Add’1 Facts |26.) When Robinson arrived, Ilieva told him that she did not see the face of the
individual fleeing the vehicle, but that he was tall and was wearing black sweatshirt, black pants,
and had a hood on his head. (Def. L.R. 56.1 11.) Senkevich told Robinson that she did not see
the individual’s face, but that he was wearing blue jeans and a black hooded sweatshirt with the
hood up. She also noticed that a belt was hanging between the individual’s legs. (Def. L.R. 56.1
416.)

Robinson radioed to the police dispatcher and to all other units in the area that he was
pursuing a tall Hispanic male wearing dark clothing and a hooded sweatshirt or jacket in the area
of 21 and Wesley. (Def. L.R. 56.1 § 21; Tr. Transcript, at 51.) Officer Nicholas Schiavone
(“Schiavone”) proceeded to the area, parked his squad car, and began a foot patrol in the
residential area. (Def. L.R. 56.1 422.) He soon came upon Ortiz in the alley at 1818 South East
Avenue. (/d, | 23.) Schiavione identified himself as a Berwyn Police Officer and asked Ortiz if
he lived in the house at 1818 South East Avenue. Ortiz replied that he did. (Pl. Stat. of Add’!
Facts {| 19.) Schiavione then told Ortiz to put his hands on the garage door and began to frisk
him. (/d.) Schiavione called Robinson to the scene. (PI. Stat. of Add’1 Facts { 24.) Without
having a conversation with Ortiz, Robinson took Ortiz to the corner of 21* and Wesley, where
the officers first accused Ortiz of stealing the vehicle. (Jd. 25.) Ortiz explained that he had just
left his house and could not have stolen the car. (/d.)

One of the officers asked Senkevich and Ilieva to come down to view Ortiz. (Senkevich
Dep. at 25-26.) Senkevich told the officers that Ortiz’s clothing “exactly looked like the person
that we saw earlier.” (/d. at 29.) Senkevich stated that Ortiz had the same clothes, height, and

build of the individual she had seen fleeing the vehicle. She also noticed that Ortiz had a belt


Robinson radioed that he was in pursuit of a tall Hispanic male wearing dark clothing and a
hooded sweatshirt or jacket in the area of 21“ and Wesley. Importantly, he did this before he had
seen Ortiz. Schiavione then saw Ortiz—a six feet tall Hispanic male wearing dark clothing~in an
alley near 21" and Wesley, believed that he matched the description, detained him, and radioed
Robinson. When Robinson arrived, he did not immediately arrest Ortiz. Instead he took Ortiz
back to the corner of 21% and Wesley and asked Senkevich and Ilieva if Ortiz was the man they
had seen fleeing the stolen vehicle. Senkevich and Ilieva confirmed that Ortiz’s clothing
matched that of the man they had seen. Senkevich even pointed out that Ortiz had a belt hanging
from his pants like the man she had seen. Based on this information, a reasonable officer could
have believed that Robinson had probable cause to arrest Ortiz.

Ortiz argues, however, that Robinson had a duty to investigate whether or not Ortiz was
the individual who had been driving the stolen car. Ortiz ignores the fact that Robinson took
Ortiz back to 21" and Wesley, where Senkevich and Ilieva confirmed that Ortiz’s clothing
matched the man they had seen, Moreover, an officer need not “forego an arrest pending further
investigation if the facts as initially discovered provide probable cause.” Criss v. City of Kent,
867 F.2d 259, 263 (6" Cir. 1988). Given that the court holds that a reasonable officer could have
believed Robinson had probable cause to arrest Ortiz, Robinson’s failure to further investigate
Ortiz’s claims of innocence cannot overcome Robinson’s qualified immunity defense.

II. Malicious Prosecution

In Newsome v. McCabe, 256 F.3d 747, 750-52 (7" Cir. 2001), the Seventh Circuit held

that there is “no constitutional right not to be prosecuted without probable cause.” A plaintiff

therefore may not state a § 1983 claim simply by stating that he was maliciously prosecuted. Jd;


uniform jeans, a shirt, and a blue Cathart jacket with a black stripe on it. (Def. L.R. 56.1 42.)
The jacket had a “fold-away hood” that was folded away. (Ortiz Dep. at 87.)

At approximately 2:00 a.m. the same night, Officer Robinson of the Berwyn Police
Department was on patrol and was sitting in a parking lot in the 1300 block of Harlem Avenue
facing west. (Pl. Stat. of Add’1 Facts 1.) Robinson observed a vehicle traveling southbound
with no front license plate. (/d. § 2.) The car was approximately twenty-five to thirty feet from
Robinson when he first observed it, and it was traveling at approximately twenty-five to thirty
miles an hour. (/d. 3.) The driver of the vehicle was wearing a dark hooded sweatshirt with the
hood up. (d. 4.) At Ortiz’s criminal trial, Robinson testified that he observed the driver’s face
as Robinson exited the parking lot to follow the vehicle. (Tr. Transcript, at 47.) In his deposition
testimony, Robinson testified that he proceeded alongside the vehicle for approximately five
seconds, at which time he observed the driver’s face, and then began to follow behind the
vehicle. (Robinson Dep. at 25-6.) Robinson then ran the rear license plate on his terminal and
discovered that the license plate was registered to a different vehicle. (/d. at 47-8.) Robinson
activated his mars lights and the vehicle sped off, eventually coming to a stop at 21° Avenue and
Wesley. (Pl. Stat. of Add’] Facts 47.)

By the time Robinson arrived at the vehicle, the driver had exited and was out of sight.
(Pl. Stat. of Add’1 Facts {| 8.) Robinson testified in his deposition that he did not see the driver
exit the vehicle. (Robinson Dep. at 47.) However, in his incident report, Robinson stated that he
observed the driver exit the vehicle. (Pl. Stat. of Add’] Facts, Ex. H.) At 21 Avenue and
Wesley, two individuals, Kristina Senkevich (“Senkevich”) and Roza Ilieva (“Ilieva”), saw the

individual flee from the car. They observed him for approximately two seconds. (Pl. Stat. of


hanging down like the individual she had seen. (Def. L.R. 56.1 § 19.) Ilieva told the officers that
she was not sure if Ortiz was the person she had seen earlier, but that “it looked like the same
clothes,” (Ilieva Dep. at 32.)

The Officers then took Ortiz to the police station. Neither Ilieva nor Senkevich were
taken to the police station for any further questioning or to identify anyone other than Ortiz, and
neither of them were questioned on any other day by Robinson. (PI. Stat. of Add’! Facts { 35.)
Robinson verified that the vehicle he had seen was stolen, but did no further investigation into
Ortiz’s role in the incident. Ud. | 40.) In the early moming of January 30, 2002, Ortiz’s wife
came to the police station and Robinson spoke to her regarding Ortiz’s bond. (Id. | 42.)
Robinson also told Ortiz’s wife that Ortiz had run from him. However, Ortiz’s wife told
Robinson that Ortiz could not have run because he had an injury. (/d.) Ortiz asked Robinson to
speak with his wife regarding his whereabouts prior to his arrest, but Robinson failed to do so.
(Id. 4 43.) Ortiz also asked Robinson to fingerprint the stolen vehicle, but Robinson did not. (Id.
4.44.) Ortiz was held at the station until he was charged with possession of a stolen vehicle,
possession of burglary tools, and various traffic violations. (/d. | 39.) After a bench trial, Ortiz
was found not guilty of all charges. (/d. 45.)

DISCUSSION
I. False Arrest and False Imprisonment

Robinson argues that he is entitled to qualified immunity against Ortiz’s claims of false
arrest and false imprisonment. Qualified immunity will shield Robinson from liability “if a
reasonable officer could have believed [Ortiz’s arrest] to be lawful, in light of clearly established

law and the information [Robinson] possessed.” Hunter v. Bryant, 502 U.S. 224, 227


see also Penn v. Harris, 296 F.3d 573, 576 (7" Cir. 2002). Thus, count II of Ortiz’s complaint
does not state a claim under federal law. The court declines to exercise supplemental jurisdiction
over this claim. See 28 U.S.C. § 1367(c)(3) (“The district court may decline to exercise
supplemental jurisdiction over a claim... if... the district court dismissed all claims over which
it has general jurisdiction.”); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7" Cir. 1999)(“[I]Jt is
the well-established law of this circuit that the usual practice is to dismiss without prejudice state
supplemental claims whenever all federal claims have been dismissed prior to trial.”). As such,
the court dismisses Count Il] without prejudice for lack of subject matter jurisdiction.
CONCLUSION

For the reasons stated above, Robinson’s motion for summary judgment (#15) is granted
with respect to Counts I and If. Pursuant to 28 U.S.C. § 1367(c)(3), the court declines to exercise
supplemental jurisdiction over the state law claim in Count Il. Thus, Count III is dismissed
without prejudice for lack of subject matter jurisdiction. The clerk is instructed to enter
judgment in favor of the defendant on Counts I and I. All future dates are stricken. This case is

terminated.

Enter: jot! Vfirpleen—

V7 JOAN HUMPHREY LEFKOW
United States District Judge

Date: December 19, 2003


Mime: Order Form (06/97

United States District Court, Northern District of Illinois

Nj sigh nde Sitting Judge if Oth
rprestnarg ave | Joan H. Lefkow tn eh
_Y CASE NUMBER 02 C 6715 DATE 12/19/2003
CASE Ortiz vs. Robinson
TITLE

{In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

03) Oo Filed motion of [ use listing in “Motion” box above.]

(2) QO Brief in support of motion due

(3) Qo Answer brief to motion due___. Reply to answer brief due.

(4) o Ruling/Hearingon___setfor__—_at

(5) oO Status hearing[held/continued to] [set for/re-set for]on__—ssetfor__—saat_—
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_— at.
(7) oO Trial[set for/re-set for]on___at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to___at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OLocal Rule 41.1 CFRCP41(a\(1) O FRCP41(a)(2).

ao [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion for summary
judgment [15-1] is granted with respect to Counts I and II. Pursuant to 28 U.S.C. § 1367(c)(3), the Court
declines to exercise supplemental jurisdiction over the state law claim in Count III. Thus, Count III is
dismissed without prejudice for lack of subject matter jurisdiction. Judgment entered in favor of
defendant on Counts I and II. Ali future dates are stricken.

(1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2

No notices ired,
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DEC 2 2 2053

Notified counsel by telephone.

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12192003

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(1989)(citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). When an officer asserts
qualified immunity in defense of an allegation of unlawful arrest, the court must determine
whether the officer “actually had probable cause [for the arrest] 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 (7 Cir. 1998). In other words, “only if no reasonable
officer could have believed that the officers in question had probable cause will qualified
immunity cease to protect the officers.” Huffman v. Grinnell, 880 F. Supp. 1194, 1199 (N.D. Ill.
1995)(citing Klein v. Ryan, 847 F.2d 368, 375 (7" Cir. 1988). Qualified immunity provides
“ample protection to all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335 (1986).

Probable cause for arrest exists for a law enforcement officer when “the facts and
circumstances within [his] knowledge and of which [he has] sufficiently trustworthy information
[are] sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was
committing an offense.” Booker v. Ward, 94 F.3d 1052, 1057 (7" Cir. 1996). “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.” Woods v. City of Chicago, 234 F.3d 979, 996 (7" Cir. 2000)(internal
quotations and citations omitted).

Here, the court need not determine whether Robinson had probable cause to arrest Ortiz
because a reasonable officer “could have believed that [Robinson] had probable cause.”
Huffman, 880 F. Supp. at 1199. Based on his own observations of the driver of the stolen vehicle

and the descriptions of the individual fleeing the vehicle provided by Senkevich and Ilieva,



AN

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RAUL ORTIZ )
)
Plaintiff, )
)
v. ) No. 02 C 6715

) Judge Joan H. Lefkow
OFFICER JOSEPH ROBINSON )
Individually, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Raul Ortiz (“Ortiz”), has filed a three-count complaint against defendant,
Officer Joseph Robinson (“Robinson”). Count I alleges false arrest and is brought under
42. U.S.C. §§ 1983 & 1988 and Illinois common law. Count II alleges false imprisonment and is
brought under 42 U.S.C. §§ 1983. Count III alleges malicious prosecution and is brought under
Iinois common law.' Before the court is Robinson’s Motion for Summary Judgment. This
court has jurisdiction over Counts I and II pursuant to 28 U.S.C. § 1343. For the reasons set forth
below, the court grants summary judgment on Counts I and If in favor of Robinson and dismisses

Count If] without prejudice for lack of subject matter jurisdiction.

ETED
BEC 9 % 2003

‘Ortiz’s complaint states that count III is brought “pursuant to 42 U.S.C. § 1983 and § 1988 of the United
States Constitution (sic), and the laws of the state of Illinois.” In Newsome y. McCabe, 256 F.3d 747, 750-52 (7"
Cir. 2001), the Seventh Circuit held that there is “no constitutional right not to be prosecuted without probable
cause.” A plaintiff therefore may not state a § 1983 claim simply by stating that he was maliciously prosecuted. Id;
see also Penn v. Harris, 296 F.3d 573, 576 (7" Cir. 2002). Thus, count IIT of Ortiz’s complaint only states a claim
under Illinois common law.


SUMMARY JUDGMENT STANDARDS

Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee’s notes. The
party seeking summary judgment bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving
party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to
designate specific material facts showing that there is a genuine issue for trial. Jd. at 324;
Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7" Cir. 2000). A material fact must be outcome
determinative under the governing law. Insolia, 216 F.3d at 598-599. Although a bare
contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7" Cir. 2000), the court must construe all facts in a light most
favorable to the non-moving party as well as view all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 471 US. 242, 255 (1986).

FACTS

Ortiz is a Hispanic male. (Oriz Dep. at 87.) He is six feet tall and has dark hair. (Def.
L.R. 56.1] 8.) On January 29, 2002, Ortiz lived at 1818 South East Avenue, Berwyn, Illinois.
(Id. 41.) On January 28, 2002, Ortiz returned home from work at approximately 10:30 p.m. (Pl.
Stat. of Add’] Facts J 12.) After falling asleep for a few hours, Ortiz woke up and walked

outside to move his garbage can for garbage pick up. (Def. L.R. 56.1 95.) He was wearing