Opinion
No. 98 C 3058
February 11, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Stephen Edward Lewis, currently incarcerated at Cook County Jail, brings this pro se action pursuant to 42 U.S.C. § 1983, alleging that defendant Mark Pleasant, a special investigator for the Lake County Children's Advocacy Center, along with two unknown defendants, arrested him without probable cause. Defendant Pleasant has filed a motion for summary judgment to which Lewis has responded.
I. Facts
According to Lewis's amended complaint, he was arrested on October 21, 1995, based on an unsworn complaint. After his arrest, Postal Inspector Robert Williams looked into his mall bag. A general warrant was then issued for all items of a sexual nature in the bag. A photograph of an 11-year-old girl, absent clothing, was found and she was later identified as living in Lake County.
On December 31, 1998, Judge Ann C. Williams dismissed Lewis's action pursuant to 28 U.S.C. § 1915 (e)(2)(B) for failure to state a claim. On March 11, 1999, Judge Williams granted Lewis's motion to reconsider and allowed him to file an amended complaint naming the officer(s) who arrested him. This action was reassigned to me on December 15, 1999, when Judge Williams was elevated to the Seventh Circuit Court of Appeals.
In May 1996, Lewis was released on bail from Cook County Jail and he returned to Lake County. Defendant Pleasant met with Lewis and the girl's mother and continued to watch the home where Lewis was staying to ensure that Lewis was honoring the conditions of bail.
The girl's mother and her children spotted Pleasant and waved to him. They claim he seemed upset at being seen. The next day, seven months after Lake County authorities possessed the photograph, Lewis was arrested.
Lewis avers that neither the judge who issued the warrant for his arrest nor the grand jury that indicted him had been shown the photograph to determine if it was "lewd" so as to establish probable cause. He also claims that, in a display of vindictiveness, Lake County waited until he was released on bail before charging him with the same evidence that Cook County might have used. He further alleges that it was not until he returned to Lake County that the arresting officer in Cook County called the DCFS Hotline in Lake County.
In his General Rule 12(M) statement, Pleasant states that on October 21, 1995, Investigator David Skaja of the Glenview Police Department arrested Lewis for Aggravated Criminal Sexual abuse, Sexual Exploitation of a Child, Public Indecency, and Disorderly Conduct in cause 95 CR 31455. (Defendant's Exhibit 1.) Pursuant to a search warrant Skaja searched Lewis's U.S. mailbag and seized a Polaroid photograph of a "pre-pubescent female while (naked)." (Defendant's Exhibit 2.) The child in the photograph was later identified as a Lake County resident.
The General Rules have been recodified to more closely mirror the Federal Rules of Civil Procedure. General Rule 12(M) is now Local Rule 56.1.
On May 22, 1996, Judge James Booras of the Nineteenth Judicial Circuit issued a warrant for the arrest of Lewis in cause 96 CF 1351 for child pornography. Lewis was arrested on May 23, 1996. (Exhibit 3.)
On June 5, 1996, a Lake County Grand Jury indicted Lewis on one count of child pornography. (Exhibit 4.) On August 22, 1996, Lewis was found guilty of the charge of child pornography, and on November 22 1996, he was sentenced to five years in the Department of Corrections. On June 16, 1999, the Illinois Appellate Court reversed the trial court decision. People v. Lewis, 305 Ill. App.3d 665, 712 N.E.2d 401, 238 Ill.Dec. 679 (1999).
Lewis takes issue with the following: First, he asserts that Investigator Skaja did not search his mail bag pursuant to a search warrant. The court can make short shrift of this argument. Postal Inspector Robert Williams, who Lewis claims searched his bag before going to authorities for a proper search warrant, is not a defendant in this action. Moreover, even if the events happened exactly as Lewis recounts them, any possible action is now time barred because the alleged events happened on October 21, 1995, and Lewis did not file his complaint until May 15, 1998. See Farrell v. McDonough, 966 F.2d 279, 280-82 (7th Cir. 1992); Kalimara v. Illinois Department of Corrections, 879 F.2d 276, 277 (7th Cir. 1989) ( 735 ILCS 5/13-202 (1996) provides that actions for damages in Illinois shall be commenced within two years after the cause of action accrued).
Second, although Lewis agrees that Judge Booras issued the warrant for his arrest and that a Lake County Grand Jury indicted him for one count of child pornography, he claims that neither was shown the photo at issue.
Third, Lewis agrees that on August 22, 1996, he was found guilty but adds that it was at a bench trial and that he was convicted of two counts stemming from the single photograph, which was later found to have violated the one-act-one-crime rule. Because the issue in this action is whether Pleasant had probable cause to arrest Lewis, the fact that he was convicted of two counts is immaterial. Moreover, the Illinois Appellate Court opinion clarifies that the trial court found Lewis guilty of both counts of child pornography. However, Lewis's motion for reconsideration or a new trial, it agreed with Lewis's argument regarding the one-act-one-crime issue. The trial court therefore entered judgment on count one only. See People v. Lewis, 305 Ill. App.3d 665, 712 N.E.2d 401, 238 Ill.Dec. 679 (1999).
Fourth, Lewis disagrees that he was sentenced to D.O.C.; but rather, that he was sentenced to I.D.O.C. and that he was in I.D.O.C. just long enough for the state to earn federal funds before he was transferred to Cook County Jail to await pending charges. This contention is totally nonresponsive to the issue in this action.
After ferreting through the facts, the court finds that the only issue is whether Pleasant had probable cause to arrest Lewis.
II. Standard of Review
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of submitting affidavits and other evidentiary material to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Once the moving party has sustained the initial burden, the opposing party may not rest upon the mere allegations or denials of the pleadings, but instead must come forward with specific evidence, by affidavits or as otherwise provided in Rule 56, showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
III. Analysis
A person arrested pursuant to a facially valid warrant cannot prevail on a § 1983 or a Fourth Amendment false arrest claim, even when the arrest warrant is later determined to have an inadequate factual foundation. Juriss v. McGowan, 957 F.2d 345, 350 (7th Cir. 1992) (citing Baker v. McCollan, 443 U.S. 137, 143 (1979)). When, however, an officer knowingly uses false statements to procure an arrest warrant, he may be liable for violating the arrestee's civil rights. Juriss, 957 F.2d at 350-351 (citing Malley v. Briggs, 475 U.S. 335, 345 (1986)); see also, Olson v. Tyler, 825 F.2d 1116, 1118 (7th Cir. 1987) ("if an officer seeking a warrant purposefully or recklessly withholds facts that could negate probable cause, the office may be liable for violating the victim's civil rights.").
In this action, Pleasant has presented both a copy of the arrest warrant signed by Judge Booras (Defendant's Exhibit 3) and a copy of the Lake County Grand Jury indictment for one count of child pornography (Defendant's Exhibit 4). The warrant reads in part that Lewis "committed the offense(s) of: Ct. 1, Child Pornography, 720 ILCS 5/11-20.1(a)(1)(vii), Class 1 . . . in that the said defendant, knowingly photographed Jessica L. Tim, a child who he knew was under the age of 18 years, while she was depicted in any pose, posture, or setting, involving lewd exhibition of the unclothed genitals, public area, or a fully or partially developed breast of a child." The warrant also states that an ex parte hearing was held and probable cause was found.
Because Judge Booras issued a warrant for Lewis's arrest, the burden falls on Lewis to come forward with evidence that shows that an issue of fact exists with regard to the judge's finding of probable cause. Simmons v. Pryor, 26 F.3d 650, 653 (7th Cir. 1993) (when a judge finds probable cause, the burden is on the plaintiff to show the existence of facts which cast doubt on probable cause); People v. Hattery, 183 Ill. App.3d 785, 808 (1st Dist. 1989) (warrants are issued upon a judge's finding of probable cause). Lewis contends that Pleasant never showed the judge the photograph when seeking the arrest warrant and that the Grand Jury never viewed the photograph. However, Lewis presents no evidence to buttress this assertion. The Seventh Circuit has repeatedly held that when one side moves for summary judgment, the non-moving party may not simply rest on its pleading or on mere conclusory allegations to avoid summary judgment; rather, the party must come forward with evidence to show the existence of each element of its case on which it will bear the burden at trial. See Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)); see also, Matney v. County of Kenosha, 86 F.3d 692, 695 (7th Cir. 1996).
Even assuming that the photograph was not shown to Judge Booras during the ex parte hearing and he relied on Pleasant's statements in regard to the photo, it has long been held that hearsay evidence is entirely appropriate within the context of determining probable cause to issue an arrest warrant. See Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Lewis agrees that the photo at issue was of a girl under 18 years of age without any clothing. He disagrees, however, that the photo was lewd and argues that Pleasant knew that the photo was not lewd, which is why Pleasant did not show it to either the judge or the Grand Jury.
Pleasant has argued that even if Lewis's allegations are true, Pleasant is entitled to qualified immunity. In Malley v. Briggs, 475 U.S. 335, 345 (1986), the Supreme Court held that the standard for immunity in a case like this is "whether a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant." Using this standard here, Pleasant acted in an objectively reasonable manner in applying for the warrant to arrest Lewis. Pleasant knew that Lewis had taken this photo of an 11-year-old girl without any clothes on and he knew that Lewis had returned to Lake County, the locale where the photo was taken, after his release on bail from Cook County Jail where he had been held on charges of Aggravated Criminal Sexual Abuse, Sexual Exploitation of a Child, Public Indecency, and Disorderly Conduct in cause 95 CR 31455. (Defendant's Exhibit 1.) This court concludes that it was not objectively unreasonable for Pleasant to have applied for an arrest warrant under these circumstances. He is accordingly entitled to qualified immunity.
In his memorandum in support of his motion for summary judgment at p. 3, Pleasant states that he testified at the Gernstein hearing conducted by Judge Booras, but that the petition for the arrest warrant was brought by an Assistant State's Attorney from the Felony Review Division. Lewis avers that Pleasant is merely attempting to shift blame in order to escape responsibility for his actions. (Plaintiffs reply brief at p. 5.) Because Pleasant did not support this statement with any evidence, the court is constrained to analyze Lewis's claim as if Pleasant applied for the warrant, which appears to be Lewis's primary thrust.
Lewis has argued vociferously that Pleasant knew the photo was not lewd. In reversing Lewis's conviction, the Illinois Appellate Court relied on People v. Lamborn, 708 N.E.2d 350, 185 Ill.2d 585, 236 Ill.Dec. 764 (1999). In Lamborn, the Illinois Supreme Court, noting that it had not previously defined "lewd," id. at 354, examined several decisions of the Illinois Appellate Court and numerous federal and state decisions dealing with the factors for assessing whether a visual depiction of a child constitutes the lascivious or lewd exhibition of the genitals. After culling through these cases the Illinois Supreme Court focused on six factors for making this determination:
(1) whether the focal point of the visual depiction is on the child's genitals; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose general associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Id at 354.
The Illinois Supreme Court determined that the visual depiction need not involve all of the factors to be lewd and that the determination of lewdness involved an analysis of the overall content of the depiction, taking into account the age of the minor. The Court concluded that this necessitated making a determination of lewdness on a case-by-case basis. Id at 355. Many courts have grappled with the difficult task of defining "lewdness" — a task so difficult that the majority in Lamborn departed from the traditional "sufficiency of the evidence" standard of review and adopted a de novo standard of review for determining if a visual depiction is lewd.
By contending that Pleasant should have known that the photo was not lewd, Lewis is essentially claiming that Pleasant both should have engaged in a extensive analysis of the evidence before him and should have anticipated the Illinois Supreme Court's legal definition handed down several years later. This, however, is not the standard for probable cause. As the Seventh Circuit has stated, "[t]here is no constitutional or statutory requirement that before an arrest can be made the police must conduct a trial." Gramenos v. Jewel Cos., 797 F.2d 432, 439 (7th Cir 1986) ( quoting Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974) (probable cause found despite police office's failure to question witnesses who saw defendant or to inspect counterfeit bill)), cert. denied, 481 U.S. 1028 (1987). As Pleasant emphasizes, probable cause is only a "commonsense determination, measured under a reasonableness standard." Tangwell v. Stuckey, 135 F.3d 510, 519 (7th Cir. 1998). Probable cause exists at the time of an arrest if "the facts and circumstances within [the arresting officer's] knowledge and of which she has reasonable trustworthy information would warrant a prudent person in believing that the suspect had committed or was committing an offense." Spiegel v. Cortese, 196 F.3d 717 (7th Cir. 1999). As emphasized in Juriss, 957 F.2d at 350 (7th Cir. 1992) (citing Baker v. McCollan, 443 U.S. 137, 143, (1979)), a person arrested pursuant to a facially valid warrant cannot prevail on a § 1983 or a Fourth Amendment false arrest claim, even where the arrest warrant is later determined to have an inadequate factual foundation. The Illinois Appellate Court basically found an inadequate factual foundation for Lewis's conviction, that is, it determined that the photo was not lewd. This finding, however, does not undermine the fact that Lewis was arrested pursuant to a facially valid warrant and that Lewis has presented no evidence whatsoever that Pleasant used false statements or withheld facts in order to procure the warrant.
Lewis also argues that Lake County authorities had the photo in their possession for seven months and waited until he was released on bail from Cook County Jail and returned to Lake County before arresting him. He claims that Cook County authorities refused to prosecute him because they did not consider the photo to be lewd.
55 ILCS 5/3-9005(a)(1) (1996) provides:
(a) The duty of each State's attorney shall be:
(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.
The girl in the photograph was a Lake County resident; therefore, only Lake County authorities, not Cook County authorities, could prosecute Lewis in regard to this photograph. Lewis's assertion that Cook County authorities did not consider the photo to be lewd is without any support as required in a motion for summary judgment. See, e.g, In the Matter of Morris Paint and Varnish Co., 773 F.2d 130, 134 (7th Cir. 1985) (unsupported statements in a brief are not evidence and cannot be given any weight).
Finally, Lewis claims that his arrest by Lake County authorities was vindictive because they waited seven months after possessing the photo before arresting him. Even assuming that Lake County authorities arrested Lewis only after he was spotted by the girl's mother and her children and laid in wait for him to return to Lake County, no constitutional violation has occurred. As the Seventh Circuit stated in Mark v. Furay, 769 F.2d 1266, 1268-69 (7th Cir. 1985): "This court has consistently held that the existence of probable cause for an arrest totally precludes any section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution, regardless of whether the defendants had malicious motives for arresting the plaintiff, " citing, Terket v. Lund, 623 F.2d 29, 31 (7th Cir. 1980). Accord, Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir. 1985); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1344 n. 10 (7th Cir. 1985)."
IV. Conclusion
Because Lewis fails to present any evidence to support his allegation that Pleasant deliberately withheld the photograph or any other material facts from the judge who issued the warrant, summary judgment is appropriate on Lewis's Fourth Amendment false arrest claim against Pleasant. The court accordingly grants defendant Pleasant's motion for summary judgment and enters judgment in favor of defendant Pleasant pursuant to Fed.R.Civ.P. 56.
If Lewis wishes to appeal this dismissal, he may file a notice of appeal with this court within 30 days of the entry of judgment. Rule 4(a)(4), Fed.R.App.P. If he does so, he will be liable for the $105 appellate filing fee. Unless he is granted leave to proceed in forma pauperis, he will have to pay the fee immediately. If he cannot do so, the appeal will be dismissed, but he will remain liable for the fee and it will be deducted from his inmate trust fund account in installments. Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997). If this court finds that appeal is not taken in good faith, and the Court of Appeals agrees, he will not be permitted to proceed in forma pauperis and pay the fee in installments, but will have to pay the fee immediately or the appeal will be dismissed. 28 U.S.C. § 1915 (a)(3); Newlin, 123 F.3d at 433-34. To avoid a finding that the appeal is not taken in good faith, a motion to proceed in forma pauperis on appeal should explain the grounds for the appeal. See Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999); Fed.R.App.P. 24(a)(1)(C).