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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICHOLAS GOMEZ, et al, ) No: 12 CV 04804

 )

v. ) Honorable Judge Bucklo

)

KRUGER , et al. )

 ) Magistrate Judge Gilbert

PLAINTIFFS' OPPOSED MOTION FOR 

LEAVE TO FILE A THIRD AMENDED COMPLAINT

NOW COME the Plaintiffs, by and through their attorneys, Melinda Power and Sandeep 

Basran of the West Town Law Office and Abby D. Bakos, Brendan Shiller and Stephen Berrios 

of the Shiller Preyar Law Offices, and respectfully request that this Court grant them leave to file 

their third amended complaints. In support thereof, Plaintiffs state as follows: 

Plaintiffs seek leave of court to file separate Third Amended Complaints. Plaintiffs 

Nazario and Castrejon (represented by the Shiller Preyar Law Offices) seek to add claims under

Section 1983 for substantive due process violations and unlawful pretrial detention1, and seeks to 

separate their malicious prosecution based on each criminal charge. Plaintiffs Gomez, Rodriguez 

and Mercado (represented by the West Town Law Office) seek to separate their malicious 

prosecution claims based on each criminal charge. Both parties also seek amendment to dismiss 

Defendant Officers Feliciano (Star #16807) and Vargas (Star #15810) from this lawsuit and to 

separate and amend the factual allegations. 

BACKGROUND

 

1 The Fourth Amendment claim for illegal pretrial detention did not exist until the March 21, 2017 United States 

Supreme Court decision in Manuel v. City of Joliet, Case. No. 14-9496 (U.S. Mar. 21, 2017). 

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On June 16, 2012, Plaintiffs Nazario, Gomez, Rodriguez and Mercado filed a Complaint 

against the City of Chicago and number of Chicago Police Officers asserting federal claims for 

excessive force, failure to intervene, unlawful seizure/false arrest, and conspiracy, and state 

claims for intentional infliction of emotional distress, assault, battery, malicious prosecution, and 

conspiracy. Plaintiffs also brought claims for respondeat superior and indemnity against the City 

of Chicago. (Dkt. 1). Plaintiff Castrejon was added as a plaintiff in the Second Amended 

Complaint filed on June 14, 2013. (Dkt. 53).

Plaintiffs’ claims stem from a June 16, 2011 incident where all five Plaintiffs were 

arrested by Defendant Officers after the Plaintiffs called the officers to their workplace to assist 

them in getting gang members away from their establishment. All Plaintiffs were arrested and 

charged with resisting/obstructing a peace officer and mob action. Plaintiff Castrejon was also 

charged with eavesdropping and both Castrejon and Nazario were charged with aggravated 

battery as well. Only Castrejon and Nazario were not bonded out from the station. They were 

both held overnight and brought to bond court at 26th and California. Although both Castrejon 

and Nazario were bonded out prior to being processed into Cook County Jail, they both remained 

in custody for several hours after the initial finding of probable cause pursuant to Gerstein. 

Therefore, these hours of detention fall under the Manuel cause of action. The only charges that 

the State’s Attorney did not (eventually) dismiss2, were Castrejon and Nazario’s aggravated 

battery charges. Following a jury trial, on November 17, 2016, Plaintiffs Nazario and Castrejon 

were found not guilty of those charges. 

 

2 The eaves dropping charge was dismissed only after a motion to dismiss was fully briefed; and the resisting arrest 

charges were dismissed on the eve of trial.

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At various times during the pendency of Nazario and Castrejon’s criminal cases, 

discovery was stayed. Since the date of acquittal, the parties have taken a number of depositions 

and responded to outstanding written discovery. On June 12, 2017, this Court extended the fact 

discovery deadline through and including September 13, 2017. (Dkt. 136).

At this time, there are a few differences of opinion between counsels for Nazario and 

Castrejon and counsel for the other three plaintiffs as to what all should be pled and how some of 

those claims should be pled. Further, the Manuel case only affects the claims of Nazario and 

Castrejon. Finally, each of the five Plaintiffs viewed the incident from different perspectives and 

can offer different facts based on what they witnessed. As such, Plaintiffs wish to clarify and 

separate the facts for each individual plaintiff in the amended complaint. 

ARGUMENT

Generally, plaintiffs may amend their complaint “only by leave of court or by written 

consent of the adverse party” and leave “shall be freely given when justice so requires.” Fed. R. 

Civ.P. 15(a)(2). It is well settled that “if the underlying facts or circumstances relied upon by 

plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim 

on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend should only be 

denied if brought for purposes of undue delay, bad faith, dilatory motive, or futility. Guise v. 

BWM Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004).

Here, Plaintiffs’ Third Amended Complaint will not unduly delay this case as the June 

11, 2011 incident, subsequent detention and prosecution of all Plaintiffs have been litigated to 

establish the pre-existing malicious prosecution and false arrest claims. Should the defense wish 

to conduct discovery more specifically on the two new claims for Nazario and Castrejon (illegal 

pretrial detention and due process) they have three months to do so. Further, the addition of the 

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illegal pretrial detention claim is not futile because the claim itself relates back to Plaintiffs’ 

original filing. Finally, Plaintiffs are acting in good faith and have no dilatory motive as

recognition of pretrial detention claim in the Seventh Circuit only came about 90 days ago. 

I. Fourth Amendment Unlawful Pretrial Detention Claim 

a. Plaintiff Nazario and Castrejon’s Fourth Amendment Unlawful Pretrial 

Detention Claim is Viable. 

Nazario and Castrejon’s unlawful pretrial detention claim is viable under the standards 

set forth in Manuel v. City of Joliet Case. No. 14-9496 (U.S. Mar. 21 2017). The Manuel Court 

held that a plaintiff “may challenge his pretrial detention on the ground that it violated the Fourth 

Amendment” and held that the “Fourth Amendment governs a claim for unlawful pretrial 

detention even beyond the start of legal process.” Id. In Manuel, the plaintiff sat in a county jail 

after the judge “relied exclusively on the criminal complaint – which in turn relied exclusively 

on the police department’s fabrications – to support a finding of probable cause.” Id.

The facts in Manuel are similar to the case at bar in that it involved a plaintiff who, after 

the start of legal process, was detained at the county jail based on officer’s manufactured 

probable cause. There, on March 18, 2011, Joliet police officers stopped Manuel and found a 

vitamin bottle on his person which contained pills; suspecting the pills were illegal drugs, the 

officers conducted a field test of the pills. Manuel v. Joliet, No. 14-9496 (U.S. Mar. 21 2017), 

slip op. at 2. The field test came back negative for controlled substances, leaving the officers 

with no evidence that Manuel had committed a crime. Id. Still, the officers arrested Manuel and 

took him to the police station. Id. There, an evidence tech tested the pills again and got the same 

result: negative for controlled substances. Id. But, the evidence tech lied in his report and stated 

that one of the pills was found to be positive for the “probable presence of ecstasy.” Id. One of 

the arresting officers repeated the same lie in his report, writing that “from his training and 

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experience, he knew the pills to be ecstasy.” Id. On that basis, another officer swore out a 

criminal complaint against Manuel, charging him with unlawful possession of a controlled 

substance. Id.

Manuel was then brought before a county judge later that day for a determination on 

whether there was probable cause for the charge, as necessary for further detention under 

Gerstein. Id. at 3. The judge relied exclusively on the criminal complaint, which itself relied on 

two officers’ fabricated reports, to support a finding of probable cause. Id. Manuel was sent to 

county jail to await trial. Id. While Manuel was in jail, on April 1, the Illinois police laboratory 

re-tested the pills and issued a report concluding that they contained no controlled substances. Id.

But, the prosecution and Manuel’s detention continued for more than another month until the 

charge was dropped. Id. All told, Manuel spent 48 days in pretrial detention. Id. Manuel filed a 

Section 1983 suit alleging that his Fourth Amendment rights were violated in two ways: by 

arresting him at the roadside for no reason and by “detaining him in police custody” for seven 

weeks based entirely on made-up evidence. Id. at 3-4.

In reaching its holding, the Supreme Court explained as follows:

The Fourth Amendment protects “[t]he right of the people to be secure in their 

persons . . . against unreasonable . . . seizures.” Manuel’s complaint seeks just that 

protection. Government officials, it recounts, detained— which is to say, 

“seiz[ed]”—Manuel for 48 days following his arrest. See App. 79–80; Brendlin v. 

California, 551 U. S. 249, 254 (2007) (“A person is seized” whenever officials 

“restrain[ ] his freedom of movement” such that he is “not free to leave”). And that 

detention was “unreasonable,” the complaint continues, because it was based solely 

on false evidence, rather than supported by probable cause. See App. 79–80; Bailey 

v. United States, 568 U. S. 186, 192 (2013) (“[T]he general rule [is] that Fourth 

Amendment seizures are ‘reasonable’ only if based on probable cause to believe 

that the individual has committed a crime”). By their respective terms, then, 

Manuel’s claim fits the Fourth Amendment, and the Fourth Amendment fits 

Manuel’s claim, as hand in glove. Id. at 6.

The Court also noted that:

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“Pretrial detention can violate the Fourth Amendment not only when it precedes, 

but also when it follows, the start of legal process in a criminal case. The Fourth 

Amendment prohibits government officials from detaining a person in the absence 

of probable cause. See supra, at 6. That can happen when the police hold someone 

without any reason before the formal onset of a criminal proceeding. But it also 

can occur when legal process itself goes wrong—when, for example, a judge’s 

probable-cause determination is predicated solely on a police officer’s false 

statements. Then, too, a person is confined without constitutionally adequate 

justification. Legal process has gone forward, but it has done nothing to satisfy 

the Fourth Amendment’s probable-cause requirement. And for that reason, it 

cannot extinguish the detainee’s Fourth Amendment claim— or somehow, as the 

Seventh Circuit has held, convert that claim into one founded on the Due Process 

Clause.” Id. at 8-9. 

Acknowledging that if the plaintiff’s complaint is that a form of legal process which 

resulted in pretrial detention is unsupported by probable cause, then the right infringed lies in the 

Fourth Amendment, the Court held that “Manuel stated a Fourth Amendment claim when he 

sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) 

pretrial detention.” Id. at 9-10. The Court also specifically noted that “all that the judge had 

before him were police fabrications about the pills’ content. The judge’s order holding Manuel 

for trial therefore lacked any proper basis.” Id.

Here, Plaintiffs Nazario and Castrejon’s were detained at the Cook County Jail for 

several hours after their bond hearings without probable cause. The bond hearings triggered the 

start of “legal process.” Plaintiff seeks to add the fourth amendment illegal pretrial detention 

claim to include the time spent in the county jail as part of their damages. Based on the holding 

in Manuel and the facts of this case, Plaintiff should be permitted to do so. 

b. Plaintiffs’ Unlawful Pretrial Detention Claim is Timely as It Relates Back to 

the Initial Complaint. 

Plaintiffs’ Nazario and Castrejon's Fourth Amendment unlawful pretrial detention claim 

(i.e. for the period between their bond hearing and their release from custody several hours later) 

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relates back to their original pleading date of June 16, 2012 for Nazario (Dkt. 1) and June 14, 

2013 for Castrejon (Dkt. 53). If the jury believes that Defendants fabricated evidence to 

establish probable cause, then it was those fabrications which resulted in Plaintiffs’ detention at 

the county jail. 

"Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading 

'relates back' to the date of a timely filed original pleading and is thus itself timely even though it 

was filed outside an applicable statute of limitations." Krupski v. Costa Crociere S. p. A., 560 

U.S. 538, 541 (2010). "Under Illinois law as under federal law, an amendment relates back when 

it arises out of the same transaction or occurrence set up in the original pleading." Cleary v. 

Philip Morris Inc., 656 F.3d 511, 515 (7th Cir. 2011) (citation omitted). More specifically, an 

amendment relates back to the date of the original pleading when "the amendment asserts a claim 

or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be 

set out — in the original pleading." Fed.R.Civ.P.15(c)(1)(B); see also Luevano v. Wal-Mart 

Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013). "[T]he purpose of relation back" is "to balance 

the interests of the defendant protected by the statute of limitations with the preference expressed 

in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving 

disputes on their merits." Krupski, 560 U.S. at 549-50.

Critically, "Relation back is permitted under Rule 15(c)[] where an amended complaint 

asserts a new claim on the basis of the same core of facts, but involving a different substantive 

legal theory than that advanced in the original pleading." Bularz v. Prudential Ins. Co., 93 F.3d 

372, 379 (7th Cir. 1996); see, e.g., Luckett v. Conlan, 561 F.Supp.2d 970, 975 (N.D. Ill. 2008).

That is exactly what Plaintiffs wish to do here: assert a new claim on the basis of the same core 

facts but involving a different substantive legal theory than previously advanced. Because 

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Nazario and Castrejon's original Complaint was timely filed and the new claim relates back to 

the date of that filing, the new illegal pretrial detention claims (and all additional claims that 

Plaintiffs includes in the Third Amended Complaint) is timely. 

II. The Due Process and Malicious Prosecution Claims 

Plaintiffs Nazario and Castrejon also seek amendment to add a due process claim under 

Brady and all Plaintiffs seek to separate the malicious prosecution claims based on each charge. 

Both the due process claims and the malicious prosecution claims stem from the same facts and 

circumstances the parties have been litigating for six years and will require no foreseeable 

“additional” discovery. Plaintiffs merely seek to separate those claims to put the defense on 

notice as to how Plaintiffs will present the malicious prosecution claims to the jury at trial. 

Because Plaintiffs may be entitled to recovery under the added claims, Defendants suffer 

no prejudice as a result of the amendment and the added claims will not cause any delays, 

Plaintiffs should be permitted to add them. 

III. Separate Complaints 

Finally, Plaintiffs Nazario and Castrejon are represented by the Shiller Preyar Law 

Offices while Plaintiffs Gomez, Mercado and Rodriguez are represented by the West Town Law 

Offices. Through their attorneys, the parties have slightly different strategies on how to try this 

case and wish to separate the complaints (and most everything else in this litigation) to employ 

those strategies effectively. Although Defendants object to this separation, there is no foreseeable 

prejudice that the Defendants will suffer by allowing the Plaintiffs to separate their complaints. 

Further, because the facts of the complaint could come in for impeachment at trial, and 

the five different Plaintiff’s witnessed different events and observed things from various 

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perspectives, Plaintiffs wish to amend and separate the facts to properly reflect what each 

witness has and will testify to in this case. 

CONCLUSION 

Based on the foregoing, Plaintiffs ask that this Court grant Plaintiffs' Motion for Leave to 

file Plaintiffs' Third Amended Complaints attached hereto as Exhibits A and B to separate their 

malicious prosecution claims by charge, to add claims for due process (Brady) and illegal pretrial 

detention, to separate their complaints, to dismiss officers Vargas and Feliciano as Defendants

and to amend and separate the factual allegations. 

WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant Plaintiffs' 

Motion For Leave to File a Third Amended Complaint and for any additional relief that this 

Court deems equitable and just. 

Respectfully submitted, 

/s/ Melinda Power

Melinda Power /s/ Abby D. Bakos

Abby D. Bakos 

/s/ Sandeep Basran /s/ Brendan Shiller

Sandeep Basran Brendan Shiller

West Town Law Office Shiller Preyar Law Offices 

2502 W. Division Street 601 S. California Ave. 

Chicago, Illinois 60622 Chicago, IL 60612

(773)278-0635 (312) 226-4590

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CERTIFICATE OF SERVICE

I, Abby Bakos, hereby certify that a copy of the foregoing was served electronically using 

the Court’s CM/ECF system on July 7, 2017 to all attorneys of record. 

Respectfully submitted,

s/ Abby D. Bakos 

Abby Bakos 

.

The Shiller Preyar Law Offices 

601 S. California Ave. 

Chicago, Illinois 60612 

312-226-4590

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