f is allowed to file a complaint that gives notice of his or her claim and contains enough factual allegations to make the claim plausible if the defendant theories are but when it's that time that time isn't in the complaint it's not in response to a motion to dismiss when you could just add new facts what if there is no motion to dismiss the time when the defendant traditionally learns what the plaintiff's theories are in the pretrial order which supersedes the complaint and sets out what plaintiff's claims are how the plaintiff intends to prove those claims and what the jury instructions are going to be  since about i think nine hundred eighty six with the growing reliance on summary judgment as a way to resolve cases the pretrial water has fallen in significance there is we don't require ff talked about a complaint about an unreasonable search plaintiff colbert complained about unreasonable search of his home that wasn't the sufficiency of that allegation wasn't that never happened but that's a disputed question of fact which could not be properly resolved without a trial with district judge those said that siri that part of the unreadable search was not in the complaint and therefore i can't consider it on summary judgment even though it was discussed at the depositions even though nobody challenge the sufficiency of the complaint culprits claim that wrestling him to the ground taking his key opening is locked bedroom and searching has caused it was on reasonable there should be a trial on that and the parole officer should be entitled to tell the jury that mr culver just gave me his keys he want to be to search his bedroom he wanted me to look under his bed looking those closet that's one of the issues in this case the other interesting and sure issue in this case is the district judges theory which is salt to him by the city about double jeopardy in the view of a district judge you could be prosecutor trice your first probable cause that what point does that terminations ripening to something that would let you pursue malicious prosecution but you could never under our reasoning which we discussed in a in a footnote discussed in the hypothetical you can never do it malicious prosecution interpretation of the fourth amendment you would not be able to do that because you have gerstein hearing that's when you're fourth and without a just and according to this court which may be prefer soon perhaps you will see but so the preliminary hearing with the no brought before a judge within forty eight usually within forty eight hours the judge reads the police report which is sworn to under oath and says f t c finding of probable cause and sets by and in such a date for to limit their hearing which under illinois statute has to be within thirty days and then within thirty days you have a clue an area hearing if you're locked up you're locked up for that time if you do is a finding of no probable cause deployment or hearing and you're not someone and that person and then a warrant will be issued for that person's arrest to be is not what he a few got in custody and that the person will be brought before a judge for an arraignment and then with criminal proceedings will start the  his reply brief before this court that that first proceeding is not a prosecution at all their argument is waived waiver side mr pitcher bases that argument on a statute requires either an information or an indictment to commence a felony prosecution but  ignores the remainder of that statute which specifically states that an information can only be obtained following a preliminary hearing and a finding of no cross or a finding of probable cause mr croucher also concedes in his reply brief that only courts have entertained claims from th prosecution following the dismissal charges at a preliminary hearing overgaard list mr crozier's new argument does not aid him he says because whether any claim relating to the first proceeding is time board or whether it was not a prosecution at all that leaves mr trotter in the same position namely he has no malicious prosecution claim arising from the first proceeding and he must present evidence to show that a police officer somehow improperly influenced the prosecutor's subsequent decision to seek an indictment but when he sought approval of the initial charges but that alleged misconduct relate only to the first proceeding that ended after the preliminary hearing what it what other evidence with the prosecutor has been able to present to greenwich or the pro actually presented the testimony of a completely different officer who was involved in the arrest and mr crutchley is never alleged that that officer or any other officer in any way acted improperly during this prosecution mr cross reduced notice that officer willingham or any other officer improperly influenced the prosecutor at all to seek the indictment it is well established that an indictment breaks the chain of causation between any alleged miss police misconduct and a plaintiff's claim malicious prosecution in the absence of such evidence indeed hear the officer willingham acted improperly deposition about the tips right but i had a question in essence is whether the details were documented after the police knew what they found in the search it was documented i leave it was documented the arrest report which was afterwards i'd have to check but mr but also willingham testified that he called the idea see parole agents on the basis of that tip before they went to the house the whole reason that they went to the house because they had received the tip and then he called the ideas the parole agents because he had looked up mr touchett information and seen that mr cutter with a felon on parole and that he was the tip that led to the idea of the officers and the police the state police officers planning together a joint operation to go and search the house to hundred three the problem that's posed if police officers carry out an unreasonable search and reasonably destructive under the circumstances and  problem posed by identifying the responsible defendants i take it it's basically standard operating procedure in conducting a search to sequester residence so they can't interfere with the search  i believe that's correct your honor and the result of that is that the people most interested people who would be victims of wrongful police conduct then have no ability to identify the relevant individuals correct well to the extent they could that something occurred within their site they would be able to identify that and to the extent the objective that the objective of the officers ticky is to keep them out of the way right now i believe to keep them raised here about perhaps shifting the burden of proof in such circumstances to a group of potential defendants that's done in tort law which is the source of law for section thousand eighty three cases why would that not be reasonable or appropriate here rather than let wrongdoers under color of official right immunize themselves by making it impossible for anybody to complain to be clear you're out of this court in hessle and in molina in the context of an ordinary sort of help both times that the plaintiff has the burden to come forward and i'm i'm aware of that but the hessle opinion notes as an option the doctrinal option that was not argued in that case and that has been raised here it's actually fairly it's the name of the case and that the six did so as the sixth circuit has done that but we also raised it as a possibility but in either event why is that in your view inappropriate i believe has said that that is that a different result may obtain in a case where there was an allegation that there was some sort of conspiracy of silence among the officers that they had somehow done something improper or afterwards to seek to keep evidence from the plaintiffs but there's no allegation like that here this is a routine normal search in which the officers went into the home and conducted a search of the plaintiffs and walls tore open and furniture that's the allegation is that it was a normal that they were searching for weapons and to be honest i'm not sure what the normal practice is and there's no testimony that i'm aware of from the depositions about that routine or ordinary search in those cases but this court was very clear and hazell and in one minute that the plaintiff requires proof of individual liability and that group liability would not apply in those cases in the absence of some extraordinary circumstance involving proof of some sort of conspiracy to to prevent the plaintiffs from knowing what happened and that's what happened in the six to circuit case of burly that the officers went in and they were actually massed they actually took affirmative effort to prevent the plaintiff and identifying them and for that reason the court there it said that i would remain in the district or people consider whether or not shifting the burden is appropriate i see my time is up i'm happy to answer any further questions but otherwise we would have to work through from the judge  colbert raised for the first time in his response to the motion for summary judgment and second because state defendants were entitled to summary judgment on the culverts property damage claim where he presented no evidence that any of the defendants cause damage to his property i'm actually going to address the second issue first because we were just talking about that during the city's argument and i and i want to mention burley where the court where the sixth circuit discussed the possibility of some sort of burden shifting terms of the burden of production of certain evidence  court didn't make take an opinion one way or the other whether or not such a burden shifting approach would be appropriate and lots of for the district court to do so just recently circuit has revisited the issue in  place the burden on the defendants to identify which officers did watts and the sixth circuit affirmed the district court's decision not appeal in fact the sixth circuit said plaintiffs proposed further shifting would stand section  district in burley which considered a somewhat different burden shifting approach that court has since decided that that approach would be inconsistent with section one nine hundred eighty three individual liability and this sort of unfairness concern that perhaps it would be particularly difficult for a plaintiff to prove his or her case in these circumstances doesn't does first of all arose in hassle and you know but the court cause the damage at issue here plaintiff has sued only four of the officers who conducted the search the three state defendants and officer willingham when both kolber and crusher testified that at least ten officers conducted the search of the residence so here we don't even have that baseline assumption that one of the defendants must have done something because he hasn't sued all of the defendants now going back to that to the initial consents litigate issue as well as double establish that a plaintiff cannot amend his complaints in response to a motion for summary judgment to add a claim on the basis of facts that were not alleged in the original complaint or in the complaint unless the defendant has consented it's litigating that on pleaded clinton therefore this issue  presents a two part inquiry part one asks whether colbert's claims alleging that hopkins russell into the ground and took his key rested on a new factual basis that wasn't in the second amended complaint and then the second part asks whether property thus the factual basis for the claim in the second amendment consists of the conduct of all of state defendants during the search that allegedly caused the harm of damaging culverts property but the factual basis for c new claims against hopkins consists of the conduct of only hopkins and not the other states on this in obtaining the key to colbert's bedroom and that caused an allegedly different harm that has nothing to do with property damage whatsoever therefore the new claims are based on a different factual basis that aren't contained within the second a minute complaints and therefore colbert could only pursue these claims if hopkins testimony about the about the search during the depositions in fact this court is held that a district court does not need to imply defense consent to try and on plead it claimed merely because evidence as to a claim that was that was alleged in the complaint also tends to establish an on pleaded claim here in the property damage claim colbert was alleging and his wife testified in her deposition that there was damage to  of how the officers gained access and entry to the bedroom was relevant to whether or not there was property damage as part of that entrance and so here the district court did not abuse its discretion by not implying hopkins consent monthly to claim soley on the basis of this evidence that was relevant to a claim that was pleaded in the complaints and just very briefly back on the consensus on the first part of the consensus that issue i should have also mentioned that the district court correctly noted in denying colbert's motion to amend that his answers in the supplements and surats for answers were consistent with the reading of the claim in his complaint as being a property damage clai stated that that the sense of his claim for that the officers trashed my house and false arrest me and then journey colbert's deposition he was given the opportunity to review his interacts or answers and make any changes that he wanted and he motion to dismiss by the city defendants early on the litigation the idea of the descriptors there so the planes were aware of that at that time at the early point and in the proceeding motion dismissing a motion to dismiss on the the suggestion that shifting the burden of proof of this court had the opportunity to to shift the burden of proof to the defendants in both converses city of chicago about when the police officers enter a home without a warrant to have the burden of proof to show exigent circumstances and the court came out saying it's the plaintiff burden so we're not asking the court to overrule that our position is much more modest when there is a summary judgment motion the plaintive can show that he and his witnesses are sheehan or that the plaintiff and the plaintiff witnesses were restrained in a room and could not observe what the officers were doing and that there is damage to the home as a result of the search but that's a disputed question of fact and it's a question for the jury and the jury can say when ten officers come up and say i didn't see any i didn't damage anything i didn't see anybody damage anything i have no idea how the place was left in a mess must have been the dog that came in and broke the broke the mattress and broke the walls or maybe man from mars but none of the  have records to show that there are ten people in the ten people there there were people outside guarding the perimeter none of the officers who we deposed said there were other offices searching and they could certainly ask a question that could be presented to the jury to say well there were officers a t c indeed an office a p c a day would come in and say either i wasn't there i don't remember or i didn't see anybody do anything wrong it must i'm just i don't know why i'm here as a witness i don't know how this stuff got damaged stuff was damaged their officers searching the plaintiffs and their witnesses were restrained by the officers as is the custom in the practice and probably the safe thing to do but somebody should be accountable