Alexander v. City of Danville Illinois

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

DEJUAN ALEXANDER, )

)

Plaintiff, )

)

v. ) Case No. 18-2290

)

THE CITY OF DANVILLE, ILLINOIS, )

et al., )

)

Defendants. )

OPINION AND ORDER

SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:

Before the Court is a Motion for Summary Judgment (d/e 71)

submitted by Defendants the City of Danville, Illinois (“Danville” or

“the City”), Dawn Hartshorn, Phil Wilson, Travis Spain, Joshua

Edington, Joshua Campbell, Scott Damilano, Brian Lange, Patrick

Carley, Troy Hogren, Danielle Lewallen, and Unidentified Employees

of the City of Danville (“Officers”) (collectively, “Defendants”). Also

before the Court is Defendants’ Motion to Strike Portions of Plaintiff

DeJuan Alexander’s Response (d/e 79). Defendants seek summary

judgment on each of Plaintiff’s claims arising under 42 U.S.C. §

1983. Defendants are entitled to qualified immunity on Plaintiff’s §

1983 unlawful pretrial detention claim. Further, Plaintiff’s state

law claims fail as a matter of law because no constitutional violation

occurred. Defendants’ Motion for summary Judgment (d/e 71) is,

therefore, GRANTED. Finally, because the Court can conclude the

appropriateness of Plaintiff’s responses to Defendants’ statement of

facts without striking those lengthy portions of Plaintiff’s Response,

Defendants’ Motion to Strike (d/e 79) is DENIED.

I. JURISDICTION

This Court has subject-matter jurisdiction over Counts I, II,

III, and IV of Plaintiff’s Complaint because they are claims under 42

U.S.C. § 1983. See 28 U.S.C. § 1331; see also 28 U.S.C. §

1343(a)(3) (“The district courts shall have original jurisdiction of any

civil action authorized by law to be commenced by any person to

redress the deprivation, under color of any State law, statute,

ordinance, regulation, custom or usage, of any right, privilege or

immunity secured by the Constitution of the United States or by

any Act of Congress providing for equal rights of citizens or of all

persons within the jurisdiction of the United States.”)

The Court also has subject-matter jurisdiction over Plaintiff’s

Illinois state law claims under the Court’s authority to invoke

supplemental jurisdiction, see 28 U.S.C. § 1367. In addition to

supplemental jurisdiction, the Court also has subject-matter

jurisdiction over the state law claims under the Court’s diversity

jurisdiction. Under 28 U.S.C. § 1332, the Court “shall have original

jurisdiction of all civil actions where the matter in controversy

exceeds the sum or value of $75,000 . . . and is between citizens of

different States.” In this case, Plaintiff is a resident of the State of

Indiana and all Defendants are residents of the State of Illinois.

While Plaintiff does not specifically allege the amount in controversy

in this case is over $75,000, Defendants have not contested the

issue. Courts will not dismiss claims for failure to adequately plead

the amount in controversy unless it “appear[s] to a legal certainty

that the claim is really for less than the jurisdictional amount.”

Rexford Rand Corp. v. Ancel, 58 F.3d 1215, 1218 (7th Cir. 1995)

(quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,

289 (1938)); Jump v. Schaeffer & Assocs. Ins. Brokerage, Inc., 123

Fed.Appx. 717, 719 (7th Cir. 2005). Plaintiff has alleged that he

was wrongfully imprisoned pending trial for four years. The Court

finds that Plaintiff has adequately alleged an amount in controversy

of more than $75,000. Therefore, the Court finds that the Court

has jurisdiction over Counts V, VI, VII, and VIII under the Court’s

diversity jurisdiction as well as under supplemental jurisdiction.

II. BACKGROUND

a. Motion to Strike

In Defendants’ Motion to Strike, Defendants ask the Court to

strike 38 of Plaintiff’s 44 responses to Defendants’ Statement of

Undisputed Material Facts (“DSUMF”) and the first 20 pages of the

Argument section of Plaintiff’s Response, and to deem Defendants’

Undisputed Facts admitted. Defendants argue that the Court’s

Local Rules require the Court deem admitted improperly disputed

material facts and strike argumentation within factual responses.

The Court disagrees.

Motions to strike are typically disfavored, and the Court will

only grant such a motion if it is clear that the material to be struck

“can have no possible bearing on the subject matter of the

litigation.” Swanson v. Murray Bros, LLC, No. 19-cv-3220, 2020

WL 2857562, at *1 (C.D. Ill. June 2, 2020) (quoting Anderson v. Bd.

of Educ. of City of Chicago, 169 F. Supp. 2d 864, 867 (N.D. Ill.

2001)). Instead, the Court will generally “rely on its own ability to

consider only arguments and facts which are properly presented”

and will pass over without consideration those not properly

presented. Nuzzi v. St. George Cmty. Consol. Sch. Dist. No. 258,

688 F.Supp.2d 815, 830 (C.D. Ill 2010).

Local Rule 7.1(D)(2)(b) governs how parties are to file

responses to motions for summary judgment. That Rule provides

the following instructions for how a non-moving party, in a separate

subsection of its brief, is to respond to the moving party’s stated

undisputed material facts,

List by number each fact from Section B of the

motion for summary judgment which is

conceded to be material but is claimed to be

disputed. Each claim of disputed fact must be

supported by evidentiary documentation

referenced by specific page. Include as exhibits

all cited documentary evidence not already

submitted by the movant.

Civ. LR 7.1(D)(2)(b)(2). The Local Rules further provide that the

non-moving party’s arguments and responses to the moving party’s

arguments are to be contained in another separate argument

subsection of the non-moving party’s brief,

The response must include the following

sections . . . (b) Response to Undisputed

Material Facts . . . (c) Argument: With or

without additional citations to authorities,

respond directly to the argument in the motion

for summary judgment.

Civ. LR 7.1(D)(2)(b)–(c).

While the Court notes that Plaintiff’s Responses to DSUMF

(“PRSUMF”) improperly present arguments and additional facts in

violation of the Local Rules, the Court declines to strike the

offending portions and will instead evaluate each one individually.

For example, Defendants assert the following fact as material and

undisputed,

That same day, Hogren and Lange interviewed

McGuire, who was one of the seven occupants

from the white Escalade. McGuire advised the

detectives that he drove from Indianapolis to

Danville in a Jeep with two MRC rappers

named “Khaos” and “Yella.” McGuire left

Deuce’s when the fights in the bar started and

tried to hide in the Jeep that he came in, but

never saw “Khaos,” “Yella,” or anyone else from

MRC at that time. Seeing that no one else was

coming to the Jeep, McGuire ended up getting

in the white Escalade with the other occupants

that left the scene at Deuce’s. Additionally,

McGuire advised the detectives that “Khaos”

has gold teeth and wore a shirt with a design

on it. See Ex. 5, at ¶9; see also Danville Police

Supp. Report (Det. Hogren/Lane), attached as

Exhibit 15.

DSUMF ¶ 27. Plaintiff’s response to that statement is,

Disputed. These statements are neither a full

nor accurate recitation of the facts most

favorable to the nonmoving party. McGuire

also told Hogren that he never saw “Khaos”

with a gun and never saw a confrontation. (Ex.

15, at 2).

PRSUMF at ¶ 27. Plaintiff’s response is improper. First, it

incorrectly states the legal standard, as explained more fully below,

as viewing “the facts most favorable to the non-moving party.” The

correct standard on summary judgment is viewing “the facts in the

light most favorable to the non-moving party.” Woodruff v. Mason,

542 F.3d 545, 550 (7th Cir. 2008) (emphasis added). Second, and

more importantly, the presence of this legal argument is improper

because it is legal argumentation within a section devoted only to

facts. Third, and finally, Plaintiff’s proffered dispute is no dispute

at all. Plaintiff argues that Plaintiff is seeking to provide context to

Defendants’ statement of fact, and accordingly disputes Defendants’

statement. But providing context to a statement of fact and

disputing the fact are distinctly different and not mutually

exclusive. Plaintiff’s response merely contains additional facts,

which the Court can consider in addition to Defendants’ statement.

Each of Plaintiff’s fact-responses that Defendants request the

Court strike contain similar faults. See PRSUMF at ¶¶ 22–29, 31–

43, 45–48, 50–51, 54–62, 65–74, 76. While the Court notes that

these are technically against the Court’s Local Rules, the Court

declines to strike the responses “out of an abundance of caution”

because the responses contain additional facts and this is now the

summary judgment stage of the case. See Shreffler v. City of

Kankakee, No. 19-cv-2170, 2021 WL 6200764, at *13 (C.D. Ill. Sep.

28, 2021) (declining to strike potentially relevant information at the

summary judgment stage). For the same reasons, the Court

declines to strike the first 20 pages of Plaintiff’s Response (d/e 75).

Instead, the Court will “rely on its own ability to consider only

arguments and facts which are properly presented” and will pass

over without consideration those not properly presented. Nuzzi,

688 F.Supp.2d at 830. Defendants’ Motion to Strike (d/e 79) is

DENIED.

b. Facts

The Court draws the following facts from the parties’

statements of material facts, taking into account each party’s

objections thereto. The Court discusses material factual disputes, if

any, in its analysis. Any fact submitted by any party that was not

supported by a citation to evidence will not be considered by the

Court. See Civ. LR 7.1(D)(2)(b)(2). In addition, if any response to an

allegedly disputed fact is unsupported by evidentiary

documentation, that fact is deemed admitted. Id. Lastly, as stated

above, any response containing only argumentation without actual

factual dispute will not be considered.

Defendants Phil Wilson, Travis Spain, Joshua Edington,

Joshua Campbell, Scott Damilano, Brian Lange, Patrick Carley,

Dawn Hartshorn, Troy Hogren, and Danielle Lewallen (collectively

“Defendants”) were all employed with the City of Danville, which is

also a named Defendant in this case, within the City’s police

department in March 2014. Def.’s Undisputed Material Facts

(“DUMF”) (d/e 75) ¶ 5.

On March 15, 2014, Plaintiff DeJuan Alexander, a Black man,

travelled from Indiana to Danville, Illinois to perform at a rap

concert at a bar called Deuce’s. Id. ¶ 8. Plaintiff used the

pseudonym “Khaos” when performing. Id. ¶ 2, 31. That night,

Plaintiff drove a maroon Jeep Commander, wore red jeans and a tan

shirt with a colorful image of a dreamcatcher on the front, and who

was six-feet, three-inches tall and weighed roughly 280–300

pounds. Id. ¶¶ 2, 10, & 11. Plaintiff traveled to Deuce’s with

Darnell Evans, also called “Yella,” Keenan Thomas, Travis McGuire,

William King, also called “Scooty,” Jason Reed, and George Haynes.

Id. ¶ 12. Plaintiff parked in a nearby Auto-Zone parking lot when

he arrived because the Deuce’s parking lot was full. Pl.’s Additional

Material Facts (“PAMF”) (d/e 75) ¶ 6.

At Deuce’s, Plaintiff performed along with King and Evans.

Plaintiff performed for no more than fifteen minutes. DUMF ¶ 12.

When the performance was over, a fight broke out near the stage.

Id. ¶ 13. As the patrons of Deuce’s left the bar, fights also began to

break out in the parking lot with people running from the bar.

PAMF ¶ 15. Two people were shot in the chaos: Demaree Tetter and

Sheldon Pittman. DUMF ¶ 16 & 51. Tetter was shot in the chest

and died that night while Pittman was shot in the hand and

survived. Id.

Officers Spain and Edington were already at Deuce’s at the

time of the shooting, though Spain testified that he arrived at

Deuces at around 10:00 or 11:00 p.m. DUMF ¶ 14; Ex. 10 16:13–

23. While officer Spain was responding to a fight, a man named

John Ervin approached Spain and told Spain that Ervin saw a man

with a gun in the parking lot. Id. ¶ 15. Officer Eddington was also

told that there was a shooting in the parking lot and ran to the

parking lot where Eddington found Pittman and Tetter. Id. At

some point, Edington called over the police radio that there were

fights breaking out. Id. ¶ 19. Officer Carley responded at around

1:30 a.m. at which time Carley heard gunshots. Id. ¶ 51. Detective

Hogren also stated that Hogren heard a report at 1:30 a.m. of a

shooting at Deuce’s. Ex. 5 ¶ 5. Officer Edington was told that the

shooter left in a white Cadillac Escalade with Indiana license plates,

while officer Carley was told that the shooter left in a maroon SUV.

DUMF ¶¶ 17 & 20.

Law enforcement stopped a white Escalade with Indiana

license plates shortly thereafter. DUMF ¶ 21. The occupants of the

Escalade—Travis McGuire, George Haynes, Alberto Wilmont, Jr.,

Jacob Hall, Joshua Roberts, Jason Reed, and William King—were

taken into police custody and transported to the Danville Public

Safety Building for questioning. Id. ¶ 22 & 23. The group arrived

at the Public Safety Building at around 1:50 a.m. Id. ¶ 27; Ex. 5 ¶

7.

Detectives Hogren and Lange then interviewed Travis McGuire

at the Public Safety Building at around 9:00 a.m. on March 16,

2014. DUMF ¶ 27; Ex. 15; Ex. 5 ¶ 9. McGuire told Hogren and

Lange that McGuire came to Danville from Indianapolis in a red

Jeep with two other rappers named Khaos and Yella. Ex. 15.

McGuire also stated that Khaos was the driver of the Jeep and

described Khaos as “dark skinned” with “short hair.” Id. McGuire

then stated that Khaos “had gold in his teeth and [Khaos] was

wearing a shirt with a design on it.” Id. Detectives Hogren and

Lange also interviewed Roberts at the Public Safety Building later

that morning at 11:15 a.m. Ex. 5 ¶ 11; Ex. 67. Roberts stated that

Khaos had gold teeth. Id.

Detective Wilson and Officer Spain also talked with John Ervin

soon after the shooting at around 3:00 a.m. on March 16, 2014 at

the Public Safety Building. Ex. 13. At that time, Ervin stated1 that

Ervin saw a large White man with a beard and black braids hand a

Black man a gun. Id. Ervin told Wilson and Spain that the Black

man pointed the gun at Demaree Tetter and that was when Ervin

1 Plaintiff, in his Response to Defendants’ Statement of Undisputed Facts,

argues that “Ervin’s statement was completely fabricated by Detective Wilson

and Officer Spain” and should, therefore, be disregarded. Pl.’s Resp. (d/e 75)

p. 7–8. However, as explained further below, Plaintiff has not presented any

evidence of fabrication and does not cite to any exhibits to support that

assertion. See generally id. Without any supporting evidence cited at the

summary judgment stage, and as explained more fully below, the Court cannot

accept Plaintiff’s assertion that Ervin’s statement was “completely fabricated.”

said he decided to run to tell Spain, who was breaking up a fight at

the time, that there was someone with a gun. Id. Ervin told the

officers that he saw the man with the gun leave in a white Jeep with

Indiana license plates and saw another white Cadillac Escalade also

leaving. Id. Ervin stated that he thought a picture of Travis

McGuire looked like the man with the gun if McGuire would have

had gold teeth. Id. Ervin instead described the man with the gun

as around six-feet tall, around 230–250 pounds, having short hair,

having gold teeth, wearing a red or gray shirt with red sleeves and

“some type of old painting on the front,” red or gray shoes, and blue

jeans. Id.

The next day, on March 17, 2014, Wilson again interviewed

Ervin. Ex. 22. In that interview, Wilson showed Ervin a photo

array of six photos, one of which was of Plaintiff. Id. Ervin

identified Plaintiff’s picture as the picture of the man with the gun

at Deuce’s. Id.

Detective Lange also interviewed the surviving victim, Sheldon

Pittman, twice, first on March 16, 2014 shortly after the shooting

and again on March 17, 2014 at about 9:50 a.m. Exs. 21 & 57. In

the first interview, made while Pittman was still in the emergency

room, Pittman stated that a Black man was the shooter but could

not describe the shooter at the time. Ex. 57. Pittman also

mentioned a man with braids was on the scene. Id. At the March

17 interview the next morning, Detective Lange showed Pittman a

photo array in which one of the pictures was of Plaintiff. Ex. 21.

Pittman picked the photo of Plaintiff out of the array, though

Pittman stated that he could not say for sure Plaintiff was the

shooter. Id.

Detective Damilano interviewed Ashely Darnell shortly after

the shooting on March 16, 2014 at 5:45 a.m. Ex. 62. Darnell told

Detective Damilano that she was inside Deuce’s when the shooting

happened and that she did not directly witness the shooting. Id.

Darnell also stated that she was told by her cousin, Cedric Halthon,

that the shooter was a man named Sadi, but that Darnell did not

know Sadi’s last name or whether Halthon’s accusation was correct.

Id.

Detective Lange then interviewed Cedric Halthon at 3:45 p.m.

on March 17, 2014. Ex. 25. Halthon told Detective Lange that a

Black man who was “on stage with the guys from Indiana . . . pulled

a gun on Terrance Liggins and [JuJuante] Newell.” Id. Halhton told

Lange that the gun initially jammed. Id. Halthon stated that

Damaree Tetter approached the man and “started talking shit” to

the man with the gun and that was when the shooter started firing

the gun. Id. Halthon stated that the shooter was from Indianapolis

and that the shooter had a “red hoodie with a skull cap on” and

“was one of the ones on the stage with the rapper.” Id. Detective

Lange then showed Halthon a six-photo array, including a photo of

Plaintiff, and Halthon identified Plaintiff as the shooter, stating

Halthon “would never forget that face.” Id.

Detectives Hogren, Lewallen, and Wilson interviewed Timothy

and Terrance Liggins on March 17, 2014, all of whom were at

Deuce’s at the time of the shooting. Exs. 23, 24, & 29. Timothy

Liggins told Detective Holgren that one of the rappers at Deuce’s

was the shooter. Ex. 23. Timothy Liggins stated that the shooter

was Black, around six-feet tall, 250 pounds, in his late twenties,

was wearing a sweater with some type of design on the front, had

on blue jeans, and had four to six gold teeth. Id. p. 1. Terrance

Liggins told Lewallen that the shooter came from the Auto Zone

parking lot, had a “whitish, blue and red shirt with gold in his

mouth,” and was heavy set with a haircut. Ex. 24. Terrance

Liggins also stated that after the shooter shot Tetter and Pittman,

the shooter left in a maroon Jeep. Id. p. 2. Terrace was then

shown a picture of a maroon 2007 Jeep Commander, and Terrance

told Lewallen that the car in the picture looked like the one the

shooter left in. Id. Finally, both Terrance and Timothy Liggins

picked Plaintiff’s photo when presented with a six-photo array and

were asked to identify the shooter. Exs. 23 & 24.

Finally, Detective Wilson interviewed JuJuante Newell on

March 17, 2014 at 3:30 p.m. Ex. 29. Newell was at Deuce’s the

night of the shooting and told Wilson that Newell was a witness to

the shooting. Id. Newell stated that the man who shot Tetter first

threatened to shoot Newell, but the gun misfired. Id. When Newell

was pulled by his girlfriend to the ground, Newell stated that he

heard gunshots and saw Tetter on the ground. Id. Newell said that

he then saw the shooter walking towards the Auto Zone. Id.; Ex. 86

p. 3–4. When Detective Wilson presented Newell a six-photo array

including a photo of Plaintiff, Newell identified Plaintiff as the

shooter. Ex. 29.; Ex. 86 p. 5.

A warrant was then issued for the arrest of Plaintiff Dejuan

Alexander on March 17, 2014 by a judge in the Fifth Judicial

Circuit Court in Vermillion County Case Number 2014-CF-000114.

Ex. 82. Plaintiff was arrested on March 18, 2014. DUMF ¶ 1.

Plaintiff’s case went to trial first in October 2016, four years after

his arrest. Id. ¶ 53. The first trial ended in a mistrial. Id.

Plaintiff’s second trial was held in February 2018. Id. ¶ 63. That

trial ended in Plaintiff’s acquittal. Id.

c. Procedural History

Plaintiff filed his first Complaint against Defendants on

November 2, 2018. See (d/e 1). In that first Complaint, Plaintiff

claimed that his arrest, detention, and trial amounted to various

violations of federal law under 42 U.S.C. § 1983 including: one

count of violations of due process under the Fourteenth

Amendment, one count of “Deprivation of Liberty without Probable

Cause” under the Fourth and Fourteenth Amendments, one count

of “Unduly Suggestive Identification Procedures” in violation of the

Fourteenth Amendment, one count of failure to intervene to prevent

the alleged violations of Plaintiff’s Constitutional rights, one count

of conspiracy to deprive Plaintiff of his Constitutional rights, and

one count of unconstitutional policymaking by the City (under

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658

(1978)). See Compl. (d/e 1). Plaintiff also alleged various state law

violations, including malicious prosecution, intentional infliction of

emotional distress, respondeat superior, and indemnification. Id.

Defendants filed a Motion to Dismiss (d/e 20) on January 11,

2019. The Court granted in part and denied in part that motion,

dismissing Plaintiff’s claims under the Fourteenth Amendment

because Plaintiff was acquitted at his second trial, so Plaintiff could

not show a due process violation under Lewis v. City of Chicago,

914 F.3d 472 (7th Cir. 2019). See Op. (d/e 31) p. 11. The Court

further held that Plaintiff’s claim of “Deprivation of Liberty without

Probable Cause” remained to the extent that claim alleged wrongful

pretrial detention and was based on the Fourth Amendment. Id.

The Court then granted Plaintiff leave to amend or supplement that

claim. Id.

Plaintiff then filed an Amended Complaint (d/e 32) in which he

alleged the following counts: Count I “Deprivation of Liberty without

Probable Cause” in violation of the Fourth Amendment; Count II

Failure to Intervene in violation of Plaintiff’s Constitutional rights;

Count III Conspiracy to Deprive Constitutional Rights; Count IV

Municipal Policy Claim alleging the City failed to train, supervise, or

discipline its police officers; Count V Malicious Prosecution; Count

VI Intentional Infliction of Emotional Distress; Count VII

Respondeat Superior; and Count VIII Statutory Indemnification

under 745 ILCS 10/9-102.

III. LEGAL STANDARD

Summary judgment under Rule 56 is appropriate “if 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). On such a motion, the facts and all

reasonable inferences derived therefrom are viewed in the light most

favorable to the non-moving party. Scott v. Harris, 550 U.S. 372,

380 (2007); Blasius v. Angel Auto., Inc., 839 F.3d 639, 644 (7th Cir.

2016) (citing Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016)).

A genuine dispute as to any material fact exists if the evidence

is such that a reasonable jury could return a verdict for the non-

moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The moving party bears the burden of establishing that

there is no genuine dispute as to any material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986); Modrowski v. Pigatto,

712 F.3d 1166, 1168 (7th Cir. 2013) (explaining that Rule 56

“imposes an initial burden of production on the party moving for

summary judgment to inform the district court why a trial is not

necessary” (citation omitted)). After the moving party does so, the

non-moving party must then go beyond the pleadings and “set forth

specific facts showing that there is a genuine issue for trial.”

Anderson, 477 U.S. at 255 (quotation and footnotes omitted).

Summary judgment is only warranted when the moving party

carries its initial burden and the non-moving party cannot establish

an essential element of its case on which it will bear the burden of

proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir.

2012). “[S]ummary judgment is the ‘put up or shut up’ moment in

a lawsuit, when a party must show what evidence it has that would

convince a trier of fact to accept its version of events.” Johnson v.

Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).

IV. ANALYSIS

Defendants first seek summary judgment on Plaintiff’s claims

under 42 U.S.C. § 1983. Defendants argue that they are entitled to

qualified immunity as to the § 1983 claims brought under the

Fourth Amendment because Defendants had at least arguable

probable cause to arrest and charge Plaintiff. In response, Plaintiff

argues that Defendants did not have probable cause and, even if

Defendants did, that probable cause was either predicated on

fabricated evidence or negated as the investigation into the shooting

continued.

Generally, the doctrine of qualified immunity is a shield police

officers may use when faced with a suit for damages under 42

U.S.C. § 1983 in which a plaintiff claims constitutional violations.

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Whether an officer is entitled

to qualified immunity “involves a two-pronged inquiry: (1) whether

the facts, read in favor of the of the non-moving party, amount to a

constitutional violation; and (2) whether the constitutional right was

clearly established at the time of the alleged violation.” Rainsberger

v. Benner, 913 F.3d 640, 647 (7th Cir. 2019) (Barrett, J.). Put

another way, “officers are entitled to qualified immunity under §

1983 unless (1) they violated a federal statutory or constitutional

right, and (2) the unlawfulness of their conduct was ‘clearly

established at the time.’” Dist. of Columbia v. Wesby, 138 S.Ct.

577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)). Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Burritt v.

Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)).

The Court need not always address both questions in the

qualified immunity analysis. Pearson v. Callahan, 555 U.S. 223,

236–42 (2009). “[I]f the law was not clearly established, there is no

need to tackle the (often harder) question whether the challenged

conduct violated the Constitution.” Rainsberger, 913 F.3d at 647.

But where the law was clearly established, both qualified immunity

questions must be addressed. Id.

As stated in the Court’s previous order on Defendants’ Motion

to Dismiss, Plaintiff’s claims can only sound in the Fourth

Amendment because Plaintiff was acquitted. Op. & Order (d/e 31)

pp. 9–11 (citing Lewis v. City of Chicago, 914 F.3d 472, 479 (7th

Cir. 2019)). Rather than due process claims under the Fourteenth

Amendment, Plaintiff’s § 1983 claims may only be brought under

the Fourth Amendment’s prohibition on unlawful pretrial detention.

Id. Accordingly, the Court’s qualified immunity analysis examines

only those issues sounding under the Fourth Amendment and does

not extend to Plaintiff’s due process claims.

The Fourth Amendment protects a person’s right to be free

from unreasonable searches and seizures. Pretrial detention is a

‘seizure’ and is “‘justified only on probable cause’ to believe the

detainee has committed a crime.” Young v. City of Chicago, 987

F.3d 641, 644 (7th Cir. 2021) (quoting Lewis, 914 F.3d at 477).

“There is no question that [Plaintiff’s] constitutional right to be free

from arrest without probable cause was clearly established at the

time of [his arrest].” Fleming v. Livingston Cty., Ill., 674 F.3d 874,

879 (7th Cir. 2012). Therefore, the ‘clearly established’ prong of the

qualified immunity inquiry is met. The only question that remains

is “whether the facts, read in favor of the of the non-moving party,

amount to a constitutional violation.” Rainsberger, 913 F.3d at

647. As this case presents a claim of wrongful pretrial detention in

violation of the Fourth Amendment, the question may also be

understood as whether there was probable cause to arrest Plaintiff

because “[p]robable cause to arrest is an absolute defense to any

claim under Section 1983 against police officers for” unlawful

pretrial detention. Burritt, 807 F.3d at 249 (quoting Mustafa v. City

of Chicago, 442 F.3d 544, 547 (7th Cir. 2006)).

a. Defendants are entitled to qualified immunity as to

Plaintiff’s § 1983 claim of unlawful pretrial detention

because probable cause existed to arrest and detain

Plaintiff.

“Probable cause is not a high bar.” Wesby, 138 S.Ct. at 586

(internal citation and quotation omitted). “Probable cause is

established by a reasonable belief that a person committed a

crime.” Phillips v. Allen, 668 F.3d 912, 914 (7th Cir. 2012) (citing

Illinois v. Gates, 462 U.S. 213 (1983)). “A police officer has

probable cause to arrest when, at the moment the decision [to

arrest] is made, the facts and circumstances within [the officer’s]

knowledge and of which [the officer] has reasonably trustworthy

information would warrant a prudent person in believing that the

suspect has committed or was committing an offense.” Fleming,

674 F.3d at 878–79 (quoting Qian v. Kautz, 168 F.3d 949, 953 (7th

Cir. 1999)). What’s more, the probable cause inquiry “does not

require that the officer’s belief be correct or even more likely true

than false, so long as it is reasonable.” Id. The inquiry “does not

take each fact in isolation; it depends on the totality of the

circumstances.” Rainsberger, 913 F.3d at 648. The question of

probable cause is only a question for a jury “if there is room for a

difference of opinion concerning the facts or the reasonable

inferences to be drawn from them.” Maxwell v. City of Indianapolis,

998 F.2d 431, 434 (7th Cir. 1993).

When evaluated under the assertion of qualified immunity, the

bar is still lower. “Although closely related, a determination of

actual probable cause is separate and distinct from a determination

of what is sometimes referred to as ‘arguable probable cause’ for

qualified immunity purposes.” Burritt, 807 F.3d at 250 (citing

Fleming, 674 F.3d at 880). “Arguable probable cause is established

‘when a reasonable police officer in the same circumstances and

with the same knowledge and possessing the same knowledge as

the officer in question could have reasonably believed that probable

cause existed in light of well-established law.’” Fleming, 674 F.3d

at 880 (quoting Humphrey v. Staszak, 148 F.3d 719, 725 (2012))

(additional citation and internal quotation omitted) (emphasis in

original). The presence of arguable probable cause at the time of

arrest entitles defendant officers to qualified immunity for § 1983

claims arising under the Fourth Amendment. See Burritt, 807 F.3d

at 249–250; Fleming, 674 F.3d at 880. Furthermore, “[t]he fact that

criminal charges are eventually dropped or the complaining witness

later recants has no consideration in the determination of arguable

probable cause at the time of arrest.” Fleming, 674 F.3d at 249.

Therefore, the precise question before the Court is whether, at the

time of Plaintiff’s arrest and presented with the facts then-known, a

reasonable officer could have mistakenly believed that probable

cause existed to arrest Plaintiff for the murder of Demaree Tetter

and the shooting of Sheldon Pittman. Burritt, 807 F.3d at 250.

The Court answers that question in the affirmative. The facts

supporting the existence of actual probable cause, never mind

arguable probable cause, are straight-forward: multiple interviews

were performed by multiple witnesses who told different officers a

similar set of facts. They told officers that, after the chaos of the

fights at Deuce’s spilled into the parking lot, a Black man shot

Tetter and Pittman. Ervin, Timothy Liggins, and Terrance Liggins

all described the shooter as a Black man approximately six-feet tall

and either heavy-set or around 250 pounds and with gold teeth.

Timothy Liggins and JaJuante Newell also told officers that the

shooter came from the Auto Zone parking lot and then returned to

the Auto Zone parking lot after the shooting. Terrance Liggins also

told officers that the shooter left in a maroon Jeep, a statement

Officer Carley also heard when he arrived at Deuce’s. All of those

facts as received by the officers fit the description of Plaintiff that

night. Travis McGuire, who had travelled from Indianapolis to

Danville with Plaintiff—a roughly hour-and-a-half drive—described

Plaintiff as begin dark-skinned, having short hair, and having gold

in his teeth the night of the shooting. Moreover, Ervin, Pittman,

Timothy Liggins, Terrance Liggins, and Newell all chose Plaintiff’s

picture from photo arrays as depicting the shooter, though Pittman

was not certain. Lastly, and perhaps most significantly, an Illinois

Fifth Judicial Circuit judge found probable cause and issued a

warrant to arrest Plaintiff on March 17, 2014, the day before he was

arrested. When analyzed as a whole, the Court finds that a

reasonable officer could have, even mistakenly, believed that

probable cause existed to arrest and detain Plaintiff. Moreover, the

breadth of evidence before Defendants when making the probable

cause determination prior to Plaintiff’s arrest shows that there is no

room for a difference of opinion concerning whether actual probable

cause was established. As a result, Defendants are entitled to

qualified immunity.

i. Plaintiff’s arguments against probable cause are

without merit.

Plaintiff argues that Defendants did not have either arguable

or actual probable cause to arrest and detain Plaintiff, so

Defendants are not entitled to qualified immunity. Plaintiff’s

arguments are four-fold: that the evidence supporting Defendants’

probable cause determination and the evidence which formed the

basis of the arrest warrant was fabricated by Defendants, that the

probable cause determination made at the time of arrest was then

negated by evidence collected from further investigation after

Plaintiff’s arrest, that the photo arrays used in the witness

interviews were unduly suggestive, and that Defendants withheld

certain impeachment evidence in violation of their disclosure

obligations under Brady v. Maryland, 373 U.S. 83 (1963).

1. Fabrication of evidence

To establish fabrication of evidence to determine probable

cause, Plaintiff must “present evidence that [Defendants]

deliberately submitted false testimony or recklessly disregarded the

truth.” Fleming, 674 F.3d at 881. The falsification must also be

material to the probable cause determination. Id. Plaintiff has not

presented any evidence to prove that the evidence which formed

probable cause to arrest Plaintiff on March 18, 2014 was fabricated.

Plaintiff repeatedly states that all of the statements made by John

Ervin, Terrance Liggins, Timothy Liggins, Cedric Halthon, and

JuJuante Newell were fabricated by Defendants. But Plaintiff does

not submit any evidence to support that assertion. Instead,

Plaintiff points to later testimony revealed at trial in which

Benjamin Smith, a cellmate of Cedric Halthon’s in May 2015,

testified that Halthon told Smith that Halthon “[knew] Alexander

didn’t do the shooting” when Halthon gave his statement to law

enforcement and that Smith believed Halthon was lying when

Halthon made his statement to law enforcement. Ex. 79 pp.

3897:1–5, 3900. But even assuming that were true, Plaintiff has

not presented any evidence that Defendants knew Halthon was

lying when Defendants took Halthon’s statement. “The validity of

an arrest depends on what is known at the moment of the arrest,

not on evidence that may be developed years later.” Phillips, 668

F.3d at 915. Without evidence showing law enforcement knew

Halthon was lying at the time or coerced Halthon into identifying

Plaintiff, the Court finds that Plaintiff cannot, as a matter of law,

show Halthon’s statement was fabricated.

The same is true for Plaintiff’s assertion that John Ervin’s

statement to law enforcement was also fabricated. Plaintiff points

to the following facts as evidence that Ervin’s statement was

fabricated: Ervin did not actually see the shooting, Detective Wilson

had a conversation with Ervin between the two recorded

statements, and Ervin had been a paid informant for the Danville

Police Department in the past. But none of these facts establishes

that Ervin’s statement was fabricated. First, Ervin did not state

that he saw the shooting, Ervin only stated that he saw a larger

White man give another Black man a gun and then identified

Plaintiff as the man who received the gun. Second, Plaintiff has not

pointed to any evidence to raise a genuine issue of fact for a jury

that the roughly 43-minute conversation between Wilson and Ervin

led to “deliberately false testimony” or amounted to a “reckless

disregard for the truth.” Instead, Plaintiff’s arguments amount to

mere speculation, which “is insufficient to withstand summary

judgment.” Hart v. Mannina, 798 F.3d 578, 588 (7th Cir. 2015).

Lastly, the fact that Ervin was a paid informant, “even when viewed

in the light most favorable to [Plaintiff] . . . does not negate the

existence of probable cause.” Purvis v. Oest, 614 F.3d 713, 723

(7th Cir. 2010) (holding that probable cause premised on the

statements of a police informant, while potentially evidence of bias,

does not negate probable cause, especially when the statements

were corroborated by another witness). Accordingly, Plaintiff

cannot, as a matter of law, show Ervin’s statement was fabricated.

2. Other evidence did not negate probable cause

to arrest and detain Plaintiff.

Plaintiff next argues that the probable cause established was

negated by other evidence. Plaintiff argues that the positive

gunshot residue on Jacob Hall, who was a passenger in the white

Cadillac, negated the probable cause to detain Plaintiff. “Hindsight

is not an appropriate basis for awarding damages against the

police.” Phillips, 668 F.3d 915. Rather, “[t]he validity of an arrest

depends on what is known at the moment of arrest[.]” Id.

Moreover, “[t]he fact that an officer later discovers additional

evidence unknown to her at the time of the arrest, even if it tends to

negate probable cause, is irrelevant.” Reynolds v. Jamison, 488

F.3d 756, 765 (7th Cir. 2007) (emphasis added). The positive

gunshot residue test result on Jacob Hall was not determined until

November 14, 2014, eight months after Plaintiff’s arrest. PSAMF ¶

136–138. Therefore, the positive gunshot residue test on Jacob Hall

could not have negated the probable cause to arrest Plaintiff

because it was not known by the officers at the time of arrest.

Plaintiff also argues that the statements made by Halthon to

Ashely Darnell regarding a man named Sadi and Halthon’s trial

testimony about a man named Yogi negated the probable cause to

arrest and detain Plaintiff. Ex. 62; PSAMF ¶ 104; Pl.’s Resp. pp. 55,

94. But, while Ashley Darnell told Detective Damilano that Cedric

Halthon had told Darnell that Halthon thought a man named Sadi

was the shooter, when Detective Damilano interviewed Halthon,

Halthon made a clear identification of Plaintiff from a six-photo

array. Ex. 25. Moreover, at trial, Halthon actually stated that

Halthon only thought the shooter “looked like Yogi and [the shooter]

looked like L.C. too” and that Halthon “don’t [sic] know” the

shooter. Ex. 26, 3642:14–23.

“Police need not run down all leads before making an arrest—

especially not when a crime is violent and leaving the perpetrator at

large may endanger other persons.” Phillips, 668 F.3d at 914.

“[P]olice have no duty to investigate extenuating circumstances or

search for exculpatory evidence once probable cause has been

established via the accusation of a credible witness.” Burritt, 807

F.3d at 250–251. Here, multiple credible witnesses described the

shooter in ways fitting Plaintiff’s appearance that night and multiple

others identified Plaintiff’s photo as depicting who they thought was

the shooter. Accordingly, the Court finds that, on the facts stated

and viewed in the light most favorable to Plaintiff, Plaintiff cannot

show, as a matter of law, that the evidence which formed the basis

of Defendants’ probable cause determination was either fabricated

or negated by subsequent evidence.

3. Plaintiff does not present evidence to show

the photo arrays were unduly suggestive.

Plaintiff next argues that probable cause was not established

because the photo arrays submitted to the witnesses were unduly

suggestive. “[P]robable cause can be based on a single

identification from a credible witness.” Hart, 798 F.3d at 587. In

this case, there were five identifications: from Ervin, Halthon,

Timothy Liggins, Terrance Liggins, and Newell. While probable

cause from photo identifications “cannot be the product of

manipulation or coercion,” no evidence of either manipulation or

coercion by any Defendant has been presented. Id. at 588. Plaintiff

instead again relies on speculation that the photos used in the

arrays were unduly suggestive and argues that “exposure to

information after a lineup can inappropriately inflate confidence of a

witness when making a later in-court identification.” Pl.’s Resp.

(d/e 75) p. 65. But speculation and later in-court identifications

have no bearing on the time-of-arrest probable cause analysis at

summary judgment. Hart, 798 F.3d at 587 (quoting Morfin v. City

of East Chicago, 349 F.3d 989, 1002 (7th Cir. 2003)) (“[Plaintiff]

relies on speculation, which is ‘insufficient to withstand summary

judgment.’”) Accordingly, the Court finds no genuine issue of fact

for the jury indicating the photo arrays were unduly suggestive.

4. Plaintiff’s Brady claim is a precluded

Fourteenth Amendment due process claim.

Plaintiff’s lastly argues that Defendants withheld what Plaintiff

alleges was exculpatory evidence required to be disclosed under

Brady v. Maryland, 373 U.S. 83 (1963). Brady provides that “the

suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material

either to guilt or to punishment.” 373 U.S. at 87 (emphasis added).

While the Seventh Circuit has stated in Cairel v. Alderden that “a

failure to disclose exculpatory evidence may cause the type of

deprivation of liberty required for a Brady claim” in cases where a

defendant is held in pretrial custody before acquittal or dismissal,

that language is (1) non-binding dicta and (2) only speculative. 821

F.3d at 833 (emphasis added). Further, in Bianchi v. McQueen the

Seventh Circuit held that “[a] violation of Brady requires a showing

of prejudice, which can’t be made” in cases where “the plaintiffs

were acquitted.” 818 F.3d 309, 320 (7th Cir. 2016). The Court

finds that the Bianchi holding, that an acquittal forecloses a due

process Brady claim, is consistent with the Seventh Circuit’s

decisions in Lewis v. City of Chicago and Young v. City of Chicago,

both of which held that a § 1983 plaintiff’s claims may only sound

in the Fourth Amendment and not the Fourteenth Amendment’s

Due Process Clause when the § 1983 plaintiff was acquitted at his

criminal trial. Lewis, 914 F.3d at 475; Young, 987 F.3d at 645–46.

Because Plaintiff’s Brady claim is, at its core, a claim of a violation

of due process, such claim is precluded by Bianchi, Lewis, and

Young because Plaintiff was acquitted after his second trial and,

therefore, can neither show prejudice nor pursue a due process

claim. Bianchi, 818 F.3d at 320. Plaintiff’s Brady objection to the

probable cause determination is, therefore, similarly precluded.

The Court finds no genuine issue of fact to be decided by a

jury as to the probable cause determination at the time of Plaintiff’s

arrest. When the undisputed material facts are viewed in the light

most favorable to Plaintiff as the nonmoving party, the Court finds

that actual probable cause, and certainly arguable probable cause,

existed as a matter of law to arrest and detain Plaintiff on March

18, 2014. As such, Defendants are entitled to qualified immunity

as to Plaintiff’s § 1983 unlawful pretrial detention claim.

b. Because Plaintiff cannot prove a constitutional

violation, the remaining § 1983 claims also fail as a

matter of law.

Plaintiff also alleges that each of the Defendant Officers failed

to intervene, the Defendant Officers conspired to deprive Plaintiff of

his constitutional rights, and the City of Danville failed to

adequately train Danville Police Department employees, all in

violation of § 1983. In each claim, Plaintiff must establish he

suffered a constitutional violation as a result of Defendants’ actions.

Where there is no constitutional violation established, claims of

failure to intervene, conspiracy to deprive constitutional rights, and

municipal liability claims cannot be established as a matter of law.

Fillmore v. Page, 358 F.3d 496, 506 (7th Cir. 2004) (“there was no

constitutionally impermissible failure to intervene because there

was no violation that compelled intervention”); Campos v. Cook

Cty., 932 F.3d 972, 975 (7th Cir. 2019) (quoting Archer v.

Chisholm, 870 F.3d 603, 620 (7th Cir. 2017) (“a plaintiff cannot

bring a § 1983 claim for conspiracy to deny a civil right unless the

plaintiff states an underlying claim for denial of a right”)); Petty c.

City of Chicago, 754 F.3d 416, 424–25 (7th Cir. 2014) (quoting

Houskins v. Sheahan, 549 F.3d 480, 493 (7th Cir.2008) (“[i]t is well

established that there can be no municipal liability based on an

official policy under Monell if the policy did not result in a violation

of [a plaintiff's] constitutional rights”).

As explained above, there was probable cause to arrest and

detain Plaintiff at the time, so Plaintiff did not suffer a

constitutional violation. When the undisputed facts are viewed in

the light most favorable to Plaintiff, the Court finds that Defendants

are entitled to summary judgment as to the Plaintiff’s § 1983 claims

of failure to intervene, conspiracy to deprive constitutional rights,

and failure to train under Monell.

c. Plaintiff’s remaining state law claims are precluded by

probable cause.

Defendants are also entitled to summary judgment as to

Plaintiff’s remaining state law claims. Plaintiff alleges malicious

prosecution and intentional infliction of emotional distress under

Illinois state law. Plaintiff also alleges respondeat superior and

indemnification, arguing that the City of Danville is liable for any

damage award granted to Plaintiff.

But like the derivative § 1983 claims, each of Plaintiff’s state

law claims cannot proceed in light of the existence of probable

cause. Claims of malicious prosecution require a plaintiff to show

the absence of probable cause. Cairel, 821 F.3d at 834 (citing Sang

Ken Kim v. City of Chicago, 858 N.E.2d 569, 574 (Ill. App. Ct.

2006). Additionally, claims of intentional infliction of emotional

distress resulting from an arrest are precluded by a finding of

probable cause. Id. at 836 (quoting Honaker v. Smith, 256 F.3d

477, 490 (7th Cir. 2001) (holding that a plaintiff cannot prove

intentional infliction of emotional distress where defendant police

officers’ actions “did not depart from reasonable and ordinary police

practices and thus cannot be said to be ‘beyond all bounds of

decency’ as required for outrageous and extreme conduct under

Illinois law”); McDade v. Stacker, 106 Fed.Appx. 471, 476 (7th Cir.

2004) (holding that the plaintiff’s intentional infliction of emotional

distress claim “fails because his arrest was supported by probable

cause” and affirming the entering summary judgment for the

defendant officers).

As stated above, probable cause existed to arrest and detain

Plaintiff. Accordingly, when the undisputed material facts are

viewed in the light most favorable to Plaintiff, Plaintiff cannot, as

matter of law, prove his claims of malicious prosecution or

intentional infliction of emotional distress under Illinois state law.

And as Plaintiff admits, without any underlying tort claims,

Plaintiff’s respondeant superior and indemnification claims against

the City of Danville also cannot be proven. Pl.’s Resp. (d/e 75) p.

100 (“Plaintiff agrees with Defendants’ assertion that by their

nature respondent [sic] superior and indemnification claims do not

stand on their own without the showing of an underlying tort”);

Towns v. Yellow Cab Co., 382 N.E.2d 1217, 1221 (Ill. 1978) (“When

an action is brought against a master based on the alleged negligent

acts of his servant, and no independent wrong is charged on behalf

of the master, his liability is entirely derivative, being founded upon

the doctrine of respondeat superior”). Therefore, Defendants are

entitled to summary judgment as to Plaintiff’s state law claims.

V. CONCLUSION

On the undisputed material fact, when viewed in the light

most favorable to Plaintiff, the Court finds that probable cause

existed to arrest and detain Plaintiff on March 18, 2014.

Furthermore, because at least arguable probable cause existed on

the same date, Defendants are entitled to qualified immunity. As a

result, Defendants are entitled to summary judgment on Plaintiff’s

unlawful pretrial detention § 1983 claim. Furthermore, because

Plaintiff cannot show a constitutional injury, and because probable

cause existed at the time of arrest, the Court finds that Plaintiff

cannot, as a matter of law, prove the remaining § 1983 and Illinois

state law claims. Accordingly, Defendants’ Motion for Summary

Judgment (d/e 71) is GRANTED, thought Defendant’s Motion to

Strike (d/e 79) is DENIED. The Clerk is DIRECTED to enter

judgment in favor of Defendants and against Plaintiff. All remaining

deadlines and settings are terminated, and all other pending

motions are DENIED as MOOT. This case is closed.

IT IS SO ORDERED.

ENTERED: May 3, 2022.

FOR THE COURT

/s/ Sue E. Myerscough____________

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE