United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY MCDADE UNITED STATES SENIOR DISTRICT JUDGE
matter is before the Court on the Defendants' Motion for
Summary Judgment on all four counts of Plaintiff's First
Amended Complaint. (Doc. 36). The matter has been fully
briefed and is ready for disposition. For the reasons stated
below, the Motion for Summary Judgment is GRANTED.
September 27, 2014, at approximately 2:43 A.M., Bloomington
Police Officer John Fermon observed a gray vehicle stop over
an intersection's crosswalk. After following the vehicle,
Officer Fermon saw it cross over the median lines several
times. Accordingly, he activated his emergency lights and
initiated a traffic stop.
Fermon approached the vehicle and made contact with the
driver, Bathsheba Brooks. Rodney Pillows, Brooks'
boyfriend, was the front passenger and Plaintiff Salih Baker
was the rear passenger sitting behind Brooks. About three
weeks prior to this incident, Officer Fermon arrested
Plaintiff for possessing cocaine and resisting arrest.
(See Doc. 36 at 2-3; Doc. 38 at 7). Officer Fermon
took their identification to his vehicle and radioed for K9
Officer Steve Statz to assist. Officer Fermon intended to
have Officer Statz and his canine conduct a “free air
sniff” of the vehicle. Since the free air sniff
required the occupants of the vehicle to exit, Officer Fermon
approached the vehicle a second time to explain the K9
procedure and order the occupants out of the vehicle.
Officer Fermon explained the K9 procedure from the driver
side of the vehicle, Officer Fermon noticed an open bottle of
Patron tequila on the floor board in front of Plaintiff.
Officer Fermon then noticed that Plaintiff seemed to be
clenching something in his right hand. Plaintiff
complied with Officer Fermon's request that he exit the
vehicle. As he exited, Officer Fermon attempted to grab his
right hand to see what, if anything, he was holding. Before
he could do so, however, Plaintiff raised his right hand
toward his mouth. At this point, Officer Statz informed
Officer Fermon that he thought Plaintiff ate something,
although he admits in his deposition he could not identify
what, if anything, Plaintiff swallowed.
handcuffing Plaintiff, the officers thoroughly searched
Plaintiff's person in an attempt to find the baggie in
case Plaintiff did not, in fact, eat it. After finding no
evidence of drugs, the officers attempted to remove any
substances from Plaintiff's mouth and had Plaintiff spit
on the ground, ultimately revealing no drugs. After a search
of the vehicle and the ground near where Plaintiff allegedly
ate the baggie, the officers found no evidence of drugs, only
the open bottle of tequila. Officer Fermon therefore believed
that Plaintiff had already swallowed the baggie containing
what he believed to be crack cocaine. Officer Fermon then
placed Plaintiff in the front seat of his squad car and
issued him a citation for illegal transportation of alcohol
as a passenger.
Fermon brought Plaintiff to the McLean County Jail where jail
officials directed him to take Plaintiff to the hospital to
address any medical concerns associated with swallowing crack
cocaine. They arrived at St. Joseph Medical Center at
approximately 3:42 A.M. The attending doctor, Dr. Darrell
Looney, did not notice any symptoms of cocaine ingestion
after observation and physical examinations. Nevertheless,
the doctor and nurses provided Plaintiff with charcoal and
sorbitol; charcoal neutralizes any toxic substances, and
sorbitol flushes the digestive system to allow foreign
substances or objects to pass through. Plaintiff did not
object to taking charcoal and sorbitol because he wanted to
show his innocence. Plaintiff also did not object to doctors
and nurses taking an x-ray to look for the baggie in his
body. After about two hours of waiting, Plaintiff did not
pass any baggie of cocaine nor did his x- ray show a
baggie's presence in his body. At approximately 7:30 A.M.,
Plaintiff received clearance for discharge and Officer Fermon
brought him back to the McLean County Jail.
bringing Plaintiff back to the jail, Officer Fermon wrote a
probable cause statement asserting the existence of probable
cause that Plaintiff obstructed justice. At the jail,
officials continued to observe Plaintiff for any foreign
substances that may pass as a result of taking sorbitol.
Plaintiff remained in an observation cell for about one week.
Neither drugs nor a baggie were ever recovered.
on September 27, 2014, an Assistant State's Attorney,
Ashley Scarborough, submitted a verified statement of arrest
to a judge. That same day, a judge signed the statement of
arrest, thus concluding that Officer Fermon had probable
cause to arrest Plaintiff for obstructing justice and to
detain him in lieu of bond. On September 28, one day later,
Officer Fermon wrote a more detailed police report of the
incident. After Officer Fermon submitted his reports
to the State's Attorney's Office, he had no further
involvement with the criminal proceedings relevant to
Plaintiff's arrest on September 27, 2014.
jury convened on October 8, 2014 to consider whether to
indict Plaintiff for obstruction of justice. Officer Fermon
did not testify; instead, Sergeant Randall Wikoff testified
based on knowledge he obtained from reading reports on this
matter. Later that same day, the grand jury returned a bill
of indictment charging Plaintiff with obstruction of justice.
October 14, 2016, Assistant State's Attorney, Patrick
Sheehan, entered an order of nolle prosequi regarding
Plaintiff's obstruction of justice charge, thus
terminating its prosecution.
March 20, 2017, Plaintiff filed his First Amended Complaint,
in which he alleges that Officer Fermon is liable under 42
U.S.C. § 1983 because he violated Plaintiff's Fourth
Amendment rights. (Doc. 22). In Count I, Plaintiff alleges
unreasonable seizure. (Doc. 22 at 4). In Count II, Plaintiff
alleges unreasonable search. (Doc. 22 at 5). And in Count
III, Plaintiff alleges unreasonable detention. (Doc. 22 at
6). Plaintiff also states a supplemental state law claim of
malicious prosecution against Officer Fermon and the City of
Bloomington (Count IV). (Doc. 22 at 6-7).
1, 2018, Defendants filed a Motion for Summary Judgment (Doc.
36) seeking summary judgment on all counts of Plaintiff's
First Amended Complaint. (Doc. 36 at 1). Defendants argue
that Plaintiff cannot show that Officer Fermon unreasonably
seized, searched, and detained Plaintiff on September 27,
2014, as is required to violate the Fourth Amendment.
(Id.). Defendants further contend that, even if
Plaintiff could establish constitutional violations,
qualified immunity bars Plaintiff's claims.
(Id.). Defendants lastly argue that Plaintiff cannot
succeed in establishing the elements of his state law
malicious prosecution claim. (Doc. 36 at 1-2).
timely filed his Response in Opposition to Defendants'
Motion for Summary Judgment on May 29, 2018. (Doc. 38).
Plaintiff argues that, viewing the evidence in the light most
favorable to him, genuine issues of material fact exist as to
the underlying facts of Plaintiff's constitutional
claims. (Doc. 38 at 1). Specifically, Plaintiff argues that
whether Officer Fermon had probable cause to seize, search,
and continue to detain Plaintiff (Counts I, II, and III,
respectively) rests on an underlying factual dispute.
(Id.). Plaintiff further responds that the record
supports all elements of his malicious prosecution claim.
(See Doc. 38 at 17).
timely filed their reply on June 12, 2018. Thus, this matter
is ripe for decision.
grant summary judgment where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A grant of summary judgment is
appropriate only where the movant shows that the evidence
could not justify a reasonable jury finding in favor of the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (defining a genuine dispute of
material fact). In other words, “[o]nly disputes over
facts that might affect the outcome of the suit . . . will
properly preclude the entry of summary judgment.”
Id. at 248. At this stage, courts view evidence in
the light most favorable to the nonmovant, with material
factual disputes resolved in the nonmovant's favor.
See Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016).
However, when the parties “tell two different stories,
one of which is blatantly contradicted by the record, . . . a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
survive a defendant's properly supported motion for
summary judgment, the plaintiff “must show evidence
sufficient to establish every element that is essential to
its claim and for which it will bear the burden of proof at
trial.” Life Plans, Inc. v. Security Life of Denver
Ins. Co., 800 F.3d 343, 349 (7th Cir. 2015) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)). Specifically, “[i]n a § 1983 case, the
plaintiff bears the burden of proof on the constitutional
deprivation that underlies the claim, and thus must come
forward with sufficient evidence to create genuine issues of
material fact to avoid summary judgment.”
McAllister v. Price, 615 F.3d 877, 881 (7th Cir.
2010). The plaintiff-nonmovant cannot survive summary
judgment by simply asserting that a material fact is
genuinely disputed; it must instead “support the
assertion by: (A) citing to particular parts ...