In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4110

CLETA HEFT,

Plaintiff-Appellant,

v.

CODY MOORE, CARL CARPENTER, ED ROOT,

JEFF MCCLAIN, and RIC HUGHES,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 01 C 2131—David G. Bernthal, Magistrate Judge.

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ARGUED NOVEMBER 5, 2003—DECIDED NOVEMBER 26, 2003

____________

Before FLAUM, Chief Judge, and BAUER and WILLIAMS,

Circuit Judges.

FLAUM, Chief Judge. Cleta Heft filed suit against police

officers who searched her home alleging that the officers

violated her civil rights by injuring her, causing unreasonable property damage to her home, and planting evidence.

The district court granted summary judgment in favor of

the defendants accused of causing unreasonable property

damage and planting evidence. After Heft presented all

of her evidence at trial regarding injuries caused by

the search, the district court granted the sole remaining defendant a directed verdict. Heft now appeals the district
2 No. 02-4110

court’s order of summary judgment and the directed verdict.

For the reasons stated herein, we affirm.

I. BACKGROUND

On the evening of October 21, 1999, officers from the

Illinois State Police and Decatur Police Department

executed a valid search warrant at Cleta Heft’s home.

Sergeant Kilby was in charge at the scene and the ranking

officer. Defendants Carl Carpenter, Ed Root, Jeff McClain,

Ric Hughes, and Cody Moore were officers present when the

warrant was executed. 

According to Heft, she was at home watching television

when she heard a noise at the front door. She started

walking towards the door and was two or three feet away

when police officers used a battering ram to gain entry.

Heft heard shouts telling her to get down. Heft claims that

as she turned to lay down, she was hit in the lower back

and was knocked to the floor. Simultaneously, she heard a

loud explosion from the flash-bang device which the officers

had thrown into her home. At some point during this

sequence, Heft suffered injury to her knee and hand and a

large bruise on her back. 

The officer who struck Heft’s door open with the battering

ram was Defendant Moore. As the door opened, he saw the

door hit Heft in the upper body and face. Officer Mullins

also saw Heft struck in the face by the door, and then saw

her fall backwards. Officers Coventry and Squires were the

first two officers to enter Heft’s home. Officers Moore and

Mullins then entered the home, followed by Officers Bell,

McClain, Kilby, Carpenter, and Hughes. When the officers

entered the home, Heft was on the floor. All of the officers

deny striking Heft or seeing her struck by another officer.

Heft cannot identify who or what struck her, but she does

state that she was not struck by the door.
No. 02-4110 3

Defendants Root, Hughes, McClain, and Carpenter all

testified that when they entered Heft’s home it was cluttered and disorderly. It was so messy that the officers believed it would be difficult to move around and search. Heft

claims that her home was in a “state of devastation”

immediately after the search, but provides no evidence

regarding the condition of her home prior to the search.

During the search of Heft’s home, Carpenter found a

metal box containing drugs and drug paraphernalia in the

front bedroom. When she was asked about it, Heft stated

she was not aware it was there and knew nothing about it.

Heft’s son, who lived in her front bedroom until 1997 and

still had many belongings there, also denied knowledge of

the contraband. Heft’s son still had a key to the home, as

did Heft’s sister who sometimes stayed in the front bedroom

overnight. Heft’s second son visited Heft approximately

once a month and also had access to the front bedroom. At

her deposition, Heft stated that it was possible that the box

belonged to one of her sons. Criminal charges were never

brought against Heft based on the contents of the box.

II. DISCUSSION

On appeal, Heft argues that the district court erred by: (1)

granting summary judgment to Defendants Root, Hughes,

and McClain on the issue of whether they used excessive

violence in searching Heft’s home; (2) granting summary

judgment to Defendant Carpenter on the issue of whether

he planted contraband in Heft’s home; (3) granting Defendant Moore’s motion in limine excluding Heft’s evidence

that the police searched the wrong house and planted

contraband at her house; and (4) granting Defendant Moore

a directed verdict on the issue of whether he injured Heft

during the search.
4 No. 02-4110

A. Jurisdiction

As a preliminary matter we must address this Court’s

jurisdiction. In this case, Magistrate Judge Bernthal

granted Heft’s motion to dismiss various defendants before

Heft and all of the defendants had consented to proceed

before a magistrate judge. Some of the dismissed defendants later filed written consent to proceed before the magistrate, while others never filed written consent but simply

abandoned the case once they were dismissed. If the magistrate’s dismissals were invalid due to a lack of authority,

those defendants would remain parties to the case and we

would lack jurisdiction because there would be no final

order as to all defendants as is required by 28 U.S.C. § 1291

and Federal Rule of Civil Procedure 54(b).

The Federal Magistrate Act of 1979 authorized magistrate

judges to conduct “any or all proceedings in a jury or

nonjury civil matter and order the entry of judgment in the

case,” as long as the magistrates are “specially designated . . . by the district court” and are acting “[u]pon

consent of the parties.” 28 U.S.C. § 636(c)(1). Although 28

U.S.C. § 636(c)(2) and Federal Rule of Civil Procedure 73(b)

provide the method for gaining formal consent from the

parties, the Supreme Court has recently held that consent

also “can be inferred from a party’s conduct during litigation.” See Roell v. Withrow, 123 S. Ct. 1696, 1699 (2003).

The Court further held that as long as the parties have

voluntarily consented, the magistrate has full civil jurisdiction under § 636(c)(1) even if the technical requirements of

§ 636(c)(2) and Federal Rule of Civil Procedure 73(b) are not

met. See id. at 1702.

Here, all of the current parties to the litigation voluntarily consented to proceed before a magistrate judge. Both

the plaintiff and defendants entered general appearances

before the magistrate and participated in hearings before

the magistrate. As for the dismissed defendants, all but
No. 02-4110 5

three signed formal written consent after their dismissals.

Prior to the written consent, these defendants evidenced

their voluntary consent by participating in proceedings

before the magistrate. Therefore, these defendants properly

consented to the magistrate’s jurisdiction and were appropriately dismissed.

This leaves three dismissed defendants who did not

appear or otherwise consent to proceed before a magistrate.

However, they are effectively no longer parties to this

litigation because the plaintiff voluntarily dismissed all

claims against them and then abandoned pursuing those

claims. This case is analogous to Baltimore Orioles, Inc. v.

Major League Baseball Players Ass’n, 805 F.2d 663, 667 (7th

Cir. 1986), in which this Court held that an order that

effectively ends the litigation on the merits is appealable as

a final order even if the lower court did not formally enter

judgment on a separate claim if that separate claim was

abandoned. Heft has long abandoned her claims against

these defendants, and this Court therefore has jurisdiction

over the appeal.

B. Property Destruction

Heft first challenges the district court’s grant of summary

judgment to Defendants Root, Hughes, and McClain, who

Heft accused of destroying her personal property. It is true

that the Fourth and Fourteenth Amendments provide a

remedy when a citizen’s property is unreasonably damaged

during a search. See United States v. Ramirez, 523 U.S. 65,

71 (1998) (holding that the “general touchstone of reasonableness which governs Fourth Amendment analysis,

governs the method of execution of the warrant. Excessive

or unnecessary destruction of property in the course of a

search may violate the Fourth Amendment, even though

the entry itself is lawful and the fruits of the search are not

subject to suppression.”) (citations omitted); see also Daniels
6 No. 02-4110

1 In further support of her appeal, Heft cites to her own affidavit

which offers slightly more evidence in support of her claim of

(continued...)

v. Southfort, 6 F.3d 482, 486 (7th Cir. 1993). However, in

this case Heft failed to show that her property was damaged

at all, and thus the grant of summary judgment was proper.

Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986). To determine whether there is a genuine

issue of material fact, courts construe all facts in the light

most favorable to the non-moving party and draw all

reasonable and justifiable inferences in favor of that party.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). 

Even construing all of the facts in the light most favorable

to Heft, however, there is no genuine issue of material fact.

The entirety of evidence presented by Heft in support of her

claim that the defendants used unreasonable force in the

search of her home was her allegation that her home was in

a state of devastation immediately after the police raid.

While the defendants agreed that they moved several items

that belonged to Heft during the course of the search, they

also alleged that her house was cluttered and disorderly

prior to the search. Heft provided no evidence regarding the

pre-search condition of her home or any specific evidence

that any property item was damaged. In other words, Heft

failed to provide evidence that the police harmed her

property at all, let alone provide evidence that the police

harmed her property unreasonably.1

 For that reason, the
No. 02-4110 7

1 (...continued)

unreasonable police behavior. Specifically, the affidavit claims

that the police “destroyed various personal property and threw

numerous items all over the home.” Although Heft’s recollection

of events was available at the time of summary judgment, this

affidavit was not submitted until after the district court granted

the defendants’ motion for summary judgment when Heft filed a

motion to reconsider. In order for a court to consider new evidence

in a motion to reconsider, the movant must show that the

evidence “could not, through the exercise of due diligence,” have

been presented to the district court before the summary judgment

decision was made. See Rothwell Cotton Co. v. Rosenthal, 827 F.2d

246, 251 (7th Cir. 1987). Heft has provided no arguments regarding why this affidavit constitutes new evidence, and has not

challenged the district court’s refusal to accept this new evidence.

We therefore decline to consider Heft’s untimely affidavit. 

district court properly granted summary judgment in favor

of Officers Root, Hughes, and McClain.

C. Planted Evidence

Similarly, Heft has offered no affirmative evidence that

Officer Carpenter planted evidence during the search. Although we must draw all reasonable inferences in favor of

Heft, summary judgment is proper when the plaintiff’s case

consists of factually unsupported claims. Additionally, when

the defendant presents evidence in his favor, the plaintiff

cannot rest on the pleadings but must set forth “specific

facts showing that there is a genuine issue for trial.” Fed.

R. Civ. P. 56(e). Specific “facts” require more than just

speculation or conclusory statements. See Hall v. Bodine

Elec., 276 F.3d 345, 354 (7th Cir. 2002); Abrams v. Walker,

307 F.3d 650, 657 (7th Cir. 2002).

Heft’s response to the defendants’ motion for summary

judgment was completely devoid of specific facts showing
8 No. 02-4110

that Carpenter planted the drugs found in Heft’s home. The

entirety of Heft’s evidence against Carpenter was that he

had motive to plant the drugs because he was the officer in

charge of the raid, and that he had the means and opportunity to plant the drugs because he was a narcotics officer

who found the contraband. Heft argues that because she

and her son deny having knowledge of the drugs, that

leaves only Carpenter as the source of the drugs. This “evidence” was unsupported by record citations or analogous

cases and defies both the facts of this case and common

sense. First of all, there is no evidence that Carpenter was

in charge of the raid. The ranking officer in charge at the

scene was Sergeant Kilby. But even if Carpenter was in

charge at the scene of the search, no reasonable inference

could be drawn that he would therefore have motive to

plant evidence. Second, Heft’s deduction via process of

elimination that Carpenter planted the drugs because Heft

and her son deny knowledge of them is clearly flawed. Both

Heft’s sister and Heft’s second son also had access to the

front bedroom. Furthermore, Heft only stated that she did

not know that the box with the drugs was in the front

bedroom—she never denied that it could have been there

prior to the search. Finally, Heft admitted in her deposition

that her son could have left the box in the front bedroom.

The bare conclusion that Carpenter planted the contraband

is therefore unsupported and the district court properly

granted Officer Carpenter summary judgment.

D. Evidentiary Rulings

Once Carpenter, Root, Hughes and McClain were granted

summary judgment, the case proceeded to trial on the issue

of whether Officer Moore used unreasonable force against

Heft. Heft contends that she should have been allowed to

present evidence at trial that drugs were found at her home

and that Carpenter planted the drugs. Heft also argues that
No. 02-4110 9

2 Federal Rule of Evidence 403 states that relevant evidence may

be excluded if “its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” 

she should have been able to present evidence that the

police searched the wrong house on October 21, 1999. The

district court disagreed and excluded this evidence in a

motion in limine, which Heft now appeals.

We review district court’s rulings on motions in limine for

an abuse of discretion. See Binks Mfg. Co. v. National Presto

Industries, 709 F.2d 1109, 1115 (7th Cir. 1983). Our role is

limited as “decisions regarding the admission and exclusion

of evidence are peculiarly within the competence of the

district court.” See Ellis v. City of Chicago, 667 F.2d 606,

611 (7th Cir. 1981). Using these standards, we agree that

the exclusion was proper under Federal Rule of Evidence

403.2

The sole issue at trial was whether Defendant Moore

struck Heft with a battering ram. Heft’s groundless suppositions that another officer at the house planted drugs

had little probative value (if any probative value at all) to

the issue of Heft’s injuries, and created the substantial risk

of confusion of the issues at trial. Similarly, Heft’s belief

that the officers were searching the wrong house also had

little or no probative value in light of the fact that the

validity of the warrant was uncontested. Furthermore, the

issue increased the probability of confusion of the issues at

trial. We therefore affirm the district court’s exclusion of

the evidence.

E. Directed Verdict

After Heft presented all of her evidence against Officer

Moore, the district court granted a directed verdict in
10 No. 02-4110

Moore’s favor. Heft now appeals, arguing that the directed

verdict was improper. We disagree.

Heft admits that no one, including Heft, saw Moore strike

Heft. However, Heft still contends that Moore was the only

one who could have given Heft the bruise on her back

because she was hit at the exact moment the flash-bang

device went off. Heft theorizes that immediately after

Moore used the battering ram to open the door, he waited

until the flash-bang device was thrown into the house, and

then used the two-second gap before the device went off to

“jump[ ] through the door off to the side, away from the

diversionary device, and [strike] the plaintiff as she turned

to run from the front door. He easily could have then

stepped back out 2 or 3 feet.” 

To avoid a directed verdict, the plaintiff must do more

than argue that the jury might have disbelieved all of the

defendant’s witnesses. Rather, the plaintiff must offer substantial affirmative evidence to support her argument. See

Perfetti v. First Nat’l Bank, 950 F.2d 449, 456 (7th Cir.

1991). A directed verdict should be granted in favor of the

defendant “if the evidence on which [the plaintiff] relies is

in irreconcilable conflict with immutable laws of physics or

is wholly inconsistent with established and uncontroverted

physical facts.” Wright & Miller, Federal Practice and

Procedure § 2527 (1971).

In this case, Heft offered no affirmative evidence to show

that Moore was responsible for the bruise on her back.

Considering that there were approximately six other police

officers at the scene, all waiting to storm into the house

once the door was opened, it is implausible to conclude that

Moore was able to jump three feet into the house after the

door was opened, strike Heft, and then jump back out,

without any of the other officers seeing him. This is especially true since it is undisputed that the officer who

threw the flash-bang device into the home was standing
No. 02-4110 11

in front of Moore during this time period. Moreover, all

of the officers agree that Moore was the third or fourth

officer to enter the house, and not the first. Furthermore,

Heft’s testimony contradicts her own theory. She testifies

that she was hit at the exact same time that the flash-bang

device went off. Yet it is uncontested that there were no

officers in the house when the device exploded. 

Heft offers no case law in support of her claim that the

district court improperly granted the defendant a directed

verdict. The failure to cite cases in support of an argument

waives the issue on appeal, despite counsel’s contentions at

oral argument that case law is unnecessary “window

dressing.” See Fed. R. App. P. 28(a)(9)(A); United States

v. Mason, 974 F.2d 897, 901 (7th Cir. 1992) (failure to cite

case law in support of argument waives appellate review);

NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776, 786 (7th

Cir. 2000). But even if we were to reach the merits, it is

clear that Heft offered no evidence to support her claim that

Moore injured her back. Heft’s unsupported theory is not

enough to avoid a directed verdict, and we therefore affirm.

III. CONCLUSION

The decisions of the district court are AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-26-03