In the

United States Court of Appeals

For the Seventh Circuit

No. 13-3207

ARIAN WADE,

Plaintiff-Appellant,

v.

JAMES COLLIER, JR., et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 10-cv-06876 — Virginia M. Kendall, Judge.

ARGUED SEPTEMBER 18, 2014 — DECIDED APRIL 17, 2015

Before WOOD,Chief Judge,andPOSNER and MANION, Circuit

Judges.

MANION, Circuit Judge. Arian Wade, a former police officer

for the Village of Maywood, was prosecuted in Illinois state

court for criminal drug conspiracy. After a jury acquitted him,

he sued three other Maywood police officers and the Village

alleging violations of his federal equal protection rights and

asserting a state law claim for malicious prosecution. The
2 No. 13-3207

district court granted the defendants summary judgment and

Wade appeals. We affirm.

I.

On August 22, 2004, Hosie Thurman, a drug dealer and

high-level gang member, attempted to bribe Maywood police

officers Dwayne Wheeler, Weldon Cobos, and Theodore

Yancy. Thurman offered to pay them between one and two

thousand dollars a week in exchange for leaving his drug

dealers alone. The officers did not accept Thurman’s bribe and

instead reported it to Maywood Police Chief James Collier,

who, in turn, suggested they involve the Cook County State’s

Attorney’s Office. Officer Wheeler contacted the State’s

Attorney’s Office and informed them of Thurman’s attempted

bribe. The State’s Attorney’s Office also learned during the

summer of 2004 that an individual arrested by Maywood

police had told the officers that Thurman had some police

officers on his payroll.

The State’s Attorney’s Office started an undercover

operation dubbed Operation Pocket Change. They directed

Officers Wheeler and Yancy to work undercover to gather

evidence against Thurman and his associates. As part of this

investigation, Officers Wheeler and Yancy pretended to be

dirty cops and accepted from Thurman weekly payments of

$1,200 in exchange for leaving his sellers (Torrance Coats and

Harrison Collins, among others) alone.
No. 13-3207 3

The State’s Attorney’s Office obtained a warrant for a pen

register1

 to monitor Thurman’s cell phone. This information

revealed numerous contacts between Thurman and Maywood

Police Officer Arian Wade. The State’s Attorney’s Office then

obtained authorization for a wiretap to record calls to and from

Thurman’s cell phone.

After learning that Wade was communicating with

Thurman, the Operation Pocket Change team decided to

“tickle the wire” to see if Wade would provide information to

Thurman. In early December 2004, the Operation Pocket

Change team agreed that Lieutenant Donald Mobley would

announce during a roll call at which Wade was present that

officers should stay clear of an area in which Thurman’s

dealers were known to engage in illegal activities. The area was

near his grandmother’s house. (This fact is important as will be

seen shortly.) 

The Operation Pocket Change team had not agreed on a

specific date in December for the announcement to be made.

However, on December 9, 2004, Officer Wheeler, as he explained in his deposition, told Officer Mobley by telephone to

make the announcement that day. Officer Mobley testified he

then went to the afternoon roll call, confirmed that Wade was

present, and then told the officers to stay out of a certain area

1

 “A pen register is a mechanical device that records the numbers dialed on

a telephone by monitoring the electrical impulses caused when the dial on

the phone is released.” United States v. Hankton, 432 F.3d 779, 782 n.5 (7th

Cir. 2005) (internal quotation omitted). Typically, a pen register is “installed

at a central telephone facility and records on a paper tape all numbers

dialed from the line to which it is attached.” Id. (internal quotation omitted).
4 No. 13-3207

of the city (which was part of Thurman’s territory) because an

outside law enforcement agency was conducting an operation

there. Officer Mobley testified that after making the announcement, he called Officer Wheeler and informed him he had

made the roll call announcement. Officer Mobley also told

Chief Collier that he had done so. Chief Collier likewise

testified that Officer Mobley had informed him of the roll call

announcement, although at the time of his deposition (several

years later), Chief Collier could not remember the date.

Maurice Macklin, an investigator for the State’s Attorney’s

Office, testified that on December 9, 2004, one of the Maywood

police officers had called the Operation Pocket Change wire

room and informed the team that the roll call announcement

had been made and that Wade was present for the announcement. At the time of his deposition, Investigator Macklin could

not recall which officer had made the call. Officer Wheeler also

testified in his deposition that Officer Mobley had called the

wire room and told the Operation Pocket Change team that he

had made the roll call announcement, although Officer

Wheeler could not remember who took Officer Mobley’s call.

Investigator Macklin testified that after he had learned that

Officer Mobley had made the roll call announcement, he

listened to the telephone calls intercepted from Thurman’s cell

phone and heard, real-time, Wade call Thurman and warn him

that “Granny’s house was hot.”

Similarly, Assistant State’s Attorney Catherine Hufford

testified that while listening to the intercepted telephone calls

she received word that Officer Mobley had made the roll call

announcement, although Hufford did not remember which
No. 13-3207 5

investigator relayed this information to her. However, she

remembered that after being informed that Officer Mobley had

made the roll call announcement, the team waited to hear what

calls would be made to Thurman’s phone. Hufford further

testified that later that same day, she heard the recording of

Wade’s call to Thurman in which he warned Thurman that an

outside patrol was in the area and it was hot around Granny’s

house.

Wade admitted calling Thurman on December 9, 2004, after

roll call and telling him “lot of people around grannys until

about 7,” and after Thurman said “say again,” he repeated “a

lot of people around grannys until about 7.” Thurman then

said “you say it’s gonna be hot around grannys,” and Wade

said “yeah, it is already.” Thurman then said “I’m a lay low

then.” After getting off the phone with Wade, Thurman called

one of his sellers and told him that “over there by my granny’s

house it’s suppose to be hot around the area. You be cool. You

don’t even really go over there.”

Wade called and warned Thurman that Granny’s house

was hot about 90 minutes after Officer Mobley had called the

wire room to inform the team that he had made the roll call

announcement. Yet Wade claims that he did not hear the

announcement. Rather, he claims he made up the tip in an

attempt to garner favor with Thurman and eventually turn him

into a confidential informant. 

The investigators recorded many other calls between Wade

and Thurman. Of particular significance was a call Wade made

to Thurman on December 13, 2004. During this call, Wade

informed Thurman that Coats (one of Thurman’s sellers) had
6 No. 13-3207

“a problem.” Thurman asked if Coats had been pulled over,

and after some reluctance, Wade said “yeah,” but that he did

not know by whom. At the time of Wade’s call, a surveillance

team was operating in the area and noted that Wade had

stopped down the block from where Coats had been pulled

over. Wade called Thurman back a few minutes later and told

Thurman that they had “got him” and were searching his

vehicle. Thurman then asked Wade if it was someone local.

After Wade said no, Thurman said, “so you can’t do nothing,”

and Wade said “no.” After hanging up, Thurman called Wade

right back and asked if anyone was with Coats and Wade said

he could not tell.

Following these exchanges, Assistant State’s Attorney

(“ASA”) Daniel Reedy obtained a warrant for Wade’s arrest,

as well as a warrant to search his home. A search of Wade’s

home computer uncovered a fraudulent arrest warrant for

Thurman. After Thurman was arrested, he told ASA Reedy

that Wade helped him rob one of his suppliers by pretending

to arrest him and seizing the supplier’s drugs. Wade later gave

those drugs to Thurman and also provided him with the fake

warrant. Thurman testified at Wade’s criminal trial that he

(Thurman) later showed the warrant to his supplier to bolster

the believability of his arrest. Officers recovered a hard copy of

the fraudulent arrest warrant during the search of Thurman’s

home. 

Later, the State’s Attorney’s Office obtained a grand jury

indictment against Wade, Thurman, and some of Thurman’s

dealers for criminal drug conspiracy. Wade pleaded not guilty

to the state criminal charges. Wade moved to suppress the

evidence seized during the search of his home, arguing that the
No. 13-3207 7

search warrant application contained deliberate and material

misrepresentations of fact. Specifically, Wade argued that the

search warrant application falsely claimed that the roll call

announcement was made on December 9, 2004.

In making this argument, Wade pointed to three different

memoranda which purported to document the roll call

announcement. One memo was dated December 15 and stated

that the announcement had been made on December 13. The

other two memos stated that the roll call announcement had

been made on December 9, but one was dated December 9 and

the other January 19, 2005. All three memos listed a different

roster of police officers as those present during the roll call

announcement, but all three memoranda listed Wade as being

present during the announcement. Wade argued that these

memos established that the announcement was made on

December 13 and not December 9 and that the officers altered

the memorandum to frame him. The state court denied Wade’s

motion based on testimony from the officers, and the case

proceeded to trial. A jury later acquitted Wade.

After he was acquitted, Wade sued Officers Collier,

Mobley, and Wheeler, as well as the Village of Maywood. He

alleged a violation of his federal equal protection rights and a

state malicious prosecution claim. The gist of his lawsuit is that

the defendants lied to the State’s Attorney’s Office about

making the roll call announcement on December 9, 2004, and

that this lie caused his wrongful prosecution (and also caused

him to be treated differently than other officers who communicated with drug dealers). The district court granted the

defendants’ motion for summary judgment and Wade appeals.
8 No. 13-3207

II.

A. Malicious Prosecution

We begin with Wade’s malicious prosecution claim. Under

Illinois law, to state a malicious prosecution claim, Wade must

show “(1) the commencement or continuation of an original

criminal or civil proceeding by the defendants; (2) termination

of the proceeding in his favor; (3) the absence of probable

cause; (4) the presence of malice on the defendants’ part; and

(5) damages.” Swearnigen-El v. Cook County Sheriff’s Dept., 602

F.3d 852, 863 (7th Cir. 2010). It is well established that the

existence of probable cause forms a complete defense to a

malicious prosecution claim. Logan v. Caterpillar, 246 F.3d 912,

926 (7th Cir. 2001). Further, “[u]nder Illinois law, a grand jury

indictment is prima facie evidence of probable cause.” 

Swearnigen-El, 602 F.3d at 863.

In this case, the grand jury indictment of Wade is prima

facie evidence of probable cause. Id. Wade argues the grand

jury indictment does not establish probable cause because the

defendants lied to the State’s Attorney’s Office about announcing on December 9, 2004, during the roll call that officers

should stay clear of Thurman’s territory. Wade maintains that

the grand jury’s indictment was based on that false information and thus the indictment does not establish probable cause.

See Freides v. Sani-Mode Mfg. Co., 211 N.E.2d 286, 289 (Ill. 1965)

(noting that a grand jury’s presumption of probable cause

“may be rebutted by other evidence, such as proof that the

indictment was obtained by false or fraudulent testimony

before the grand jury ... or other improper or fraudulent
No. 13-3207 9

means”); see also Fabiano v. City of Palos Hills, 784 N.E.2d 258,

276 (Ill.App. 2002).

Wade’s argument fails for two reasons. First, the evidence,

read in the light most favorable to Wade, does not establish a

genuine issue of material fact concerning his assertion that the

defendants lied about Mobley making the roll call announcement on December 9. Wade claims that a factual issue exists

concerning the date of the announcement based on the

memorandum dated December 15, which stated that the roll

call announcement had been made on December 13. Wade

seems to argue that since the defendants had access to the

recordings from the wire tap, after hearing the content of his

December 9 call to Thurman, they conspired to falsely claim

that Mobley’s roll call announcement had been made on

December 9. Wade’s theory is that while he had called Thurman on December 9 and told him to stay clear of Granny’s

house, he did not get that information from any roll call

announcement, but merely made it up in an attempt to gain

Thurman’s confidence and thereby turn him into an informant.

And, Wade continues, the defendants’ lie and the alteration of

the memorandum to state that the roll call announcement had

been made on December 9 made his innocent police work seem

“nefarious.” Appellee’s Reply Brief 6.

Lieutenant Mobley testified that the December 13 date

contained in the memoranda was a mistake. Under other

circumstances, the conflicting memoranda might create a

genuine issue of material fact, but they do not in this case.

Investigator Macklin and ASA Hufford both testified that on

December 9, the team was told that the roll call announcement

had been made and that Wade was present for the announce-
10 No. 13-3207

ment. About ninety minutes later, Investigator Macklin and

ASA Hufford heard Wade’s call to Thurman wherein he

passed on the warning to Thurman. Wade does not claim that

anyone from the State’s Attorney’s Office was part of the

alleged conspiracy, nor is there any evidence to call into

question their testimony. Of course, the State’s Attorney’s

Office’s staff were not in the roll call room when the announcement was made, but Wade’s theory is metaphysically impossible. Under Wade’s theory, it was after hearing his December 9

call to Thurman that the defendants decided to frame Wade by

telling the State’s Attorney’s Office that the roll call announcement had been made on December 9, thereby making his tip to

Thurman look nefarious. But Mobley called the wire room on

December 9 to inform the Operation Pocket Change team that

he had made the roll call announcement before Wade called

Thurman, and thus before the defendants could possibly have

heard the warning call. Under these circumstances, the

disparity in the memoranda does not create a genuine issue of

material fact concerning the date of the roll call

announcement.2

2

 Wade also suggests in passing that Officer Mobley never made an

announcement at roll call directing officers to stay out of Thurman’s

territory. But he offers no evidence to support such a theory. In his own

affidavit he merely claims that while in the December 9 “roll call, I did not

hear Officer Mobley state that there was an outside agency conducting an

operation in the area of 100 block of 10th and 11th Ave.” He also attested:

“I was present at the December 13, 2004 roll call. I have never paid attention

to whether Commander Mobley made a statement regarding police

activity.” Conversely, in addition to their own testimony, the defendants

presented evidence from another officer (one not involved in Operation

(continued...)
No. 13-3207 11

Moreover, even if we disregard the grand jury indictment

and the evidence concerning the roll call announcement,

including Wade’s subsequent call to Thurman, the remaining

evidence established probable cause to charge Wade. Probable

cause is a complete bar to a malicious prosecution claim. Logan,

246 F.3d at 926. Probable cause is merely the “probability or

substantial chance [that] criminal activity exists; it does not

require the existence of criminal activity to be more likely true

than not true.” Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir.

2012). And “[t]his is an objective inquiry; we do not consider

the subjective motivations of the officer.” Id. at 247.

In this case, there was substantial evidence that Wade

conspired with Thurman. The State’s Attorney’s Office had

evidence that Thurman attempted to bribe three Maywood

police officers and already had other Maywood officers on his

payroll. The pen register run by the State’s Attorney’s Office

showed extensive contacts between Wade and Thurman and

the wire tap recorded multiple conversations between Wade

and Thurman, including several calls where they arranged to

meet in person, one call in which Thurman asked Wade to help

him purchase a bullet-proof vest, and another call in which

Wade warned Thurman that Coats had been pulled over and

was having his car searched. This last call was particularly

damning because Wade told Thurman he did not know the

2

 (...continued)

Pocket Change) that Officer Mobley came into roll call and instructed the

shift to stay out of a specific area. While that officer could not remember the

date the announcement was made, his testimony confirms that such an

announcement was made and the other evidence establishes that the

announcement was made on December 9. 
12 No. 13-3207

officers involved and therefore could not do anything about it.

Additionally, the Operation Pocket Change team discovered

no contacts between Thurman and other Maywood police

officers, other than the extensive contacts between Wade and

Thurman (and Thurman and the undercover officers). Taken

together, this evidence established a “substantial chance” that

Wade was involved in a criminal conspiracy with Thurman.

Thayer, 705 F.3d at 246.

Finally, there was the fraudulent warrant for Thurman’s

arrest discovered on Wade’s computer and in Thurman’s

home. This fraudulent warrant corroborated Thurman’s claim

that Wade had helped him rob one of his suppliers by pretending to arrest Thurman and that Wade gave him the faux

warrant to bolster the legitimacy of his arrest in the eyes of his

supplier. Because there was probable cause to charge Wade,

and even more evidence to continue to prosecute him, the

district court properly granted the defendants summary

judgment on his malicious prosecution claim.3

B. Class-Of-One Equal Protection Claim

Wade also presented a class-of-one equal protection claim

under 42 U.S.C. § 1983. There are two main problems with

Wade’s equal protection claim. First, Wade’s equal protection

claim is merely a reframing of his malicious prosecution claim.

3

 The defendants argue extensively on appeal that they, as police officers,

could not be liable for malicious prosecution because the prosecutors were

the ones who decided to charge Wade. However, because probable cause

supported the charging of Wade, there is no need for us to decide whether

the defendants’ conduct was sufficient to constitute “the commencement or

continuation of the criminal claim.” Swearnigen-El, 602 F.3d at 863. 
No. 13-3207 13

Wade claims the defendants treated him differently from other

officers who communicated with known drug dealers in that

he was charged criminally and they were not. Where an equal

protection claim is merely a rewording of a malicious prosecution claim, dismissal of the equal protection claim is appropriate. See Vukadinovich v. Bartels, 853 F.2d 1387, 1391–92 (7th Cir.

1988). 

Second, Wade cannot show “that the defendants intentionally treated [him] differently from others similarly situated to

[him] for no other reason.” Williamson v. Curran, 714 F.3d 432,

449 (7th Cir. 2013).4 “The persons alleged to have been treated

more favorably must be identical or directly comparable to the

plaintiff in all material respects.” Reget v. City of La Crosse, 595

F.3d 691, 695 (7th Cir. 2010). None of the individuals Wade

points to was similarly situated. For instance, he first argues

that Officers Yancy and Wheeler were similarly situated

“because they provided inside information to Hosie Thurman

and were not the subject of a criminal prosecution.” Appellant’s Brief at 26. But Officers Yancy and Wheeler were

working undercover and hand-in-hand with the State’s

Attorney’s Office in connection with Operation Pocket Change

and provided the information to Thurman as part of the

investigation. Next, Wade points to Maywood Police Officer

Valerie Hastings as someone he believes is similarly situated

4

 In this circuit there is a split concerning whether a plaintiff must also

prove animus or improper motive for class-of-one claims. See Del Marcelle

v. Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (en banc). However, we

need not reach that issue in this case because Wade’s equal protection claim

fails for other reasons.
14 No. 13-3207

but treated differently. Wade claims that Hastings had also

given information to a drug dealer but that rather than being

prosecuted, she was merely fired. There are two problems with

Wade’s reliance on Hastings as a comparator. First, Wade does

not support his argument concerning Hastings with record

evidence. Before the district court, Wade attempted to file

redacted documents discussing Hastings’s situation, but the

district court ordered him to file the original, unredacted

documents. Wade did not file those documents, but instead

provided the court with “courtesy copies.” Because he did not

file the documents with the district court, they never became

part of the record and this court denied Wade’s motion to

supplement the record on appeal. Second, Wade’s own

description of Hastings’s situation distinguishes her case from

Wade’s. Wade claims that Hastings provided information to a

drug dealer named Brian Daviston. The district court found

Hastings’s situation different because her call to Daviston had

not been recorded. That is true but there is an even more

material difference: There was evidence that Thurman already

had police officers on his payroll and at the time that Wade

disclosed information to Thurman, the State’s Attorney’s 

Office was undertaking a criminal investigation to discover the

identity of the corrupt cops. Wade does not claim that

Daviston, like Thurman, had police officers on his payroll and

that the State’s Attorney’s Office was involved in the investigation at the time Hastings purportedly passed on the information. All of these differences render Hastings not comparable

to Wade. Finally, Wade claims that Officer Wheeler treated

officers involved in an earlier (June 2006) undercover operation, dubbed “Operation Double Trouble,” more favorably by
No. 13-3207 15

not seeking criminal prosecution of any officers who had

contacted narcotics dealers during the course of that undercover operation. But Wade does not point to any specific

officer who was treated differently and instead merely claims

the “Appellees failed to disprove” that other officers had not

contacted drug dealers during Operation Double Trouble.

Appellant’s Brief at 28. However, it is Wade and not the

defendants who bears the burden of proof and to survive

summary judgment, Wade must identify an individual who

was similarly situated but treated differently, without a

rational reason. See Fares Pawn, LLC v. Indiana Dept. of Fin.

Instit., 755 F.3d 839, 845 (7th Cir. 2014). He has not done so.

Accordingly, the district court properly granted the defendants

summary judgment on Wade’s class-of-one equal protection

claim.5

One loose end before closing. Throughout this discussion

we have referred to the defendants jointly because Wade’s

5

 Wade’s class-of-one equal protection claim likely also could not withstand

the logic of Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008).

In Engquist, “the Supreme Court held that public employees cannot bring

class-of-one claims against their public employers because the theory is

‘simply a poor fit’ in the employment context, which necessarily ‘involve[s]

discretionary decisionmaking based on a vast array of subjective, individualized assessments.’” Fares Pawn, 755 F.3d at 848 (quoting Engquist, 553 U.S.

at 603, 605). In United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008), we

applied Engquist’s logic to reject a class-of-one equal protection claim based

on the government actor’s exercise of prosecutorial discretion. Similarly,

Wade’s class-of-one equal protection claim is not a good fit in the context

of a harm caused by the State’s Attorney’s Office’s exercise of its prosecutorial discretion. But see Hanes v. Zurick, 578 F.3d 491, 495 (7th Cir. 2009). 
16 No. 13-3207

malicious prosecution and equal protection claims cannot

succeed. But, in reality, Mobley was the sole defendant

responsible for making the roll call announcement and it was

Mobley who informed the other defendants that he had done

so. Had Wade presented sufficient evidence that Mobley had

lied about making the roll call announcement, Wade would

still need to establish a basis for holding Officers Collier and

Wheeler, as well as the City of Maywood, liable. However,

because there is no basis for liability for anyone, we did not

explore this issue.

III. Conclusion

The district court properly granted the defendants summary judgment on Wade’s claims. Wade’s malicious prosecution claim fails because probable cause supported his prosecution. Wade cannot succeed by merely reframing that claim as

a class-of-one equal protection claim. Nor is an equal protection claim well-suited to a case involving prosecutorial

discretion, such as this one. Added to these defects is Wade’s

failure to identify a similarly-situated individual who was

treated more favorably. For these and the foregoing reasons,

we AFFIRM.