Opinion
No. 98 C 7324
June 21, 2000
MEMORANDUM OPINION AND ORDER
Before this court is defendants Chicago Housing Authority ("CHA") and Henry McGee's ("McGee") (collectively, "defendants") motion for summary judgment on plaintiff Catrell Brown's ("plaintiff" or "Brown") complaint of false arrest and malicious prosecution, as well as indemnification of CHA. For the following reasons, the defendants' motion is DENIED.
Statement of Facts
The parties in this case have given the court less than a bare bone outline and scant relevant argument. On November 4, 1997, the plaintiff Catrell Brown was arrested by CHA officer Henry McGee. (Dft's Stmt. of Facts ¶ III.(1)). Brown was charged with Possession of a Controlled Substance with Intent to Deliver and the Delivery of a Controlled Substance, and was assigned case number 97 CR 32339. (Dft's Stmt. of Facts ¶ III.(2)). On December 3, 1997, a preliminary hearing was held on the issue of probable cause. At the end of that hearing, Illinois State Circuit Court Judge Richard Devine found probable cause for the charges. (Dft's Stmt. of Facts ¶ III.(3); Dft's Ex. B). Brown had also been charged with Possession of Controlled Substances in a separate matter, case number 97 CR 7555, in front of Illinois State Circuit Court Judge Maki. (Dft's Stmt. of Facts ¶ III.(4)). The State originally elected to prosecute case number 97 CR 32339. (Dft's Stmt. of Facts ¶ III.(7)). However, eventually Brown pled guilty on 97 CR 7555 and the State moved to nolle pros 97 CR 32339 and the charges were dismissed. (Dft's Stmt. of Facts ¶ III.(9); Dft's Ex. 5, p. 2). The defendants state that the supervising State Attorney General, Lori Wolfson, elected to proceed only on 97 CR 7555 because the arresting officer in 97 CR 32339, Henry McGee, was no longer available to testify. (Dft's Stmt. of Facts ¶¶ III.(5, 6, 8)). The plaintiff states that the Assistant State Attorney General, Michael Kress, informed the judge the reason the election was changed was because the State could not prove its case on 97 CR 32339. (Pl's Resp. to Facts ¶ III.(8); Pl's Ex. 4, ¶ 15).
Brown filed this case against CHA and McGee under 42 U.S.C. § 1983 alleging false arrest and malicious prosecution. (Pl's Amended Complaint, ¶¶ 1-23). Brown also alleges that McGee acted under the color of law and within his scope of employment, thus indemnifying the CHA under 745 ILCS 10/9-102. (Pl's Amended Complaint, ¶¶ 24, 25). The CHA and McGee have filed this motion for summary judgment on all counts.
Brown also named Michael Sheahan, Sheriff of Cook County, and "unknown employees" of Sheahan as defendants. Pursuant to stipulation of April 30, 1999, Sheahan and the unknown employees were dismissed from this action.
Standard for Summary Judgment
Summary judgment is proper "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 if law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, after viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). The party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hedberg, 47 F.3d at 931. If this burden is met by the movant, the non-movant must then set forth specific facts to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. While affidavits, depositions and interrogatories are acceptable evidence for the non-movant to present, these are not the exclusive forms of evidence that can be used in responding to summary judgment. Wright, Miller Kane Federal Practice and Procedure: Civil 3d § 2721. In deciding a motion for summary judgment, the court must read the facts in a light most favorable to the non-movant. Cuddington v. Northern Ind. Public Serv. Co., 33 F.3d 813, 815 (7th Cir. 1994). However, Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion: "there must be evidence on which they jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250.
Analysis
Count I: False Arrest
Brown alleges in his false arrest claim that McGee arrested Brown for possession of narcotics, but Brown was not in possession of any narcotics or other illegal items at the time of the arrest. (Pl's Amended Complaint, ¶¶ 9-11). The defendants argue that Brown's claim of false arrest is issue precluded, for the issue of probable cause for Brown's arrest was litigated at the December 3, 1997 preliminary hearing. At that hearing, McGee testified and was subject to cross-examination. (Dfts' Mem. of Law, pp. 1-2; Dfts' Ex. B).
Federal courts recognize the binding effects of state court civil and criminal judgments when determining whether Section 1983 claims are issue precluded. Allen v. McCurry, 449 U.S. 90, 103-104, 101 S.Ct. 411, 419 (1980). Issue preclusion prevents relitigation of an issue when four requirements are met: (1) the party against whom issue preclusion is asserted must be fully represented in the prior litigation; (2) the issue sought to be precluded must be identical to the issue involved in the prior litigation; (3) the issue must have been actually litigated on the merits and decided on the merits in the prior litigation; and (4) the resolution of that issue must have been necessary to the court's judgment. Gray v. Lacke, 885 F.2d 399, 406 (7th Cir. 1989). However, issue preclusion does not apply to non-appealable final orders or non-appealable interlocutory orders. Standefer v. U.S., 447 U.S. 10, 100 S.Ct. 1999 (1980); Block v. U.S. Int'l Trade Commission, 777 F.2d 1568, 1571 (Fed. Cir. 1985).
The defendants' argument for issue preclusion fails for several reasons. First, under Illinois law, the criminal defendant has a right to raise a Fourth Amendment issue on probable cause and to bring a motion to suppress any time before trial. The criminal defendant does not have to raise the issue at the preliminary hearing. 725 ILCS 5/109-3(a). Second, since the State dismissed the charges against Brown soon after the preliminary hearing, Brown never had a full and fair opportunity to litigate the Fourth Amendment issue. Brown did not have the opportunity to appeal the pre-trial probable cause hearing and was not able to have a hearing on a motion to suppress. This case is similar to Whitley v. Seibel, where the Seventh Circuit held that a probable cause finding made in a summary and cursory criminal preliminary hearing did not estop the criminal defendant from later bringing a Section 1983 claim challenging the integrity of the evidence supporting probable cause. 676 F.2d 245 (7th Cir. 1982). The Seventh Circuit distinguished the preclusionary effects of a preliminary hearing versus a suppression hearing. "[The preliminary hearing] is a relatively summary proceeding, designed only to reach an interim decision in the process of bringing a defendant to trial. The suspect has no right to discover what is in the prosecutor's arsenal, or to appeal the finding of probable cause . . . We doubt that [issue preclusion] would ever be appropriate solely on the basis of a preliminary hearing." Whitley, 676 F.2d at 249-50. The transcript of the preliminary hearing in the present case shows that the hearing was only perfunctory. (Dfts' Ex. B). Therefore, the issue as to the probable cause for Brown's arrest is not precluded. Summary judgment on the false arrest claim is denied.
Count II: Malicious Prosecution
In order to avoid summary judgment on his claim of malicious prosecution, Brown must show the following elements: (1) the commencement or continuance of an original criminal judicial proceeding by the defendants; (2) the termination of the proceeding in favor of Brown; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to Brown. Joiner v. Benton Community Bank, 82 Ill.2d 40, 45 (1980). The defendants focus on the second element of malicious prosecution, the termination of the proceeding in favor of Brown. The defendants argue that Brown has not shown that the nolle pros was a favorable termination, for the dismissal of 97 CR 32339 was in exchange for the plea agreement on 97 CR 7555, as well as the unavailability of McGee to testify'. (Dfts' Mem. of Law, p. 3).
A malicious prosecution action cannot be predicated on underlying criminal proceedings which were terminated in a manner not indicative of the innocence of the accused. Joiner, 82 Ill.2d at 45. The key in the present case is to determine the reasons behind the nolle pros. The burden of showing those reasons is with the plaintiff Brown. Restatement (Second) of Torts § 672 (1977).
In Swick v. Liautaud, the Illinois Supreme Court outlined which situations a nolle pros constituted a favorable termination for the accused in a malicious prosecution action. The court found that a nolle pros is a favorable termination unless it is for reasons not indicative of the innocence of the accused. "The abandonment of the proceeding is not indicative of the innocence of the accused when the nolle prosequi is the result of an agreement or compromise with the accused, misconduct on the part of the accused for the purpose of preventing trial, mercy requested or accepted by the accused, the institution of new proceedings, or the impossibility or impracticality of bringing the accused to trial." Swick v. Liautaud, 662 N.E.2d 1238, 1243 (1996).
The defendants present evidence that the nolle pros of 97 CR 32339 was because McGee was unable to testify, and was also in exchange for a plea on 97 CR 7555. (Wolfson's Aff., ¶ 5; Dfts' Ex. 5, p. 9). Brown responds by presenting an affidavit of his attorney in the criminal proceedings, Rick Friedman ("Friedman"). Friedman states in the affidavit that at the May 19, 1998 hearing, the Assistant State Attorney advised the judge that the nolle pros on 97 CR 32339 was because the state could not prove its case at trial. (Pl's Ex. 4, ¶ 15). However, the transcript of that hearing, where Friedman was present, contains no statement by Kress, the Assistant State Attorney, that the State cannot prove its case at trial. Instead the transcript shows Kress stating, "[In] return for the plea of guilty on 97 7555, the State would move to nolle pros 97 32339." (Dft's Ex. 5, p. 9).
Evidence that the nolle pros on 97 CR 32339 was because the State could not prove its case supports Brown's argument that the nolle pros was a favorable termination. If the State cannot prove its case against the accused, that is indicative of the innocence of the accused. Joiner, 82 Ill.2d at 45. Evidence that the nolle pros was in exchange for the plea on 97 CR 7555 is inconsistent with a conclusion of favorable termination. It may be difficult for the plaintiff to prove that the Assistant State Attorney stated to the judge that the nolle pros was because the State could not prove its case at trial, for that statement is not included in the transcript. However, the plaintiff has presented some evidence of that statement through the affidavit of Friedman, which creates a genuine issue of fact as to the reason for the nolle pros. Since those reasons are key to an element of Brown's malicious prosecution claim, summary judgment must be denied.
Count III: Indemnification
The defendants also ask for summary judgment on Count III as to indemnification of CHA if they received summary judgment on the malicious prosecution claim. (Dfts' Mem. of Law, p. 4). Since summary judgment is denied as to the malicious prosecution claim, summary judgment is denied on Count III as well.
Conclusion
For the foregoing reasons, defendants Chicago Housing Authority and Henry McGee's motion for summary judgment on plaintiff Catrell Brown's complaint of false arrest and malicious prosecution, as well as indemnification of CHA, is DENIED.