Wright v. Burnett

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARQUISE WRIGHT, )

)

Plaintiff, ) Case No. 16-cv-4298

)

v. ) Judge Sharon Johnson Coleman

)

CALUMET CITY POLICE OFFICER )

BARICH and CALUMET CITY, ILLINOIS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

The plaintiff, Marquise Wright, brings this action against Calumet City, Illinois, and Calumet

City Police Sergeant Barich, alleging that Sergeant Barich unlawfully detained him in violation of the

Fourth Amendment and that both defendants maliciously prosecuted him in violation of Illinois law.

The parties have filed cross-motions for summary judgment. For the reasons set forth herein, the

defendants’ motion for summary judgment [64] is granted in part and denied in part, and the

plaintiff’s partial motion for summary judgment [67] is granted in part and denied in part.

Background

The following facts are undisputed unless otherwise noted. Wright was hired to provide

security for a December 20, 2014, house party in exchange for $300. Wright arrived at the party

around 10:00 PM and posted himself at the front door, where he checked people entering the party

for weapons. Despite Wright’s efforts, a shooting occurred at the party during the early hours of

December 21, 2014. Following the shooting, Wright left the scene.

Calumet City contacted the South Suburban Municipal Crime Task Force (SSMCTF) to

assist in its investigation of the shooting. SSMCTF Investigators interviewed Wright at the Calumet

City police station on December 21st. According to those officers, Wright admitted that prior to

attending the party he had obtained a gun from Eric Neely and that he had subsequently returned

the gun at Neely’s residence. The commander of the SSMCTF, Matt Gainer, subsequently

interviewed Wright, who reportedly confirmed that he had been armed at the party and had returned

the gun to Neely afterwards. Wright disputes ever having informed the officers that he was armed

at the party.

Following Commander Gainer’s interview with Wright, Wright showed Officer Summers

where Neely lived. Officer Summers informed Commander Gainer of this fact, and Commander

Gainer directed Investigator Montez to prepare a search warrant application, which was

subsequently approved and executed on December 22nd. During the search a gun was recovered

and Sergeant Barich, who was one of the officers executing the warrant, completed a gun recovery

form. At Sergeant Barich’s direction, Wright was placed under arrest during the early morning of

December 22nd.

On December 24th, Sergeant Barich contacted the state’s attorney’s felony review division to

get approval for a gun charge against Wright, and Assistant State’s Attorney Foss approved charging

Wright with unlawful use of a weapon by a felon and aggravated unlawful use of a weapon. Barich

subsequently drafted a criminal complaint against Wright based on Wright’s prior convictions and

admissions to task force investigators. That complaint was presented to a judge on December 25,

2014, and Wright was subsequently detained until a grand jury indictment was returned against him

on January 15, 2015. Wright’s criminal case was ultimately nolle prossed and Wright was released

from custody.

On December 24, 2014, Wright filed a lawsuit against Calumet City because he had been

held in custody in excess of 48 hours without a probable cause hearing. That lawsuit was terminated

when Wright accepted a $5,000 Rule 68 offer of judgment for “all claims brought under this

lawsuit.” Wright subsequently filed the present action which, following the consolidation of a

subsequent suit and the voluntary dismissal of some of the individually named defendants, is

brought against Calumet City and Sergeant Barich. Wright now alleges that Sergeant Barich caused

his unlawful detention from the time of the December 25, 2014, preliminary hearing until the grand

jury indictment was returned on January 15, 2015 and that both defendants maliciously prosecuted

him in violation of state law.

Legal Standard

Summary judgment is proper when “the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In determining whether a genuine issue

of material fact exists, this Court must view the evidence and draw all reasonable inferences in favor

of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,

91 L. Ed. 2d 202 (1986). However, “[m]erely alleging a factual dispute cannot defeat the summary

judgment motion.” Samuels v. Wilder, 871 F.2d 1346, 1349 (7th Cir. 1989). A mere scintilla of

evidence in support of the non-movant’s position is insufficient; there must be evidence on which

the jury could reasonably find for the non-movant. Anderson, 477 U.S. at 252.

Discussion

The defendants contend that this Court lacks jurisdiction over Wright’s constitutional claim

premised on the duration of his post-arrest detention because there is no active case or controversy.

They base this contention primarily on Wright v. Calumet City, 848 F.3d 814 (7th Cir. 2017), in which

the Seventh Circuit ruled that Wright lacked standing to appeal matters of class certification

following his acceptance of the offer of judgment in that case. The Seventh Circuit’s decision,

however, was based on the fact that Wright had accepted the offer of judgment as full redress for all

of his claims in that specific case, and therefore could not demonstrate any ongoing personal stake

in the continued litigation of that case. Here, by contrast, Wright is proceeding against Barich in his

individual capacity and is alleging constitutional violations which were not subject to his prior suit.

Accordingly, Wright’s complaint establishes the existence of an active case or controversy.

The defendants alternatively contend that res judicata precludes the relitigation of Wright’s

constitutional claim. Because Wright’s prior claim was litigated in federal court, federal res judicata

principles apply here. Czarniecki v. City of Chicago, 633 F.3d 545, 548 n. 3 (7th Cir. 2011). Under the

doctrine of res judicata, a final judgment on the merits of an action precludes the relitigation of

issues that were or could have been raised in that action. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct.

411, 66 L.Ed.2d 308 (1980). “The three requirements for res judicata under federal law are: (1) an

identity of the parties or their privies; (2) an identity of the causes of actions; and (3) a final

judgment on the merits.” Cent. States, S.E. & S.W. Areas Pension Fund v. Hunt Truck Lines, Inc., 296

F.3d 624, 628 (7th Cir. 2002).

It has been recognized within this district that an accepted offer of judgment constitutes a

final judgment on the merits for purposes of res judicata. Sanchez v. Apostolou, No. 12 C 4860, 2013

WL 389031, at *2 (N.D. Ill. Jan. 30, 2013) (Kennelly, J.) (drawing from clear federal authority

establishing that consent judgments are judgments on the merits for purposes of claim preclusion).

It is well-established, however, that an individual sued in his personal capacity is not generally

considered to be in privity with the government entity that employs him. Kykta v. Ciaccio, 633 F.

App’x 340, 343 (7th Cir. 2015). Wright’s prior suit, moreover, was filed on December 24, 2014, and

concerned solely Wright’s warrantless detention prior to that time. Thus, it cannot be said that the

prior litigation concerned the same core of operative facts as this case, which involves alleged

constitutional violations occurring after the events at issue in that case. See Smith v. Potter, 513 F.3d

781, 783 (7th Cir. 2008) (“Res judicata does not bar a suit based on claims that accrue after a

previous suit was filed.”). Accordingly, res judicata does not preclude Wright’s Fourth and

Fourteenth Amendment claims.

The defendants contend that summary judgment should be granted on Wright’s malicious

prosecution claim. In order to survive summary judgment under Illinois law, a plaintiff alleging

malicious prosecution must identify evidence establishing (1) the commencement or continuation of

a criminal proceeding against him, (2) termination of that proceeding in his favor, (3) the absence of

probable cause for the proceeding, (4) the presence of malice on the defendant’s part, and (5) actual

damages. Boyd v. City of Chicago, 880 N.E.2d 1033, 1045, 378 Ill.App.3d 57 (2007).

Here, the criminal case against Wright was nolle prossed. Although this action clearly

terminated the criminal case, it does not inherently establish that the case terminated in a manner

favorable to the plaintiff. Ferguson v. City of Chicago, 820 N.E.2d 455, 460, 213 Ill.2d 94 (2004).

Only when a plaintiff establishes that the nolle prosequi was entered for

reasons consistent with his innocence does the plaintiff meet his

burden of proof. The circumstances surrounding the abandonment

of the criminal proceedings must compel an inference that there

existed a lack of reasonable grounds to pursue the criminal

prosecution. Otherwise, every time criminal charges are nol-prossed

a civil malicious prosecution action could result.

Swick v. Liautaud, 662 N.E.2d 1238, 1243, 169 Ill.2d 504 (1996) (internal citations omitted). The only

evidence concerning the reason that the nolle prosequi was entered is Assistant State’s Attorney

Caraher’s declaration statement that the action was not due to the “conduct” of any police officer.

Wright has failed to identify any evidence as to the reason for the nolle prosequi. Instead, Wright

argues that misconduct may be inferred because there is no other reason that the prosecutor would

drop otherwise well-supported criminal charges. Wright’s argument and conjecture, however, are

not evidence, and Illinois’ law is clear that dropped charges, absent more, do not compel an

inference that there were not reasonable grounds for a criminal prosecution. Id. Accordingly,

Wright has failed to provide evidence establishing a genuine dispute of material fact as to whether

the criminal proceedings against him terminated in his favor. The defendants are therefore entitled

to summary judgment on Wright’s malicious prosecution claim.

Having resolved the defendants’ motion for summary judgment, the Court turns to Wright’s

motion for partial summary judgment on his Fourth Amendment claims. Wright contends that

summary judgment is warranted on his claim that he was subject to unreasonable post-arrest

detention without a judicial determination of probable cause. This claim is brought against Sergeant

Barich in his personal capacity, and therefore does not implicate the prior offer of judgment from

Calumet City. In order to sue a defendant in their individual capacity under section 1983, a plaintiff

must establish that the defendant was personally responsible for the deprivation of a constitutional

right. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Although direct participation is not

necessary, there must at least be a showing that the defendant acquiesced in some demonstrable way

in the alleged constitutional violation. Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th Cir. 2003).

The Fourth Amendment requires a prompt judicial determination of probable cause as a

prerequisite to an extended pretrial detention following a warrantless arrest. County of Riverside v.

McLaughlin, 500 U.S. 44, 47, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (citing Gerstein v. Pugh, 420 U.S.

103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). Wright contends that he was unlawfully detained between

the preliminary hearing on December 25, 2014, and the return of the grand jury indictment on

January 15, 2015. Wright contends that his detention for that period was unconstitutional because

the criminal complaint against him was fraudulently executed. The undisputed facts here establish

that Sergeant Barish improperly signed Officer Burnett’s name as the complainant on the criminal

complaint, and then falsely affirmed that he had witnessed Burnett’s signature. The Seventh Circuit,

in an identical situation, held that such misconduct invalidated the judicial determination of probable

cause because “a fraudulent complaint cannot provide the sole basis for a finding of probable

cause.” Haywood v. City of Chicago, 378 F.3d 714, 719 (7th Cir. 2004). The defendants do not contest

the fraudulent nature of the criminal complaint here and have identified no evidence to suggest that

the judge’s probable cause finding was based on any evidence other than the complaint in question.1

The undisputed evidence therefore clearly establishes that Wright was detained without a valid

judicial finding of probable cause between December 25, 2014, and January 15, 2015. The

undisputed evidence also clearly establishes that Sergeant Barich was personally responsible for this

detention through his fraudulent execution of the criminal complaint in this case. Accordingly,

summary judgment is warranted in Wright’s favor on his wrongful detention claim concerning the

period from December 25, 2014, to January 15, 2015.

As a final matter, the Court notes that the defendants argued that they were entitled to

qualified immunity on Wright’s malicious prosecution claim.2 This Court has already determined

that the defendants are entitled to summary judgment on that claim, and accordingly need not

address their additional arguments concerning qualified immunity.

CONCLUSION

For the foregoing reasons, the defendants’ motion for summary judgment [64] is granted in

part and denied in part and the plaintiff’s partial motion for summary judgment [67] is granted in

part and denied in part. The Court grants summary judgment in Wright’s favor on his Fourteenth

Amendment claims and grants summary judgment in the defendant’s favor on Wright’s malicious

1 The defendants, in their briefs, assert that the Judge also considered the search warrant and other documents from the

State’s Attorney’s files before issuing the probable cause determination. There is no evidence identified in the

defendants’ Rule 56.1 statements or the briefs to establish that this was the case. The Court is accordingly obligated to

disregard this unsubstantiated argument.

2 Based on the caselaw and reasoning that the defendants’ arguments advance, this Court believes that the defendants are

only asserting qualified immunity as to the malicious prosecution claim. To the extent they intended their arguments to

encompass Wright’s Fourteenth Amendment claim, such arguments would plainly fail in light of the Seventh Circuit’s

explicit holding in Haywood, 378 F.3d at 717–19.

prosecution claims. A status hearing is set for 7/9/2018 at 9:00 AM in order to determine how the

parties wish to proceed with respect to calculating the damages arising from Wright’s Fourteenth

Amendment claim.

IT IS SO ORDERED.

Date: 6/4/2018

Entered: AGEL

SHARON JOHNSON COLEMAN

United States District Court Judge