Brown v. Sanchez

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Jason Allen Brown )

Plaintiff, Case No: 15 C 2498

)

V. )

) Judge Charles R. Norgle

City of Chicago, et al., )

Defendants.

MEMORANDUM OPINION AND ORDER

Pro se Plaintiff Jason Allen Brown, filed this 42 U.S.C. § 1983 civil rights action

regarding his detainment and arrest by the Chicago Police Department in September 2014.

Named as Defendants are Chicago Police Department employees Sergeant Sanchez, Officer

Bridges, Officer Konior, Officer Louie, Officer Randolph, Officer Rattler, Sergeant O’ Donnell,

Sergeant Garvey, and Lt. Robinson. This matter is now before the Court for ruling on

Defendants’ partial motion for summary judgment (Dkt. 94). For the reasons stated herein,

Defendants’ motion is granted in part and denied in part.

Legal Standard

A. Federal Rule of Civil Procedure 56

Pursuant to Federal Rule of Civil Procedure 56(a), this Court “shall grant summary

judgment 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.” To establish that a material fact is

undisputed, a party “must support the assertion by . . . citing to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . . admissions, interrogatory answers, or other materials.” Rule

56(c)(1). “The court need consider only the cited materials, but it may consider other materials in

the record.” Rule 56(c)(3). Courts must “construe all facts and draw all reasonable inferences in

favor of the nonmoving party.” Van den Bosch vy. Raemisch, 658 F.3d 778, 785 (7th Cir. 2011),

citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Once the party moving for summary judgment demonstrates the absence of a disputed

issue of material fact, “the burden shifts to the non-moving party to provide evidence of specific

facts creating a genuine dispute.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). The non-

movant must go beyond the allegations of his complaint and “set forth specific facts showing

that there is a genuine issue for trial.” Hannemann v. Southern Door County School Dist., 673

F.3d 746, 751 (7th Cir. 2012). A genuine issue of material fact exists only if there is evidence

“to permit a jury to return a verdict for” the nonmoving party. Egonmwan vy. Cook County

Sheriff's Dept., 602 F.3d 845, 849 (7th Cir. 2010); Carroll, 698 F.3d at 564 (“[m]Jere

metaphysical doubt” about material facts is not enough).

B. Northern District of Illinois Local Rule 56.1

Local Rule 56.1 “is designed, in part, to aid the district court, “which does not have the

advantage of the parties’ familiarity with the record and often cannot afford to spend the time

combing the record to locate the relevant information,’ in determining whether a trial is

necessary.” Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011) (citation omitted). Under

Local Rule 56.1(a)(3), the moving party must provide “a statement of material facts as to which

the moving party contends there is no genuine issue.” Ammons v. Aramark Unif. Servs., Inc..

368 F.3d 809, 817 (7th Cir. 2004) (quoting N.D. II. L.R. 56.1(a)); see also Fed. R. Civ. P. 56(c).

The opposing party must then “file ‘a response to each numbered paragraph in the moving

party's statement, including, in the case of any disagreement, specific references to the affidavits,

parts of the record, and other supporting materials relied upon.’” Cracco v. Vitran, Exp, □□□

559 F.3d 625, 632 (7th Cir. 2009) (quoting N.D. Ill. L.R. 56.1(b)(3)(B)). The opposing party

may also present a separate statement of additional facts that requires the denial of summary

judgment. See Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008) (citing N.D. III.

L.R. 56.1(b)(3)(C)). A court may consider true any uncontested fact in the movant’s Rule 56.1

Statement that is supported by the record and is not addressed by the opposing party. Raymond

v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006); see also Fed. R. Civ. P. 56(e)(2); Local

Rule 56.1(b)(3)(C).

Defendants submitted Statements of Uncontested Facts, (Dkt. 98), to which Plaintiff

responded. (Dkt. 104). Plaintiff also submitted a memorandum (Dkt. 103) responding to

Defendants’ legal memorandum (Dkt. 95).

Defendants argue in their reply brief that Plaintiff's response to their Local Rule 56.1

Statement of Facts is improper in several ways, in that Plaintiff: (1) in some instances fails to

provide specific references to the record: and (2) offers nothing more than legal arguments or

conclusions. Defendants contend that because Plaintiff failed to comply with Local Rule 56.1.

their statement of facts should be deemed admitted.

Even to the extent Plaintiff failed to completely comply with Local Rule 56.1, it would

not “automatically result in judgment for the movant,” as “[t]he ultimate burden of persuasion

remains with [the movant] to show that [he] is entitled to judgment as a matter of law.”

Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). Where Defendants’ statements

are properly supported by the cited materials and are not otherwise disputed by evidence Plaintiff

raises, including his deposition testimony (Dkt. 98-4), the Court will consider those statements as

undisputed. See Local Rule 56. 1(b)(3)(C). But, where Plaintiff has pointed to evidence

contrary to Defendants’ statements of fact in in the record or could properly testify himself about

the matters asserted, the Court will consider that evidence. See Sistrunk v. Khan, 931 F. Supp.

2d 849, 854 (N.D. Ill. 2013): Fed. R. Evid. 602. The Court will, however, not dig through the

record to identify disputed issues of fact that are not otherwise supported. See Hemsworth v.

Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) (“In considering a motion for summary

judgment, the district court is not required to scour the record in search of evidence to defeat the

motion; the nonmoving party must identify with reasonable particularity the evidence upon

which the party relies.”) see also Almy v. Kickert Sch. Bus Line, Inc., No. 08-cv-2902, 2013 WL

80367, at *2 (N.D. Ill. Jan. 7, 2013) (“[C]ourts are not required to “wade through improper

denials and legal arguments in search of a genuinely disputed fact.’”) (quoting Bordelon v. Chi.

Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000)). And, of course, the Court will not

consider factual statements as refuted by purely legal arguments, incomplete responses that lack

evidentiary support, or responses that are inconsistent with deposition testimony.

With these guidelines established, the Court turns to the facts of this case.

Facts

A. Defendants’ Account

On September 9, 2014, Defendants Officers Bridges, Louie, Konior, Sanchez, Rattler,

Randolph and Lt. Robinson were part of a narcotics team that conducted controlled narcotics

purchases. (Dkt. 98, DSOF at §§ 6-11, 14-20.) On this date, the Defendant officers were

working in the area of 16th and Lawndale, an area well-known for narcotics sales. (DSOF at §

21.) The officers had set up on the block and conducted surveillance on a group of male

individuals suspected of selling narcotics. (DSOF at §§ 24-25.) Officer Bridges, who was

working in an undercover capacity, approached one of the men and purchased two bags of heroin

in exchange for a twenty dollar bill of pre-recorded 1505 funds. (DSOF at §§ 28, 30.) Officers

Louie, Randolph, Rattler, and Lt. Robinson observed this narcotics transaction. (DSOF at § 35.)

Each of these officers identified Plaintiff, Jason Allen Brown, as the person who sold narcotics to

Officer Bridges. (DSOF at § 36.)

After the narcotics sale, the subject left the scene and proceeded to another location to

retrieve additional narcotics. (DSOF at §§ 37, 30.) Officers Randolph, Rattler, and Lt. Robinson

followed the subject and when he reemerged from a residence at 1910 S. Ridgeway, Lt.

Robinson ordered Officers Konior and Sanchez to detain him. (DSOF at §§ 38-40.) Based on the

representations of the surveillance officers, Officers Konior and Sanchez detained Plaintiff at

3729 W. 19th street. (DSOF at 4 40.) As Officers Bridges and Louie drove by, Officer Bridges,

communicated that Plaintiff was the person that had just engaged in a narcotics transaction with

the officer. (DSOF at § 41.) Officers Sanchez and Konier then placed Plaintiff under arrest, and

Officer Konier conducted a custodial search, finding the pre-recorded funds on Plaintiff's person.

(DSOF at 4 42-43.) Those funds were inventoried. (DSOF 4 45.)

After Plaintiff was arrested, Officers Sanchez and Konier drove him from 3729 W. 19th

Street to the address on his driver’s license, 1910 S. Ridgeway in Chicago, where Officer

Sanchez gave Plaintiff's belongings to one of Plaintiff's neighbors. (DSOF at § 49.) Officers

Sanchez and Konier then drove Plaintiff from 1910 S. Ridgeway to the police station located at

Homan Avenue and Fillmore Avenue, in Chicago. (DSOF at § 50.) Plaintiff arrived at the

police station and was handcuffed to a bench. (DSOF at 4 54.) At this point, Plaintiff did not

have any further contact with officers Konier, Bridges, Louie, Rattler, Randolph, or Lt.

Robinson. (DSOF at § 55.) Officer Sanchez conducted an additional custodial search of

Plaintiff at the police station. (Dkt. 98, Ex. F § 38.) During the search, Plaintiff reached into the

front of his pants and pulled out additional narcotics. (Dkt. 98, Ex. F § 39.) These narcotics

were inventoried. (DSOF § 48.)

Plaintiff was charged with unlawful delivery of a controlled substance while on school

property and possession of a controlled substance, and processed in lockup. (DSOF at §] 56-57.)

B. Plaintiff’s Account

On September 9, 2014, Plaintiff did not sell drugs to anyone. (P’s Dep. at 74.) On that

day, he left his house at 1910 S. Ridgeway to go pick up his children from their aunt’s house.

(Dkt. 98 at Ex. E, P’s Dep. at 23-24.) After he had walked a short way and as he was tucking in

his shirt, Officers Sanchez and Konier' stopped him and asked him if he knew who was

responsible for a recent homicide in the neighborhood. (P.’s Dep. at 24-25.) Plaintiff told them

he knew nothing about the homicide, but they continued to ask Plaintiff questions. (P.’s Dep. at

25.) Officer Konier then handcuffed Plaintiff and searched his pockets. (P’s Dep. at 25, 30.) He

took out his I.D., money, and social security card and gave them to Officer Sanchez. (P.’s Dep.

at 25.) Officer Sanchez also searched Plaintiff by grabbing at his pants. (P.’s Dep. at 29-30.)

Officers Sanchez and Konier then placed Plaintiff in their car and drove the short way back to

1910 S. Ridgeway, where they gave his belongings to his downstairs neighbor. (P.’s Dep. at 30-

32.)

Officers Sanchez and Konier then drove Plaintiff to an alley. (P.’s Dep. at 33-34.) They

questioned him for about four minutes about the homicide, and also repeatedly said that they

knew Plaintiff “had something on him” and asked him why he was tucking in his shirt. (P.’s

Dep. at 34-35.) Officer Sanchez then put on latex gloves, said he knew Plaintiff “had something

In his amended complaint, Plaintiff incorrectly identified Sanchez’ partner and the driver of the car as Officer

Bridges instead of Officer Konier. At his deposition, Plaintiff explained that he did not know the driver’s name. He

does not now dispute that Sanchez’ partner, and the driver of their car, was Officer Konier, not Officer Bridges.

on [him]”, and pulled down Plaintiff's pants. (P.’s Dep. at 43.) Officer Sanchez hunched over

the front seat and performed an anal cavity search on Plaintiff who was sitting in the backseat.

(P.’s Dep. at 44-50.) Plaintiff initially struggled, but stopped because the movements tightened

his handcuffs. (P.°s Dep. at 49.) The search lasted less than a minute. (P.’s Dep. at 58.) Officer

Sanchez pulled a plastic bag wrapped around six individual bags of heroin from Plaintiff's anus.

Dep. at 38, 49-50.) Officer Konier did not participate in the search. (P.’s Dep. at 60.)

Plaintiff explained at his deposition that just prior to leaving his house (1910 S.

Ridgeway) on September 9, 2014, he had used heroin. (P.’s Dep. at 39.) He testified that he

was high off the heroin as well as psychiatric medications at the time he was arrested. (P.’s Dep.

at 39.) He also testified that he had drank tequila that day; at the time he was arrested he

described himself as “tipsy”, but “not drunk”. (P.’s Dep. at 41-42.) Plaintiff also explained that

earlier that day he had purchased heroin for his personal use. (P.’s Dep. at 38-39.) He testified

that just before he came out of his house, he put the rest of the heroin in his anus because he

wanted to keep it hidden and he knows the police are not supposed to search him there. (P.’s

Dep. at 38-39.)

After the search, Officers Konier and Sanchez drove Plaintiff to the police station at

Homan and Filmore, took him into a room, and handcuffed him to a bench. (P.’s Dep. at 53-55.)

Plaintiff told both Officers Sanchez and Konier on the way to the police station that he needed

medical attention. (P.’s Dep. at 65-66.) Once at the police station, Plaintiff felt pain, reached

into his pants, and saw specs of blood. (P.’s Dep. at 63.) Officer Sanchez and a female officer

then came into the room and asked him more questions about the homicide. (P.’s Dep. at 57.)

Plaintiff asked them for medical attention because his rectum was bleeding. (P.’s Dep. at 57.)

These three officers denied his requests for medical attention — they “basically” said they “don’t

ad

care” and “they have something from [Plaintiff]”; which Plaintiff testified was a response to

Plaintiff not giving them information about the homicide. (P.’s Dep. at 68.) Plaintiff did not ask

anybody else at this police station for medical attention. (P’s Dep. at 153.) Shortly after that,

Officer Konier and Sanchez transferred Plaintiff to the police station at Harrison and Kedzie.

(P.’s Dep. at 69.) Plaintiff also told “officers” at Harrison and Kedzie that he needed medical

attention, but they also did nothing. (P’s Dep. at 72.)

Analysis

As required under 28 U.S.C. § 1915A, the Court previously screened Plaintiff's amended

complaint and based on the allegations therein, permitted Plaintiff to proceed on four Fourth

Amendment claims: (1) unlawful seizure of Plaintiff based on the initial stop and detainment

(Count I); (2) false arrest of Plaintiff on sham drug charges (Count II); (3) unlawful search based

on the alleged body-cavity search (Count III); and (4) denial of medical attention (Count IV).

(Dkt. No. 33.) Defendants now seek to dismiss certain Defendants from Counts I, II, and IV for

lack of personal involvement and seek judgment in all their favors on the merits as to Count II.

I. Lack of Personal Involvement — Counts I, III, and IV

Defendants do not seek complete summary judgment as to Count I (unlawful seizure),

Count HI (unlawful body cavity search), or Count IV (denial of medical attention), and thus

Defendants’ motion does not address the substantive merits of these three claims. Nor,

accordingly, does this Opinion.

Instead, Defendants seek merely to dismiss certain Defendants from each of those claims

for their lack of personal involvement. Section 1983 creates a cause of action based on personal

liability and predicated on fault so to be held liable, an individual must have caused or

participated in a constitutional deprivation. Kuhn v. Goodlow, 678 F.3d 552, 556 (7th Cir.

2012); Pepper v. Vill. of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005). And for a supervisor to

be held liable under Section 1983 for acting in his supervisory role, a plaintiff must show that the

supervisor directed the constitutional deprivation or that it occurred with his “knowledge and

consent.” Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014, 1039 (7th Cir.

2003). As set forth below, Defendants’ motion based on lack of personal involvement is granted

in part and denied in part.

A. Count I (Unlawful Seizure)

In order to make out a claim under Section 1983 for an unreasonable seizure in violation

of the Fourth Amendment, a plaintiff must allege that the defendant’s conduct constituted a

seizure, and that the seizure was unreasonable. Bielanski v. Cnty. of Kane, 550 F.3d 632, 637

(7th Cir. 2008). An official seizure like Plaintiff's initial detainment is ordinarily unreasonable

unless it is supported by probable cause, even where no formal arrest is made. See Jacobs v. City

of Chicago, 215 F.3d 758, 772 (7th Cir. 2000) (citing Michigan v. Summers, 452 U.S. 692, 696

(1981)).

Defendants contend that Defendants O’Donnell, Garvey, Konier, Louie, Randolph,

Rattler, and Robinson should be dismissed from this claim. The Court agrees with respect to

Defendants Garvey and O’Donnell. Sgt. Garvey testified that on September 9, 2014, he was

acting as a desk sergeant in police district 010, which is where the incident giving rise to the

arrest occurred. (DSOF { 59.) Plaintiff was never in a 010 police station or lockup. (DSOF §

59.) Sgt. Garvey testified that his only involvement in the case was to approve the probable

cause listed on Plaintiff's arrest report, and that he did so based on the narrative section, which

described that Plaintiff was arrested after being positively identified by an undercover officer as

having sold him illegal narcotics. (DSOF §§ 59-60.) Sgt. Garvey had no personal interaction

with Plaintiff. (DSOF § 59.) Sgt. O’Donnell testified that she was working as District

Supervisor in the 011 district on September 9, 2014. (DSOF § 64.) She testified that she was

responsible for final approval of the charges against Plaintiff, and she had no other involvement

in the case. (DSOF § 64.) Like Sgt. Garvey, her approval was based solely on the narrative

section of the arrest report. (DSOF § 66.) Sgt. O'Donnell had no personal interaction with

Plaintiff. (DSOF § 64.) This testimony establishes that neither Sgt. Garvey nor Sgt. O’ Donnell

caused or participated in the alleged unlawful seizure. See Dishman v. Cleary, No. 07 C 5626,

2011 WL 1261098, at *5 (N.D.IIl. Mar. 29, 2011) (finding that officers who did not have any

interaction with the plaintiff at the scene of his arrest were entitled to summary judgment):

Wilbon vy. Plovanich, 67 F. Supp. 3d 927, 944-45 (N.D. Ill. 2014) (same). Plaintiff has failed to

submit any evidence that disputes O’Donnell or Garvey’s testimony or that otherwise tends to

suggest that they had knowledge of or consented to a constitutional violation. Summary

judgment is often referred to as “the ‘put up or shut up’ moment in litigation,” where “the non-

moving party is required to marshal and present the court with the evidence [|he contends will

prove her case.” Goodman vy. Natl. Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010) (quoting

Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 476 (7th Cir. 2010)). Plaintiff cannot merely

speculate that Sgts. Garvey and O’Donnell knew that the controlled buy described in the arrest

report was allegedly falsified.

However, with respect to Defendants Konier, Louie, Randolph, Rattler, and Robinson,

the Court disagrees that a lack of personal involvement is undisputed. Defendants’ own account

demonstrates that they each played an active role in the controlled buy that Defendants say led to

the seizure and arrest. And although under Plaintiffs account he personally interacted with only

Defendants Konier and Sanchez, Plaintiff maintains that the controlled buy was fabricated by all

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the officers who, according to his arrest documents, claimed to play an active role in the sham

operation, i.e., Defendants’ Bridges, Konier, Louie, Randolph, Rattler, Robinson, and Sanchez.

Accordingly, Defendants Garvey and O’Donnell are dismissed from Count I. Plaintiff

may proceed on his unlawful seizure claim against only Defendants Bridges, Konier, Louie.

Randolph, Rattler, Robinson, and Sanchez.

B. Count III (unlawful body search)

To be lawful, the body cavity search, which according to Plaintiff did not occur incident

to a formal arrest, needed to be based upon at least the reasonable suspicion of the officers that

Plaintiff was concealing contraband. See Campbell v. Miller, 499 F.3d 711, 716-18 (7th Cir.

2007). Then, even if justified, the search also must have been conducted in a reasonable manner.

Id. at 719.

Defendants argue that O'Donnell, Garvey, Bridges, Konier, Louie, Randolph, Rattler,

and Robinson are entitled to summary judgment on Plaintiff's unlawful body search claim for

lack of personal involvement, and this Court agrees. Defendants testified that O’Donnell,

Garvey, Bridges, Konier, Louie, Randolph, Rattler, and Robinson did not conduct an anal cavity

search of Plaintiff and that all of the above except Defendant Konier were not even present

during the alleged search. (DSOF § 49.) This testimony establishes their lack of personal

involvement. Plaintiff has failed to submit any evidence that disputes this evidence, which he

must do at this stage. See Goodman, 621 F.3d at 654. He himself testified that only Defendant

Sanchez conducted the search.

Defendants Donnell, Garvey, Bridges, Konier, Louie, Randolph, Rattler, and Robinson

are therefore dismissed from Count III. Plaintiff may therefore proceed on his unlawful body

search claim against only Defendant Sanchez.

if

C. Count I'V (denial of medical attention)

Plaintiff's Fourth Amendment denial of medical care claim is governed by the

reasonableness standard. See Ortiz v. City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011). Four

factors inform whether an officer's response to an arrestee’s medical needs was objectively

unreasonable: (1) whether the officer has notice of the detainee's medical needs; (2) the

seriousness of the medical need; (3) the scope of the requested treatment; and (4) police interests,

including administrative, penological, or investigatory concerns. /d.

Defendants argue that Donnell, Garvey, Bridges, Louie, Randolph, Rattler, □ and

Robinson are entitled to summary judgment on Plaintiff's denial of medical attention claim for

lack of personal involvement, and this Court agrees. There is no evidence of record tending to

demonstrate that these Defendants had knowledge or reason to believe that Plaintiff was in need

of medical care. (DSOF §§ 68-73.) Defendants’ and Plaintiff's testimony establishes that

Plaintiff did not ask these Defendants for medical care; he made his request for medical attention

in the presence of only Defendants Sanchez and Konier. (/d.) Defendants’ testimony also

establishes that Plaintiff never complained to these Defendants that an anal cavity search had

been performed, nor were his injuries visible or obvious to these Defendants. (/d.) Plaintiff has

failed to submit any evidence that disputes Defendants’ evidence, which he must do at this stage.

See Goodman, 621 F.3d at 654.

Defendants O’Donnell, Garvey, Bridges, Louie, Randolph, Rattler, and Robinson are

therefore dismissed from Count IV. Plaintiff may proceed on his denial of medical attention

claim against only Defendants Sanchez and Konier.

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Il. The Merits — Count II (False Arrest).

Defendants argue that they are entitled to summary judgment on the false arrest claim

because they had probable cause to arrest Plaintiff. Probable cause is an absolute defense to a

claim of false arrest. Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017). “Probable cause to

arrest exists if the totality of the circumstances known to the officer at the time of the arrest

would warrant a reasonable person in believing that the arrestee had committed, was committing,

or was about to commit a crime.” Gutierrez v. Kermon, 722 F.3d 1003, 1008 (7th Cir. 2013).

The jury must determine the existence of probable cause “ ‘if there is room for a difference of

opinion concerning the facts or the reasonable inferences to be drawn from them.’ ” Sornberger

v. City of Knoxville, Ill., 434 F.3d 1006, 1013-14 (7th Cir. 2006) (quoting Maxwell v. City of

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

Here the events leading up to Plaintiff's arrest (which would supply probable cause) are

plainly in dispute. Defendants contend: (1) that Defendants Louie, Randolph, Rattler. and

Robinson witnessed Plaintiff sell narcotics in a controlled buy to undercover officer Defendant

Bridges and then ride away on a bicycle to retrieve more drugs: (2) that these Defendants then

directed Defendants Sanchez and Konier to detain Plaintiff; (3) that Defendant Bridges then

drove to where Plaintiff was detained and identified him as the person who sold him the

narcotics: and (4) that Defendants Sanchez and Konier therefore placed Plaintiff under arrest.

Plaintiff, by contrast. testified that he did not sell narcotics to Officer Bridges and that the

controlled buy was a sham. He testified that Defendants Sanchez and Konier detained.

handcuffed and searched him — while asking him questions about a homicide — after seeing him

merely walk out of his house and tuck in his shirt.

13

The court’s job as to “a summary judgment motion is not to weigh evidence, make

credibility determinations, resolve factual disputes and swearing contest. or decide which

inferences to draw from the facts.” Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). At

summary judgment the Court must credit Plaintiff's version of events. See Anderson, 477 U.S.

at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be

drawn in his favor.”). No finding of arguable or actual probable cause could survive after

adopting Plaintiffs version of the facts.

Defendants nonetheless contend that summary judgment should be granted on the false

arrest claim because Plaintiff admitted at his deposition that he was high on heroin and possessed

heroin at the time that he encountered Defendants Sanchez and Konier. Citing the rule that

probable cause to believe a person has committed any crime will preclude a false arrest claim,

even if the person was arrested on additional or different charges for which there was no

probable cause. see, e.g.. Pourghorashi yv. Flying J, Inc., 449 F.3d 751, 762 (7th Cir. 2006),

Defendants contend that Plaintiff's admissions demonstrate that they had probable cause to arrest

Plaintiff at the time he exited his house. Plaintiffs admissions, according to Defendants.

establish that he was committing/had committed the crimes of both possession and use of a

controlled substance. See 720 IIL. Comp. Stat. 570.0/401, 402-C (2016).

Defendants’ argument is misguided. Although their statement of the law is correct —

probable cause to arrest for any crime does precludes a false arrest claim for all crimes —

Defendants’ citation to that rule here “puts the cart before the horse”. Defendants have not

identified any undisputed evidence that they were aware of af the time of Plaintiff's arrest that

would have suggested that he used or possessed narcotics. The fact that Plaintiff later, long after

he was arrested. admitted that he possessed heroin is not relevant to the probable cause

14

determination, which is an ex ante test. See Smith v. Ball State Uniy., 295 F.3d 763, 769-70 (7th

Cir. 2002) (“the fact that the officer later discovers additional evidence unknown to her at the

time of the arrest is irrelevant as to whether probable cause existed at the crucial time”)

(citing Qian v. Kautz, 168 F.3d 949, 954 (7th Cir. 1999)); Reynolds v. Jamison, 488 F.3d 756,

765 (7th Cir. 2007) (“[t]he fact that an officer later discovers additional evidence unknown to her

at the time of the arrest ... is irrelevant-[the court] only care[s] about what the officer knew at the

time the decision was made.”); United States v. Carrillo, 269 F.3d 761, 766 (7th Cir. 2001)

(“Whether probable cause exists “turns on the information known to the officers at the moment

the arrest [was] made. not on subsequently received information.”) (citing Spiegel □□□

Cortese, 196 F.3d 717, 723 (7th Cir. 2000)); Maltby v. Winston, 36 F.3d 548, 557 (7th Cir. 1994)

(any evidence that “came to light after the arrest is not relevant to the probable cause inquiry”);

United States v. Walker, No. 1:05-CR-70, 2006 WL 2849732, at *7 (N.D. Ind. Oct. 3, 2006)

(“informant's testimony at an evidentiary hearing held after an arrest would be of questionable

assistance in the probable cause determination, since officers are required □□

have probable cause at the time the arrest was made and cannot rely upon additional evidence

uncovered after the fact”). The evidence here that Defendants were actually aware of at the time

of the arrest — whether tending to show Plaintiff used, possessed, or distributed narcotics — is

disputed. Thus, there can be no finding of probable cause as a matter of law. There are issues ot

material fact as to whether probable cause for the arrest existed.

Lastly, Defendants argue that they are entitled to qualified immunity. “Qualified

immunity shields government officials from liability under Section 1983 ‘for actions taken while

performing discretionary functions, unless their conduct violates clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Gruenberg v. Gempeler,

15

697 F.3d 573, 578 (7th Cir. 2012) (citation omitted). Courts must “consider whether the alleged

facts demonstrate a constitutional violation, and whether the constitutional right was clearly

established.” /d., citing Pearson v. Callahan, 555 U.S. 223, 232 (2009). Here the factual dispute

as to the events of September 9, 2014. precludes summary judgment in favor of Defendants on

qualified immunity grounds because the determination of whether a reasonable officer in

Defendants’ positions would have believed they had probable cause to arrest Plaintiff depends on

which version of events is believed. “The Seventh Circuit has noted that it is inappropriate to

grant summary judgment on qualified immunity grounds where it requires the court to decide

what the facts were when an officer made an arrest.” Ryan—Louie v. DeFazio, No. 2:05-CV-249,

2007 WL 433067, at *6 (N.D. Ind. Feb. 2, 2007) (citing Morfin v. City of E. Chi., 349 F.3d 989, □ _—

1000 n.13 (7th Cir. 2003)).

Therefore summary judgment as to the merits of Count II is denied. Defendants Grady

and O’Donnell, however, are dismissed from this claim for the same reasons explained above

dismissing them from the unlawful detention claim (Count 1).

Conclusion

Defendants’ partial motion for summary judgment [94] is granted in part and denied in

part. Based on the accompanying Opinion, the Court orders the following: (1) Defendants

O’Donnell and Garvey are dismissed from this action; (2) Plaintiff may proceed on Count |

(unlawful seizure claim) and Count II (false arrest claim) against only Defendants Bridges,

Konier, Louie, Randolph, Rattler, Robinson, and Sanchez; (3) Plaintiff may proceed on Count III

(unlawful body cavity search) against only Defendant Sanchez; and (4) Plaintiff may proceed on

Count IV (denial of medical attention claim) against only Defendants Konier and Sanchez.

16