No. _______ In the Supreme Court of the United States

__________

CHESTER NELSON, PETITIONER v.

JENNIFER MARQUEZ __________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT __________

PETITION FOR WRIT OF CERTIORARI __________

KENNETH N. FLAXMAN 200 South Michigan Avenue Chicago, Illinois 60604

knf@kenlaw.com (312) 427-3200

Attorney for Petitioner

(I)

QUESTIONS PRESENTED

1. Does the Fourth Amendment prohibit an officer from making an arrest without a warrant for a non-felony offense that had not been committed in his (or her) presence without, at the very least, investigating exculpatory information from a reliable source that the suspect had been at work on the date of the alleged of-fense?

2. Does 42 U.S.C. § 1983 provide a remedy akin to malicious prosecution for a person who is charged with an offense and held in custody for two days before post-ing bail because a police officer performed the function of a complaining witness by signing, under oath, groundless criminal complaints?

II

TABLE OF CONTENTS Page

Opinions below ..................................................................... 1

Jurisdiction ........................................................................... 1

Constitutional provision and statute involved ............... 2

Statement............................................................................. 2

Reasons for granting the petition ..................................... 6

A. The Report of an Alleged Eyewitness to a Misdemeanor Offense Is Not Enough to Authorize a Warrantless Arrest ........................ 7

B. Section 1983 and Malicious Prosecution ......... 11

Conclusion .......................................................................... 14

Appendix A – Court of Appeals opinion ....................... 1a (August 22, 2011)

Appendix B – District Court (January 11, 2011) ....... 11a

Appendix C – 42 U.S.C. § 1983 ..................................... 17a

III

TABLE OF AUTHORITIES

Cases: Page

Awabdy v. City of Adelanto, 368 F.3d 1062, (9th Cir. 2004) ................................................. 11, 13

Alford v. Haner, 446 F.3d 935 (9th Cir. 2006) ......... 10

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) ................................ 10

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ........................................................................ 8

Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996) ....................................................... 13

Burrell v. Virginia, 395 F.3d 508 (4th Cir. 2005) ................................................................. 11, 13

Carroll v. United States, 267 U.S. 132 (1925) ........... 7

Coupey v. Henley, 2 Esp. 540, 170 Eng.Rep. 448 (C.P.1797) ......................................................... 9

Fields v. City of South Houston, Texas, 922 F.2d 1183 (5th Cir. 1991) ....................................... 9

Gardenhire v. Schubert, 205 F.3d 303 (6th Cir. 2000) ....................................................................... 10

Gramenos v. Jewel Companies, Inc., 797 F.3d 432 (7th Cir. 1986) .................................................. 6

IV

Cases—Continued: Page

Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009) ........................................................................ 10

Manganiello v. City of New York, 612 F.3d 149 (2nd Cir. 2010) ......................................... 11, 12

Maryland v. Pringle, 540 U.S. 366 (2003) ............... 11

McKenna v. City of Philadelphia, 582 F.3d 447 (3d Cir. 2009) ............................................ 11, 12

Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002) (en banc) ................................................................ 11

Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001) ....................................................................... 12

Pitt v. District of Columbia, 491 F.3d 494 (D.C.Cir. 2007) ................................................ 11, 13

Ray v. City of Chicago, 629 F.3d 660 (7th Cir. 2011) .................................................................. 2, 5-6

Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010) ................................................................. 11, 13

Tropiano v. United States, 334 U.S. 699 (1948) ........ 7

United States v. Smith, 73 F.3d 1414 (6th Cir. 1996) ......................................................................... 9

Wallace v. Kato, 549 U.S. 384 (2007) .................... 7, 13

V

Cases—Continued: Page

Welsh v. Wisconsin, 466 U.S. 740 (1984) ................... 9

Virginia v. Moore, 553 U.S. 164 (2008) .................... 11

Wood v. Kesler, 323 F.3d 872 (11th Cir. 2003) ... 11, 12

Woods v. City of Chicago, 234 F.3d 979 (7th Cir. 2000) ......................................................... 3, 5, 9

Constitution and Statutes:

U.S. Const. Amend IV ...................................... passim

8 U.S.C. § 1357(a)(2) ..................................................... 7

16 U.S.C. § 1a-6(b)(1) .................................................... 7

16 U.S.C. § 559c(3) ....................................................... 7

16 U.S.C. § 706 ............................................................ 7-8

16 U.S.C. § 727(a)(1) ..................................................... 8

16 U.S.C. § 959(d)(1) .................................................... 8

16 U.S.C. § 971F(a)(2) .................................................. 8

16 U.S.C. § 1172(d)(1) ................................................... 8

16 U.S.C. § 1377(d)(1) ................................................... 8

16 U.S.C. § 1540(e)(3) ................................................... 8

16 U.S.C. § 1861(b)(2) ................................................... 8

VI

Constitution and Statutes—Continued: Page

16 U.S.C § 3375(b) ......................................................... 8

16 U.S.C. § 5506(c)(2) .................................................... 8

18 U.S.C. § 3052 ............................................................. 8

18 U.S.C. § 3056(c)(1)(C) .............................................. 8

18 U.S.C. § 3061(a)(2) ................................................... 8

18 U.S.C. § 3063(a)(3)(A) .............................................. 8

19 U.S.C. § 1589a(3) ...................................................... 8

21 U.S.C. § 372(e)(4) ..................................................... 8

21 U.S.C. § 878(a)(3)(A) ................................................ 8

22 U.S.C. § 1978(f)(4)(A) .............................................. 8

22 U.S.C. § 2709(a)(5) ................................................... 8

25 U.S.C. § 2803(3)(A) .................................................. 8

26 U.S.C. § 7608(a)(3) ................................................... 8

28 U.S.C. § 566(d) .......................................................... 8

33 U.S.C. § 452 ............................................................... 8

49 U.S.C. § 44903(d)(2) ................................................ 8

42 U.S.C. 1983 ..................................................... passim

(1)

In the Supreme Court of the United States __________

CHESTER NELSON, PETITIONER

v.

JENNIFER MARQUEZ

__________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

__________

PETITION FOR WRIT OF CERTIORARI _________

Petitioner Chester Nelson respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-10a) is not officially reported, but is available at 2011 WL 3664291 (7th Cir. 2011). The opinion of the district court (App., infra, 11a-16a) is not officially reported, but is available at 2011 WL 124245 (N.D.Ill. 2011).

JURISDICTION

The judgment of the court of appeals was entered on August 22, 2011. The jurisdiction of this Court is in-voked under 28 U.S.C. §1254(1).

2

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

The Fourth Amendment to the United States Con-stitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or af-firmation, and particularly describing the place to be searched, and the persons or things to be seized.

42 U.S.C. § 1983 is reproduced in the appendix to this petition. App., infra, at 17a.

STATEMENT

Petitioner brought suit under 42 U.S.C. § 1983 as-serting that police officer Jennifer Marquez, working for the Village of Lisle, Illinois, falsely arrested and maliciously prosecuted him for several misdemeanor offenses. The district court applied the Seventh Cir-cuit’s rule that a police officer may make an arrest for an offense committed out of her presence on “a report from a single, credible victim or eyewitness” (App., infra, 13a), and held that petitioner had been arrested on probable cause. The district court recognized that the facts were in dispute about whether the officer, who signed the criminal complaints against petitioner, had probable cause to charge him with battery (App., infra, 16a), but held that any Section 1983 malicious prosecu-tion claim was precluded by the Seventh Circuit’s decision in Ray v. City of Chicago, 629 F.3d 660 (7th Cir. 2011). (App., infra, at 14a.)

3

The Seventh Circuit affirmed. The Court of Appeals applied its earlier decision in Woods v. City of Chicago, 234 F.3d 979 (7th Cir. 2000) that whether a misdemea-nor offense had occurred in the officer’s presence was not relevant to the reasonableness of a warrantless arrest. (App., infra, at 5a.) In the view of the Seventh Circuit, the arresting officer was not required to inves-tigate a report from another police officer that petition-er had been delivering mail for the United States Postal Service on the day the offense had been committed 30 miles away. (App., infra, 5a.) The Court of Appeals rejected petitioner’s Section 1983 malicious prosecution claim, because “this court does not recognize federal claims for malicious prosecution in states whose law, like that of Illinois, provides an available tort remedy.” (App., infra, at 1a.)

1. On October 11, 2008, police officer Jennifer Mar-quez responded to a “911” complaint that had been made by Chaunte Robinson. The police dispatcher told Officer Marquez that Robinson had reported that her ex-boyfriend had kicked in her front door, and that she had last seen him on foot, running towards the commu-ter railroad. (App. 2a-3a.)

2. Officer Marquez spoke with Robinson and saw that Robinson’s front door had been kicked in. (App., infra, at 3a.) Robinson told Officer Marquez that peti-tioner was her ex-boyfriend, and that a neighbor (ra-ther than Robinson), had observed petitioner kicking in the door. (App. 3a.) Robinson provided Officer Marquez with petitioner’s cell phone number.

3. Officer Marquez did not seek to interview the neighbor, but spoke by telephone with petitioner. Petitioner, a Postal Service employee, told Officer

4

Marquez that he was “out on the route” in Robbins, Illinois. Officer Marquez asked petitioner to go to the Robbins police department and wait for her to make the 30 mile trip to Robbins.

4. Petitioner waited at the Robbins police station for about an hour and a half until Officer Marquez arrived. Upon her arrival, Officer Marquez spoke with Robbins Police Captain Kohn, who told Marquez that petitioner had been “seen earlier that morning, approx. 7:30 a.m., by one of his Officers.” (App., infra, at 4a.) Officer Marquez did not conduct any further investiga-tion; she placed petitioner under arrest and transported him to Lisle, Illinois.

5. Later that afternoon, Officer Marquez tele-phoned Robinson and left a message on her answering machine that petitioner would be released unless Robinson signed criminal complaints. Robinson did not respond to the telephone message. Nor did Robinson respond when another police officer went to her apart-ment that day.

6. Officer Marquez then signed criminal complaints charging plaintiff with criminal damage to property, trespass to residence, and two counts of domestic battery. Officer Marquez signed the complaints for the latter two offenses even though Robinson had not said anything about trespass to residence or battery. (App., infra, at 3a.)

7. Petitioner was held in custody on the complaints signed by Officer Marquez for two nights before he posted bond. Thereafter, plaintiff retained counsel and the case was dismissed after petitioner made several court appearances.

5

8. The District Court granted Officer Marquez’ mo-tion for summary judgment, applying Seventh Circuit precedent to hold that Robinson’s report that she (or a neighbor) had seen petitioner kick in her door, and that she had seen petitioner running from the scene, pro-vided probable cause to arrest for the damage to the door. (Appendix, supra, at 14a.) The district judge also followed the Seventh Circuit’s rule that Section 1983 does not provide a remedy in the nature of malicious prosecution if state law recognizes tort claims for malicious prosecution. Id.

9. On appeal, the Seventh Circuit followed its earli-er decision in Woods v. City of Chicago, 234 F.3d 979 (7th Cir. 2000) that whether a misdemeanor offense had occurred in the officer’s presence was not relevant to the reasonableness of a warrantless arrest. (App., infra, at 5a.) In the view of the Court of Appeals, all that the officer required to make a warrantless arrest for a non-felony offense that had not been committed in her presence was an oral report from “[a]n apparently credible victim who knows the defendant and identifies him as the perpetrator.” Id. The Seventh Circuit ex-pressly held that “[m]ore investigation, although possi-ble, was not required by the Fourth Amendment.” (App., infra, at 7a.) Thus, the officer was not required to look into a report from another police officer that petitioner had been delivering mail for the United States Postal Service on the day the offense had been committed 30 miles away from the scene of the alleged misdemeanor offense. (App., infra, 5a.) The Court of Appeals applied its rule that while “investigating officers cannot ignore what they dig up … the Fourth Amendment lets then stop digging when they uncover

6

information yielding probable cause.” (Appendix, infra, at 7a.)

10. Petititioner asked the Seventh Circuit to recon-sider its holding in Ray v. City of Chicago, 629 F.3d 660 (7th Cir. 2011) that Section 1983 does not provide a remedy in the nature of malicious prosecution. (Appen-dix, infra, at 10a.) The Court of Appeals declined this request, reaffirming its view “that neither the Fourth nor Fourteenth Amendments supply remedies for post-arrest prosecutorial injuries, like maliciously compelled court appearances, unless state law provides no tort remedy for malicious prosecution.” (Appendix, infra, at 10a.)

REASONS FOR GRANTING THE PETITION

In Gramenos v. Jewel Companies, Inc., 797 F.3d 432 (7th Cir. 1986), Judge Easterbrook correctly observed that this Court “has not spoken on the question” of whether the report of an eyewitness to a non-felony offense is enough to authorize a warrantless arrest. Absent guidance from the Court, the lower federal courts have developed a confusing and contradictory set of rules about when a police officer may arrest without a warrant for a misdemeanor offense that had not been committed in his (or her) presence. This case provides the Court with an opportunity to clarify this area of the law and to honor the framers’ view that a peace officer may not make an arrest without a warrant for a misde-meanor offense that had not occurred in the officer’s presence.

This case also provides the Court with an opportuni-ty to resolve the conflict between the circuits on wheth-er an action for malicious prosecution may be brought under 42 U.S.C. § 1983. The Court acknowledged this

7

unresolved question in Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007). The Seventh Circuit stands alone in its view that a Section 1983 action for malicious prosecu-tion fails if state law recognizes that common law tort. Petitioner’s Section 1983 malicious prosecution claim would be actionable in the Second, Third, Fourth, Sixth, Eighth, Ninth, Tenth, Eleventh and District of Colum-bia Circuits.1 The Court should resolve this important conflict.

A. The Report of an an Alleged Eyewitness to a Misdemeanor Offense Is Not Enough to Authorize a Warrantless Arrest

When the Fourth Amendment was adopted, a peace officer could lawfully make an arrest for a non-felony only when the offense had been committed in his pres-ence. Carroll v. United States, 267 U.S. 132, 156 (1925). This rule was “firmly established at the time of the adoption of the Fourth Amendment,” Tropiano v. United States, 334 U.S. 699, 713 (1948) (Vinson, C.J., dissenting), and has been retained in more than 25 federal statutes.2 The Court has yet to answer the

1 The cases are discussed infra at 11-13. 2 8 U.S.C. § 1357(a)(2) (Immigation Officer authorized to arrest any alien who in his presence or view is entering or attempting to enter the United Station); 16 U.S.C. § 1a-6(b)(1) (National Park officer authorized to arrest without a warrant for any offense against the United States committed in his presence); 16 U.S.C. § 559c(3) (Forest Service officer may arrest without warrant or process for misdemeanor violations “being committed in his presence or view”); 16 U.S.C. § 706 (employee of the Department of Interior may “ arrest any person committing a violation of this subchapter

footnote continued on next page

8

question of “whether the Fourth Amendment entails an ‘in the presence’ requirement for purposes of misde-meanor arrests.” Atwater v. City of Lago Vista, 532

(footnote continued from preceding page) in his presence or view”); 16 U.S.C. § 727(a)(1) (same); 16 U.S.C. § 959(d)(1) (Coast Guard officer authorized to arrest for offenses committed “in his presence or view”); 16 U.S.C. § 971F(a)(2) (same); 16 U.S.C. § 1172(d)(1) (same); 16 U.S.C. § 1377(d)(1) (same); 16 U.S.C. § 1540(e)(3) (same); 16 U.S.C. § 1861(b)(2) (same); 16 U.S.C § 3375(b) (arrest for non-felony wildlife violations without warrant only when “committed in the person’s presence”); 16 U.S.C. § 5506(c)(2) (warrantless arrest for non-felony offense involving fisheries or other marine resources only if “committed in his presence”); 18 U.S.C. § 3052 (FBI agents may “make arrests without warrant for any offense against the United States commit-ted in their presence”); 18 U.S.C. § 3056(c)(1)(C) (Secret Service agents may “make arrests without warrant for any offense against the United States committed in their presence); 18 U.S.C. § 3061(a)(2) (Postal Inspectors may arrest without warrant “for offenses against the United States committed in their presence”); 18 U.S.C. § 3063(a)(3)(A) (same for EPA officers); 19 U.S.C. § 1589a(3) (same for Custom Officers); 21 U.S.C. § 372(e)(4) (same for officers enforcing food and drug laws); 21 U.S.C. § 878(a)(3)(A) (same for DEA officers); 22 U.S.C. § 1978(f)(4)(A) (same for Treasury Agents for importation of goods); 22 U.S.C. § 2709(a)(5) (same for Department of State Police); 25 U.S.C. § 2803(3)(A) (same for Bureau of Indian Affairs police); 26 U.S.C. § 7608(a)(3) (same for IRS agents); 28 U.S.C. § 566(d) (same for United States Marshalls); 33 U.S.C. § 452 (maritime violations, “no person shall be arrested without process for any offense not committed in the presence of the supervisor or his inspector or deputy inspectors, or either of them); and 49 U.S.C. § 44903(d)(2) (Air Transportation Security Officers authorized “to make arrests without warrant for an offense against the United States committed in the presence of the individual).

9

U.S. 318, 341 n.11 (2001). This case provides the Court with an appropriate vehicle to resolve this question and hold that the report of an eyewitness to a non-felony offense is not enough to authorize a warrantless arrest.

The common law rule is illustrated by Coupey v. Henley, 2 Esp. 540, 170 Eng.Rep. 448 (C.P.1797). There, one of the participants in a scuffle had complained to constables, who “without any warrant or other authori-ty” arrested the plaintiff. The officers had not wit-nessed the incident. In directing a verdict for the plaintiff in a false arrest case, the Court stated as black letter law that “a constable is not warranted to take a person into custody for a mere assault, unless he is present at the time, and interposes with a view to prevent a breach of the peace.”

The Seventh Circuit rejected the common law rule in Woods v. City of Chicago, 234 F.3d 979, 991-95 (7th Cir. 2000), holding that whether an offense had been com-mitted in the presence of the arresting officer is irrele-vant to whether an arrest without warrant had been reasonable under the Fourth Amendment. The Fifth Circuit reached the same result in Fields v. City of South Houston, Texas, 922 F.2d 1183, 1189 (5th Cir. 1991).

The Sixth Circuit also follows this view, relying on Justice White’s dissenting opinion in Welsh v. Wiscon-sin, 466 U.S. 740, 756 (1984). United States v. Smith, 73 F.3d 1414, 1416 (6th Cir. 1996). The Sixth Circuit, however, has fashioned a “duty to investigate” which serves the same purpose as the common law “in the presence of” requirement.

10

In Gardenhire v. Schubert, 205 F.3d 303 (6th Cir. 2000), the Sixth Circuit considered a hypothetical remarkably similar to the facts of this case:

Consider the following situation: a woman flags down a police officer and points out a Porsche being driven by a young man, which the woman claims is her car and which has been stolen by the man. Would the officer have probable cause to arrest the Porsche's driver at that point?

Gardenhire v. Schubert, 205 F.3d at 317.

The Sixth Circuit held that this information fell short of providing probable cause to arrest, but would have justified “a brief investigatory detention” and further investigation. Gardenhire, 205 F.3d at 317.

The Ninth Circuit has also rejected the common law “in the presence of” rule. Alford v. Haner, 446 F.3d 935, 937 n.2 (9th Cir. 2006). That Court, however, like the Sixth Circuit, has also fashioned a “duty to investigate.” The rule in the Ninth Circuit is that “[i]n establishing probable cause, officers may not solely rely on the claim of a citizen witness that [s]he was a victim of a crime, but must independently investigate the basis of the witness’ knowledge or interview other witnesses.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001); Hopkins v. Bonvicino, 573 F.3d 752, 767 (9th Cir. 2009).

The Seventh Circuit has repeatedly rejected any “duty to investigate” when a civilian reports to an officer that he (or she) has witnessed the commission of a misdemeanor. The Seventh Circuit’s rule, which it applied in this case, is that such a report furnishes probable cause to arrest (App., infra, at 5a), and

11

“[o]nce there is probable cause, pre-arrest investigation may cease.” (App., infra, at 6a.)

In Maryland v. Pringle, 540 U.S. 366 (2003), the Court carefully phrased its summary of an officer’s power to make a warrantless arrest to avoid ruling on the viability of the common law “in the presence of” rule: “A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause.” The Court used the same careful language in Virginia v. Moore, 553 U.S. 164 (2008): “[W]hen an officer has probable cause to believe a person commit-ted even a minor crime in his presence, the balancing of private and public interests is not in doubt.” Id. at 171. Certiorari should be granted in this case to resolve this important question.

B. Section 1983 and Malicious Prosecution

Petitioner’s Section 1983 malicious prosecution claim would be actionable in the Second, Third, Fourth, Sixth, Eighth, Ninth, Eleventh and District of Columbia Circuits.3

3 Manganiello v. City of New York, 612 F.3d 149, 160-61 (2nd Cir. 2010); McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009); Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005); Sykes v. Anderson, 625 F.3d 294, 308-10 (6th Cir. 2010); Moran v. Clarke, 296 F.3d 638, 646 (8th Cir. 2002) (en banc); Awabdy v. City of Adelanto, 368 F.3d 1062, 1068-69 (9th Cir. 2004); Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003); Pitt v. District of Columbia, 491 F.3d 494 (D.C.Cir. 2007).

12

The Seventh Circuit applied its contrary rule in this case, holding that an action in the nature of malicious prosecution may not be brought under 42 U.S.C. § 1983 because Illinois law recognizes tort claims for malicious prosecution. (App., infra, 8a-10a.) This rule was first announced in Newsome v. McCabe, 256 F.3d 747, 750- 51 (7th Cir. 2001) (App., infra, at 9a), and has not been followed by any other circuit.

The Court of Appeals for the Second and Eleventh Circuit recognize a Section 1983 action in the nature of malicious prosecution when the plaintiff can show a violation of the Fourth Amendment plus each of the elements of malicious prosecution under state law. Manganiello v. City of New York, 612 F.3d at 160-61; Wood v. Kesler, 323 F.3d at 881.

The Third, Fourth, Sixth, Ninth, and District of Co-lumbia Circuits do not tie a Section 1983 malicious prosecution claim to the common law tort.

In the Third Circuit, “[t]o prevail on a malicious prosecution claim under section 1983, a plaintiff must show that: (1) the defendants initiated a criminal pro-ceeding; (2) the criminal proceeding ended in the plain-tiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” McKenna v. City of Philadel-phia, 582 F.3d 447, 461 (3d Cir. 2009)

The Fourth Circuit does not require malice, but de-mands a showing that the defendant “seized [plaintiff] pursuant to legal process that was not supported by probable cause and that the criminal proceedings [have]

13

terminated in [plaintiff's] favor.” Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005) citing Brooks v. City of Winston-Salem, 85 F.3d 178, 183-84 (4th Cir. 1996).

In the Sixth Circuit, the plaintiff must show that the defendant had been involved in the decision to prose-cute without probable cause, that there was a depriva-tion of liberty within the Fourth Amendment, and resolution of criminal case in favor of plaintiff. Sykes v. Anderson, 625 F.3d 294, 308-10 (6th Cir. 2010).

The rule in the Ninth Circuit is that a “§ 1983 mali-cious prosecution plaintiff must prove that the defen-dants acted for the purpose of depriving him of a specific constitutional right.” Awabdy v. City of Adelan-to, 368 F.3d 1062, 1068-69 (9th Cir. 2004)

In the District of Columbia, “malicious prosecution is actionable under 42 U.S.C. § 1983 to the extent that the defendant's actions cause the plaintiff to be unreasona-bly ‘seized’ without probable cause, in violation of the Fourth Amendment.” Pitt v. District of Columbia, 491 F.3d 494, 511 (D.C.Cir. 2007).

Petitioner was seized without probable cause when he was held for two days before posting bond on the complaints signed by Officer Marquez as the complain-ing witness. Petitioner should be entitled to the same federal remedy in Illinois that he could obtain had he been maliciously prosecuted in Virginia. The Court recognized this unresolved question in Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007) and should grant certiorari to review the conflict among the circuits.

14

CONCLUSION

It is therefore respectfully submitted that the peti-tion for writ of certiorari should be granted.

November, 2011 Kenneth N. Flaxman 200 S Michigan Avenue Suite 1240 Chicago, Illinois 60604 (312) 427-3200 Attorney for Petitioner

1a

APPENDIX A

United States Court of Appeals For the Seventh Circuit

No. 11-1350

CHESTER NELSON, Plaintiff-Appellant,

v.

VILLAGE OF LISLE, ILLINOIS, and JENNIFER MARQUEZ,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 09-cv-5033—Gary Feinerman, Judge.

Argued August 2, 2011—Decided August 22, 2011

Before Wood, Sykes, and Hamilton Circuit Judges.

In this action under 42 U.S.C. § 1983, Chester Nelson claims that police officer Jennifer Marquez, working for the Village of Lisle, Illinois, falsely arrested and mali-ciously prosecuted him for criminal destruction of prop-erty, trespass to residence, and battery. He appeals the district court’s grant of summary judgment to Officer Marquez and the Village, and he raises two issues. We affirm. The arrest was supported by probable cause, and this court does not recognize federal claims for ma-licious prosecution in states whose law, like that of Illi-nois, provides an available tort remedy.

2a

I. The Facts and Procedural Background

The villages of Lisle and Robbins, Illinois, sit some 30 miles apart. During the events underlying this § 1983 action, Nelson lived and worked as a mail carrier in Robbins. His ex-girlfriend, Chaunte Robinson, lived in Lisle. On Saturday, October 11, 2008, Robinson made a 911 call accusing Nelson of trying to break into her apartment. We recount the evidence of the 911 call and its aftermath in the light most favorable to Nelson, who lost on summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

Robinson made her emergency call some time around 10 a.m., explaining to a Lisle dispatcher that an ex-boyfriend who lived in Robbins had just kicked her door in and had run off. She warned that he had threatened her before. Robinson added that she saw him “running towards the Lisle Metra [commuter train] station.” Al-though Robinson later testified in her deposition that she never actually saw Nelson at the scene, she admit-ted telling both the dispatcher and Officer Marquez (who arrived soon after her call) that she saw him run-ning away. Robinson also told the dispatcher that she last saw Nelson about twenty minutes before calling, which means that the break-in ended around 9:40 a.m.1

Officer Marquez drove to Robinson’s apartment in response to the dispatcher’s message that a caller at that address delayed calling “about 20 minutes” and was now “advising [that] her ex-boyfriend kicked in her front door. He took off on foot, last seen heading

1 The record is murky on whether it was the call or the break-in that happened at 10 a.m. If the break-in happened then, the call must have happened around 10:20. The difference is not material; either time-line is consistent with our decision today.

3a

towards the train. Last seen on foot heading towards the Metra. . . . He does own a .38 caliber handgun; unknown if he has that with him. . . . [but] he has made threats against the [caller’s] life in the past.” At the scene, Officer Marquez observed wood splinters lying about the floor near Robinson’s apartment door, and she saw that the lock was broken off from its casing. The apartment appeared to her to have been ransacked. The record contains conflicting evidence about what Robinson told Officer Marquez. In the officer’s words, Robinson told her when she arrived that Robinson’s “ex-boyfriend had kicked in the door of her place, stolen some money, threatened her, and pushed her.” According to a sworn declaration that Robinson signed after her deposition, she never said anything to Officer Marquez about theft, threats, or pushing. At this stage of the litigation, we must treat Robinson’s version as true. In the same declaration, Robinson said that she told Officer Marquez that a neighbor (and not she) had seen Nelson kicking in her door.

Armed with information from the dispatcher and Robinson that Nelson had kicked in Robinson’s door, supplemented with her own observations of the proper-ty damage, Officer Marquez used a telephone number Robinson gave her to call Nelson. According to Nelson’s deposition testimony, he took the call on his cell phone around 11:15 or 11:20 a.m., more than an hour after the alleged break-in. Nelson told Officer Marquez he was out on his mail delivery route in Robbins. The driving time between Lisle and Robbins is about 45 minutes. Driving Directions from Lisle, IL, to Robbins, IL, GOOGLE MAPS, http://maps.google.com (follow “Get Directions” hyperlink; then search “A” for “Lisle, IL” and search “B” for “Robbins, IL”; then follow “Get Di-

4a

rections” hyperlink). Officer Marquez asked Nelson to report to the Robbins police station.

About five minutes later Nelson appeared at the Robbins station. Officer Marquez drove from Lisle to Robbins, where she arrested Nelson. Just before the arrest, she spoke with a Robbins police captain who re-ported that another Robbins officer knew Nelson and had seen him in town at 7:30 a.m. Officer Marquez re-sponded that the crime had happened later in the morn-ing. Officer Marquez arrested Nelson and took him to Lisle, where she signed complaints charging him with criminal damage to property, trespass to residence, and two counts of domestic battery. The latter counts stemmed from Nelson’s alleged theft of money from the apartment and shoving of Robinson, events that Robin-son now maintains Officer Marquez fabricated. Two days later, Nelson was released on bond from jail. The charges against him were eventually dropped.

Nelson sued Officer Marquez and the Village of Lisle under 42 U.S.C. § 1983, claiming false arrest in violation of the Fourth and Fourteenth Amendments, malicious prosecution in violation of the same Amendments, and, with the help of supplemental jurisdiction under 28 U.S.C. § 1367, malicious prosecution under Illinois law. After discovery, the defendants moved for summary judgment. The district court granted the motion, con-cluding in relevant part that Officer Marquez had prob-able cause to arrest Nelson for criminal damage to property (thus defeating any claim of false arrest), and that the availability of an Illinois-law remedy for mali-cious prosecution made a parallel federal claim unavail-able. The court also relinquished jurisdiction over the state-law claim.

5a

II. Analysis

On appeal Nelson argues, first, that the district court erred in concluding that probable cause made reasona-ble his warrantless arrest for a misdemeanor crime that happened outside Officer Marquez’s presence. Except for arrests in the home, which generally require a war-rant, Woods v. City of Chicago, 234 F.3d 979, 991-95 (7th Cir. 2000), probable cause to arrest a suspect for any offense, even one occurring outside the officer’s presence, bars liability for false arrest, Brooks v. City of Aurora, — F.3d —, —, 2011 WL 2623507, at *5 (7th Cir. July 6, 2011); Stokes v. Board of Education of City of Chicago, 599 F.3d 617, 622 (7th Cir. 2010); McBride v. Grice, 576 F.3d 703, 707 (7th Cir. 2009). And probable cause to arrest requires no more than a reasonable chance – less than a 50 percent likelihood can be suffi-cient – that a crime occurred and the suspect committed it. Mucha v. Village of Oak Brook, ___ F.3d ___, ___ 2011 WL 489617, at *3 (Feb. 14, 2011); Purvis v. Oest, 614 F.3d 713, 722-23 (7th Cir. 2010). An apparently credible victim who knows the defendant and identifies him as the perpetrator will typically suffice for probable cause. McBride, 576 F.3d at 707; Beauchamp v. City of Noblesville, 320 F.3d 733, 743 (7th Cir. 2003); Woods, 234 F.3d at 996.

Here, Robinson fulfilled that role. Maintaining to both the dispatcher and Officer Marquez that Nelson victimized her by knocking down her door, she told Of-ficer Marquez that she had seen Nelson running away from her apartment (where the officer found a shat-tered door), and explained that she knew him from a dating relationship. That identification gave Officer Marquez a tip that fits the model for tips sufficient to support probable cause, even if later evidence showed that Robinson might be an unreliable trial witness. See

6a

Woods, 234 F.3d at 997 (discussing “questionable” vic-tim narratives that yielded probable cause in previous cases, despite other evidence that could be used to im-peach the victim’s credibility).

Nelson counters that Officer Marquez knew he had an airtight alibi, which defeated probable cause: A po-lice officer had seen Nelson in Robbins at 7:30 that morning; 30 miles is a long trip; and Nelson was there-fore unlikely to have made it from Robbins to Lisle when the break-in occurred, let alone returned to Rob-bins by 11:20. But these contentions suggest at most that it would have been inconvenient for Nelson to break into Robinson’s apartment, not that Robinson’s story was implausible; the alibi is hardly airtight. Nel-son himself had told Officer Marquez that he was work-ing his postal route, thereby suggesting to her that he probably was driving a vehicle. Thus, Officer Marquez could reasonably surmise that Robinson could make the 45-minute trip to Lisle in the two-plus hours between 7:30 and the break-in around 9:40, and return by 11:20, over an hour and a half later (or an hour and a quarter later if the break-in ended around 10:00).

Still, Nelson insists, the Fourth Amendment imposed on Officer Marquez a duty to investigate the possibility that he was at work all morning and exclude the possi-ble alibi, perhaps by seeking coworkers and townspeople to ask about his whereabouts. Yet police need not investigate every potentially exculpatory de-tail. Once there is probable cause, pre-arrest investiga-tion may cease. Stokes, 599 F.3d at 624; McBride, 576 F.3d at 707. Police may not ignore “conclusively estab-lished” evidence that defeats probable cause, McBride, 576 F.3d at 707, or “clearly exculpatory facts,” Stokes, 599 F.3d at 624, but a police officer’s sighting of Nelson in Robbins two or more hours before the alleged break-

7a

in and Nelson’s appearance in Robbins more than an hour after the crime were not conclusive evidence of innocence. More investigation, although possible, was not required by the Fourth Amendment.

One thread running through Nelson’s arguments is his criticism of this court’s jurisprudence on the duty to investigate. He points, for instance, to the tension he sees between twin admonitions in McBride that an of-ficer “may not close his eyes to facts that would clarify the situation,” but that “once an officer has established probable cause, he may end his investigation.” 576 F.3d at 707. On closer inspection, the tension dissipates: The first part of the sentence explains that investigating of-ficers cannot ignore what they dig up, while the second says that the Fourth Amendment lets them stop dig-ging when they uncover information yielding probable cause. There is no need here to revisit McBride and similar cases.

Furthermore, because the strength of Robinson’s identification is not diminished by Nelson’s “alibi” evi-dence, his case would provide a poor vehicle for recon-sidering this line of cases on the absence of a duty to continue to investigate after obtaining probable cause. Even under the cases from other circuits that Nelson cites, Officer Marquez would not be required to investi-gate further. In Russo v. City of Bridgeport, 479 F.3d 196, 200 (2d Cir. 2007), for instance, the victim did not know the suspect personally and the police refused to watch a gas-station surveillance video during the sus-pect’s 217-day detention that showed a robber whose physical appearance exculpated the suspect. In Kingsland v. City of Miami, 382 F.3d 1220, 1230-31 (11th Cir. 2004), when arresting a driver for intoxica-tion, the police ignored the fact that the arrestee’s head trauma and other injuries from a car crash explained

8a

the results of the field-sobriety test. Finally, in Sevigny v. Dicksey, 846 F.2d 953, 955 (4th Cir. 1988), a police of-ficer flatly arrested a mother without probable cause for either of the two crimes advanced in court (child abuse or property damage). The officer’s failure to in-vestigate contributed to the problem, but the real issue lay in the total absence of probable cause. Here, by con-trast, Robinson knew Nelson well and placed him at the scene of a break-in. Officer Marquez did not ignore the evidence of a supposed alibi based on Nelson’s earlier presence in Robbins, but considered it and reasonably determined that the timing of Nelson’s appearances in Robbins was consistent with his having committed the crime in Lisle.

Next, Nelson argues that even if his claim of false ar-rest fails, his federal claim for malicious prosecution should survive under the due process clause of the Fourteenth Amendment, at least as to the battery counts. That contention is based on an inference Nelson draws from Robinson’s declaration that Officer Mar-quez lied about Nelson’s shoving of Robinson when she signed the misdemeanor complaints. (He may also be arguing that the basis for the trespass charge was fa-bricated; he focuses, however, on battery.) Nelson’s ar-gument is foreclosed by Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011). In Ray we upheld the dis-missal of a claim that police officers violated the Four-teenth Amendment by fabricating drug charges for a suspect validly arrested for a traffic offense, and there-by maliciously prosecuted him. Because Illinois law al-ready provides a remedy for malicious prosecution, see Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996), state law affords falsely accused suspects all the process they are due under the Fourteenth Amendment. Ray,

9a

629 F.3d at 664; Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001).

Apart from the Fourteenth Amendment due process theory, Nelson contends that the Fourth Amendment offers an independent source of malicious-prosecution liability for fabricated charges. But as Ray confirms, the Fourth Amendment governs only searches and sei-zures, not post-arrest, pre-trial proceedings like the court appearances compelled by criminal charges. See Ray, 629 F.3d at 664; Bielanski v. County of Kane, 550 F.3d 632, 638, 642-43 (7th Cir. 2008); see also Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir. 2004) (re-jecting “continuing seizure” approach to Fourth Amendment claims based on post-arrest events). Nel-son’s two day jail stint was an incident of his arrest, which was supported by probable cause to charge him with property damage. Limited to two days, and absent any evidence that the police in fact prolonged his deten-tion on the property-damage and trespass charges with the allegedly gratuitous battery charges, the jail time did not exceed constitutional bounds. See County of Ri-verside v. McLaughlin, 500 U.S. 44, 56-58 (1991); Gers-tein v. Pugh, 420 U.S. 103, 125 (1975); Haywood v. City of Chicago, 378 F.3d 714, 717 (7th Cir. 2004).

We acknowledge the possibility that the battery charges increased the bond amount that Nelson had to pay for his release, and that he might have posted bond earlier if the amount had been lower. (Nelson’s bail was set at $3,000 on the day after his arrest; his mother posted a 10 percent bond the next day.) But Nelson has pointed to no evidence of the likely bail amount for a standalone charge of property damage, and he has not substantiated how much faster he and his mother could have posted the bond for such a lower amount.

10a

Recognizing that Ray rejects claims against police under the Fourth Amendment for malicious prosecu-tions, Nelson argues that Ray is an unreasoned exten-sion of its predecessors that deserve a fresh look. This court previously refused, in opinions like Johnson v. Saville, 575 F.3d 656, 663-64 (7th Cir. 2009), and Parish v. City of Chicago, 594 F.3d 551, 554 (7th Cir. 2009), to foreclose Fourth Amendment claims of malicious prose-cution for injuries arising from a malicious arrest. Ray is consistent with this case law. It merely confirms that neither the Fourth nor Fourteenth Amendments supply remedies for post-arrest prosecutorial injuries, like ma-liciously compelled court appearances, unless state law provides no tort remedy for malicious prosecution. Ray, 629 F.3d at 664. But like the case law that preceded it, Ray does not bar a claim that an arrest itself was mali-cious, at least if the arrest was not supported by proba-ble cause. Nonetheless, plaintiffs who claim under the Fourth Amendment that an arrest lacks probable cause should probably eschew the phrase “malicious prosecu-tion,” which adds nothing but confusion. See Tully v. Barada, 599 F.3d 591, 595 (7th Cir. 2010); Newsome, 256 F.3d at 751.

On appeal Nelson offers no theory of municipal liabil-ity for the defendant Village of Lisle under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), and at all events the Village is free from liability because its agent has done no constitutional wrong. See Bielanski, 550 F.3d at 645. Finally, because Nelson does not independently challenge the district court’s relin-quishment of supplemental jurisdiction over his state-law claim for malicious prosecution, we also leave that portion of its decision intact.

The judgment is AFFIRMED.

11a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Chester Nelson, ) )

Plaintiff, ) ) No. 09 C 5033

-vs- ) ) (Judge Feinerman) Village of Lisle and Lisle Police Officer Jennifer Marquez

) ) )

Defendants. )

MEMORANDUM OPINION AND ORDER

In this action, Plaintiff Chester Nelson brings (a) false arrest and malicious prosecution claims against Lisle Police Officer Jennifer Marquez under the Fourth and Fourteenth Amendments to the United States Constitution and (b) a malicious prosecution claim against the Village of Lisle under Illinois law. Defen-dants have moved for summary judgment, and Nelson has moved to strike certain paragraphs of Defendants’ Local Rule 56.1 statement of undisputed facts. For the following reasons, Marquez is entitled to summary judgment on the federal constitutional claims, the state law claim against the Village is dismissed without pre-judice, and Nelson’s motion to strike is denied as moot.

The following material facts are undisputed or not reasonably subject to dispute, or reflect Nelson’s ver-sion of the relevant events; none of the facts is impli-cated by Nelson’s motion to strike. On October 11, 2008, Chaunte Robinson dialed 911 and told dispatch that her

12a

ex-boyfriend had kicked in the door of her apartment. (Doc. 36 at 2, ¶ 10). The dispatcher provided the follow-ing information to Officer Marquez:

It occurred at 597 Ogden, 5-9-7 Ogden, Apart-ment 4, the 17 is advising her ex-boyfriend kicked in her front door. He took off on foot, last seen heading towards the train. Last seen on foot heading towards the Metra. He is male black, 40’s gray and black jacket with blue jeans. Male black 40’s gray and black jacket with blue jeans. He does own a .38 caliber handgun; unknown if he has that with him. And he has made threats against the 17’s life in the past.

(Doc. 42, ¶ 1). Marquez then went to Robinson’s apart-ment, where Robinson reported “that my downstairs neighbor, whose name I believe is ‘Rick,’ told me that my boyfriend had kicked my door.” (Doc. 36 at 6, ¶ 3). Robinson also told Marquez that she “believed that [she] had seen Chester Nelson running away from my building as [she] returned from the store.” (Id. at 13, ¶ 9). While at the apartment, Marquez saw that the door had been kicked in, that there were wood splinters on the floor, and that the lock had been broken off the cas-ing. (Doc. 32, ¶ 27 (citing Doc. 32-5 at 26, lines 3-5)). Shortly thereafter, Marquez spoke by telephone with Nelson and asked him to report to the police station in Robbins, Illinois, where Marquez placed him under ar-rest; Marquez later signed misdemeanor criminal com-plaints charging Nelson with criminal damage to property, criminal trespass to residence, and two counts of domestic battery. (Doc. 36 at 7-8, ¶¶ 10-15, 19). The charges ultimately were dismissed. (Doc. 42 at 4, ¶ 21).

13a

Summary judgment is warranted on Nelson’s false arrest claim. “Probable cause is an absolute bar to a claim of false arrest asserted under the Fourth Amendment and section 1983.” Stokes v. Bd. of Educ. of City of Chicago, 599 F.3d 617, 622 (7th Cir. 2010). “Probable cause exists if, at the time of the arrest, the facts and circumstances within the defendant’s know-ledge are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed … an offense.” Ibid.

At the time she placed Nelson under arrest, and based on the facts set forth above, Marquez possessed sufficient information to cause a prudent person to be-lieve that Nelson had committed criminal damage to property and criminal trespass to residence. From the dispatcher, Marquez knew that Robinson had reported that her ex-boyfriend had kicked in her door and that he had taken off on foot. Marquez then heard directly from Robinson (a) that a neighbor had told her that her ex-boyfriend had kicked in her door and (b) that Robinson saw Nelson running from the scene. Marquez also ob-served physical evidence of the damage. Because Mar-quez had probable cause to believe that Nelson had committed criminal damage to property and criminal trespass to residence, see Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir. 2000) (“we have consistently held that an identification or a report from a single, credible victim or eyewitness can provide the basis for probable cause”); United States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001) (“police officers are entitled to rely on the reasonable information relayed to them from a police dispatcher”), it is not necessary to determine whether Marquez also had probable cause to arrest Nelson for domestic battery. See Holmes v. Vill. of Hoffman Es-

14a

tates, 511 F.3d 673, 682 (7th Cir. 2007) (“probable cause to believe that a person has committed any crime will preclude a false arrest claim, even if the person was ar-rested on additional or different charges for which there was no probable cause”). And because the arrest, as a matter of law, did not violate the Fourth Amendment, it also is unnecessary to reach Marquez’s argument that she is entitled to qualified immunity. See Jones v. Wat-son, 106 F.3d 774, 781 (7th Cir. 1997).

Nelson submits that his false arrest claim survives because the Fourth Amendment prohibits a police offic-er from making a warrantless arrest for a misdemeanor offense not committed in the officer’s presence. As Nel-son candidly (and admirably) recognizes, however, bind-ing Seventh Circuit precedent forecloses that submission. See Woods, 234 F.3d at 992-95 (holding that the Fourth Amendment does not incorporate the com-mon law “in the presence” rule for misdemeanor ar-rests) (citing cases); see also Moton v. Protine, 2004 WL 609312, at *6 (N.D. Ill. Mar. 25, 2004).

Marquez also is entitled to summary judgment on Nelson’s federal malicious prosecution claim. The Se-venth Circuit repeatedly has held that a plaintiff may bring a malicious prosecution claim under the federal constitution only if “the relevant state’s law does not provide … a way to pursue such claims,” that Illinois law “recognizes tort claims for malicious prosecution,” and therefore that a plaintiff alleging malicious prosecu-tion in Illinois may not bring a federal malicious prose-cution claim under 42 U.S.C. § 1983. Ray v. City of Chicago, ___ F.3d ___, No. 09-3719 (7th Cir. Jan. 5, 2011), slip op. at 7-8; see also Parish v. City of Chicago, 594 F.3d 551, 552 (7th Cir. 2009). These precedents de-feat Nelson’s federal malicious prosecution claim.

15a

That leaves Nelson’s state law malicious prosecution claim against the Village. Because Nelson and the Vil-lage are not diverse, both being Illinois citizens, only supplemental jurisdiction lies over that claim. See 28 U.S.C. § 1367(a). But because summary judgment has been granted against Nelson on all his federal claims, the court in its discretion may decline to exercise sup-plemental jurisdiction over the state law claim. See 28 U.S.C. § 1367(c)(3) (“[t]he district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—the district court has dismissed all claims over which it has original jurisdiction”); Groce v. Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999) (“it is the well-established law … that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial”); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995); Brazinski v. Amoco Petroleum Addi-tives Co., 6 F.3d 1176, 1182 (7th Cir. 1993).

The court opts for that course here. As an initial mat-ter, substantial federal judicial resources have not yet been committed to Nelson’s state law claim. See Davis v. Cook Cnty., 534 F.3d 650, 654 (7th Cir. 2008). While it would be simple enough to grant summary judgment to the Village on Nelson’s malicious prosecution claim as it pertains to the criminal damage to property and crimi-nal trespass charges—Illinois law makes probable cause to believe that the plaintiff committed a crime an “abso-lute bar” to malicious prosecution for charging the plaintiff with that crime, Holmes, 511 F.3d at 682—that finding alone would not preclude Nelson from proceed-ing on his claim as it pertains to the domestic battery charges. See ibid. (distinguishing false arrest claims from malicious prosecution claims, in that “probable cause to believe an individual committed one crime …

16a

does not foreclose a malicious prosecution claim for ad-ditionally prosecuting the individual on a separate charge”). The facts regarding the domestic battery charges are less than clear, as the dispatch call received by Marquez reported threats but not an actual battery, and the parties dispute whether Robinson told Marquez that Nelson physically struck her. This lack of clarity provides another reason to decline to exercise supple-mental jurisdiction over the state law claim. See Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir. 1994). Illinois law gives Nelson one year to refile his state law claim in state court. See 735 ILCS 5/13-217; Davis, 534 F.3d at 654.

For the foregoing reasons, Defendants’ summary judgment motion is granted as to Nelson’s federal claims, and Nelson’s state law claim is dismissed with-out prejudice for want of subject matter jurisdiction. Because this disposition does not implicate any of the disputes raised in Nelson’s motion to strike portions of Defendants’ Local Rule 56.1 statement, that motion is denied as moot.

Dated: January 11, 2011

/s/ Gary Feinerman United States District Judge

17a

APPENDIX C

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, or-dinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction the-reof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the pur-poses of this section, any Act of Congress applicable exclusively to the District of Columbia shall be con-sidered to be a statute of the District of Columbia.