United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge
Michael Banks (“Plaintiff”) brings this action
against Defendants the City of Chicago (“City”)
and Chicago Police Officers Bolton (“Bolton”),
Orlando (“Orlando”), and Kubik
(“Kubik”) pursuant to 42 U.S.C. § 1983 and
Illinois state law for alleged violations of his civil rights
stemming from his 2013 arrest, prosecution, and acquittal for
delivery of a controlled substance. This matter is before the
Court on Defendants' motion for summary judgment .
For the reasons explained below, the Court denies
Defendants' motion . This case is set for status
hearing on January 11, 2018 at 9:00 a.m.
Court takes the relevant facts from the parties' Local
Rule 56.1 statements and exhibits thereto, , , .
The following facts are undisputed unless otherwise noted.
September 9, 2013, Officers Bolton, Orlando, and Kubik were
working as Chicago police officers on a narcotics team.
Bolton was a surveillance officer and Orlando and Kubik were
enforcement officers. Bolton was conducting surveillance near
the intersection of Madison and Kildare. See  at 2; 
at 2. He was sitting in a vehicle and communicating with the
rest of the narcotics team using a push-to-talk radio.
testified that he observed a transaction between a man who
was wearing a “white tank top” (see [53-3] at
25), whom he later identified as Plaintiff, and another man,
later identified as Stanford Clacks (“Clacks”).
Bolton testified that he observed Clacks approach Plaintiff
and have a short conversation. Bolton testified that
Plaintiff then crossed the street, reached down by a tree,
picked up a brown paper bag from the ground near the tree,
crossed back over the street to Clacks, reached into the
brown paper bag, removed an item, and gave something to
Clacks in exchange for money. Bolton testified that he could
not see what Plaintiff gave Clacks because Plaintiff had a
closed fist. Orlando testified that Bolton told him that he
observed a “hand-to-hand” transaction. See 
at 3. Orlando also testified that the transaction took place
in an area known for narcotics transactions.
disputes all of Bolton's observation of the alleged
transaction between Plaintiff and Clacks. Plaintiff testified
at his deposition that he did not sell drugs to Clacks.
According to Plaintiff, he was selling loose cigarettes near
the intersection of Madison and Kildare on September 9, 2013.
Plaintiff testified that Clacks approached him to buy two
cigarettes. Plaintiff testified that Clacks handed him a
dollar bill and he allowed Clacks to remove two cigarettes
from a pack of cigarettes. It is undisputed that this
transaction was out in the open; however, Defendants dispute
that the transaction was for cigarettes. Plaintiff states in
a declaration (and Defendants dispute) that between the time
he first spoke to Clacks and the time he was arrested,
Plaintiff stayed in the same position on the sidewalk and did
not cross the street. According to Plaintiff, he never
reached down by a tree; never picked up a brown paper bag
from the ground near a tree; never reached into a brown paper
bag or removed an item from a brown paper bag; and never gave
anything that he had taken out of a brown paper bag to
radioed the rest of his narcotics team and told them that he
had observed a hand-to-hand transaction that he believed to
be narcotics transaction. Bolton described both of the
individuals that engaged in the transaction. He described the
seller as wearing a white tank top.  at 5 (citing [53-3]
and Kubik were in a car about two blocks away. They drove to
where Bolton saw the transaction, arriving about two minutes
later. Bolton testified at trial that he “observed
[Plaintiff] look in the direction of the approaching
enforcement vehicle” and “toss [a] brown paper
bag to the ground.” [53-3] at 18. Plaintiff testified
that he never tossed a brown paper bag onto the ground.
Police officers never recovered the brown paper bag that
testified that Orlando and Kubik arrived about ten seconds
after Plaintiff sold the cigarettes to Clacks; Defendants
dispute this timing. See [53-5] at 15. When Orlando and Kubik
arrived they got out of their vehicle and detained Plaintiff
and Clacks. Plaintiff was searched and placed in handcuffs.
The parties dispute whether Plaintiff was placed under arrest
at this time, or later. They also dispute the extent of the
officers' search; Plaintiff asserts that during the
initial search, Orlando pulled on his shorts and underwear,
looked into his crotch area, and was able to see his
to Plaintiff, seconds after Orlando and Kubik arrived, two
other officers pulled up and then all four officers ran
around the corner, returning 15 to 20 seconds later.
Defendants dispute that this occurred. Kubik searched Clacks
and found five packets of a substance suspected to be heroin.
Plaintiff and Clacks were officially placed under arrest.
Later, Plaintiff was searched again and found to be in
possession of $89 in cash. See  at 8.
testified at his deposition that the only reason he arrested
Plaintiff was Kubik's statement that she found drugs on
Clacks and Bolton's statement that he observed Plaintiff
sell drugs to Clacks. Orlando also testified that Plaintiff
did not have cigarettes on his person at the time of arrest,
that he did not see Plaintiff with cigarettes, and that he
did not ever know that Plaintiff had cigarettes on him.
completed and signed a Complaint for Preliminary Examination
charging Plaintiff with delivery of a controlled substance.
Orlando, Kubik, and Bolton completed police reports stating
that Plaintiff was the seller in the drug transaction
witnessed by Bolton. No Defendant testified at
Plaintiff's bond hearing. Orlando testified at
Plaintiff's preliminary hearing, at which probable cause
was found to continue Plaintiff's detention. Plaintiff
was continuously detained from the date of his arrest,
September 9, 2013, through his trial in January 2015.
Plaintiff's bench trial, Bolton testified that he
observed an unknown “female that was … talking
to [Plaintiff] earlier walk eastbound and reach down and what
I believe to pick up the paper bag and continue to walk
eastbound.” [53-3] at 20. Orlando testified that while
Plaintiff and Clacks were being detained, there “was
contact of a Female that was walking by in our vicinity and
grabbing a small brown bag.” Id. at 36. The
police reports contain no mention of the alleged unknown
female. At the conclusion of the trial, Plaintiff was found
not guilty and released from detention.
brings suit against Bolton, Orlando, Kubik, and the City
pursuant to 42 U.S.C. § 1983 for violation of his rights
under the Fourth and Fourteenth Amendments to the United
States Constitution. See . Plaintiff alleges that he did
not sell drugs to Clacks and did not undertake any acts that
could have caused a reasonable police officer to believe that
he had engaged in any wrongdoing. Plaintiff further alleges
that Bolton, Orlando, and Kubik fabricated evidence, causing
him to be held in custody and prosecuted for selling drugs.
Specifically, Plaintiff alleges that the Defendant officers
1) prepared police reports with the material false statement
that they had observed Plaintiff engage in a suspected drug
transaction with Clacks; and 2) concocted a false story that
they were unable to recover the paper bag from which
Plaintiff removed drugs, because an ...