Gallagher v. Gentile

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROBERT GALLAGHER, )

)

Plaintiff, )

) No. 18 C 6413

v. )

)

DAVID GENTILE, JASON BOYER, ) Judge Thomas M. Durkin

THREE UNKNOWN POLICE OFFICERS, )

and THE VILLAGE OF LEMONT, ILLINOIS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Robert Gallagher brought this action under 42 U.S.C. § 1983

and Illinois law after being issued traffic citations that ultimately led to a trial in

state court. Defendant Officers David Gentile and Jason Boyer and the Village of

Lemont, Illinois (the latter, “the Village,” and all three collectively, “Defendants”)

moved to dismiss Gallagher’s complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). R. 36. For the following reasons, that motion is granted in its entirety.

Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir.

2018).

Background

This action arises out of traffic citations issued to Gallagher on two occasions

in 2017. The facts recounted here are drawn from Gallagher’s complaint and the

additional documents and CD-ROMs containing police video of the traffic stops that

were included with Gallagher’s response brief.1

The parties debate whether the Court may consider materials submitted by

1G a l l a g h e r i n r e s p o n s e t o D efendants’ motion. The Seventh Circuit permits a party

op posing a motion to dismiss to “submit materials outside the pleadings to illustrate

the facts the party expects to be able to prove.” Geinosky v. City of Chi., 675 F.3d 743,

745 n.1 (7th Cir. 2012). But such materials must be relevant to and consistent with

the pleadings. See In re Dealer Mgmt. Sys. Antitrust Litig., 313 F. Supp. 3d 931, 939

n.1 (N.D. Ill. 2018) (considering new factual allegations in opposition brief “only to

the extent that they are relevant and actually consistent with the Complaint’s

At about 11:00 p.m. on August 31, 2017, Gallagher, an Indiana resident, was

driving his 1977 Lincoln Mark V from the parking lot of a grocery store to his garage

in the Village when Officer Gentile pulled him over. Officer Gentile explained to

Gallagher that he stopped him because his vehicle bore a 1978 state of Indiana license

plate without evidence of registration. Gallagher then told Officer Gentile: (1) that

Indiana—the state in which his vehicle was registered—allowed a “model year” plate

without evidence of registration; (2) that Illinois grants reciprocity to Indiana’s laws

regarding historic vehicles and model year plates; and (3) that Illinois’s laws

regarding model year plates and registration were basically the same. Gallagher

showed Officer Gentile a copy of both the Illinois and Indiana laws allowing older

vehicles to bear “model year” license plates under certain circumstances. Gallagher

had shown Officer Gentile the same laws about a month prior. At that time, Officer

Gentile advised Gallagher to display his current license plate going forward, and did

not issue a citation. This time, Officer Gentile discussed with his colleagues whether

Gallagher’s vehicle was in compliance with Illinois statutes, and decided that it

violated more than one. But rather than issuing Gallagher a citation for a more

serious violation classified as a misdemeanor, Officer Gentile issued Gallagher only

a traffic ticket for failure to display a registration sticker as required by 625 ILCS

5/3-413(b) (the “Illinois registration display statute”). According to Gallagher, the

citation was issued in retaliation for Gallagher previously having admonished Officer

allegations”) (emphasis in original). Here, the documents and CD-ROMs are

c o n s i s t e n t w i t h G a l l a g h e r ’ s allegations, so the Court considers them.

Gentile for harassing children at a local McDonald’s restaurant, and because Officer

Gentile did not like “model year” plates.

On October 19, 2017, Gallagher was stopped by Officer Boyer for speeding. In

the course of the stop, Officer Boyer asked Gallagher about his 1978 license plate,

and for proof of insurance (which Gallagher could not produce). Gallagher again

presented a copy of the Illinois and Indiana laws regarding historic vehicles and

“model year” license plates and explained how he was in compliance. In the end,

Officer Boyer issued Gallagher citations for: (1) speeding; (2) operating an uninsured

vehicle; and (3) failure to display a registration sticker.

According to Gallagher, of the four citations issued to him in 2017, one

proceeded to a jury trial in which Gallagher prevailed, and the others were resolved

in his favor on pretrial motions.

Gallagher then filed this lawsuit. While far from a model of clarity, and despite

that the allegations also implicate the Village’s mayor, a prosecutor, and a state court

judge, Gallagher’s complaint names only Officers Gentile and Boyer, three unknown

police officers, and the Village as defendants. His complaint purports to state claims

for: malicious prosecution (Counts I-III); extortion/intimidation (Counts IV and V);

attempted obstruction of justice (Count VI); negligence (Count VII); false arrest and

imprisonment (Count VIII); aiding as an accessory in furtherance of a crime (Count

IX); and failure to intervene (Count X). R. 1. Defendants moved to dismiss all counts

for failure to state a claim. R. 36.

Analysis

I. Federal Claims

False arrest/imprisonment (Count VIII). Gallagher seeks relief under

Section 1983 for false arrest and imprisonment in connection with both traffic stops,

claiming the officers detained him without consent or probable cause. See generally

R. 1, Count VIII. “The Fourth Amendment prohibits unreasonable searches and

seizures, but the existence of probable cause renders traffic stops and resulting

warrantless arrests permissible.” Williams v. Brooks, 809 F.3d 936, 942 (7th Cir.

2016). Indeed, probable cause “is an absolute defense to any claim under Section 1983

against police officers for wrongful arrest[ or] false imprisonment.” Burritt v.

Ditlefsen, 807 F.3d 239, 249 (7th Cir. 2015). Further, “probable cause to believe that

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.” Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 682 (7th Cir. 2007). The

parties vigorously debate whether there was probable cause for the stops and

citations issued here.

Probable cause exists when “the facts and circumstances within [the officer’s]

knowledge and of which they have reasonably trustworthy information are sufficient

to warrant a prudent person in believing that the suspect had committed an offense.”

Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007) (citations and internal

quotations omitted). Probable cause is not evaluated based upon “the facts as an

omniscient observer would perceive them;” instead, the Court considers the facts “as

they would have appeared to a reasonable person in the position of the arresting

officer.” Williamson v. Curran, 714 F.3d 432, 441 (7th Cir. 2013)). As such, “[t]he

probable cause inquiry is an objective one,” Huff v. Reichert, 744 F.3d 999, 1007 (7th

Cir. 2014), and the officer’s subjective motivations are irrelevant. Thayer v.

Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012). Further, “[t]he probable-cause

standard inherently allows room for reasonable mistakes.” Abbott v. Sangamon Cty.,

Ill., 705 F.3d 706, 714 (7th Cir. 2013). When the facts of what happened are not in

dispute, the probable cause determination is a question of law. United States v.

Carlisle, 614 F.3d 750, 754 (7th Cir. 2010).

Here, the Illinois registration display statute provides in relevant part:

Registration stickers issued as evidence of renewed annual registration

shall be attached to registration plates as required by the Secretary of

State, and be clearly visible at all times.

625 ILCS 5/3-413(b). Both traffic stop videos show that the license plate on

Gallagher’s vehicle lacked evidence of registration, in clear violation of the Illinois

registration display statute. Accordingly, the officers had probable cause to stop and

cite him.

Gallagher nevertheless argues that probable cause did not exist because the

officer defendants were out to get him, both because he had confronted them before

and because they did not like “model year” license plates. But an officer’s subjective

motivation is irrelevant, so this argument fails. See Whren v. United States, 517 U.S.

806, 810 (1996) (constitutional reasonableness of traffic stops do not depend on the

“actual motivations of the individual officers involved”).

Next, Gallagher argues that he complied with both the Illinois and Indiana

statutes regarding antique or collector vehicles and “model year” plates, and that

those statutes effectively “trump” the more general registration display statutes.

While the relevant Illinois statute allows a motorist to display a so-called “model

year” plate under certain circumstances, the allegations and videos indicate that

Gallagher did not satisfy its requirements. The statute states:

Any person who is the registered owner of an antique vehicle may

display a historical license plate from or representing the model year of

the vehicle, furnished by such person, in lieu of the current and valid

Illinois antique vehicle plates issued thereto, provided that valid and

current Illinois antique vehicle plates and registration card issued to

such antique vehicle are simultaneously carried within such vehicle and

are available for inspection.

625 ILCS 5/3-804(b). But the statute also requires that the owner of such an antique

vehicle first register it as such. See 625 ILCS 5/3-804(a) (permitting the owner of an

antique vehicle to register it for an antique plate) and 625 ILCS 5/3-804(b)

(permitting only registered owners of antique vehicles to display a “model year”

license plate). And it limits the owner of such a vehicle to driving it on the highway

only “for the purpose of going to and returning from an antique auto show or an

exhibition, or for servicing or demonstration.” 625 ILCS 5/3-804(a). Gallagher

concedes that his vehicle was not registered in Illinois (as an antique vehicle or

otherwise), and the August 31, 2017 video demonstrates that Gallagher had driven it

to a grocery store, not strictly to an exhibition or for repair. So this statute does not

help.

Gallagher next points out that Indiana has a similar antique vehicle statute,

with which he was also in compliance.2 But the fact that Gallagher may have been in

compliance with Indiana law does not mean that probable cause did not exist to stop

Gallagher for non-compliance with Illinois law. And the Defendant officers were not

obliged to accept Gallagher’s explanation that he was in compliance with Indiana law

or assume that he was correct that Illinois grants reciprocity. See United States v.

Simpson, 520 F.3d 531, 538 (6th Cir. 2008) (“[I[f this court were to adopt [the

plaintiff’s] reasoning—that the laws of the state of registration apply—it would

essentially require police officers to be knowledgeable of fine details of the laws

governing the display of license plates in all fifty states. We are unwilling to impose

such an unrealistic burden on law enforcement.”). In the end, “[t]he probable cause

standard requires that the officer’s belief be reasonable, not that it be correct.” Huff,

744 F.3d at 1007; see also Hernandez v. Sheahan, 455 F.3d 772, 775 (7th Cir. 2006)

(“Police are entitled to act on information that may be inaccurate and let the courts

determine whether to credit a suspect’s claim of innocence. All the police need is

probable cause, which is well short of a certainty.”). Here, Gallagher was clearly in

violation of the Illinois law for which he was cited. Accordingly, because the officers

had probable cause to stop and issue citations to Gallagher, Count VIII is dismissed.3

2 IC 9-18.5-34.3 permits the owner of a registered collector vehicle to display a “model

y e a r ” l i c e n s e p l a t e p r o v i d e d the current registration certificate is “kept at all times in

the collector vehicle” and “made available for inspection upon the demand of a law

enforcement officer.”

3 Even if no probable cause existed, Gallagher’s claims still would be barred by

qualified immunity, which “affords an added layer of protection by shielding officers

from ‘suits for damages if a reasonable officer could have believed [the arrest] to be

Malicious prosecution (Counts I-III). Gallagher also brings a malicious

prosecution claim under Section 1983. R. 1 at 7 (discussing malicious prosecution

counts and indicating that “Defendants are charged under Title 42 of the United

States Code Section 1983”). But any such claim must proceed under Illinois law

(which Gallagher cites and therefore is addressed below). See Ray v. City of Chi., 629

F.3d 660, 664 (7th Cir. 2011) (affirming dismissal of Section 1983 malicious

prosecution claim because “Illinois law recognizes tort claims for malicious

prosecution” and Section 1983 malicious prosecution suits are allowed only “when the

relevant state’s law does not provide them with a way to pursue such claims”). Counts

I-III are dismissed with prejudice to the extent based on Section 1983.

Negligence (Count VII). Although unclear from his complaint, Gallagher’s

response brief clarifies that his negligence claim—in which he alleges that the officer

Defendants breached their duty of care by deliberately issuing fictitious tickets—is

also brought under Section 1983. R. 40 at 12. But “Section 1983 imposes liability for

violations of rights protected by the Constitution, not for violations of duties of care

arising out of tort law.” Baker v. McCollan, 443 U.S. 137, 146 (1979). This claim is

also dismissed with prejudice.4

lawful, in light of clearly established law and the information the [arresting] officers

p o s s e s s e d . ” A b b o t t , 7 0 5 F .3d at 714 (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991)); see also Thayer, 705 F.3d at 251 (qualified immunity presents an “absolute

bar” to a Section 1983 false arrest claim).

4 Further, Gallagher’s negligence claim would fail even if construed under state law.

Illinois’s Local Governmental and Governmental Employees Tort Immunity Act

provides that police officers are not liable for negligence in the performance of their

duties “unless such act or omission constitutes willful and wanton conduct.” 745 ILCS

10/2-202. Gallagher’s negligence claim bears some of the hallmarks of a willful and

Obstruction of justice/due process (Count VI). In his obstruction of justice

claim, Gallagher alleges that “the defendant Village of Lemont’s [sic] and its agents

attempt[ed] to tell the state district court that ‘Illinois has no reciprocation agreement

between the state of Indiana and Illinois, moreover, they strictly honor only Illinois

law.’” R. 1 at 11 (emphasis in original). But this claim—which Gallagher indicates

was intended to sound in due process, R. 40 at 9-10—merely recasts his Fourth

Amendment false arrest and malicious prosecution claims, and is not cognizable. See

Brooks v. City of Chi., 564 F.3d 830, 833 (7th Cir. 2009) (“A plaintiff cannot state a

due process claim by combining what are essentially claims for false arrest under the

Fourth Amendment and state law malicious prosecution into a sort of hybrid

substantive due process claim”); see also McCann v. Mangialardi, 337 F.3d 782, 786

(7th Cir. 2003) (claim stemming from use of false evidence or testimony is “in essence”

a malicious prosecution rather than due process claim). Further, to the extent

Gallagher contends that any Defendant committed perjury before the state court

(assuming any Defendant gave testimony to begin with, which is unclear), the officers

enjoy absolute immunity for such testimony. See Briscoe v. LaHue, 460 U.S. 325, 328

wanton conduct claim. But it is merely a regurgitation of his malicious prosecution

c l a i m ( d e s c r i b e d i n f r a a n d more properly characterized as such) and fails for that

reason. See R. 1 at 13 (describing negligence claim as concerning the filing of

“knowingly phony charges in the state district court” and “fail[ure] to stand down”);

see also DeGeer v. Gillis, 707 F. Supp. 2d 784, 795 (N.D. Ill. 2010) (noting that

duplicative counts are properly dismissed and that counts are duplicative if “based

on the same operative facts and the same injury”); Maglaya v. Kumiga, 2015 WL

4624884, at *10 (N.D. Ill. Aug. 3, 2015) (dismissing conversion and trespass claims

as duplicative because they “involve the same set of operative facts, allege the same

injury, and . . . are themselves indistinct”).

(1983) (“all witnesses—police officers as well as lay witnesses—are absolutely

immune from civil liability based on their testimony in judicial proceedings.”). Count

VI is dismissed with prejudice.

Failure to intervene (Count X). Gallagher also brings a claim against the

unknown officers for failing “to stop the drafting of the fictitious charge of no license

plate sticker.” R. 1 at 15. But to state a claim for failure to intervene, Gallagher must

allege that: (1) an underlying constitutional violation occurred; (2) the officer knew

that Gallagher was being unjustifiably arrested; and (3) the officer had a realistic

opportunity to prevent the harm from occurring. Lindsey v. Orlando, 232 F. Supp. 3d

1027, 1034 (N.D. Ill. 2017) (citing Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir.

2016) and Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994)). As discussed, Gallagher

has not plausibly alleged a constitutional violation, so Count X is dismissed.5

5 Although not among Gallagher’s enumerated counts, the complaint also bears some

h a l l m a r k s o f a c l a i m a g a inst the Village under Monell v. Department of Social

Services, 436 U.S. 658 (1978), and suggests a claim for a Section 1983 conspiracy

between Officers Gentile and Boyer, the Village mayor, and the prosecutor in the

traffic citation cases. See, e.g., R. 1 at 2 (“Lemont has a custom or policy to illegally

violate the constitutional rights under the color of law against anyone they do not like

for any reason. And to commit the same offences [sic] again and again, continuously”);

see also id. at 14 (suggesting that the actions of “Boyer, the mayor, and the

prosecutor” may “rise to the level of conspiracy”). But to proceed on either claim,

Gallagher must plausibly allege a constitutional violation. See Schor v. City of Chi.,

576 F.3d 775, 779 (7th Cir. 2009) (“In order to support [a Monell] claim, however, the

plaintiff must begin by showing an underlying constitutional violation”); see also

Archer v. Chisholm, 870 F.3d 603, 620 (7th Cir. 2017) (“Section 1983 does not reach

a conspiracy to deny a civil right in the absence of an actual denial of such a right.”).

He has failed to do so.

II. State Law Malicious Prosecution Claim

As explained supra, Gallagher contends that he was maliciously prosecuted for

three of the traffic citations he was issued—two for failure to display a registration

sticker and one for speeding—because Defendants knew he did not commit any traffic

violation but issued and pursued the citations anyway. R. 1 at 5. That claim failed

under Section 1983 and fails under Illinois law, too. To state a claim for malicious

prosecution in Illinois, the plaintiff must allege that: (1) the defendants commenced

judicial proceedings for which no probable cause existed; (2) the proceedings were

instituted or continued maliciously; (3) the proceedings were terminated in his favor;

and (4) he sustained an injury. Barrow v. Blouin, 38 F. Supp. 3d 916, 922 (N.D. Ill.

2014) (citing Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998)).

The parties’ arguments center around probable cause, which, if present,

provides a complete defense to an Illinois malicious prosecution claim. Grundhoefer

v. Sorin, 2018 WL 3359077, at *3 (Ill. App. Ct. 2018). But the Court’s conclusion that

probable cause existed to stop and cite Gallagher does not automatically bar his

malicious prosecution claim. Indeed, “the existence of probable cause may change as

a case evolves.” Patrick v. City of Chi., 213 F. Supp. 3d 1033, 1056 (N.D. Ill. 2016).

The relevant time for determining probable cause in the context of an Illinois

malicious prosecution claim is “when the charging document is filed.” Holland v. City

of Chi., 643 F.3d 248, 254 (7th Cir. 2011) (citing Porter v. City of Chi., 912 N.E.2d

1262, 1274 (Ill. App. Ct. 2009)). But when there is probable cause for the arrest, to

proceed on a malicious prosecution claim against the arresting officer, the plaintiff

must allege a post-arrest action by the officer that influenced the prosecutor’s decision

to proceed. Colbert v. City of Chi., 851 F.3d 649, 655 (7th Cir. 2017) (citing Snodderly

v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 902 (7th Cir. 2001)); see also

Starks v. City of Waukegan, 123 F. Supp. 3d 1036, 1061 (N.D. Ill. 2015) (“even if [the

officer defendants] had probable cause to arrest Starks, they still can be liable for

malicious prosecution if they ‘t[ook] an active part in the[ ] prosecution after learning

that there [wa]s no probable cause for believing the accused guilty.’”) (quoting Adams

v. Sussman & Hertzberg, Ltd., 684 N.E.2d 935, 945 (Ill. App. Ct. 1997) (internal

citations omitted)).

The Court is unable to discern from Gallagher’s complaint whether Officers

Gentile or Boyer (or the unknown officers) did anything to influence the prosecutor’s

decision to proceed with the traffic citations after issuing them. Indeed, the complaint

alleges that “the defendants knowingly caused to be instituted, (and pursued) three

illegal actions of both civil and criminal charges . . . through an absurdity of issuing

three knowingly false charges by two different defendants.” R. 1 at 5 (emphasis in

original). And while the complaint states that “the defendants told the [state court]

that Indiana did not have a reciprocating agreement with the state of Illinois when

they clearly knew that the two states did have such an agreement concerning vehicle

license plate laws,” id. at 12 (emphasis in original), it also indicates that it was the

“defendant’s agent prosecutor” who made the statement, not any of the named

Defendants in this case. Accordingly, Gallagher’s state law malicious prosecution

claim also fails, and Counts I-III are dismissed.6

III. Criminal Law Claims

Finally, Gallagher purports to bring private causes of action under the Illinois

criminal statue for intimidation (Counts IV-V), 720 ILCS 5/12-6, and for aiding and

abetting (Count IX), again alleging that Officers Gentile and Boyer issued “fictitious

tickets” and that Defendants (as well as the Village’s mayor and police chief, neither

of which are named defendants) refused to “stand down” on the traffic citations or

intervene to stop their issuance or prosecution despite Gallagher’s warnings.

However, there is generally no private right of action under criminal statutes unless

specifically authorized. See Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir. 1999)

(“Criminal statutes, which express prohibitions rather than personal entitlements

and specify a particular remedy other than civil litigation, are accordingly poor

candidates for the imputation of private rights of action.”); Cabrera v. World’s Finest

Chocolate, Inc., 2004 WL 1535850, at *7 (N.D. Ill. July 7, 2004) (“No civil action is

authorized under 720 Ill. Comp. Stat. 5/12-6); Bilal v. Wolf, 2009 WL 1871676, at *7

(N.D. Ill. June 25, 2009) (“a victim of a crime does not have standing to seek the

prosecution of the person who committed the offense”). And to the extent Gallagher

6 Nor is it clear how each of the citations at issue was resolved. While Gallagher does

a l l e g e t h a t D e f e n d a n t s w e re “sharply defeated in pretrial motions and a jury trial,”

R. 1 at 4, he does not describe which charges were resolved in which manner, or

whether the ruling on the pretrial motions were on the merits. See R. 1 at 5

(indicating only that three of the “false charges were defeated in pretrial motions, and

the fourth was defeated by a jury trial in spite of the courts [sic] best efforts to corrupt

that trial”).

intended to allege a violation of a state statute as a basis for a Section 1983 claim,

such a claim is not actionable. See Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003)

(Section 1983 does not provide a remedy for violations of state statutes and

regulations). Accordingly, Counts IV, V and IX are dismissed with prejudice.7

Conclusion

For the foregoing reasons, the Court grants Defendants’ motion to dismiss, R.

36, in its entirety. Except for those claims dismissed with prejudice (i.e., Gallagher’s

criminal law claims and Section 1983 claims for malicious prosecution, negligence

and obstruction of justice), if Gallagher believes he can cure the deficiencies identified

here, he may move for leave to file an amended complaint within 30 days. The motion

should be supported by a brief of no more than ten pages describing how the proposed

amended complaint cures the deficiencies in Gallagher’s initial complaint. If

Gallagher fails to timely file such an amended complaint and motion, or fails to timely

seek an extension of time in which to do so, this action will be dismissed with

prejudice.

7 Further, even if the alleged representations about the “reciprocating” agreement

c o u l d b e c o n s t r u e d a s “ f a b r icated evidence” for purposes of a Section 1983 due process

claim (which the Court doubts), Gallagher still must allege that such “evidence”

resulted in the deprivation of a constitutional liberty. Saunders-El v. Rohde, 778 F.3d

556, 560 (7th Cir. 2015). But he has not. Indeed, traffic stops do not constitute a

deprivation of liberty, and nor does the burden of appearing in court or attending

trial. Id. at 561 (defendant who was arrested and released on bond that same day was

not deprived of any liberty); see also Alexander v. McKinney, 692 F.3d 553, 557 (7th

Cir. 2012) (“It would be anomalous to hold that attending a trial deprives a criminal

defendant of liberty without due process of law, when the purpose of the trial is to

effectuate due process.”).

ENTERED:

Monies 9 Bush.

Honorable Thomas M. Durkin

United States District Judge

Dated: January 13, 2020

16