02-5911.051-JCD November 1, 2005

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NILDA GOMEZ, )

)

Plaintiff, )

)

 v. ) No. 02 C 5911

) 

LT. RICCIO, GEORGE MELANIS, )

JORGE RIVERA, and the CITY OF )

CHICAGO, ) 

 )

Defendants. )

MEMORANDUM OPINION

Before the court is defendants’ motion for summary judgment.

For the reasons explained below, the motion is granted in part and

denied in part.

BACKGROUND

This is a civil rights action by plaintiff Nilda Gomez against

the City of Chicago (the “City”), Chicago Police Lieutenant Anthony

Riccio, and Chicago Police Officers George Melanis and Jorge

Rivera. Plaintiff claims that after her arrest for domestic

battery, she was falsely charged with felony battery to police

officers, detained, and subjected to a strip search and a body

cavity search in retaliation for having previously filed a civil

rights suit against defendant Riccio, among others.

Many of the relevant facts, which follow, are undisputed. In

August 2000, Nilda lived in the second floor unit at 3725 West
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Lyndale in Chicago. Her sister, Midna Noriega, lived in the first

floor unit with her husband, Ricardo Noriega, and their children.

On the evening of August 17, 2000, around 7:30 p.m., Nilda was

downstairs in Midna’s unit and began verbally arguing with Midna.

Ricardo, who worked a night shift and had been sleeping, awakened

and heard Nilda and Midna yelling. Ricardo then called 911, said

that there was a family dispute, and requested that police officers

come to the residence. Some sort of confrontation between Ricardo,

Midna, and Nilda ensued. Shortly thereafter, Nilda went upstairs

to her apartment. 

After Nilda went upstairs, Officers Melanis and Rivera arrived

in response to the 911 call. The officers came into the front room

of the first-floor apartment and asked Ricardo what was going on.

Ricardo said that he had called the police because Nilda had been

starting trouble and would not leave the apartment. The officers

asked if anyone was hurt and noted that Ricardo had a bloody cut on

his wrist. Ricardo replied, “[T]hat must have been when [Nilda]

swung at me.” (Tr. of Dep. of Ricardo Noriega at 37, Defendants’

Local Rule 56.1 Statement of Facts, Ex. F.) The officers asked

whether the Noriegas wanted to file complaints against Nilda, and

they responded that they did. They understood that Nilda would be

arrested if they filed these complaints. Ricardo signed a

complaint for domestic battery, stating that Nilda pushed and

grabbed his arms and scratched him, causing his wrist to bleed and
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redness on his arms. Midna signed a separate complaint for

domestic battery, stating that Nilda had grabbed and squeezed her.

Nilda then came downstairs again, at which the point the

officers placed her in handcuffs and led her outside to their

police car. According to the officers, the Noriegas, and a

neighbor who was a witness, Nilda resisted being moved from the

residence to and into the car by refusing to move her feet,

squirming, and kicking the officers. The officers could not get

her into their car, so they called for a paddy wagon. Nilda, on

the other hand, claims that she did not resist arrest in any way,

and also disputes that the officers tried to put her in their

police car.

Nilda was transported to the police station. Around 9:30

p.m., Officers Melanis and Rivera completed an arrest report that

charged her with the following crimes: domestic battery (two

counts); resisting a peace officer (one count); and aggravated

battery to a peace officer (two counts). (The charges of domestic

battery and resisting a peace officer were misdemeanors, and the

aggravated battery charges were felonies.) 

According to the arrest report, the charges were approved by

defendant Lieutenant Anthony Riccio. At that time, Lieutenant

Riccio, along with other police officers, was a defendant in a suit

that had previously been brought by plaintiff in the Circuit Court
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1/ Plaintiff’s name was Nilda Harris, not Nilda Gomez, at the time that

suit was filed.

of Cook County, entitled Harris v. Nikeas.1 (At the time of the

filing of the Second Amended Complaint in this action, the Harris

case was still pending.) Officers Melanis and Rivera are not

parties to the Harris case. 

Plaintiff asserts that Lieutenant Riccio caused or directed a

strip search and a body cavity search of plaintiff for the sole

purpose of harassing her and that Lieutenant Riccio came into her

holding cell to harass and taunt her. Plaintiff was booked at the

Cook County Jail and held in custody pending a bond hearing on the

aggravated battery charges. 

The resisting a peace officer and domestic battery charges

were eventually dropped, but Nilda went to trial on the aggravated

battery charges. She was acquitted by a jury. According to

plaintiff, the aggravated battery charges are based on false claims

that plaintiff intentionally kicked Officers Melanis and Rivera in

the course of the domestic battery arrest and are in retaliation

for plaintiff’s suit against Lieutenant Riccio. Plaintiff claims

that the defendants “have fabricated ‘evidence’ in support of their

claims, including witness statements, have communicated false and

misleading information to various Cook County State’s Attorneys,

and have withheld exculpatory information from various Cook County

State’s Attorneys.” (Second Amended Complaint, ¶ 12.) 
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Plaintiff filed this action on August 19, 2002. The current

complaint is the Second Amended Complaint, which was filed on

October 27, 2004. The Second Amended Complaint sets forth the

following claims: § 1983 claims for violation of plaintiff’s

Fourth, Fourteenth, and First Amendment rights (Counts I-III);

intentional infliction of emotional distress (“IIED”) (Count IV);

malicious prosecution (Count V); assault and battery (Count VI);

and violation of 725 ILCS 5/103-1, a state statute setting forth

the rights of an arrestee (Count VII). The Officers, who are sued

in their individual capacities, are named as defendants in all of

the counts. The City is named as a defendant in Counts IV, V, VI,

and VII under a respondeat superior theory. Plaintiff seeks

nominal, compensatory, and punitive damages as well as attorney’s

fees. 

Defendants now move for summary judgment. 

DISCUSSION

Summary judgment “shall be rendered forthwith if 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). In considering such a motion, the court construes the

evidence and all inferences that reasonably can be drawn therefrom

in the light most favorable to the nonmoving party. See Pitasi v.
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Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). “Summary

judgment should be denied if the dispute is ‘genuine’: ‘if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d

1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court will enter summary

judgment against a party who does not “come forward with evidence

that would reasonably permit the finder of fact to find in [its]

favor on a material question.” McGrath v. Gillis, 44 F.3d 567, 569

(7th Cir. 1995).

We will first address plaintiff’s contention that defendants’

motion must be stricken because defendants have attached only

excerpts of deposition testimony as exhibits to their motion, and

“[p]roviding the court with full copies of deposition transcripts

cited in a motion for summary judgment is proper pleading

practice.” (Plaintiff’s Response at 1.) We reject this argument.

Although we can conceive of cases in which it may be necessary for

a party to provide entire deposition transcripts, this is not one

of them. We know of no authority that justifies striking an entire

motion where excerpts of transcripts are provided. Our Local Rules

do not require that full transcripts be provided in conjunction

with a motion for summary judgment, and the case cited by plaintiff

in support of her argument addressed only the state of the briefing
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2/ Plaintiff cites Valenti v. Qualex, Inc., 970 F.2d 363, 368 n.4 (7th

Cir. 1992), which does not set forth any general standard for “proper pleading

practice” or even mention the phrase “proper pleading practice.” 

in that particular case.2 Moreover, plaintiff was free to attach

to her response any other transcript excerpts counsel believed to

be pertinent. 

We also note at the outset that some of defendants’ arguments

do not go to whether there are genuine issues of fact for trial,

but rather are those that more properly would have been made on

their motion to dismiss. They are attempting to get a second bite

at the apple, but we will address all of their arguments anyway. 

A. Fourth Amendment (Count I)

Defendants’ first argument is that they are entitled to

summary judgment to the extent that Count I is premised on false

arrest. Defendants previously moved to dismiss the false arrest

claim because plaintiff was initially arrested on the domestic

battery charges and did not appear to contest the existence of

probable cause to arrest her on those charges. We rejected

defendants’ argument, noting that the law in the Seventh Circuit

was that “there must be probable cause for a charge closely related

to the charge upon which the plaintiff was ultimately prosecuted.”

(Memorandum Opinion of July 7, 2004 at 6.) We found that the

existence of probable cause to arrest plaintiff on the domestic

battery charges did not bear on whether there was probable cause

for the felony battery charges and associated proceedings because
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3/ Plaintiff weakly attempts to distinguish Devenpeck, but we are

unpersuaded. 

the two types of charges were based on completely different

purported conduct and therefore were not “closely related.” (Id.

at 6-7.) 

Defendants now call our attention to a Supreme Court opinion

that was issued a few months after our ruling in this case,

Devenpeck v. Alford, 543 U.S. 146 (2004). In Devenpeck, the

Supreme Court held that a warrantless arrest by a police officer is

lawful under the Fourth Amendment as long as there is probable

cause to believe that any criminal offense has been or is being

committed. See id. at 593-94. The Court stated: “The rule that

the offense establishing probable cause must be ‘closely related’

to, and based on the same conduct as, the offense identified by the

arresting officer at the time of arrest is inconsistent with []

precedent.” Id. at 594.3 

Defendants contend that pursuant to Devenpeck, they are

entitled to summary judgment on the false arrest claim because

there is no genuine issue that there was probable cause to arrest

plaintiff for domestic battery. “Probable cause has been defined

as facts and circumstances sufficient to warrant a prudent man in

believing that the suspect had committed or was committing an

offense.” Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir.

2000) (quotation marks and brackets omitted). “Contrary to what
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its name might seem to suggest, probable cause demands even less

than probability; it requires more than bare suspicion but need not

be based on evidence sufficient to support a conviction, nor even

a showing that the officer’s belief is more likely true than false.

Applying this standard, we have consistently held that an

identification or a report from a single, credible victim or

eyewitness can provide the basis for probable cause.” Id.

(internal quotation marks and citations omitted). 

When the parties were briefing the motion to dismiss, it did

not appear that plaintiff was claiming that she was falsely

arrested for domestic battery. Now, however, she argues that there

is a genuine issue of material fact regarding probable cause for

her arrest for domestic battery. 

Plaintiff’s first contention is that she “does not have

sufficient information to make a conclusive determination as to

whether the officers had probable cause to arrest even on domestic

battery.” (Plaintiff’s Response at 2.) Plaintiff asserts that

“[t]he Defendant officers have not yet been deposed and it would be

helpful to know what information was given to the officers prior to

Plaintiff’s arrest and what facts the officers relied upon in

making their alleged probable cause determination.” (Id.) 

Although plaintiff does not invoke Federal Rule of Civil

Procedure 56(f), that is the applicable rule when a non-movant

requests additional discovery in order to respond to a summary
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judgment motion. The rule provides: “Should it appear from the

affidavits of a party opposing [a summary judgment] motion that the

party cannot for reasons stated present by affidavit facts

essential to justify the party’s opposition, the court may . . .

order a continuance to permit . . . depositions to be taken or

discovery to be had.” Fed. R. Civ. P. 56(f). 

Plaintiff’s argument is rejected for several reasons.

Plaintiff does not present an affidavit and thus does not make a

proper Rule 56(f) argument. More importantly, she fails to explain

why she has not yet taken the depositions of the officers in this

case that has been pending since 2002, and fails to indicate that

she even desires to take those depositions. It is significant that

plaintiff does not ask for additional time to take the officers’

depositions in order to respond to the summary judgment motion, but

merely contends that the fact that she has not conducted those

depositions somehow creates a genuine issue of material fact.

Furthermore, it is not as if there is no testimony from the

officers. We have the transcript of plaintiff’s aggravated battery

trial, at which both Officers Melanis and Rivera testified

regarding the circumstances of the arrest. 

The evidence is as follows: Ricardo Noriega called the police.

Officers Melanis and Rivera went to the Noriegas’ home in response

to a call from the dispatcher notifying them of a domestic

disturbance there. When the officers arrived, they asked what was
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going on. Ricardo told them that Nilda had been starting trouble.

The officers noticed a cut on Ricardo’s wrist, and Ricardo stated

that it must have been the result of Nilda swinging at him. The

officers were also informed that Nilda grabbed Midna in the course

of the fight. Plaintiff admits that the officers asked the

Noriegas if they wanted to press charges against Nilda, and the

Noriegas both answered in the affirmative. It is undisputed that

Ricardo signed a complaint for domestic battery stating that Nilda

had pushed, grabbed, and scratched him and that Midna also signed

a complaint for domestic battery, stating that Nilda had grabbed

and squeezed her. After the Noriegas agreed to sign complaints

against Nilda, the officers arrested Nilda. 

“[S]o long as a reasonably credible witness or victim informs

the police that someone has committed a crime, the officers have

probable cause to place the alleged culprit under arrest.” Woods,

234 F.3d at 987. It is undisputed that the Noriegas informed

Officers Melanis and Rivera that Nilda had committed domestic

battery against them and that they wished to sign complaints

against her for that conduct. Plaintiff’s brief contains a lengthy

discussion of what may have actually happened between Nilda and the

Noriegas before the officers arrived; plaintiff argues that Ricardo

“was the perpetrator.” (Plaintiff’s Response at 7.) But the truth

of that incident is irrelevant to what the officers knew and what

they were told when they arrived on the scene. “[O]nce . . . a
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4/ Plaintiff’s theory is that because of the false aggravated battery

charges, she was subjected to a body search and detained far longer than she

would have been if she had only been charged with domestic battery.

reasonably credible complaint has been made, the existence of

probable cause to arrest does not depend upon the actual truth of

the complaint.” Woods, 234 F.3d at 987 (citing Kelley v. Myler,

149 F.3d 641, 647 (7th Cir. 1998) (“Probable cause does not depend

on the witness turning out to have been right; it’s what the police

know, not whether they know the truth that matters.”). 

Plaintiff also fails to raise a genuine issue that Ricardo and

Midna were “reasonably credible” witnesses. Plaintiff makes much

of the fact that Ricardo “far exceeded Plaintiff in size, weight

and strength.” (Plaintiff’s Response at 7.) In our view, Ricardo’s

physical stature has no bearing on the credibility of his statement

to the officers about Nilda’s actions. The evidence is not that

Ricardo told the officers that Nilda beat him up or overpowered

him; it is simply that she swung at him and scratched him. 

Plaintiff has failed to come forward with any evidence

creating a genuine issue for trial on her false arrest claim.

Accordingly, defendants are entitled to summary judgment on that

claim.

Plaintiff’s Fourth Amendment claim in Count I is not solely

based on false arrest; plaintiff also alleges that the search of

her person and the length of her detention violated the Fourth

Amendment.4 Defendants’s briefs devote much attention to false
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5/ Plaintiff is the only party who discusses the body search, so it is not

necessary that we address plaintiff’s entire argument, but it is notable that

plaintiff relies in part upon an Illinois state statute in support of her

argument that the strip search was unlawful. We wish to point out the Seventh

Circuit’s edict that violations of state statutes are irrelevant to a § 1983

constitutionality inquiry, see White v. Olig, 56 F.3d 817, 820 (7th Cir. 1995).

Putting aside the state statute, though, the Seventh Circuit has held that strip

searches of arrestees, in certain circumstances, can be unreasonable and thereby

violate the Fourth Amendment. See, e.g., Mary Beth G. v. City of Chicago, 723

F.2d 1263, 1273 (7th Cir. 1983). 

6/ The only fact mentioned in defendants’ briefs regarding detention is

that plaintiff was sent to Central Bond Court on August 18, 2000, the day after

plaintiff was arrested. The exhibit cited in support of this statement is

Exhibit D, which consists of copies of the Arrest Report and a report regarding

the moving of plaintiff into the lockup facility. Both reports are bad copies

and are very difficult to read, but neither appears to reflect the time and date

plaintiff was sent to bond court. Defendants also cite Exhibit E in support of

their cursory argument that “[p]laintiff was . . . lawfully transferred to

Central Bond Court and released within the reasonably feasible, prescribed 48

hours.” (Defendants’ Joint Memorandum in Support of Motion at 6.) Exhibit E is

a bond form that is dated “8/18/00” at 9:12 pm, but it is not clear from the form

that this was the time plaintiff was released. In any event, not only do

defendants fail to set forth the material facts regarding plaintiff’s detention

and search, they cite very little authority in support of their position. The

authority that defendants do cite sets forth only general propositions. 

arrest but fail to discuss the search at all5 and give short shrift

to the detention.6 Furthermore, defendants’ statement of material

facts does not include any fact statements or citations to

supporting evidence regarding the events that occurred after

plaintiff was arrested and charged. Because defendants have failed

to properly support their motion, it will be denied as to the

Fourth Amendment claims relating to the search and detention. 

B. First Amendment (Count III)

In Count III, plaintiff alleges that the initiation of false

charges in retaliation for her having filed the Harris suit against

Lieutenant Riccio deprived her of the rights secured to her by the

Petition Clause of the First Amendment. Defendants attempt to
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extend their Devenpeck argument regarding false arrest to this

claim with no citation to authority whatsoever that Devenpeck

extends to a First Amendment claim. We agree with plaintiff that

whether the officers had probable cause to arrest plaintiff is not

relevant to her allegations that defendants retaliated against her

for having filed the Harris suit by fabricating evidence on the

aggravated battery charges. Defendants’ motion for summary

judgment will be denied as to Count III. 

C. Fourteenth Amendment Due Process (Count II)

In Count II, plaintiff alleges that defendants violated her

constitutional right to a fair trial by fabricating evidence,

including witness statements, and by lying to and withholding

information from various Cook County assistant state’s attorneys.

Defendants’ first argument regarding Count II is that

“[p]laintiff’s assertions that the Officers instigated the

proceedings against her belies her own statements that she was

arrested on the signed complaints of her sister and brother-in-law

and that those charges were not withdrawn by them.” (Defendants’

Joint Memorandum in Support of Motion at 8.) This contention

misses the point, as plaintiff was tried on the aggravated battery

charges, which were undisputedly instigated by the Officers, not

the Noriegas. Defendants fail to cite any authority for their

suggestion that probable cause for arrest on the domestic battery
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7/ The same argument is made with regard to plaintiff’s IIED and malicious

prosecution claims in Counts IV and V and is rejected in regard to those claims

as well. 

8/ This argument is also made with regard to plaintiff’s malicious

prosecution claim in Count V. Defendants appear to imply that a police officer

cannot be liable for malicious prosecution, but fail to cite any supporting

authority. 

9/ Defendants also cite two Seventh Circuit cases that are inapposite. 

charges somehow bars the due process claim pertaining to the

aggravated battery charges.7 

Defendants also maintain that “[t]he decisions about which, if

any, charge would proceed to trial is within the discretion of the

prosecutor and not the police,” id., without any explanation of why

this entitles them to summary judgment on plaintiff’s claim. The

argument is rejected because the basis for plaintiff’s claim is not

the charging decision itself, but the officers’ alleged

misrepresentations upon which the decision was based, as well as

the officers’ other alleged conduct relating to the evidence after

the charging decision was made.8

Defendants’ next argument is that because plaintiff was

acquitted, she has no constitutional claim that she was denied a

fair trial. Plaintiff disagrees. There are two cases on point

from this district; one supports defendants’ position, and one

supports plaintiff’s.9 We adopt the well-reasoned analysis of the

case cited by plaintiff, Carroccia v. Anderson, 249 F. Supp. 2d

1016 (N.D. Ill. 2003) (Kennelly, J). In Carroccia, an acquitted

murder defendant alleged that police officers concealed and
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10/ Judge Kennelly held that the plaintiff could recover nominal damages

for the alleged violations of his right to a fair trial. 249 F. Supp. at 1023-25

(citing Carey v. Piphus, 435 U.S. 247 (1978)).

fabricated evidence, thereby violating his right to a fair trial.

Rejecting the defendants’ contention that the acquittal barred

plaintiff’s due process claim for a violation of Brady v. Maryland,

373 U.S. 83 (1963), Judge Kennelly stated: 

[A] trial is not rendered fair simply because it

ultimately results in an acquittal. As the Court stated

in Brady, “our system of the administration of justice

suffers when any accused is treated unfairly. . . . A

prosecutor that withholds evidence on demand of an

accused which, if made available, would tend to exculpate

him or reduce the penalty helps shape a trial that bears

heavily on the defendant.” . . . If courts prohibit a

criminal defendant from making a civil claim for

concealment of material exculpatory evidence simply

because his trial resulted in an acquittal, we tolerate

law enforcement misconduct simply because the defendant

was able to overcome it by other means. . . . The

question is whether, at the time the evidence is

concealed, it could be expected to affect the outcome of

the case. An eventual acquittal may suggest that the

withheld evidence was not material. But an acquittal

alone does not show that police officers complied with

Brady or that the defendant’s trial was fair. . . . The

constitutional value at stake . . . is due process: the

means, not the ends of his trial. . . . If exculpatory

evidence was wrongly withheld, [plaintiff’s] acquittal

did not eliminate the due process violation that had

already occurred by the time of the acquittal.

 

249 F. Supp. at 1023-24 (citation omitted).10 

Defendants’ final argument regarding Count II is that

plaintiff has no evidence that the officers lied or withheld

information. However, plaintiff’s testimony at her trial was that

she did not kick the officers and in fact did not resist arrest at
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11/ A repleading of previously-dismissed claims is unnecessary to preserve

those claims for appeal. See Bastian v. Petren Res. Corp., 892 F.2d 680, 682-83

(7th Cir. 1990). 

all. That testimony is sufficient to create a genuine issue of

fact for trial.

Defendants’ motion for summary judgment will be denied as to

Count II. 

D. Previously-Dismissed Claims

In our Memorandum Opinion of July 7, 2004, we dismissed

plaintiffs’ claims for assault and battery (Count VI) and for

violation of 725 ILCS 5/103-1 (Count VII) as time-barred by the

Illinois Tort Immunity Act’s one-year statute of limitations. 

We also noted that although none of the numbered counts of the

Amended Complaint were explicitly labeled as Sixth Amendment

claims, there were references to the Sixth Amendment in paragraphs

1 and 14(a). To the extent that plaintiff was attempting to allege

a violation of her Sixth Amendment rights, it was dismissed for

failure to state a claim. 

The Second Amended Complaint re-alleges Counts VI and VII and

contains the same references to the Sixth Amendment. Those claims

are again dismissed.11 

E. Qualified Immunity

Defendants’ final argument is that they are entitled to

qualified immunity on plaintiff’s claims. They rely again on
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Devenpeck, without explanation, and their argument is too

conclusory to warrant analysis. 

CONCLUSION

Defendants’ motion for summary judgment is granted in part and

denied in part. The motion is granted as to plaintiff’s Fourth

Amendment false arrest claim. The motion is denied as to

plaintiff’s Fourth Amendment search and detention claims as well as

to Counts II, III, IV, and V.

Counts VI and VII are dismissed with prejudice, and to the

extent that plaintiff is attempting to allege a violation of her

Sixth Amendment rights, that claim is dismissed with prejudice. 

DATE: November 1, 2005

ENTER: ___________________________________________

John F. Grady, United States District Judge