Petition for Writ of Certiorari — Joseph DeLarosa, Petitioner v. Village of Romeoville, Illinois, et al.

TABLE OF CONTENTS FOR APPENDICES

DISTRICT COURT DOCKET

1. UNITED STATES DISTRICT JUDGE: JEREMY DANIEL’S ORDER AND

JUDGMENT.........Doc. 45 AND Doc. 44.

2. PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S

RESPONSE IN OPPOSITION TO DEFENDANTS’ SECOND MOTION TO

DISMISS.....Doc. 41.

3. PLAINTIFF’S FACTS SOUGHT TO BE JUDICIALLY NOTICED........Doc. 40.

4. PLAINTIFF’S EXHIBITS SOUGHT TO BE JUDICIALLY NOTICED.....Doc. 39.

5. PLAINTIFF’S OBJECTIONS IN SUPPORT OF PLAINTIFF’S MEMORANDUM OF

LAW IN SUPPORT OF PLAINTIFF’S RESPONSE IN OPPOSITION TO

DEFENDANTS’ SECOND MOTION TO DISMISS...... Doc. 38.

6. PLAINTIFF’S FIRST AMENDED COMPLAINT....... Doc. 21.

CIRCUIT COURT DOCKET

7. APPELLANT’S BRIEF ON APPEAL

Doc. 3.

8. APPELLEE’S RESPONSE ON APPEAL

Doc. 9.

9. APPELLANT’S REPLY ON APPEAL

Doc. 12.

10. SEVENTH CIRCUIT’S ORDER ON APPELLANT’S APPEAL

11. APPELLANT’S PETITION FOR REHEARING

Doc. 14-15.

Doc. 17.

12. SEVENTH CIRCUIT’S ORDER ON APPELLANT’S PETITION FOR

REHEARING.......... Doc. 19.

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NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

HImtefr jifetes (Hour! of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 15, 2024’

Decided October 18,2024

Before

MICHAEL Y. SCUDDER, Circuit Judge

JOHN Z. LEE, Circuit Judge

NANCY L. MALDONADO, Circuit Judge

No. 24-1715

JOSEPH DeLAROSA,

Plaintiff-Appellant,

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

v.

No. 23 CV 7049

VILLAGE OF ROMEOVILLE, et al,

Defendants-Appellees.

Jeremy C. Daniel,

Judge.

ORDER

Joseph DeLarosa appeals the judgment dismissing his civil rights suit against the

Village of Romeoville and several of its officers. See 42 U.S.C. § 1983. The district court

dismissed the complaint because DeLarosa failed to state a claim. We affirm.

’ We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. Fed. R. App. P. 34(a)(2)(C).

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DeLarosa maintains that the defendant officers violated his rights under federal

and state law by searching his home without probable cause, arresting him, and then

detaining him in jail. The following narrative draws upon facts from documents that

DeLarosa attached to his amended complaint—documents that may be considered

when ruling on a motion to dismiss. See Williamson v. Curran, 714 F.3d 432,436 (7th Cir.

2013). The search stemmed from reports made in 2016 by two construction companies

to Romeoville police that some of their equipment, including four welders, had been

stolen. More than two months later, one of the companies' employees notified the police

that the stolen welders were being advertised for sale on Facebook. An investigation led

the officers to DeLarosa's home. While there, an officer peered through a window of

DeLarosa's detached garage and saw an allegedly stolen welder. Based on this

observation, the officers obtained a warrant and executed a search of the property. They

found allegedly stolen equipment, including the welders. DeLarosa eventually was

charged in state court with three counts of theft.

The charges did not stick. In June 2021, the state trial court granted DeLarosa's

motion to suppress, finding that the search warrant was tainted by an unlawful search

because the officer's garage-window observations occurred within the curtilage of

DeLarosa's home. The state then dismissed the charges.

Two years later, in June 2023, DeLarosa filed this suit. In a wide-ranging § 1983

complaint, DeLarosa asserted 22 counts under the Fourth Amendment, Fourteenth

Amendment, and Illinois state law.

The district court dismissed the case. The court concluded that most of

DeLarosa's claims were time-barred: Some claims were barred by the two-year statute

of limitations for unreasonable searches and seizures that accrued at the time the search

and seizure occurred (counts II, III, and V), see Neita v. City of Chi., 830 F.3d 494, 498 (7th

Cir. 2016) (citing 735 Ill. Comp. Stat. § 5/13-202), and other claims were barred under the

one-year statute of limitations for claims brought against local governments and their

agents under the Illinois Local Governmental and Governmental Employees Tort

Immunity Act (counts VII, VIII, IX, X, XI, XII, XV, XVI, XVII, XIX, XX, and XXII), 745 Ill.

Comp. Stat. Ann. § 10/8-101. The court also dismissed DeLarosa's Fourteenth

Amendment claims because the rights asserted—substantive due process violations —

were grounded in the Fourth Amendment (counts XIII, XIV, and XXI). And the court

determined that DeLarosa's Fourth Amendment claims related to malicious prosecution

(counts I, IV, and VI) were implausible based on documents he attached to the

complaint showing that the officers had probable cause to search his home. Finally, the

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court dismissed DeLarosa's conspiracy claim (count XVIII) for failure to establish an

underlying constitutional violation.

We review the district court's dismissal de novo. Lax v. Mayorkas, 20 F.4th 1178,

1181 (7th Cir. 2021). To survive a motion to dismiss, a plaintiff must plead facts

sufficient to show that a claim for relief is plausible on its face. Gociman v. Loyola Univ. of

Chicago, 41 F.4th 873, 881 (7th Cir. 2022). Pro se litigants are afforded a liberal reading of

the complaint. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015) (citing Haines v. Kerner, 404

U.S. 519, 520 (1972) (per curiam)).

Turning first to the time-barred claims, DeLarosa maintains that his Fourth

Amendment claims (counts I, II, III, IV, V and VI) were timely because he was barred

under Heck v. Humphrey, 512 U.S. 477,486-87 (1994), from bringing these claims until

his criminal case was dismissed. DeLarosa is correct that Heck applies to his malicious

prosecution claims (counts I, IV, and VI), McDonough v. Smith, 588 U.S. 109,116-117

(2019), and that those claims are therefore timely. But Heck does not apply to an action

that would impugn an anticipated future conviction. See Wallace v. Kato, 549 U.S. 384,

393 (2007). DeLarosa's claims for unreasonable search and seizure (counts II, III, and V)

accrued when the search and seizure were conducted, Neita, 830 F.3d at 498, and the

subsequent prosecution did not delay accrual, see Evans v. Poskon, 603 F.3d 362, 363 (7th

Cir. 2010). In Illinois, Fourth Amendment claims for unreasonable search and seizure

are governed by the two-year statute of limitations for personal injury claims. See Neita,

830 F.3d at 498 (7th Cir. 2016) (citing 735 Ill. Comp. Stat. § 5/13-202). As the district court

rightly concluded, DeLarosa's Fourth Amendment claims were untimely because he did

not file his complaint until June 2023—almost six and a half years after his January 2017

search and arrest.

As for his state law claims (counts VII, VIII, IX X, XI, XII, XV, XVI, XVII, XIX, XX,

and XXII), DeLarosa asserts that these are governed by the two-year statute of

limitations that applies to personal injury claims. See 735 Ill. Comp. Stat. § 5/13-202. But

§ 5/13-202 is not the applicable statute. As the district court explained, his state law

claims were governed by the one-year statute of limitations that applies to claims

against local governments and governmental employees. See Williams v. Lampe, 399 F.3d

867, 870 (7th Cir. 2005) (citing 745 Ill. Comp. Stat. Ann. § 10/8-101). The one-year

limitation applies even to state-law claims that are joined with § 1983 claims governed

by a two-year statute of limitations. Williams, 399 F.3d at 870. DeLarosa's criminal

charges were dismissed on June 21, 2021 (the latest possible date for his claims to

accrue), and he did not initiate his civil case until June 21, 2023 - one year too late.

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Next, Delarosa argues that the court improperly construed two of his Fourteenth

Amendment claims (counts XIV and XXI) as Fourth Amendment claims. (He concedes

in his reply brief that the court properly dismissed his third claim brought under the

Fourteenth Amendment (count XIII).) He argues that count XIV, which alleges that the

officers took equipment from his home, is a Fourteenth Amendment claim because the

officers deprived him of his property without due process. But DeLarosa's claim that

police interfered with his property interest falls squarely under the Fourth Amendment,

see Dix v. Edelman Fin. Servs., LLC, 978 F.3d 507, 513 (7th Cir. 2020), and substantive due

process claims cannot be maintained where a specific constitutional provision protects

the right at issue, Alexander v. McKinney, 692 F.3d 553, 558 (7th Cir. 2012).

DeLarosa also argues that the court misunderstood count XXI as a fabricationbased wrongful detention claim rather than a § 1983 conspiracy claim. But in count

XVIII, he already asserted a § 1983 civil conspiracy claim, which the district court

properly dismissed because he had failed to plausibly allege an underlying

constitutional violation. See Archer v. Chisholm, 870 F.3d 603, 620 (7th Cir. 2017).

We return to DeLarosa's Hecfc-barred malicious prosecution claims under the

Fourth Amendment (I, IV, and VI). To succeed on a Fourth Amendment malicious

prosecution theory, he must show that the prosecution was initiated without probable

cause and ended without conviction. See Thompson v. Clark, 594 U.S. 36, 49 (2022). He

argues, first, that the district court erred by relying on "improperly admitted" court

documents that defendants had attached as exhibits to their motion to dismiss.

But this argument misapprehends the basis for the court's conclusion. In

dismissing DeLarosa's malicious prosecution claims, the court relied only on the

transcripts and records that DeLarosa attached to his amended complaint. This reliance

was proper, as courts may consider documents attached or referred to in the complaint

when ruling on a motion to dismiss. Williamson, 714 F.3d at 436.

DeLarosa relatedly argues that the state court's decision to suppress the evidence

in his criminal case proves that probable cause was lacking because the officers (1) must

have manufactured the statements used to obtain their search warrant and (2) are not

credible witnesses. But this argument also misconstrues the state court's decision. The

state court found that the officers did have probable cause to search DeLarosa's home

based on the officers' attestations that—while investigating a report of stolen welders—

an officer viewed an allegedly stolen welder in his garage. Moreover, the exclusionary

rule does not apply in § 1983 suits against police officers. Martin v. Marinez, 934 F.3d

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594, 599 (7th Cir. 2019). In DeLarosa's case, then, the officer's search in violation of the

Fourth Amendment did not negate the probable cause, thereby undermining any claim

of malicious prosecution. Id.

We have considered DeLarosa's remaining arguments, but they are too

undeveloped to warrant discussion. See Fed. R. App. P. 28(a)(8); Anderson v. Hardman,

241 F.3d 544, 545-46 (7th Cir. 2001).

AFFIRMED

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirkscn

United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

FINAL JUDGMENT

October 18, 2024

Before

MICHAEL Y. SCUDDER, Circuit Judge

JOHN Z. LEE, Circuit Judge

NANCY L. MALDONADO, Circuit Judge

JOSEPH DELAROSA,

Plaintiff - Appellant

No. 24-1715

v.

VILLAGE OF ROMEOVILLE, et al„

Defendants - Appellees

Originating Case Information:

District Court No: l:23-cv-07049

Northern District of Illinois, Eastern Division

District Judge Jeremy C. Daniel

The judgment of the District Court is AFFIRMED, with costs, in accordance with the

decision of this court entered on this date.

Clerk of Court

form name: c7_FinalJudgment

(form ID: 132)

Case: l:23-cv-07049 Document #: 45 Filed: 04/11/24 Page 1 of 1 PagelD #:362

IN THE UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

JOSEPH DELAROSA,

Plaintiffs),

Case No. 23 CV 7049

Judge Jeremy C. Daniel

v.

VILLAGE OF ROMEOVILLE, et al,

Defendant(s).

JUDGMENT IN A CIVIL CASE

Judgment is hereby entered (check appropriate box):

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in favor of plaintiffs)

and against defendant(s)

in the amount of $

which 0 includes

pre-judgment interest.

I I does not include pre-judgment interest.

Post-judgment interest accrues on that amount at the rate provided by law from the date of this judgment.

Plaintiffs) shall recover costs from defendant(s).

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in favor of defendant(s)

and against plaintiffs)

Defendant(s) shall recover costs from plaintiffs).

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other: Judgment entered in favor of Defendants and against Plaintiff.

This action was (check one):

I I tried by a jury with Judge

presiding, and the jury has rendered a verdict.

I I tried by Judge

without a jury and the above decision was reached.

0 decided by Judge Jeremy C. Daniel on a motion to dismiss.

Date: 4/11/2024

Thomas G. Bruton, Clerk of Court

Vettina Franklin, Deputy Clerk

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

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JOSEPH DELAROSA,

Plaintiff

;

No. 23 CV 7049

;

Judge Jeremy C. Daniel

_

V.

VILLAGE OF ROMEOVILLE, et al,

Defendants

ORDER

The defendants’ motion to dismiss [32] is granted. The plaintiff’s first amended

complaint [21] is dismissed. Because there is no reasonable basis to believe that the

deficiencies in the plaintiff’s claims can be cured by amendment, the dismissal is with

prejudice. See Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (“District

courts . . . have broad discretion to deny leave to amend . . . where the amendment

would be futile.”). Civil case terminated.

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STATEMENT1

Plaintiff Joseph DeLaRosa filed suit against the Village of Romeoville and several of

its police officers,2 alleging Fourth and Fourteenth Amendment violations under 42

U.S.C. § 1983, as well as state law violations.3 (See generally R. 21 (“FAC”).) The

plaintiffs claims arise from his arrest and subsequent prosecution for the theft of

welders and other construction equipment. (Id.

12, 38, 41.) The defendant officers

observed one of the allegedly stolen welders from a window of the plaintiffs detached

garage and relied on that observation to obtain a warrant for the search of the

plaintiffs property. (Id. U11 19, 22, 27, 36.) On June 21, 2021, the state trial court

granted the plaintiffs motion to suppress, finding the search warrant was tainted by

the fruits of an unlawful search because the officers’ garage-window observations

occurred within the curtilage of the plaintiffs home. (Id. ^ 42; see also id. at 109-13.)

The prosecution thereafter dismissed the charges against the plaintiff. (Id. H 42.)

i The Court accepts as true all well-pleaded facts in the first amended complaint for purposes of the

motion to dismiss. White v. United Airlines, Inc., 987 F.3d 616, 620 (7th Cir. 2021).

2 The defendant officers named in the first amended complaint include Brant Hromadka, Mike Ryan,

Dorsey, and Masterson. (FAC HU 6-8.)

3 The Court has subject matter jurisdiction over the plaintiffs federal claims under 28 U.S.C. § 1331

and supplemental jurisdiction over the plaintiffs state law claims under 28 U.S.C. § 1367.

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Two years after the criminal charges were dismissed, the plaintiff initiated the

instant suit in state court, (R. 1-1), which the defendants subsequently removed to

federal court. (R. 1.) The plaintiffs federal constitutional claims include Fourth

Amendment violations for unlawful search and seizure, unlawful pretrial detention,

malicious prosecution, and fabricated evidence (Counts I—VI); Fourteenth

Amendment due process violations for unlawful deprivation of liberty, property, and

use of fabricated evidence (Counts XIII, XIV, XXI); and civil conspiracy to violate the

plaintiffs federal constitutional rights (Count XVIII). The plaintiffs state law claims

include violations of Article I, § 6 (Counts VII—XII) and Article I, § 2 (Counts XV—XVI)

of the Illinois Constitution, common law conspiracy (Count XVII), intentional

infliction of emotional distress (Count XIX), willful and wanton conduct (Count XX),

and indemnification (Count XXII). The defendants move to dismiss the plaintiffs first

amended complaint under Federal Rule of Civil Procedure 12(b)(6). (R. 32.)

A motion to dismiss tests the sufficiency of a claim, not the merits of a case. Gociman

v. Loyola Univ. of Chi., 41 F.4th 873, 885 (7th Cir. 2022). To survive a motion to

dismiss under Rule 12(b)(6), the plaintiff “must provide enough factual information

to state a claim to relief that is plausible on its face and raise a right to relief above

the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329,

333 (7th Cir. 2018) (quoting Camasta v. Jos. A Bank Clothiers, Inc., 761 F.3d 732,

736 (7th Cir. 2014)). In reviewing a Rule 12(b)(6) motion, the Court accepts as true

all well-pleaded factual allegations and draws all reasonable inferences in the

plaintiffs favor. Lax v. Mayorkas, 20 F.4th 1178, 1181 (7th Cir. 2021). Dismissal is

proper where “the allegations in a complaint, however true, could not raise a claim of

entitlement to relief. ’’Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). Where, as

here, the plaintiff is pro se, the Court accords a liberal reading of the complaint. See

Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015) (citing Haines v. Kerner, 404 U.S.

519, 520 (1972) (per curiam)).

Fourteenth Amendment Due Process Claims. The Court begins with the plaintiffs

Fourteenth Amendment claims. The plaintiff alleges that the defendant officers

violated his due process rights by unlawfully detaining him (Count XIII), seizing his

property (Count XIV), and fabricating evidence (Count XXI). The defendants argue

that Counts XIII and XIV should be dismissed because the plaintiffs remedy lies in

the Fourth Amendment, and that Count XXI should be dismissed because the

plaintiff cannot plausibly allege a deprivation of due process. (R. 33 at 11-12).

It is well established that “a substantive due process claim may not be maintained

where a specific constitutional provision protects the right at issue.” Alexander v.

McKinney, 692 F.3d 553, 558 (7th Cir. 2012) (citation omitted). Here, CountsXm and

XIV implicate rights that are protected under the Fourth Amendment. In Count XHI,

the plaintiff alleges a due process violation based on the defendants’ allegedly false

police reports that led to his pretrial detention. (FAC H 93.) A § 1983 claim for

unlawful pretrial detention “rests exclusively on the Fourth Amendment,” not the

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Fourteenth. Lewis v. City of Chi., 914 F.3d 472, 478 (7th Cir. 2019) (emphasis in

original). In Count XIV, the plaintiff alleges that his due process rights were violated

by the unlawful seizure of his property. (FAC t 94.) That, too, is grounded in the

Fourth Amendment. See Dix u. Edelman Fin. Servs., LLC, 978 F.3d 507, 513 (7th Cir.

2020). Because the plaintiffs unlawful pretrial detention and unlawful seizure claims

fall squarely within the ambit of the Fourth Amendment, Counts XIII and XIV are

dismissed.

In Count XXI, the plaintiff alleges a due process violation based on the defendants’

use of fabricated evidence to pursue his prosecution. (FAC *[[ 101.) The Court notes

that, unlike wrongful pretrial detention claims based on fabricated evidence,

fabrication-based wrongful conviction claims implicate due process. See Lewis, 914

F.3d at 479 (“[C\onvictions premised on deliberately fabricated evidence will always

violate the defendant’s right to due process.”) (internal quotation marks and citation

omitted) (emphasis in original). This case, however, does not involve a conviction.

Rather, the plaintiff alleges that he was released five days after his arrest, and the

criminal charges against him were later dismissed. (FAC ^ f 40, 42, 81.) The plaintiffs

evidence fabrication claim thus does not arise under the Fourteenth Amendment. See,

e.g., Lewis, 914 F.3d at 479-80 (explaining the due process clause was inapplicable

because the plaintiff did not raise a claim of wrongful conviction); Bianchi v.

McQueen, 818 F.3d 309, 319-20 (7th Cir. 2016) (explaining the plaintiff could not

make out an evidence fabrication-based due process violation where he was released

on bond following his arrest and acquitted at trial). Instead, as will be discussed

below, the appropriate vehicle for the plaintiffs fabrication claim is the Fourth

Amendment. See, e.g., Sneed v. Vill. of Lynwood, No. 22 C 266, 2022 WL 5116464, at

*3 (N.D. Ill. Oct. 4, 2022) (dismissing malicious prosecution claim under the

Fourteenth Amendment, but allowing it to proceed under the Fourth Amendment).

Accordingly, Count XXI is dismissed.

Fourth Amendment Unlawful Search and Seizure Claims. Next, the plaintiff alleges

that the defendants unlawfully searched his person (Count II) and home (Count III),

and seized his property (Count V) without probable cause in violation of the Fourth

Amendment. The defendants contend that these claims must be dismissed as timebarred. (R. 33 at 9—10.)

While a plaintiff need not anticipate and plead around affirmative defenses in the

complaint, “the statute of limitations may be raised in a motion to dismiss if ‘the

allegations of the complaint itself set forth everything necessary to satisfy the

affirmative defense.”’ Brooks u. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (quoting

United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). The plaintiffs Fourth

Amendment claims are governed by Illinois’ statute of limitations for personal injury

claims. See Neita v. City of Chi., 830 F.3d 494, 498 (7th Cir. 2016). Under Illinois law,

the statute of limitations for personal injury actions is two years from when the cause

of action accrued. Id. (citing 735ILCS 5/13-202). For Fourth Amendment search and

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seizure claims, accrual occurs “at the time of the search or seizure.” Id. (citing Wallace

v. Kato, 549 U.S. 384, 396 (2007)). Subsequent criminal proceedings or incarceration

do not ordinarily toll the limitations period. See Evans v. Poskon, 603 F.3d 362, 36364 (7th Cir. 2010); Beck v. City of Chi., No. 20 C 5329, 2020 WL 7353405, at *5 (N.D.

Ill. Dec. 15, 2020).

Here, the first amended complaint alleges that the unlawful search and seizure

occurred on January 3, 2017. (FAC ^1) 35-36, 38-39.) The plaintiff, however, did not

file his initial complaint until June 21, 2023, more than four years after the statute

of limitations had run. (See R. 1-1.) The plaintiffs argument that he was precluded

from bringing his claims earlier under Heck v. Humphrey, 512 U.S. 477 (1994) is

unavailing. See Evans, 603 F.3d at 363-64 (“Many claims that concern how police

conduct searches or arrests are compatible with a conviction”) Counjts n, III, and V

are therefore dismissed as time-barred.

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Fourth Amendment Unlawful Detention and Malicious Prosecution. The plaintiff also

invokes the Fourth Amendment to assert unlawful detention and malicious

prosecution claims based on evidence fabrication. He alleges that the defendants

fabricated the police reports, an affidavit submitted to obtain a search warrant, and

the grand jury testimony, resulting in his unlawful detention and the commencement

of criminal proceedings without probable cause. (FAC UK 81, 84, 86.)

Allegations of wrongful arrest and detention (Count I) and pursuit of charges without

probable cause (Counts IV and VI) are actionable under the Fourth Amendment,

Manuel v. City of Joliet, III, 580 U.S. 357, 365 (2017) (‘The Fourth Amendment. ..

establishes the minimum constitutional ‘standards and procedures’ not just for arrest

but also for ensuing ‘detention.”’), and support a theory of malicious prosecution. See

Thompson v. Clark, 596 U.S. 36, 42 (2022)4 (recognizing malicious prosecution,

“sometimes referred to as a claim for unreasonable seizure pursuant to legal process,”

as actionable under the Fourth Amendment). A Fourth Amendment claim for

malicious prosecution accrues when the underlying criminal prosecution is

terminated without a conviction; in this case, June 21, 2021. See Smith v. City of Chi.,

No. 19-2725, 2022 WL 2752603, at *1 (7th Cir. July 14, 2022), amended on denial of

4 In the aftermath of Thompson, it is unclear whether Fourth Amendment pretrial detention and

malicious prosecution claims are one in the same or “separate but related actions.” Bolden v. Pesauento,

17 C 417, 2024 WL 1243004, at *28 (N.D. Ill. Mar. 23,2024). The defendants advocate for a distinction

and argue that any Fourth Amendment claims premised on unlawful pretrial detention (e.g., Counts

I and VI) should be dismissed as time-barred. (R. 33 at 9-10.) But Counts I and IV, like Count VI,

contain allegations that implicate a Fourth Amendment malicious prosecution theory. See, e.g.,

Franklin v. Askew, No. 19 C 4375,2022 WL 17093358, at *4 (N.D. Ill. Nov. 21, 2022). Thus, regardless

of whether there is a distinction, these claims can move forward, assuming they’re supported by

plausible factual allegations, under a theory of malicious prosecution. See BBL, Inc. v. City of Angola,

809 F.3d 317, 325 (7th Cir. 2015) (“. . . Rule 12(b)(6) doesn't permit piecemeal dismissals of parts of

claims.”) (emphasis omitted); Harper v. C. Wire, Inc., No. 19 C 50287, 2020 WL 11422783, at *2 (N.D.

Ill. Sept. 17, 2020) (explaining that as long as some plausible theory of relief is identified to support a

claim, “that claim may move forward and a motion to dismiss other legal theories must be denied.”).

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rehg, No. 19-2725, 2022 WL 19572962 (7th Cir. Aug. 4, 2022) (reversing dismissal of

Fourth Amendment claim where timeliness was measured from plaintiffs release on

bond rather than acquittal date). There is thus no timeliness issue apparent from the

face of the first amended complaint as to these claims.

The question then is whether the plaintiff has plausibly alleged a Fourth Amendment

malicious prosecution claim. To state such a claim, his allegations must at least show

that the prosecution was initiated without probable cause and ended without a

conviction. Thompson, 596 U.S. at 49; see also Lee v. Harris, 21 C 50199, 2023 WL

8701081, at *3 (N.D. Ill. Dec. 15, 2023). The defendants argue that the plaintiff has

pleaded himself out of court in light of the state court transcripts, the police reports,

and the search warrant that he attached to his first amended complaint which show

that there existed probable cause for his arrest and resulting prosecution. (R. 33 at

12—14.) The Court agrees.

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As a threshold matter, the Court can consider the documents attached to the

plaintiffs first amended complaint in ruling on the motion to dismiss. See Amin

Ijbara Eq. Corp. v. Vill. of Oak Lawn, 860 F.3d 489, 493 n.2 (7th Cir. 2017). “[W]here

a plaintiff attaches documents and relies upon the documents to form the basis for a

claim or part of a claim, dismissal is appropriate if the document negates the claim.”

Thompson v. El Dep’t. of Prof. Regul., 300 F.3d 750, 754 (7th Cir. 2002). Such is the

case here. The basis of the plaintiffs malicious prosecution claim is that the

defendants falsely reported that they observed one of the stolen welders in the

plaintiffs garage, and this fabricated report was used to obtain a search warrant and

pursue criminal charges against the plaintiff. (FAC f If 22, 27-28, 30.) The issue with

these allegations, however, is that the documents attached to the first amended

complaint show that the defendants’ investigation of a Facebook post advertising the

stolen welders for sale led the officers to the plaintiffs residence where they observed

what appeared to be one of the stolen welders from the window leading to the

plaintiffs garage. (Id. at 109—13,136—37.) This led to a more fulsome search pursuant

to a warrant and, ultimately, the plaintiffs arrest after the defendants discovered the

stolen items at his residence. (Id. at 122-24,138-40).

The plaintiffs attachments thus undermine and render implausible the plaintiffs

allegation that his arrest and subsequent prosecution were not supported by probable

cause. See Young v. City of Chi, 987 F.3d 641, 644 (7th Cir. 2021) (“[PJrobable cause

is a common-sense inquiry requiring only a probability of criminal activity; it exists

whenever an officer or a court has enough information to warrant a prudent person

to believe criminal conduct has occurred.”) (internal quotation marks and citation

omitted). The fact that the evidence of the stolen items was the fruit of an illegal

search does not make it any less relevant to establishing probable cause for the

plaintiffs prosecution because “the exclusionary rule does not apply in a civil suit

under § 1983 against police officers.” Martin v. Martinez, 934 F.3d 594, 599 (7th Cir.

2019). In other words, an officer’s prior violation of the Fourth Amendment does not

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invalidate probable cause that he subsequently develops. Id. Because the defendants

had probable cause to pursue criminal charges against the plaintiff, Counts I, IV, and

VI are dismissed. The Court also dismisses Count XVIII, the plaintiffs § 1983

conspiracy claim, because he has failed to plausibly allege a constitutional violation

See Goldschmidt v. Patchett, 686 F.2d 682,585 (7th Cir. 1982) (holding that “an actual

denial of a civil right is necessary before a cause of action [for conspiracy] arises”).

State-Law Claims. Finally, the plaintiff brings state law claims for evidence

fabrication (Count VII), malicious prosecution (Counts VIII and XII), unlawful arrest

(Count IX), unlawful search (Count X), and unlawful seizure of property (Count XI)

in violation of Article I, § 6 of the Illinois Constitution; unlawful deprivation of

property (Count XV) and liberty (Count XVI) in violation of Article I, § 2 of the Illinois

Constitution; common law conspiracy (Count XVII); intentional infliction of

emotional distress (Count XIX); willful and wanton conduct (Count XX); and

indemnification (Count XXII). The defendants argue that the plaintiffs state law

claims are subject to the one-year statute of limitations under the Illinois Local

Governmental and Governmental Employees Tort Immunity Act (“TIA”), 745 ILCS

10/1-101 et seq., and consequently are time-barred. (R. 33 at 9.)

The TIA applies to civil actions brought against a local governmental entity (here,

the Village of Romeoville) and its employees (the defendant officers). 745 ILCS 10/8101(a). Under the TIA, civil actions must be brought “within one year from the date

that the injury was received or the cause of action accrued.” Id; see also Feltmeier v

Feltmeier, 798 N.E.2d 75, 85 (JIl 2003) (“Generally, a limitations period begins to run

when facts exist that authorize one party to maintain an action against another.”).

“While the two-year period still applies to § 1983 claims against” local governmental

entities and their employees, the TIA’s “one-year period applies to state-law claims

that are joined with a § 1983 claim” against such defendants. Williams v. Lampe, 399

F.3d 867, 870 (7th Cir. 2005). Here, the latest possible accrual date alleged in the

plaintiffs first amended complaint is June 21, 2021, the date on which the criminal

charges

against him were

.....................................

dismissed. (FAC H 42.) The plaintiff, however, did not

initiate this action until June 21, 2023, (R. 1-1), well beyond the expiration of the oneyear limitations period. Accordingly, the plaintiffs state law claims are time-barred

under the TIA. See, e.g., Houston v. City of Chi., No. 20 C 6720, 2024 WL 278999, at

*2 ^.D. Ill. Jan. 25, 2024). Counts VH, VIII, IX, X, XI, XII, XV, XVI, XVH, XIX, XX,

XXII are therefore dismissed.5

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Date: 4/11/2024

JEREMY C. DANIEL

United States District Judge

B Because none of the plaintiffs claims are moving forward, the Court does not reach the defendants’

request to strike paragraph 24 of the first amended complaint. (See R. 33 at 15.)

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Case: 24-1715

Document: 19

Filed: 11/18/2024

Pages: 1

JSmtefr jiteies (Umtri of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

November 18, 2024

Before

MICHAEL Y. SCUDDER, Circuit Judge

JOHN Z. LEE, Circuit Judge

NANCY L. MALDONADO, Circuit Judge

No. 24-1715

JOSEPH DELAROSA,

Plaintiff-Appellant,

v.

VILLAGE OF ROMEOVILLE, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. l:23-cv-07049

Jeremy C. Daniel,

Judge.

ORDER

On consideration of the petition for rehearing and petition for rehearing en banc,

no judge in regular active service has requested a vote on the petition for rehearing en

banc and the judges on the original panel have voted to deny rehearing. It is, therefore,

ORDERED that the petition for rehearing and petition for rehearing en banc is

DENIED.

Additional material

from this filing is

available in the

Clerk's Office.