could arrest him for criminal trespass to a vehicle. While handcuffing plaintiff, defendant noticed that plaintiff was clenching his left hand. After prying open his hand, defendant recovered a small plastic bag containing cocaine.

  At this point, the parties' stories re-converge. Plaintiff was thereafter charged with possession of a controlled substance, but not charged with criminal trespass to a vehicle. On January 10, 2002, plaintiff filed a motion to quash arrest and suppress the evidence of drugs. The trial court denied that motion and a subsequent motion to reconsider. Plaintiff was found guilty of possession of a controlled substance at a jury trial on March 23, 2002. Plaintiff timely filed an appeal, arguing that the evidence at the centerpiece of his prosecution — the drugs found on him upon arrest — should have been suppressed as fruit of an illegal arrest effected without an arrest warrant or probable cause, and that he was denied a fair trial. On October 15, 2003, the Illinois Appellate Court reversed plaintiff's conviction. Thereafter, on March 17, 2005, plaintiff filed this complaint, alleging violations of his civil rights.

  Defendant contends that plaintiff is judicially estopped from arguing, contrary to his appellate brief, that he was not carrying drugs allegedly recovered from him. Defendant argues that plaintiff's criminal appellate argument that the drugs were inadmissible as fruit of an illegal search is inconsistent with his current contention that no drugs were recovered from him. Defendant raises this argument for the first time in his reply brief in support of his motion for summary judgment, and thus does not allow plaintiff an opportunity for rebuttal. It is well settled that "[r]aising an issue for the first time in reply is improper, as it deprives the opposing party of a meaningful chance to respond." Peterson v. Knight Architects, Engineers, Planners, Inc., 1999 WL 1313696, *13 (N.D.Ill. 1999). See also Commonwealth Edison Co. v. U.S. Nuclear Regulatory Com'n, 830 F.2d 610, 621 n7 (7th Cir. 1987). Although plaintiff's complaint alludes to his innocence from any wrongdoings, plaintiff does not explicitly argue that he had no cocaine until his response brief to defendant's motion for summary judgment. Viewed in that light, defendant is not barred from answering that contention for the first time in his reply brief. See Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 n* (7th Cir. 1996) ("`[W]here the reply affidavit merely responds to matters placed in issue by the opposition brief and does not spring upon the opposing party new reasons for the entry of summary judgment, reply papers — both briefs and affidavits — may properly address those issues'").

  Defendant relies on New Hampshire v. Maine, 532 U.S. 742 (2001), to support his judicial estoppel argument. In that case the Supreme Court held that New Hampshire could not claim that the Piscaraqua River boundary was fixed in one place, when New Hampshire had previously agreed that the boundary of the river should be set at a different point. The Court stated, "`[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.'" New Hampshire, 532 U.S. at 749. Thus, judicial estoppel "`generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase'" Id. Judicial estoppel, designed to "`protect the integrity of the judicial process' by `prohibiting parties from deliberately changing positions according to the exigencies of the moment,'" (New Hampshire, 532 U.S. at 749-50), has been held to apply to § 1983 actions. Allen v. McCurry, 449 U.S. 90 (1980).

  Although the doctrine of judicial estoppel is a flexible doctrine designed to maintain the integrity of the court and judicial system (see Matter of Cassidy, 892 F.2d 637 (7th Cir. 1990)), the Supreme Court has outlined several factors to inform the decision of whether to apply judicial estoppel. Those factors include: (1) a party's later position is "clearly inconsistent" with its earlier position; (2) a court has accepted the party's earlier position, so that judicial acceptance of the party's later inconsistent position would "create `the perception that either the first or the second court was misled'"; and (3) the party seeking to assert the inconsistent position "would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped," New Hampshire, 532 U.S. at 750-51. See also Jarrad v. CDI Telecommunications, Inc., 408 F.3d 905 (7th Cir. 2005) (also looking at whether the operative facts remain the same in both cases); Penn, LLC v. New Edge Network, Inc., 2003 WL 22765048 (N.D.Ill. 2003).

  In this case plaintiff is estopped from arguing that he did not have drugs in his hand upon his arrest. In his appellate brief, plaintiff explicitly and clearly stated that although he did have drugs, the evidence of the drugs must be suppressed as fruit of an illegal arrest. Specifically, plaintiff stated, "After being wrongfully arrested, Mr. Griffin was searched, at which time the police found a small amount of crack cocaine in his hand. The cocaine must be suppressed as the fruit of an illegal arrest" (def's motion, ex C, p 8). In fact, in his criminal appellate brief, plaintiff requested de novo review, specifically arguing that "there is not a factual dispute in this case," Id. This is clearly inconsistent with plaintiff's current argument that a factual dispute exists in his § 1983 civil action, specifically that defendant did not find drugs on plaintiff during the allegedly illegal search, and that defendant falsely fabricated evidence of such drugs. The Appellate Court of Illinois relied on plaintiff's stipulation that "the item recovered from defendant [Griffin] tested positive for cocaine" (def's motion, ex H, p 6) in finding that the officers lacked probable cause to search Griffin, that evidence of the cocaine should have been suppressed as fruit of an illegal arrest, and thus, that the conviction must be reversed. Plaintiff cannot now argue that he did not have drugs on him at the time of his arrest — allowing such an argument could create judicial inconsistencies and encourage perjury. The doctrine of judicial estoppel was developed to limit such an undermining of judicial integrity. Therefore, we hold that plaintiff is estopped from asserting that he was not carrying drugs in his hand at the time of his arrest. See Salley v. Schmitz, 1996 WL 665673 (N.D.Ill. 1996) (plaintiff was judicially estopped from arguing in his § 1983 claim that he did not shoot at officers since he had made a prior contradictory statement when pleading guilty to a criminal charge stemming from the same incident).

  Although plaintiff is estopped from arguing that defendant falsely planted drugs on him or testified falsely as to evidence of drugs during his criminal trial, his § 1983 false arrest claim is not entirely foreclosed. He can maintain a limited action against defendants for any damages that flow directly from his allegedly illegal arrest in violation of his Fourth Amendment rights. DISCUSSION

  Under FED.R.CIV.P. 56(c), summary judgment is appropriate 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." See also Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n of Indianapolis, 806 F.2d 146, 149 (7th Cir. 1986). The moving party has the burden to establish the lack of a genuine issue of material fact. Wainwright Bank & Trust Co., 806 F.2d at 149. Upon meeting that burden, the non-moving party must set forth specific facts that demonstrate the existence of a genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983). The mere existence of some factual dispute will not frustrate an otherwise proper summary judgment motion — only a genuine dispute over a material fact will defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986).

  Because a finding of probable cause for arrest would be dispositive of the case, we address that issue first. We next address the issue of qualified immunity, as a finding of immunity would also serve as a bar to plaintiff's claims. Finally, we address plaintiff's due ...

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