The opinion of the court was delivered by: Joan B. Gottschall United States District Judge
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Asim Akbar's motion to reconsider the court's order entered September 25, 2008 ("9/25/08 Order"), granting Defendants Louis Jones and Cordy Fouch summary judgment on Count III of the complaint. Count III is a state-law claim for malicious prosecution. Akbar argues that the court's 9/25/08 Order erred in its legal conclusion that, because there was probable cause that Akbar committed misdemeanor battery against Defendant Detention Aid Darren West, Akbar's claim against Jones and Fouch for malicious prosecution failed. For the reasons stated below, Akbar's argument is correct, and the 9/25/08 Order is hereby vacated and reconsidered. Upon reconsideration, Jones' and Fouch's motion for summary judgment on Count III is denied.
On March 13, 2005, Akbar was arrested, along with several other individuals, by Chicago Police Department ("CPD") officers for allegedly drinking on a public way. Akbar was processed at a CPD station at 727 East 111th Street. During processing Akbar and other arrestees present were told to line up in front of a lockup area to be searched by West. During the search procedure, a detainee next to Akbar was ordered to remove his underwear, whereupon Akbar remarked that West was a "meat watcher," insinuating that West was homosexual. A fracas quickly ensued involving Akbar, West, Jones, Fouch, and Police Officer Louis Dixon, in which Akbar alleges that he was severely beaten, requiring medical attention and eight sutures in his leg. Akbar was subsequently charged with felony aggravated assault of a police officer against West, Jones, and Fouch. A grand jury returned a true bill of indictment against Akbar on May 31, 2005. Jones and Fouch did not testify in front of the grand jury. A bench trial was held on January 25, 2006, and Akbar was convicted of the lesser included charge of misdemeanor battery against West and acquitted of the felony aggravated assault charges against Jones and Fouch.
Akbar filed suit on July 10, 2006 against the City of Chicago ("City"), West, Jones, Fouch, and Dixon, alleging: (1) use of excessive force against Akbar in violation of 42 U.S.C. § 1983 ("Count I"); (2) a Monell claim against the City, also in violation of § 1983 ("Count II"); (3) a state law claim of malicious prosecution against Jones and Fouch ("Count III"); (4) a claim of respondeat superior against the City ("Count IV"); and (5) a state law claim for indemnification against the City pursuant to 745 Ill. Comp. Stat. 10/9-102 ("Count V"). The Monell claim (Count II) has since been withdrawn.
Jones and Fouch moved for summary judgment on Count III, the state-law malicious prosecution claim. In the 9/25/08 Order the court granted Jones' and Fouch's motion. Akbar filed a motion to reconsider, which is now before the court.
Reconsideration of interlocutory decisions is not governed by Rule 60 of the Federal Rules of Civil Procedure, but rather by "the doctrine of the law of the case, which authorizes . . . reconsideration if there is a compelling reason . . . ." Santamaria v. Sears, Roebuck, & Co., 466 F.3d 570, 571--72 (7th Cir. 2006). A compelling reason could include a change in or clarification of law, id., and is also appropriate where the court is convinced that the previous ruling is incorrect. See Brengettcy v. Horton, 423 F.3d 674, 680 (7th Cir. 2005) (noting that where case is transferred between judges, "the second judge may alter previous rulings if he is convinced they are incorrect . . . .") (citations omitted). The 9/25/08 Order was interlocutory; summary judgment was granted only as to Count III, and Jones and Fouch remain defendants in other undecided counts. The "compelling reason" standard is appropriate.
A grant of summary judgment is proper "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); Brengettcy, 423 F.3d at 680. All facts, and any inferences to be drawn from them, must be viewed in the light most favorable to the non-moving party. Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008).
To state a claim for malicious prosecution under Illinois law, Akbar must allege: (1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for the proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff. Kunz v. DeFelice, 538 F.3d 667, 681--82 (7th Cir. 2008) (citing Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996)). The absence of any one of these elements bars a plaintiff from pursuing the claim. Id.
In their motion for summary judgment, Jones and Fouch make two arguments that Akbar cannot satisfy the third element, the "absence of probable cause for the proceeding." First they argue that probable cause was present as to the charge of misdemeanor battery of West, as evidenced by Akbar's ultimate conviction. This argument was adopted in the 9/25/08 Order. Second, they argue that the grand jury made a probable-cause determination independent of Jones and Fouch, breaking the chain of ...