### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1377

S HIRLENA B ARNES , Plaintiff-Appellant ,

v.

C ITY OF C ENTRALIA , I LLINOIS , and M ICHAEL P EEBLES , Defendants-Appellees

.

____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 3:17-cv-01366-NJR-RJD — Nancy J. Rosenstengel , Judge

.

____________________
A RGUED S EPTEMBER 10, 2019

— D ECIDED N OVEMBER 26, 2019

____________________

Before W OOD , Chief Judge , and K ANNE and B RENNAN , Circuit Judges

. B RENNAN , Circuit Judge . While arresting gang members in Centralia, Illinois, police o ffi cer Michael Peebles felt intimidated when Shirlena Barnes, a city resident with gang connections, drove up and yelled derogatory epithets. Later, Barnes posted statements on social media that Peebles believed threatened him and his family. As a private citizen, Peebles submi tt ed a complaint to the police department and2 No. 19-1377

participated no further. After a police investigation, Barnes was arrested, and a criminal prosecution followed. The state later dismissed the charges, and Barnes sued Peebles and the City of Centralia asserting her civil rights were violated. The district court granted summary judgment to the o ffi cer and the city, which we a ffi rm. I. B ACKGROUND
We review de novo the distri ct court’s grant of summary judgment, drawing our own legal and factual conclusions from the record. Tapley v. Chambers , 840 F.3d 370, 376 (7th Cir. 2016). We construe all facts and reasonable inferences in the nonmovant Barnes’s favor. Id. (citing Gordon v. FedEx Freight, Inc. , 674 F.3d 769, 772 (7th Cir. 2012)). A gang named the “Rude Boyz” is well known in the Cityof Centralia in downstate Illinois. Two of its members threatened a twelve-year-old boy who witnessed a gang-related shooting in a park. The threats we re investigated by Peebles, who over the years has arrested many of the Rude Boyz and became the “go-to guy” in the Centralia police department forintelligence on the gang. Peebles and Centralia Police Sergeant Jamie James found and arrested the two gang members on open warrants for weapons and other charges.

As the o ffi cers took the two into custody, Barnes drove by the scene. According to Peebles, Barnes parked her car across the street and yelled “bald motherf*****” and “thirsty.” 1 In a witness statement given later that day, Peebles identi fi ed Barnes as yelling the epithets at him. In later deposition

1 Per Barnes’s counsel at oral argument and references in discovery, “thirsty” means overzealous or overaggressive in arresting individuals.No. 19-1377 3

testimony, Peebles admi tt ed he could not identify exactly who was yelling. He concluded the in sults were directed at him because he was the only bald individual there. James was present at the arre sts and did not recall speci fi

cally what Barnes yelled. He believed Barnes was angry and that she tried to intimidate P eebles into not arresting the two gang members. Barnes later denied yelling at the arrest scene and said she was speaking with a relative in another vehicle.

Law enforcement knew that B arnes had connections with the gang. Barnes and Peebles we re familiar with each other through police contacts with se veral of Barnes’s family members. O ffi cers understood that the Rude Boyz used Barnes’s home as a safehouse. Video of the park shooting shows Barnes’s daughter retrieving th e suspect’s bicycle. Before the arrests, Barnes complained about Peebles to city authorities. According to Barnes, she did not know if, at the time of thearrests, any of her family members were involved in gang activity. She also said she di d not know the two Rude Boyz whom Peebles and James arrested. The evening of the arrests, Barnes posted on Facebook: “This thirsty b  Mike out here on the same on [sic] bulls** *.” After someone responded to her post, Barnes posted a second time: “But this b**** don’t believe that what goes around come[s] around and when you got kids of your own.” A secretary at the Centralia police department saw the posts and texted Peebles who wa s at home. Peebles felt, based on earlier a tt empts by the gang at intimidation, that these were credible threats against hi m and his family, so he called Assistant State’s A tt orney Melissa Doran. The prosecutor told Peebles she could not tell him what to do but that he could fi le4 No. 19-1377

a report like a private citizen if he desired. Peebles then calledSergeant James about the Facebook posts and the conversation with Doran. He told James he felt Barnes had threatened his family. Sergeant James dispatched another o ffi cer to Peebles’s house to take a wri tt en voluntary statement. Peebles said Barnes was at the scene of th e arrest of known gang membersand yelled “bald head motherf*****” at him. Peebles also relayed the content of Barnes’s Facebook posts, his belief that his “kids and family” were threatened, and his desire “to make sure nothing happens to [his] family.” James also texted the assistant state’s a tt orney: Sgt. James: Hey Melissa, its [J.] [J]ames. I talked with [Peebles] and just wanted to clarify before we acted. You want us to arrest her after 9 but

no o ff ense report just a vague pc [probable cause] sheet?

Prosecutor Doran: Pre tt y much. That will give me a chance to talk to Ma tt about it before he decided right away what to do with the case[.] However, as I told [Peebles], I can’t tell you guys that you should or should not arrest anyone.That discretion lies solely with you. As the statute re: intimidation of a public o ffi cial is wri tt en this is a debatable case since it isn’t clear to me whether this was a speci fi c unique threat of harm vs a generalized threat of harm (as the statute reads). As always however, what may not be able to be proven beyond a reasonableNo. 19-1377 5

doubt still may have probable cause since it is a much lower burden. Based on Barnes’s association with the Rude Boyz and the content of her posts, James concluded Barnes had credibly threatened Peebles and his family. James testi fi ed that he believed the Rude Boyz had “put out a hit” on Peebles, and he also witnessed Barnes’s behavior at the arrests. Given this, James decided to arrest Barnes for intimidation. He concluded this decision was within his so le discretion. After the arrest, the Marion County State’s A tt orney charged Barnes with intimidation and aggravated intimidation. See 720 ILCS 5/12-6;720 ILCS 5/12-6.2. Three months later the state stopped pursuing those charges and Barnes’s prosecution ended. 2 As a result of Barnes’s arrest and prosecution, she sued Peebles for unlawful seizure and malicious prosecution under 42 U.S.C. § 1983 and Illinois stat e law. She also claimed the City of Centralia, under Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), was civilly liable for an express policy or widespread practice that motivated her arrest and prosecution. The parties engaged in discove ry, including several depositions. Peebles and James testi fi ed Peebles made his complaint against Barnes as a private citizen. Peebles said his onlyrole in the arrest and prosecution was as the complaining witness providing a voluntary statement. He did not know what crimes Barnes was eventually charged with and was never

2 The handwritten nolle prosequi (refuse to pursue) motion by prosecutor Doran states “[d]ue to the Court’s recent ruling in the People v. Reichenbach preliminary hearing, the People are electing not to proceed at this time.”6 No. 19-1377

contacted by the assistant state’s a tt orney after the case was fi led. Peebles also said that when he made his statement hewas seeking to get Barnes arrested and prosecuted. Barnes admi tt ed she wrote the Facebook po sts about Peebles but said she did not intend that Peebles see them. Per Barnes, her statement about “what goes around comes around” referred to “karma” and that you should treat other people’s kids the way you want yours to be treated. The defendants moved for summary judgment on all of Barnes’s claims, which the district court granted.

II. D ISCUSSION Summary judgment is appropriate when “the admissible evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as

a ma tt er of law.” Hanover Ins. Co. v. N. Bldg. Co. , 751 F.3d 788, 791 (7th Cir. 2014) (citing F ED

. R. C IV

. P. 56(c)). For Barnes’s § 1983 claims to survive summa ry judgment, she must present su ffi cient evidence of a genuine i ssue of material fact that a constitutional deprivation occurred. Homoky v. Ogden , 816 F.3d 448, 452 (7th Cir. 2016). A. Under Color of State Law

A law enforcement o ffi cer can be liable under § 1983 if the

o ffi cer deprives the plainti ffof a federally guaranteed right while acting “under color of state law.” Wilson v. Price , 624 F.3d 389, 392 (7th Cir. 2010). “Action is taken under color of state law ‘when it involves a misuse of power, possessed byvirtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” Id . (quoting Honaker v. Smith , 256 F.3d 477, 484–85 (7th Cir. 2001)). Not every action by a state o ffi cial or employee occurs under colorNo. 19-1377 7

of state law. Hughes v. Meyer, 880 F.2d 967, 971 (7th Cir. 1989). “A state o ffi cer’s conduct does not constitute acting undercolor of state law unless it is ‘related in some way to the performance of the duties of the state o ffi ce.’” Wilson , 624 F.3d at 392 (quoting Honaker, 262 F.3d at 485). “Section 1983 does not cover disputes between private citizens, even if one happens to be an o ffi cer.” Plaats v. Barthelemy , 641 F. App’x 624, 627 (7th Cir. 2016). Although Peebles is a police o ffi cer, and the interaction with Barnes which led to her arrest occurred during Peebles’s employment, Peebles complained about Barnes’s yelling andFacebook posts as a private citizen, not as an investigating offi cer. The circumstances surroun ding Barnes’s arrest and prosecution con fi rm Peebles’s role was limited to that of a complaining witness. A di ff erent o ffi cer took Peebles’s statement. Peebles did not arrest Barn es and had no role in her arrest. James had sole discretion to decide whether to arrest Barnes, and Peebles did not know if Barnes would be arrested. James also witnessed some of Peebles’s allegations because James was present when the two gang members were arrested. Based on this eviden ce James concluded probable cause existed that Barnes had commi tt ed the crime of intimidation. James’s text message wi th the prosecutor shows she was not directing James to arrest Barnes. Further, Peebles did not know what crimes the stat e would charge Barnes with, if any. And during the prosecution, the assistant state’s a tt orney did not contact Peebles. All of this con fi rms Peebles acted as a private citizen complaining abou t a purported crime, distinct and apart from his job as police o ffi cer. No evidence supported Barnes’s allegation that Peebles acted under color of state law when Peebles claimed Barnes8 No. 19-1377

had threatened him. See, e.g. , Gibson v. City of Chicago , 910 F.2d 1510, 1516 (7th Cir. 1990) (“[A] mere assertion that one is a
state o ffi cer does not necessarily mean that one acts under color of state law.”). Peebles reported an alleged crime. Thiswas a private act that did not involve any exercise of state authority. Law enforcement o ffi cers, like all other citizens, mayinvoke the state’s protection without rendering themselves liable under § 1983. See Mauntel v. Briscoe , 1995 WL 319646, at *1 (N.D. Ill. 1995) (citing Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975)) (holding police o ffi cer was not acting under color of state law when he called the station to report assault and the department knew he was a police o ffi cer). Indeed, in her deposition Barnes admi tt ed Peebles’s complaint was private. Barnes argues the statements she made at the arrest of thegang members were constitutionally protected and thus cannot be used to establish probable cause of a crime. This argument misses the mark because Barnes’s protests connected her to Peebles (the only bald o ffi cer at the arrests) and to her later social media posts, a fact she admi tt ed toward the end of her deposition. She also conten ds repeatedly that “a reasonable jury may conclude” alternative outcomes based on the facts discovered. None of these scenarios contains evidence that Peebles was anything other th an a private citizen or that his police duties related to Barnes’s claims. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (noting “some metaphysical doubt as to the material facts” does not defeat summary judgment motion).

With no evidence Peebles acte d under color of state law in his role as a witness in Barnes’s arrest and prosecution, Barnes cannot prove Peebles violated Barnes’s Fourth AmendmentNo. 19-1377 9

rights against unlawful seizure and malicious prosecution under § 1983. B. Alleged Monell Violation Barnes also alleges the City of Centralia, through its police department, should be liable as a result of Peebles’s actions. Because a municipality cannot be held liable under § 1983 on a theory of respondeat superior, Monell , 436 U.S. at 694, a plainti ff must identify a municipal “custom, policy or practice that e ff ectively caused or condoned the alleged constitutional violations.” Ma tt hews v. City of E. St. Louis , 675 F.3d 703, 708 (7th Cir. 2012). In the district court, Barnes based her Monell claim on the city’s alleged failure to discipline o ffi cers who unlawfully seize others and purportedly cover up unlawful seizures. The district court granted defendan ts summary judgment on that claim, concluding Barnes had failed to o ff er admissible evidence in support of her assertions. On appeal, Barnes alters her theory, arguing the city failed to train and supervise its

o ffi cers, which caused her alleged constitutional violation. Barnes’s new theory of liability under Monell meets the same fate as her previous one. First, by failing to argue this theory in the district court, she has waived it on appeal. See Economy Folding Box Corp. v. Anchor Frozen Foods Corp. , 515 F.3d 718, 720 (7th Cir. 2008) (citations omi tt ed). “[T]o reversethe district court on grounds not presented to it would undermine the essential function of the district court.” Id. (quoting Boyers v. Texaco Ref. & Mktg., Inc. , 848 F.2d 809, 812 (7th Cir. 1988)) (internal quotation marks omi tt ed).Second, Barnes has not identified any evidence that supports her new theory of liability. While Barnes has cited cases10 No. 19-1377

in the failure to train and failure to supervise contexts, she hasneither referenced nor even alluded to any evidence to support Monell liability based on her new theory. Monell claims require evidence, but Barnes has offered none. See Jenkins v. Bartlett , 487 F.3d 482, 491–93 (7th Cir. 2007) (noting municipality may not be held liable under Monell for failure to adequately train or supervise officers when plaintiff fails to demonstrate any constitutional violation by municipal employee). Barnes’s sole contention on this topic is that Centralia failed to train its officers in handling profanity and that her profanity was the cause of her arrest. But Barnes submits no evidence in support of this cl aim, much less evidence that a failure to train or supervise wa s “the moving force” behind Peebles reporting her or James arresting her. See Monell , 436 U.S. at 694 (referencing “official policy as the moving force of the constitutional violation”). So Barnes’s Monell claim against Centralia fails.

C. Illinois Malicious Prosecution ClaimFinally, Barnes claims that Peebles instituted legal proceedings against her, violating Illinois’s law against malicious prosecution. To prevail on such a claim, a plaintiff must demonstrate: (1) the commencement or continuance by thedefendant of an original judicial proceeding against the plaintiff; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) malice; and (5) damages. Grundhoefer v. Sorin , 20 N.E.3d 775, 780 (Ill. App. Ct. 2014). Illinois courts have long recognized that suits for malicious prosecution are not favored becausepersons acting in good faith should not be deterred from reporting crimes by the fe ar of unfounded suits. See, e.g. , BeamanNo. 19-1377 11

v. Freesmeyer, 131 N.E.3d 488, ¶ 24 (Ill. 2019); Joiner v. Benton Comm. Bank , 411 N.E.2d 229, 231 (Ill. 1980).Under its supplemental jurisdiction, the district court concluded probable cause existed that Barnes committed a crime. Because the third element (absence of probable cause) could not be satisfied, the court granted Peebles summary judgment on this claim. We need not re ach the question of probable cause, though, because we see two flaws with Barnes’s claim: she has not shown malice (the fourth element) or termination of the criminal case in her favor (the second element). First, to show malice, Barnes must prove the prosecution was initiated for a reason other th an to bring Barnes to justice. Holland v. City of Chicago , 643 F.3d 248, 255 (7th Cir. 2011). In her summary judgment response, Barnes asserted “her arrest was a result of malice of Defendant Peebles.” On appeal, she states: “Peebles was doing more than merely relaying facts to the Centralia police department [and] that he was acting with malice.” That is all Barnes cl aims regarding Peebles’s alleged malice. And Barnes cites no evidence in support of these bare assertions, notwithstanding opportunity to do so. Barnes “does not address the other offi cers, nor does [she] offer any details about why [she] believes [Peebles] acted maliciously.” Jackson v. Village of Grayslake , 2016 WL 8731441, *5 (N.D. Ill. Sept. 9, 2016). Unsupported recitation of the elements without actual evidence cannot surviv e a motion for summary judgment. See, e.g. , Jones v. Merchants Nat’l Bank & Trust Co. , 42 F.3d 1054, 1058 (7th Cir. 1994).12 No. 19-1377

Second, Barnes failed to show why the case was terminated in her favor. 3 In her response to defendants’ summary judgment motion, Barnes argue d the second element was satisfied because defendants “admit the charges against Plaintiff were dismissed.” But dismissal is not the requirement; rather, Barnes must show termination of the proceeding in her favor “for reasons that indicate [her] innocence.” Filimoniuk v. Nilles , 2019 WL 2510355, at *5 (Ill. App. Ct. June 14, 2019) (citing Ferguson v. City of Chicago , 820 N.E.2d 455, 461 (Ill. 2004)); see also Joiner, 411 N.E.2d at 232 (“It is clear that the settled law bars a malicious prosecution action predicated upon criminalproceedings which were terminated in a manner not indicative of the innocence of the accused.”). Here, the nolle prosequi order did not reflect the specific reasons for its entry. The orde r merely stated: “Due to the Court’s recent ruling in the People v. Reichenbach preliminary hearing, the People are electing not to proceed at this time.” The record does not reveal the nature of the ruling, or how the Reichenbach case might relate to Barnes. The order also does not indicate the case was dismis sed with prejudice such that the State of Illinois will not purs ue the charge in the future. See Filimoniuk, 2019 WL 2510355, at *5 (noting an “order dismissing the case without prejudice removes the case from the docket, but allows the person who filed it to refile the charges within the applicable statute of limitations period”). While the nolle prosequi order ended the prosecution, it was not

3 While the parties did not address this issue on appeal, we elect to address it for the sake of completeness. See, e.g. , Wallace v. Baldwin , 895 F.3d 481, 485 (7th Cir. 2018).No. 19-1377 13

indicative of Barnes’s innocenc e or that the case had terminated in her favor.Barnes has not submitted evidence as to why the prosecutor entered the nolle prosequi order. Given this, “we cannot presume that the charges were dismissed without prejudice because plaintiff was innocent.” Id. Because the “bare use of the nolle prosequi order, which did not state its reasons for its entry, did not establish that the criminal proceedings were terminated in a manner consiste nt with [Barnes’s] innocence,” this claim fails. Swick v. Liautaud , 662 N.E.2d 1238, 1243 (Ill. 1996) (clarifying a plaintiff’s burden of proof in a malicious prosecution action to require evidence of termination in a manner consistent with plaintiff’s innocence).

III. C ONCLUSION For these reasons, we A FFIRM the grant of summary judgment to the defendants.