The Honorable Ruben Castillo, of the Northern District



of Illinois, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2170

ROGER FLEMING,

Plaintiff-Appellant,

v.

LIVINGSTON COUNTY, ILLINOIS,

an Illinois Local Governmental Entity, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 08-CV-01174—Joe Billy McDade, Judge.

ARGUED JANUARY 6, 2012—DECIDED MARCH 28, 2012

Before MANION and WILLIAMS, Circuit Judges, and

CASTILLO, District Judge.

MANION, Circuit Judge. Roger Fleming was arrested

in the early morning hours of August 4, 2006, in Flanagan,
2 No. 11-2170

Illinois for allegedly breaking into a home and fondling

two teenaged girls. The state filed criminal charges

against Fleming, but those charges were eventually

dropped for lack of sufficient evidence. Fleming then

filed a civil suit in July 2008, asserting that multiple

Livingston County officials were liable for false arrest,

withholding exculpatory evidence, and denying Fleming

necessary medical care while he was incarcerated. Eventually, the district court dismissed several of Fleming’s

state-law claims and Fleming voluntarily dismissed all

but three defendants. This left only Fleming’s claim

against Sheriff’s Deputy David Turner for false arrest

under 42 U.S.C. § 1983, and Fleming’s indemnification

claim against Sheriff Robert McCarty and Livingston

County under the Illinois Local Governmental and Governmental Employees Tort Immunity Act. The district

court granted summary judgment in favor of the defendants on both claims. For the reasons that follow,

we affirm.

I. 

In the early morning hours of August 4, 2006, Deputy

Turner was on foot patrol in Flanagan, Illinois, a town

in Livingston County of a little more than 1,000 people.

While on patrol, Turner noticed a man exit a house

about a block away from Turner’s position. That man,

Thomas Troxel, saw Turner and began walking down
No. 11-2170

3

At first blush, one might question why Troxel was ostensibly 1

not in a hurry to seek help. Apparently, Troxel had undergone several bypass surgeries and could not run.

the street toward him ; Turner in turn began walking 1

toward Troxel. Troxel reported to Turner that someone

had just broken into Troxel’s home and had fondled his

two teenaged daughters, Haleigh and Danielle Troxel,

who had been sleeping in the living room.

What followed immediately thereafter is not entirely

clear from the record: Turner testified that he went with

Troxel back to Troxel’s home, and Troxel testified that

Turner first went to retrieve his police cruiser and conducted a cursory search for the perpetrator before

coming to Troxel’s home. We are not concerned with

this minor contradiction, however, because the time

disparity between the two narratives is inconsequential

and because the events that follow are largely undisputed.

The record is clear that, a short time after meeting

Troxel in the middle of the street, Turner went to

Troxel’s home to interview Troxel’s daughters.

On Turner’s arrival, Haleigh Troxel told Turner that

she, Danielle, and their father were asleep in the living

room of their house. Haleigh was awakened by a man

who was fondling her, but believed that she was

dreaming and therefore rolled over and went back to

sleep. A few moments later she was awakened by

Danielle yelling, “What are you doing?” Danielle’s shout

also awakened Thomas Troxel, who then heard Haleigh
4 No. 11-2170

Haleigh also stated in an affidavit filed in this lawsuit that 2

she told Turner the man was wearing a “t-shirt,” but later in

her deposition she stated that she had told Turner the

intruder was wearing a “light colored t-shirt.”

say, “Dad, someone’s in the house.” In the midst of the

commotion, the intruder fled through the kitchen—where

a light had remained on—and out the back door. As he

fled, Haleigh caught a glimpse of the intruder from

the back; she reported to Turner that he was wearing

camouflage cargo shorts, a dark baseball cap, and, according to Turner, a t-shirt.

2

After briefly speaking to Troxel’s daughters and acquiring a physical description of the alleged intruder,

Turner left the house and began searching for the

suspect in his police cruiser. Soon thereafter, he saw a

mobile home with its porch light on, situated approximately a half block north of the Troxel home on the

same side of the street. Turner stopped at the mobile

home, went to the door, and knocked. There was no

answer, but as Turner was getting ready to leave he

noticed a man walking a dog in an alleyway behind

the mobile home. The man—who turned out to be Appellant Roger Fleming—was heading south (in the direction of the Troxel home), but Turner did not immediately stop him. Fleming left the alleyway and veered

toward an intersection approximately one block to the

west of the Troxel home. Turner, following in his

cruiser, intercepted Fleming at the intersection. At

the time Turner stopped him, Fleming was wearing
No. 11-2170

5

camouflage cargo shorts, a black baseball cap, and a

dark blue t-shirt. No one else was in the area.

Turner explained to Fleming that he was investigating

a break-in and assault, and asked whether Fleming

would stay with him while he continued the investigation. Fleming agreed, tied his dog to a nearby fire

hydrant, and climbed in the back of Turner’s cruiser.

Turner called for backup, and another deputy arrived

soon thereafter and parked his car behind Turner’s.

That deputy stayed with Fleming while Turner walked

back to the Troxel home.

On returning to the Troxel home, Turner again interviewed the two assault victims. Haleigh Troxel confirmed

that the intruder was a white male who was wearing

camouflage cargo shorts, a t-shirt, and a dark baseball

cap. Based on Haleigh’s description, the location at

which Turner discovered Fleming, and the short amount

of time between when the alleged break-in and assaults

occurred and the time Turner intercepted Fleming, Turner

believed that he had probable cause to formally arrest

Fleming for residential burglary and sexual assault.

Although Turner believed he had probable cause to

arrest Fleming, he nevertheless sought confirmation

from the state’s attorney’s office before making the

felony arrest. Turner called assistant state’s attorney

Carey Luckman and relayed a summary of the events.

Turner testified that he told Luckman that the amount

of time between Turner’s first interaction with Thomas

Troxel to when Turner saw Fleming walking his dog
6 No. 11-2170

was “two to three minutes, maybe two-and-a-half minutes.” Turner stated that this was merely an estimate,

and Luckman testified that Turner had described the

time period in “minutes.” Based on the closeness in

time between the alleged offense and Turner’s initial

sighting of Fleming, as well as Haleigh Troxel’s description that matched Fleming’s appearance, Luckman concluded that Turner had probable cause to arrest Fleming.

Having received confirmation from the state’s

attorney that he had probable cause, Turner arrested

Fleming for the offenses of residential burglary and

sexual assault. Turner and other officers who had

arrived on the scene then took the additional step of

conducting a “show-up,” where Haleigh Troxel viewed

Fleming from the back under a streetlight. Haleigh identified Fleming as the intruder. Fleming was then transported to jail and charged with residential burglary, criminal trespass to residence, aggravated sexual

assault, and attempted aggravated sexual assault.

The state court later dismissed the charges against

Fleming for lack of evidence. Fleming then filed this suit

in July 2008. Fleming alleged numerous injuries against

multiple defendants under 42 U.S.C. § 1983, and Illinois

state law. As noted above, however, the only claims

before us on appeal are (1) a claim against Sheriff’s

Deputy David Turner for false arrest under 42 U.S.C.

§ 1983, and (2) an indemnification claim against Sheriff

Robert McCarty and Livingston County under the

Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 Ill. Comp. Stat. 10/1-101

et seq.
No. 11-2170

7

The discovery deadline was originally set for February 12, 2010, but was extended to August 31, 2010, on

the parties’ joint motion to continue the deadline. On

September 30, 2010—four weeks after the discovery

deadline had passed—the defendants filed a motion for

summary judgment, asserting both that Turner had

probable cause to arrest Fleming and that, even if Turner

was mistaken in his belief that he had probable cause,

Turner was entitled to qualified immunity because

his mistake was objectively reasonable. (The defendants

also noted—and Fleming did not dispute—that if the

court granted summary judgment in their favor on the

false-arrest claim, the state indemnification claim necessarily failed.) Along with his memorandum in response

to the defendants’ summary judgment motion, Fleming

submitted new evidence obtained after the close of discovery. This evidence was compiled by a previously nondisclosed witness, Mr. Harmon Cook, a private investigator, who had taken several photographs of relevant locations and conducted a re-creation of Deputy Turner’s

actions during the investigation. Cook averred that it

took him 6 minutes and 50 seconds to complete all the

actions undertaken by Turner, beginning with Turner’s

initial contact with Thomas Troxel and ending with

Turner’s discovery of Fleming in the alleyway—twice

as long as Turner’s estimate of two to three minutes.

Using this evidence in his response, Fleming argued

that the actual length of Turner’s investigation precluded a reasonable probable cause determination.

The defendants objected to the timeliness of Fleming’s

newly submitted evidence and filed a motion to strike
8 No. 11-2170

both the evidence itself and the parts of Fleming’s argument that were dependent on that evidence. The district

court granted the motion, although it noted that, out of

an abundance of caution, it would consider the evidence

in reaching its summary judgment decision. The court

granted the defendants’ summary judgment motion

(even while taking the untimely submitted evidence

into account), holding that qualified immunity applied

to Turner and, therefore, that Fleming’s claims failed.

Fleming now appeals.

II.

On appeal, Fleming first argues that the district

court erred in striking Cook’s affidavit and photographs.

There is no reason, however, to analyze this issue

because it would be a purely superficial exercise: as

noted above, in making its summary judgment ruling,

out of an abundance of caution the district court considered the very evidence it struck. We would be hardpressed to find that the district court abused its

discretion in excluding this late-filed evidence—evidence

which the defendants neither had the opportunity to

challenge in discovery nor address in their summary

judgment motion. But even considering this evidence,

as the district court did, Fleming cannot succeed on his

second challenge on appeal—a challenge to the district

court’s decision that the defendants were entitled to

summary judgment based on qualified immunity.

We review a district court’s granting of summary

judgment de novo, viewing all facts and construing all
No. 11-2170

9

inferences in the light most favorable to the nonmoving party. Muhammed v. City of Chicago, 316 F.3d

680, 682 (7th Cir. 2002) (citing Outlaw v. Newkirk, 259 F.3d

833, 836 (7th Cir. 2001)). We will affirm if “the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a).

Section 1983 allows citizens whose constitutional

rights have been violated by public officials to sue those

officials in their individual capacities. See Jenkins v.

Keating, 147 F.3d 577, 583 (7th Cir. 1998). In this case,

Fleming alleges that Turner violated his Fourth Amendment right to be free from unreasonable searches and

seizures by arresting Fleming without probable cause.

Turner responds that he had probable cause to arrest

Fleming or, at a minimum, that he was entitled to

qualified immunity. When, as here, the defendants have

raised a qualified immunity defense to a false-arrest

claim, “we will review to determine if the officer

actually had probable cause or, if there was no

probable cause, whether a reasonable officer could have

mistakenly believed that probable cause existed.”

Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998)

(citations omitted).

A. Probable Cause

We first address the issue of whether Turner had probable cause to arrest Fleming. Indeed, if Turner actually

did have probable cause to arrest Fleming, “then a Fourth
10 No. 11-2170

Amendment claim for false arrest is foreclosed.” Holmes

v. Village of Hoffman Estate, 511 F.3d 673, 679-80 (7th Cir.

2007) (citing Morfin v. City of E. Chicago, 349 F.3d 989,

997 (7th Cir. 2003)). “A police officer has probable cause

to arrest when, at the moment the decision is made, the

facts and circumstances within her knowledge and of

which she has reasonably trustworthy information

would warrant a prudent person in believing that the

suspect had committed or was committing an offense.”

Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999) (citations

omitted). This standard “does not require that the

officer’s belief be correct or even more likely true than

false, so long as it is reasonable.” Id. (citing Texas v.

Brown, 460 U.S. 730, 742 (1983)).

The district court held that it could not “definitively

state that probable cause existed as a matter of law.”

The court noted two pieces of the factual record that

were particularly problematic to Turner’s probable-cause

determination: first, that Haleigh Troxel testified at her

deposition that she had reported to Turner that the intruder was wearing a light-colored t-shirt, but Fleming

was wearing a dark-colored t-shirt when he was apprehended; and second, that Fleming had a dog with him

when Turner first sighted him in the alleyway, but none

of the Troxels mentioned the presence of a dog at the

time the suspect broke in to their house. 

Despite the district court’s reticence to do so, Turner

asks us to hold that probable cause existed as a matter

of law. It is of course true that we may affirm the

district court “on any ground that finds support in the
No. 11-2170

11

Fleming asserts that “the court’s legal determination of 3

qualified immunity must be deferred when there are triable

issues of fact on the reasonableness of the police officer’s

conduct to await a jury determination of the disputed fact[s] . . .

which informs the court’s decision on qualified immunity.”

(continued...)

record.” Roland v. Langlois, 945 F.2d 956, 962 n.11 (7th

Cir. 1991) (citations omitted). But we typically reserve

a further exploration of the factual record for instances

in which “we do not specifically follow the reasoning

of the district court.” Id. Here, in opining about the

lack of existence of probable cause, the district court

merely cited the two factual discrepancies noted above;

it did not expound on their significance. Rather, the

district court spent the majority of its time analyzing

Turner’s qualified immunity defense, which ultimately

led to the same summary judgment outcome. Because

we believe that the district court’s qualified immunity

holding may be affirmed on its face, and thus that the

granting of summary judgment was proper, we decline

Turner’s invitation to disturb the district court’s decision to deny summary judgment on the issue of probable

cause.

B. Qualified Immunity

The question of whether Turner actually had probable

cause to arrest Fleming is separate from the question

relating to qualified immunity. “Qualified immunity 3
12 No. 11-2170

(...continued) 3

That was once the law of our circuit, see Frazell v. Flanigan, 102

F.3d 877, 886-87 (7th Cir. 1996) (citations omitted), but has

long since been abandoned following the Supreme Court’s

decision in Saucier v. Katz, 533 U.S. 194 (2001). See Marshall ex

rel. Gossens v. Teske, 284 F.3d 765, 772 (7th Cir. 2002) (“[E]ven

in cases in which the question of qualified immunity is

factually intertwined with the question of whether officers

violated the Fourth Amendment . . . , judges must still make

an immunity determination separate from the jury’s finding

on whether the officers violated the plaintiff’s constitutional rights.” (citing Saucier, 533 U.S. at 197)).

protects public officials from liability for damages if their

actions did not violate clearly established rights of which

a reasonable person would have known.” Catlin v. City

of Wheaton, 574 F.3d 361, 365 (7th Cir. 2009) (citations

omitted). There is no question that Fleming’s constitutional right to be free from arrest without probable cause

was clearly established at the time of the incident.

Humphrey, 148 F.3d at 725 (citing Baker v. McCollan, 443

U.S. 137, 142 (1979); Gerstein v. Pugh, 420 U.S. 103, 111

(1975)). Yet “the corresponding doctrine of qualified

immunity for police officers has also long been recognized.” Id. (citing Pierson v. Ray, 386 U.S. 547, 555-58

(1967)). That corresponding doctrine provides that a

defendant is entitled to qualified immunity in a falsearrest case when, if there is no probable cause, “a reasonable officer could have mistakenly believed that probable cause existed.” Id. (citations omitted). Thus, as long

as Turner reasonably, albeit possibly mistakenly, believed
No. 11-2170

13

that probable cause existed to arrest Fleming, then

Turner is entitled to qualified immunity. Id. This

standard is often dubbed “arguable probable cause.” Id.

(citations omitted). Arguable probable cause is established “when ‘a reasonable police officer in the same

circumstances and with the same knowledge and possessing the same knowledge as the officer in question

could have reasonably believed that probable cause

existed in light of well-established law.’ ” Id. (quoting

Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997)).

In this case there was certainly arguable probable

cause. The undisputed evidence showed that within

seven minutes of being informed of a possible break-in

and assault, Turner spotted Fleming in an alleyway

approximately one-half block from the crime scene.

Fleming was the only person in the area and he substantially matched the description of the intruder that one

of the victims had given to Turner—he was wearing a

baseball cap, t-shirt, and camouflage cargo shorts. From

this evidence, a police officer could have reasonably,

if mistakenly, believed that probable cause existed to

arrest Fleming. This is true even if Haleigh had

described Turner’s t-shirt as “light-colored” because

witnesses often have minor details incorrect. See Catlin,

574 F.3d at 365-66 (affirming the grant of qualified immunity to police officers on a false-arrest claim where

minor variations existed between the description given

to the officers and the actual appearance of the suspect

arrested, and stating that the officers were “required to

show only the reasonableness of their belief that the
14 No. 11-2170

person they arrested was the person they were seeking;

they [we]re not required to show that they knew with

certainty that the person they arrested was the person they were seeking”). Significantly, before arresting

Fleming, Turner contacted state’s attorney Luckman

and relayed this information to him. Luckman agreed

that, based on the facts Turner presented, Turner had

probable cause to arrest Fleming.

Fleming responds that qualified immunity is inappropriate because the evidence supports the conclusion

that Turner fabricated evidence to gain the requisite

probable cause to arrest Fleming. Specifically, Fleming

claims that Cook’s investigation revealed that Turner’s

investigation took seven minutes instead of the two to

three minutes that Turner claimed, that Haleigh’s testimony shows that the perpetrator was wearing a “lightcolored” t-shirt, and that Turner could not have

seen Fleming walking his dog in the alleyway from

Turner’s position on Fleming’s porch, as Fleming had

said. We take the latter point first. Contrary to

Fleming’s argument, Turner never testified that he was

on Fleming’s porch when Turner saw Fleming in the

alleyway; rather, Turner testified that he noticed

Fleming as he “was getting ready to leave.” From a position just a few feet away in Fleming’s driveway—where

Turner’s cruiser was parked—Turner could easily have

noticed Fleming walking in the alleyway “a little to the

south” of Turner’s own location. Thus, there is no evidence calling into question Turner’s statement that he

saw Fleming walking his dog in the alleyway.
No. 11-2170

15

The disparity in time (two to three minutes versus

seven minutes) and the t-shirt color are also insufficient

to save Fleming’s case for two reasons. First, to show

that Turner fabricated evidence, Fleming needed to

present evidence that Turner deliberately submitted

false testimony or recklessly disregarded the truth.

Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1126 (9th

Cir. 2002) (quoting Hervey v. Estes, 65 F.3d 784, 789-90

(9th Cir. 1995)). But Turner testified that the two-to-threeminute time-frame that he ascribed to his investigation

was an “estimate,” leaving plenty of room for an actual

time period that was a few minutes greater. And there

is no evidence that Turner deliberately falsified or recklessly disregarded the perpetrator’s description. Second,

even if Turner had fabricated evidence, that is not

enough; rather, the falsifications must be “ ‘material’ to

the finding of probable cause.” Id. (quoting Hervey, 65

F.3d at 789)). And the test is an objective one for the

court: we ask whether “the officer’s behavior [in falsifying the evidence] has an effect on the ultimate issue” of whether the officer made a reasonable probable

cause determination. Hervey, 65 F.3d at 789-90. Neither

the claimed disparity in the t-shirt color, nor the longer,

albeit still extraordinarily abbreviated, length of time

between the assault and seeing Fleming, affects the arguable probable cause analysis. Indeed, even if Turner

had falsified his testimony, because Fleming’s attire substantially matched Haleigh’s description and Fleming

was the only person within one block of the crime scene

within seven minutes of the alleged crime, Turner still
16 No. 11-2170

In challenging arguable probable cause, Fleming also points 4

to the fact that he was walking a dog when spotted by Turner.

But the proximity of Fleming’s house to the scene would

have left him plenty of time to flee the Troxels’ house, return

to his own house, discover that his dog needed to be

walked, and then leave his house with the dog—all before

Turner noticed him walking in the alleyway.

Besides the phone call placed to Luckman, Turner took the 5

additional precautionary step of conducting a “show-up,” where

Haleigh Troxel positively identified Fleming as the intruder.

But the show-up occurred after both Turner’s probable cause

determination and Fleming’s arrest; therefore, it was not part

of the sequence of events that gave rise to the alleged harm

in this case and we will not consider it in our inquiry. However, had the arrest taken place after Haleigh’s positive identification there would certainly have been probable cause

to arrest Fleming.

could have reasonably believed that he had probable

cause to arrest Fleming.4

We also note that Turner’s act in calling state’s attorney Carey Luckman goes a long way toward solidifying his qualified immunity defense. As we have 5

stated before, “[c]onsulting a prosecutor may not give

an officer absolute immunity from being sued for false

arrest, but it goes far to establish qualified immunity.

Otherwise the incentive for officers to consult prosecutors—a valuable screen against false arrest—would be

greatly diminished.” Kijonka v. Seitzinger, 363 F.3d 645, 648

(7th Cir. 2004) (citation omitted). Under these circumstances, Turner had arguable probable cause and was
No. 11-2170

17

entitled to qualified immunity. In turn, Sheriff McCarty

and Livingston County are entitled to summary judgment on the indemnification claims. See 745 Ill. Comp.

Stat. 10/2-109 (“A local public entity is not liable for

an injury resulting from an act or omission of its employee where the employee is not liable.”).

III.

The district court did not abuse its discretion in

granting the defendants’ motion to strike Fleming’s

untimely submitted evidence. Additionally, because

a reasonable police officer in Turner’s position could

have believed that probable cause existed to arrest

Fleming, the district court did not err in granting summary judgment to Turner on the basis of his qualified immunity defense. For these reasons, we AFFIRM.

3-28-12