Opinion

Metcalf v. Flamburis

Court
District Court, N.D. Illinois
Filed
Oct 5, 2020
Cited by
0 cases
Authority
More cited than 20.9%

explaining that “[t]here is no such thing as a constitutional right not to be prosecuted without probable cause,” and that the “wrong” under the Fourth Amendment “is the detention rather than the existence of criminal charges . . .” (internal quotation marks omitted)

How later courts described this case

  • explaining that “[t]here is no such thing as a constitutional right not to be prosecuted without probable cause,” and that the “wrong” under the Fourth Amendment “is the detention rather than the existence of criminal charges . . .” (internal quotation marks omitted)
  • “[T]he initiation of formal legal process following an arrest does not convert a Fourth Amendment unreasonable-seizure claim ‘into one founded on the Due Process Clause.’” (quoting Manuel, 137 S. Ct. at 919)

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KIMBERLY METCALF, )

)

Plaintiff, )

)

v. ) No. 18 C 7637

)

MARIA FLAMBURIS, MICHAEL ) Judge Rebecca R. Pallmeyer

FLAMBURIS, BRYAN MACK, and )

STEVEN ALVARADO, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Kimberly Metcalf (“Metcalf”), as well as Dominique Wilson (“Wilson”), and Maria

Flamburis (“Maria”), were passengers on a Metra train bound for Chicago on November 21, 2016.

An altercation arose, and after arriving at work, Maria called the Metra police hotline, reporting

that Plaintiff had assaulted her. She also called her husband, Michael Flamburis (“Michael”), a

Cook County Sheriff’s investigator, and told him about the incident. The next day, Steven

Alvarado (“Alvarado”), a Metra police officer, arrested Plaintiff on assault charges. Plaintiff was

found not guilty at trial, and this lawsuit followed. Plaintiff has filed claims of unlawful seizure,

malicious prosecution, and conspiracy under 42 U.S.C. § 1983 against Defendants Maria and

Michael Flamburis, Officer Alvarado, and his commanding officer, Bryan Mack. Defendants Mack

and Alvarado have moved for summary judgment on the claims against them. For the reasons

stated here, that motion is granted with respect to Plaintiff’s malicious prosecution claim and

otherwise denied.

BACKGROUND

On November 21, 2016, Plaintiff Kimberly Metcalf and Maria were aboard a Metra train

bound for Chicago. (Plaintiff Metcalf’s Deposition, Exh. A to Def.’s Statement of Material Facts

[55-1] (hereinafter, “Pl.’s Dep.”) 15:15-16; Maria Flamburis Deposition, Exh. B to Def.’s Statement

of Material Facts [55-2] (hereinafter, “Maria Dep.”) 10:4-9.) Maria was initially seated beside

another passenger, Dominique Wilson, who was having an audible conversation on her phone.

(Pl.’s Dep. 16:3-4; Maria Dep. 11:16-17.) Maria got up and moved to another seat. (Pl.’s Dep.

17:21-23; Maria Dep. 13:1-3.) Plaintiff subsequently stood up from her seat and stood in the aisle

beside the garbage can, between where Maria was seated and the exit, preparing to disembark.

(Pl.’s Dep. 18:1-4; Maria Dep. 14:1-2.) The parties dispute what happened next. Plaintiff claims

that she felt herself pushed in the back, and turned around to see Maria and Wilson in an

altercation. (Pl.’s Dep. 19:9-11.) Plaintiff claims she said, “don’t push me” to Maria, and told

Wilson “don’t entertain this.” (Id. 19:11-12.) According to Plaintiff, she took no other action. Maria

contends, however, that when she stood up to disembark, Plaintiff and Wilson confronted her.

(Maria Dep. 14:21-16:2.) Wilson pushed her, she asserts, and Plaintiff told her to “watch herself.”

(Id. 15:14-18; 18:4-9.)

Later, after she arrived at work, Maria called the Metra police hotline, and reported that

she had been “assaulted and battered.” (Maria Dep. 20:4-16; 21:5-9.) She does not explain why

she waited to place the call until arriving at work, but does note that she only has about five

minutes to board her shuttle, and that missing it would require her to wait 20 minutes for the next

one. (Id. 18:20-23.) After ending her phone call with Metra police, Maria called her husband, Co-

Defendant Michael Flamburis (who is not a party to this motion), and told him about the incident

and her phone call to Metra police. (Id. 23:17-24:2.) Michael is an internal affairs investigator for

the Cook County Sheriff’s Office. (Michael Flamburis Deposition, Exh. C to Def.’s Statement of

Material Facts [55-3] (hereinafter, “Michael Dep.”) 6:2-12.)

Later that day, Defendant Steven Alvarado, a Metra Police Department detective, called

Maria to confirm the details of the altercation. (Maria Dep. 25:9-10; Alvarado Deposition, Exh. H

to Def.’s Statement of Material Facts [55-8] (hereinafter, “Alvarado Dep.”) 5:18-21; 15:24-16:7.)

Alvarado testified that he made the call in response to an e-mail he received from his Division

Supervisor Brian Peters. (Id. 14:24-15:6.) Alvarado initially testified that the e-mail “may have”

disclosed that Maria’s husband Michael was a Cook County Sheriff; he later acknowledged that

it did convey this information. (Id. 15:13-20; 18:12-13.) According to Alvarado, Maria told him

that the assault consisted of Plaintiff’s telling Maria to “watch herself”; that Maria believed “if she

responded verbally, that she may have been struck”; and that the battery was “a simple shove [by

Wilson].” (Id. 16:13-24.) Alvarado and Maria agreed that Alvarado would be present on the train

the next day. (Maria Dep. 26:22-27:10.)

Maria put her phone on speaker during this conversation, and her husband Michael

participated. (Alvarado Dep. 18:2-3.) Alvarado recalls that Michael wanted to know “what the

procedure was going to be, when an arrest would be made and how soon.” (Id. 18:8-9.) Alvarado

contacted Maria once more on November 21 or early the following morning, to verify that she was

willing to sign complaints, show up to court, and identify Plaintiff and Wilson. (Id. 25:15-24.)

The following day, November 22, 2016, Alvarado and other officers boarded the train,

planning to arrest Plaintiff and Wilson. (Id. 26:14-16.) Michael was also present. (Id. 29:11-14.)

Before making the arrest, Alvarado had Maria sign the complaints, verifying that all information of

the complaints was “true and accurate.” (Id. 28:5; 17-23.) With respect to Plaintiff, the complaint

stated:

[Metcalf,] [w]ithout lawful authority, knowingly placed Maria Flamburis in

reasonable apprehension of receiving a battery. To wit: Stating “You better watch

yourself”, after already having been battered by a co-defendant. The threatening

statement made by the defendant, made the victim/complainant fear a future

battery would be committed upon her.

(Def.’s Criminal Compl., Exh. F to Def.’s Statement of Material Facts [55-6] 1.)

After speaking with Defendants Mack and Alvarado, Lieutenant Richard Guerrero

determined there was probable cause and approved the charge against Plaintiff. (Guerrero

Deposition, Exh. G to Def.’s Statement of Material Facts [55-7] (hereinafter, “Guerrero Dep.”)

27:6-9; 30:1-8.) Guerrero acknowledged in his deposition that he did not see the complaint itself,

and testified that if he had, Maria’s stated fear of a “future battery” in the complaint would have

raised a “red flag.” (Id. 18:7-12.) He explained that to qualify as an assault, she would have had

to fear an “immediate battery.” (Id. 18:18.)

As Plaintiff and Wilson began to disembark the train, Maria identified them to Alvarado.

(Alvarado Dep. 32:7-10.) The arrest team then took Plaintiff and Wilson into custody on the train

platform. (Id. 33:11-13.)

Following a bench trial in the Circuit Court of Cook County, Judge Anthony John Calabrese

found Plaintiff not guilty of assault based on his assessment of “[t]he allegation as charged. The

inconsistency of the police reports. The requirements of the specific law.” (Transcript of

Proceedings April 11, 2017, Exh. J to Def.’s Statement of Material Facts [55-10] (hereinafter, “Tr.”)

133:23-134:10; 138:13-22.) Plaintiff’s co-defendant, Wilson, was also found not guilty. (Tr.

138:13-22.) This lawsuit followed. Plaintiff alleges claims of unreasonable seizure, malicious

prosecution, and conspiracy under 42 U.S.C. § 1983 against Defendants Mack and Alvarado, and

Maria and Michael Flamburis. (Pl.’s Compl. [1].) Plaintiff alleges that there was no probable

cause for her arrest (id. ¶¶ 30-32), and that Defendants caused a criminal prosecution to

commence and continued that prosecution without cause. (Id. ¶¶ 34-35.) Plaintiff further alleges

that Defendants conspired with one another and with the Flamburises to cause the false arrest

and criminal prosecution of Plaintiff. (Id. ¶ 19.) Defendant Police Officers Mack and Alvarado

seek summary judgment [53], arguing that there is no genuine issue of material fact as to Plaintiff’s

claim that Detective Alvarado lacked probable cause for her arrest. (Defs.’ Mem. in Supp. of Mot.

for Summ. J. [54] (hereinafter, “Defs.’ Mem.”) 1.)

STANDARD OF REVIEW

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R.

CIV. P. 56(c). To defeat a motion for summary judgment, the non-moving party must set forth

specific facts that demonstrate disputed material facts. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256 (1986). A fact is genuinely in dispute when “a reasonable jury could return a verdict

for the nonmoving party.” See id. at 248. In deciding a motion for summary judgment, the court

must read the facts in a light most favorable to the non-moving party. See id. at 255.

DISCUSSION

I. Unreasonable Seizure

Defendants contend that the arrest was supported by probable cause. They note that “[a]

police officer has probable cause to effect an arrest ‘when the facts and circumstances that are

known to him reasonably support a belief that the individual has committed, is committing, or is

about to commit a crime.’” (Defs.’ Mem. 5 (citing Holmes v. Vill. of Hoffman Estates, 511 F.3d

673, 679 (7th Cir. 2007)).) Plaintiff argues that Defendants lacked probable cause under this

standard. She notes that Guerrero, who approved the charges, himself entertained doubt as to

whether Plaintiff’s conduct met the elements of assault. (Pl.’s Resp. in Opp’n to Summ. J. [64]

4.) Indeed, Guerrero testified at his deposition that had he seen the complaint, and specifically

the words “future battery” therein, it “would have raised a red flag.” (Guerrero Dep. 18:7-12.)

Additionally, according to Alvarado, Plaintiff’s alleged assault on Maria consisted of Plaintiff telling

her to “watch herself,” and Maria’s concern that she might be struck if she responded to Plaintiff

verbally. (Alvarado Dep. 16:13-17.) As confirmed in Guerrero's own deposition testimony, this

fear of a possible future battery does not constitute an assault. (See Guerrero Dep. 18:18.)

Defendants also argue that “the record is devoid of any evidence demonstrating Bryan Mack’s

involvement in the arrest of the Plaintiff.” (Defs.’ Mem. 8.) Guerrero testified, however, that he

spoke with and deferred to Mack and Alvarado in approving the arrest warrant. (Guerrero Dep.

11:19-19:16.) Viewing the facts in the light most favorable to Plaintiff, this raises a genuine

question of material fact as to Mack’s involvement.

In this case, at least one officer (Guerrero) would not have found the complaint reasonably

supported a belief that Plaintiff had committed a crime, and the description of the events that

Maria gave to Alvarado did not outline the elements of an assault. Guerrero deferred to Mack

and Alvarado in approving the arrest warrant. Because there are genuine issues of material fact

regarding whether Defendants had probable cause to arrest Plaintiff, and regarding the nature

and degree of Mack’s involvement, summary judgment is denied as to this claim.

II. Malicious Prosecution

Plaintiff also asserts that Defendants are liable under Section 1983 for malicious

prosecution. According to Plaintiff, Defendants commenced and continued a criminal prosecution

against her without probable cause, in violation of her Fourth and Fourteenth Amendment rights.

Plaintiff does not assert a state-law malicious prosecution claim (see Pl.’s Compl.). The court

grants Defendants’ motion for summary judgment on this claim because “there is no such thing

as ‘Fourth Amendment malicious prosecution.’ Wrongful arrest or detention creates a wrongful-

seizure claim, plain and simple, and the constitutional objection is to wrongful custody rather than

to a criminal prosecution.” Stone v. Wright, 734 F. App’x 989, 989 (7th Cir. 2018) (citing Manuel

v. City of Joliet, 137 S. Ct. 911, 917-20 (2017)); see also Lewis v. City of Chicago, 914 F.3d 472,

479 (7th Cir. 2019) (“[T]he initiation of formal legal process following an arrest does not convert a

Fourth Amendment unreasonable-seizure claim ‘into one founded on the Due Process Clause.’”

(quoting Manuel, 137 S. Ct. at 919)); Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018)

(explaining that “[t]here is no such thing as a constitutional right not to be prosecuted without

probable cause,” and that the “wrong” under the Fourth Amendment “is the detention rather than

the existence of criminal charges . . .” (internal quotation marks omitted)).

Plaintiff’s alleged arrest without probable cause is encompassed in her unreasonable

seizure claim. Her prosecution as a result of that arrest, however, is not a cognizable claim under

federal law. It is also worth noting that there is no evidence in the record showing that Defendants

Alvarado and Mack played any role in Plaintiff’s criminal trial. The only witnesses who testified at

trial were Defendant Maria, eyewitness Kim Noto, Wilson, and Plaintiff herself. Defendants’

motion for summary judgment on this claim is granted.

III. Conspiracy

That leaves Plaintiff’s conspiracy claim. To support a claim of conspiracy under §1983 a

plaintiff must prove that defendants, acting under color of law, reached an agreement with one

another for the purposes of depriving the plaintiff of a federally protected right. Amundsen v. Chi.

Park Dist., 218 F.3d 712, 718 (7th Cir. 2000).

Defendants contend they are entitled to summary judgment on this claim for two reasons.

The first of these—that there was probable cause for the arrest, hence no underlying constitutional

claim—can be dispatched for the reasons already discussed: the court has found disputes of

material fact on this issue. Defendants’ second argument fares no better. They contend that

there is no evidence that they acted in concert with the Flamburises. All that is required for Plaintiff

to show a conspiracy under Section 1983, however, aside from the underlying constitutional

violation, is to “demonstrate that the defendants agreed to inflict the constitutional harm.” Hurt v.

Wise, 880 F.3d 831, 842 (7th Cir. 2018) (citing Sow v. Fortville Police Dep’t, 636 F.3d 293, 304-

05 (7th Cir. 2011)).

Alvarado testified that he spoke to Maria and Michael Flamburis by telephone the day

before the arrest (Alvarado Dep. 16:5-18:13), and that he conferred with Maria in drafting the

complaint. (Id. 23:7-24:2.) Alvarado knew that Michael Flamburis was a Cook County Sheriff’s

Deputy and heard Michael Flamburis on the phone, urging an arrest. (Id. 18:8-13.) Guerrero

testified that he spoke with and deferred to Mack and Alvarado in approving the arrest warrant.

(Guerrero Dep. 11:19-19:16.) These facts could lead a reasonable jury to conclude that Mack

and Alvarado agreed with Michael and Maria Flamburis to inflict a constitutional harm on Plaintiff.

Thus, there is a genuine question of material fact as to whether Defendants acted in concert with

the Flamburises.

IV. Qualified Immunity

Finally, Defendants contend that they are entitled to qualified immunity. “Deciding a claim

of qualified immunity generally involves two inquiries: (1) has the plaintiff alleged facts that, if

proved, would establish a constitutional violation; and (2) would a reasonable officer have known

his actions were unconstitutional in light of clearly established law?” Whitlock v. Brown, 596 F.3d

406, 410 (7th Cir. 2010).

The court concludes that Defendants are not entitled to qualified immunity at this stage.

As already discussed, there are disputes concerning the existence of probable cause for the

arrest. With respect to the second prong of the test, the Seventh Circuit has referred to that

second inquiry as a question of whether an officer had “arguable probable cause.” Wollin v.

Gondert, 192 F.3d 616, 621 (7th Cir. 1999). The question is whether “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.” Id. Thus, under the summary judgment standard, Plaintiff must present

evidence from which a reasonable jury could find that no reasonable officer would have found

probable cause for Plaintiff’s arrest. The evidence meets that standard. As discussed above,

neither Maria’s criminal complaint, nor her description of the events to Alvarado satisfied the

elements of assault. Guerrero observed that the complaint’s reference to Maria’s fear of a “future

battery,” as opposed to an “immediate battery,” would have raised a “red flag” to him. (Guerrero

Dep. 18:7-12.) Further, according to Alvarado, Maria told him that Plaintiff merely told her to

“watch herself,” and that she was afraid that she migh be struck if she responded to Plaintiff

verbally. (Alvarado Dep. 16:13-17.) These facts could lead a reasonable jury to find that no

reasonable officer could have believed that Plaintiff had committed an assault.

CONCLUSION

For the reasons outlined above, there are genuine disputes of material fact precluding

summary judgment on Plaintiff's claims of unreasonable seizure and conspiracy. Plaintiff's claim

of malicious prosecution fails as a matter of law. Accordingly, Defendants’ motion for summary

judgment [53] is granted with respect to Plaintiff's claim for malicious prosecution and otherwise

denied.

ENTER:

Dated: October 5, 2020 Repreen WGfperfineepe

REBECCA R. PALLMEYER

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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