United States District Court, N.D. Illinois, Eastern Division
Charles P. Kocoras United States District Judge.
Michael Taylor filed this pro se action on February 5, 2015,
asserting claims under 42 U.S.C. § 1983 against several
Chicago police officers. Taylor alleges that (1) he was
arrested without a warrant and was not brought before a judge
for a determination of probable cause until nearly 72 hours
later, and (2) officers ignored his requests for medication
and food during his confinement at the police station.
Currently before the Court is Defendants’ motion to
dismiss Taylor’s claim that he did not receive a timely
probable cause determination after his arrest .
(Defendants answered Taylor’s claim that he was denied
food and medication during his police station confinement
.) For the reasons in the Statement below, the Court
denies Defendants’ motion to dismiss  without
prejudice to re-filing it in accordance with this Order.
Taylor’s motion for additional time to respond to
Defendants’ motion  is denied as moot. A status
hearing is set for September 13, 2016, at 9:30 a.m.
amended complaint alleges that on September 7, 2014, he
called Chicago police to report that he had been robbed. Dkt.
16, at 6. According to the amended complaint, after officers
arrived, and as part of their investigation, they ran a check
for outstanding warrants and discovered that an investigative
alert existed for Taylor. Id. The officers then
allegedly handcuffed Taylor and told him he was being taken
to a police station for questioning, and that he would be
released in several hours, but Taylor was not released.
Id. Taylor claims that he requested numerous times
to make a phone call, to receive food, and to receive his
psychiatric medication, but his requests were either refused
or ignored. Id. at 7. According to Taylor’s
amended complaint, he was not charged and did not appear
before a judge until nearly 72 hours after his arrest, on
September 10, 2014, at which time he was moved from the
police station to Cook County Jail. Id.; see
also Dkt. 30, at 1.
noted in this Court’s November 6 Order  conducting
an initial review of Taylor’s amended complaint,
“the Fourth Amendment requires a judicial determination
of probable cause as a prerequisite to extended restraint of
liberty following a [warrantless] arrest.” Lopez v.
City of Chicago, 464 F.3d 711, 721-22 (7th Cir. 2006)
(quoting Gerstein v. Pugh, 420 U.S. 103, 114
(1975)). A judicial determination of probable cause should
occur within 48 hours of a warrantless arrest. Cnty. of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
Although a Gerstein hearing may be postponed for a
reasonable time to “cope with the everyday problems of
processing suspects through an overly burdened criminal
justice system, ” once a judicial determination of
probable cause is delayed more than 48 hours,
“‘the burden shifts to the government to
demonstrate the existence of a bona fide emergency or other
extraordinary circumstance’ to justify the
delay.” Lopez, 464 F.3d at 722 (quoting
McLaughlin, 500 U.S. at 55, 57).
motion to dismiss contends that a judicial determination of
probable cause for Taylor’s arrest occurred on
September 9, 2014, within 48 hours of his September 7, 2014
arrest. Dkt. 23, at 5-6. Defendants attach to their motion a
copy of an Order from the Cook County Circuit Court dated
September 9, 2014, at 12:20 p.m. Dkt. 23, Ex. A. The Order
states: “The Court, being provided with a sworn
affidavit and complaints, there is a finding of probable
cause to detain Michael Taylor on the charge of Aggravated
VOP (violation of order of protection); Aggravated
Stalking.” Id.. The Order goes on to charge
Taylor with “Agg. VOP/ Agg. Stalking, ” and
directs that he be taken to a bond court for the setting of
bail and a future court date. Id. But Taylor insists
he did not appear before a judge until September 10, 2014
(three days after his arrest), when he was transferred to the
Cook County Jail. See Dkt. 30. At the same time
Taylor filed his response, he submitted a motion for an
extension of time until after September 1, 2016, to present
additional evidence in response to Defendants’ motion
to dismiss. Dkt. 29. Taylor states he is scheduled to be
paroled then and should be able to access records for both
his arrest and his criminal proceedings by that time.
Court initially notes that it may consider the Cook County
Circuit Court September 9, 2014 Order. Although a
court’s consideration of materials outside of the
complaint or its attachments usually requires conversion of a
motion to dismiss to a motion for summary judgment,
see Fed. R. Civ. P. 12(d), a court may consider
matters of public record, such as a ruling in another court
proceeding. Henson v. CSC Credit Servs., 29 F.3d
280, 284 (7th Cir. 1994) (district court properly considered
public court records in deciding motion to dismiss without
converting the motion to one for summary judgment); see
also Santana v. Cook County Bd. of Rev., 679 F.3d 614,
619-20 (7th Cir. 2012) (a court may consider a transcript of
another proceeding when addressing a motion to dismiss).
Moreover, Taylor does not appear to challenge the
authenticity of the September 9, 2014 Order, and that Order
relates to the timing of the judicial determination of
probable cause in Taylor’s criminal case, which is
central to his current § 1983 claim. See Tierney v.
Vahle, 304 F.3d 734, 738 (7th Cir. 2002) (district court
properly considered a document “concededly authentic
[and] central to the plaintiff’s claim” when
addressing a motion to dismiss).
Court also notes that the state court’s September 9,
2014 Order indicates that there was a judicial determination
of probable cause within 48 hours Taylor’s arrest. Dkt.
23, Exh. A. But Taylor alleges in his amended complaint, and
he insists in his response to Defendants’ motion, that
he remained confined at the police station and did not appear
before a judge until September 10, 2014, three days after his
arrest. See Dkts. 16 and 30. Defendants do not
address Taylor’s contention. Instead, in their Reply,
Defendants state simply: “Plaintiff presents no new
evidence or arguments in his Response.” Dkt. 31, ¶
6; see also Dkt. 30, at 1.
courts have held that the arrestee need not be present to
satisfy Gerstein’s requirement of a judicial
probable cause determination. See, e.g.,
Garcia v. City of Chicago, Ill., 24 F.3d 966, 969-70
(7th Cir. 1994) (noting that there is no requirement that a
Gerstein hearing be adversarial, that those arrested
with a warrant usually were not present when a judicial
determination of probable cause was made, and, thus, there is
“no basis for holding that the fourth amendment grants
warrantless arrestees such a right”); Jones v. City
of Santa Monica, 382 F.3d 1052, 1055-56 (9th Cir. 2004)
(“Just as probable cause for an arrest warrant may be
determined without an appearance by the suspect, so may
probable cause for detention after a warrantless
arrest.”) (quoting King v. Jones, 824 F.2d
324, 327 (4th Cir. 1987)); but see Lopez, 464 F.3d
at 718 (“whether the arresting officer opts to obtain a
warrant in advance or present a person arrested
without a warrant for a prompt after-the-fact
Gerstein hearing, the Fourth Amendment requires a
judicial determination of probable cause) (emphasis added).
Although it is possible that the probable cause hearing
occurred without Taylor present, Defendants assert in their
motion that “Plaintiff was brought before a neutral
magistrate judge less than two days after his arrest, ”
Dkt. 23, at 1; and Taylor disputes that assertion.
See Dkts. 16 and 30.
before this Court determines that a timely probable cause
determination occurred in Taylor’s case, the Court
requires additional information about when such a judicial
determination was made, whether Taylor was present for that
determination, and what hearing (if any) Taylor attended on
September 10, 2014, which he contends is the first hearing he
attended. The Court notes that in another case in this Court,
the Cook County State’s Attorney’s Office
produced a transcript of the state court’s
probable-cause hearing. See Gordon v. Dart, No. 15 C
7304 (N.D. Ill.). A transcript of the hearing related to the
September 9, 2014 Order may suffice in this case.
Alternatively, a copy of a docket entry containing the same
information may be sufficient. But in either case, Defendants
must produce additional information clarifying when the
judicial probable cause determination was made, and they must
address Taylor’s contention that he was not present at
the hearing on September 9.
reasons stated above, Defendants’ motion to dismiss
Taylor’s claim that he did not receive a timely
judicial determination of probable cause after his arrest
(count one of his amended complaint)  is denied without
prejudice. Defendants may submit another motion to dismiss on
this ground within 28 days of this Order, if they are able to
comply with the directives in this Order. Absent such a
motion, Defendants shall file their answer to count one of
Taylor's amended complaint within 28 days of this Order.
Taylor’s motion for additional time to respond to
Defendants’ motion to dismiss  is denied as moot.
The Court encourages Taylor to review the docket of his
criminal case, however, which his motion states he wants to
do. If Taylor ...