Larry Johnson v. Karl Saville ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4314
L ARRY JOHNSON,
Plaintiff-Appellant,
v.
K ARL S AVILLE,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-02187—Amy J. St. Eve, Judge.
A RGUED M AY 28, 2009—D ECIDED JULY 29, 2009
Before E VANS, W ILLIAMS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Karl Saville, an officer of the
Illinois State Police (“ISP”), investigated charges that
Larry Johnson, an employee at an Illinois correctional
facility, had improper sexual relations with an inmate.
The results of Saville’s investigation led an Illinois
State’s Attorney to prosecute Johnson for criminal sexual
assault, but the trial judge found Johnson not guilty.
Following his acquittal, Johnson brought an action
2 No. 08-4314
against Saville under 42 U.S.C. § 1983, asserting a federal
due process claim and a supplemental claim of malicious
prosecution under Illinois law. The district court
granted summary judgment in favor of Saville on both
claims, and, on appeal, Johnson pursues only his
malicious prosecution claim. We affirm because Saville
acted with probable cause when pursuing criminal
charges against Johnson, which is a complete defense
to a malicious prosecution suit.
I. Background
From 1999 to 2004, Johnson worked as a youth super-
visor at the Illinois Youth Center (“IYC”) in Warrenville,
Illinois, a facility maintained by the Illinois Department
of Corrections (“IDOC”). In early September 2003,
Barnett Gill, another IYC youth supervisor, claimed that
a former IYC inmate, “A.M.,” accused Johnson of
improper sexual conduct. According to a report that Gill
prepared for the IYC Warden, A.M. called Gill and told
him that she and Johnson had sexual relations during
her time at the IYC. The IDOC began an investigation
and also referred the matter to the ISP, which assigned
Officer Saville to the case.
On September 6, 2003, IDOC investigators interviewed
A.M., who denied having sex with Johnson. However, in
a subsequent interview with Saville on September 14,
A.M. said that she had consensual sex with Johnson on
the night of December 21, 2002. On that night, A.M. was
working on a cleaning detail outside of her cell, allowing
her to accompany Johnson into a supply room where
No. 08-4314 3
the sexual encounter allegedly occurred. A.M. also told
Saville that Johnson frequently watched her strip for
him from outside of her cell door. Later, at Johnson’s
criminal trial, A.M. explained that she initially denied
having sex with Johnson because the IDOC investigators
scared her and threatened to send her back to the IDOC
if she was dishonest. By contrast, A.M. described Saville
and other ISP officers as non-threatening and “really nice.”
When he interviewed A.M., Saville did not know that
A.M. had previously denied having sex with Johnson to
the IDOC investigators.
Besides A.M.’s statement, Saville uncovered other
evidence of Johnson’s guilt. Saville interviewed A.M.’s cell
mate, “M.V.,” who said that she saw A.M. strip for
Johnson on multiple occasions. “T.M.,” another former
IYC inmate who occupied an adjacent cell, stated that
Johnson regularly stood outside of A.M.’s cell door and
talked to her. Both M.V. and T.M. confirmed that A.M.
told them about the sexual encounter with Johnson, and
several other current and former inmates told ISP officers
that they were aware of rumors of the encounter.
Still another former inmate, “C.C.,” told Saville that
she too had sexual relations with Johnson and stripped
for him.
Saville also obtained the IYC’s shift supervisor log for
the night of December 21, 2002. That log indicated that
A.M. was outside of her cell on a cleaning detail and that
Johnson was working as a supervisor, meaning that
Johnson had access to A.M. on the night in question.
On October 3, 2003, Saville interviewed Johnson, who
denied having sex with A.M. Saville then prepared a
4 No. 08-4314
report for the DuPage County State’s Attorney summariz-
ing the results of his investigation. The report indicated
that, according to the IYC’s records, Johnson was the
only person supervising A.M. on the night in question.
The report also stated that, although Johnson denied
having sex with A.M. during his interview, he confessed
to watching her strip from outside of her cell door.
Johnson denies making that confession.
The State’s Attorney decided to prosecute Johnson,
and Saville arrested Johnson for criminal sexual assault
on May 24, 2004. On June 17, 2004, Saville testified
before a grand jury as to the contents of his report, in-
cluding Saville’s claim that Johnson confessed to
watching A.M. strip. The grand jury returned an indict-
ment against Johnson and the case proceeded to a bench
trial. On December 29, 2005, the trial judge found
Johnson not guilty.
On April 20, 2007, Johnson brought a § 1983 action
against Saville in federal court, claiming that Saville
violated his due process rights under Brady v. Maryland,
373 U.S. 83 (1963), by giving false information to the
State’s Attorney and the grand jury. Johnson’s complaint
also set forth a claim of malicious prosecution under
Illinois law. On October 17, 2008, the district court
granted summary judgment in favor of Saville. The court
held that Johnson’s Brady claim failed because, with
respect to the allegedly false information in Saville’s
report and grand jury testimony, those falsehoods were
within Johnson’s knowledge and therefore not “sup-
pressed” for Brady purposes. The court also held that
No. 08-4314 5
Johnson failed to establish an essential element of his
malicious prosecution claim, that Saville lacked
“probable cause to arrest him.”
On October 29, 2008, Johnson moved the district court
to amend its findings to clarify that, in addition to his due
process and state-law malicious prosecution claims,
Johnson had preserved a malicious prosecution claim
based on the Fourth Amendment. The court denied
the motion, finding that Johnson forfeited his Fourth
Amendment malicious claim by failing to develop it in
his summary judgment brief.
On appeal, Johnson abandons his due process/Brady
claim but argues that the district court erred in
resolving his malicious prosecution claim on summary
judgment. Johnson contends that he has a triable
malicious prosecution claim under both Illinois and
federal law.
II. Analysis
We review de novo the district court’s grant of summary
judgment in favor of Saville, construing the evidence
and all reasonable inferences in favor of Johnson, the non-
moving party. Wheeler v. Lawson, 539 F.3d 629, 633 (7th
Cir. 2008) (citation omitted). Summary judgment is
proper if the evidence shows that there is no genuine
issue of material fact and that the moving party is
entitled to judgment as a matter of law. Id. at 634.
6 No. 08-4314
A. The Probable Cause Element of a Malicious
Prosecution Claim Under Illinois Law
In order to establish a claim of malicious prosecution
under Illinois law, the plaintiff must show “(1) the com-
mencement or continuance of an original criminal or
civil judicial proceeding by the defendant; (2) the termina-
tion of the proceeding in favor of the plaintiff; (3) the
absence of probable cause for such proceeding; (4) the
presence of malice; and (5) damages resulting to the
plaintiff.” Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill.
1996) (quoting Joiner v. Benton Cmty. Bank, 411 N.E.2d
229, 232 (Ill. 1980)). “The absence of any one of these
elements bars a plaintiff from pursuing the claim.” Id.It follows that the existence of probable cause is a “com-
plete defense” to a malicious prosecution suit. Cervantes
v. Jones, 188 F.3d 805, 810-11 (7th Cir. 1999). Probable
cause exists if the “facts and circumstances . . . would
excite the belief, in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he
was prosecuted.” Id. at 811 (quotation omitted); see also
Fabiano v. City of Palos Hills, 784 N.E.2d 258, 266 (Ill.
App. Ct. 2002) (“Probable cause is a state of facts that
would lead a person of ordinary care and prudence to
believe or to entertain an honest and sound suspicion
that the accused committed the offense charged.”).
Courts have often examined whether investigating
officers acted with probable cause when pursuing
criminal charges, making them immune from a malicious
prosecution suit. A common theme in these cases is
No. 08-4314 7
an allegation that officers or other complainants
fabricated the plaintiff’s confession. In Cervantes, a police
officer testified before the grand jury that the plaintiff
had all but confessed to murder, a confession that the
plaintiff denied. Cervantes, 188 F.3d at 808. Accepting
the plaintiff’s version for summary judgment purposes,
we nonetheless concluded that the officer had probable
cause to believe that the plaintiff was guilty of murder.
Id. at 814. An FBI profile of the killer matched the plain-
tiff, the plaintiff had the opportunity to commit the
crime and no corroborated alibi, and a polygraph
test indicated that the plaintiff lied when denying his
involvement in the murder. Id. at 811-13.
Though not an issue in the Cervantes murder case,
the credibility of the victim or complainant is another
common factor in the probable cause analysis. The officers
in Sang Ken Kim v. City of Chicago, 858 N.E.2d 569, 571
(Ill. App. Ct. 2006), took a battery victim’s statement that
her boyfriend attacked her while she was pregnant,
resulting in the death of her fetus. Applauding the
officers for corroborating the victim’s story with
medical evidence and third-party statements, the court
noted that the officers could have relied on the victim’s
statement alone, which is presumed reliable. Id. at 575-76.
Although the victim later recanted her accusation and
the officers had allegedly coerced the boyfriend’s con-
fession, the officers still had “ample probable cause”
to charge the boyfriend with murder. Id. at 578.
Similarly, in Logan v. Caterpillar, Inc., 246 F.3d 912, 926
(7th Cir. 2001), we concluded that the plaintiff’s ex-girl-
8 No. 08-4314
friend had probable cause to file a criminal complaint
accusing the plaintiff of burglarizing her new boy-
friend’s house. The ex-girlfriend received items known
to be stolen from the house in the mail, along with an
anonymous letter that she suspected was written by the
plaintiff. Id. at 917. Those suspicions, combined with
the girlfriend’s knowledge of the plaintiff’s jealousy and
past threats against the new boyfriend, were enough to
establish probable cause as a matter of law. Id. at 926.
The plaintiff’s claim that the girlfriend falsely told
the police that he confessed to breaking into the house
did not preclude summary judgment. Id. at 924, 926.
Contrast Fabiano, 784 N.E.2d at 270, in which the
court found a genuine issue of material fact as to
whether police officers had probable cause to prosecute
a day care provider for sexual abuse. Although several
three- to four-year-old children made accusations
against the plaintiff, those accusations were suspect
because they appeared only after the officers began a 17-
day investigation of the day care center and interviewed
more than 100 children. Id. at 264, 268. Additionally, the
children’s statements lacked specific details, and the
officers failed to corroborate each child’s statement by
comparing it with statements from other children. Id.
at 268.
Comparing the evidence available to Saville in this
case with that in the above cases, we conclude that
Saville had probable cause to believe that Johnson was
guilty of criminal sexual assault. Like the victim in Kim,
A.M. told Saville that Johnson had sex with her, a claim
No. 08-4314 9
that she maintained throughout Johnson’s criminal trial.
This statement from “the putative victim . . . who it
seems reasonable to believe” is ordinarily sufficient to
establish probable cause. Sheik-Abdi v. McClellan, 37 F.3d
1240, 1247 (7th Cir. 1994) (quotation omitted); see also
Kim, 858 N.E.2d at 575 (“Where the victim of the crime
supplies the police with the information forming probable
cause, there is a presumption that this information is
inherently reliable.” (quotation omitted)). Moreover,
“instead of only relying on the presumption that [A.M.’s]
information was reliable,” Kim, 858 N.E.2d at 575, Saville
corroborated A.M.’s story with the statements of two
other inmates that Johnson had sex with A.M. and
watched her strip. Many more inmates heard rumors
that Johnson and A.M. had sexual relations, while one
inmate told Saville that she engaged in similar sexual
conduct with Johnson. These fellow inmates’ claims of
the specific abuse under investigation have far more
corroborative value than the children’s general allega-
tions that the court in Fabiano found deficient.
Like the plaintiff in Cervantes, Johnson also lacked an
alibi. The IYC’s shift supervisor log for the night in ques-
tion showed that A.M. was outside of her cell on a
cleaning detail and that Johnson was working as a super-
visor, meaning that the two had access to each other. This
opportunity to commit the crime, combined with the
multiple inmate statements described above, provided
Saville with more evidence of guilt than the suspicious
circumstances that we found sufficient in Logan. Saville
had probable cause to believe that Johnson had
improper sexual relations with A.M.
10 No. 08-4314
True, some facts surrounding the criminal case reduced
the reliability of A.M.’s accusation. A.M. changed her
story by, first, denying having sex with Johnson during
the IDOC interview and, then, admitting to the sexual
encounter during her interview with Saville. But that
inconsistency is immaterial because it is undisputed that
Saville did not know about A.M.’s previous denial to the
IDOC investigators. “The existence of probable cause
is measured based on the facts known to the officers at
the time of the arrest.” Kim, 858 N.E.2d at 577. Johnson,
while not disputing that Saville lacked knowledge of
A.M.’s previous denial, suggests that the IDOC investiga-
tors’ failure to obtain inculpatory information from
A.M. means that Saville must have browbeaten that
information out of her. A.M.’s testimony at Johnson’s
criminal trial, the only evidence in the record on this
point, refutes that charge. Although A.M. was reluctant
to admit to the sexual encounter to the IDOC investiga-
tors, who threatened her with reprisal, she found Saville
and other ISP officers to be nice and non-threatening.
Johnson also disputes that he lacked an alibi. He claims
that the IYC’s shift supervisor logs showed that A.M.
was “signed out” to the shift supervisor’s office on the
night in question. Since Gill was working in the office
at that time, Johnson continues, the logs suggest that it
was Gill and not Johnson who had sexual relations
with A.M.
Johnson fails to distinguish among the various logs
maintained at the IYC. The IYC’s “cottage logs” for A.M.’s
housing unit, which are distinct from the “shift supervisor
No. 08-4314 11
logs,” listed a phone extension to the shift supervisor’s
office next to A.M.’s name for the 8:30-9:00 time period.
According to the IYC Warden, this entry meant that any
IYC employee who needed to find A.M. during that
time would have to call the shift supervisor’s office.
Another youth supervisor coined the “signed out” lan-
guage upon which Johnson seizes, testifying that the
cottage logs showed that A.M. was “signed out” to the
shift supervisor’s office during the relevant time period.
The cottage logs are probably irrelevant to the probable
cause analysis because, although Saville referenced the
shift supervisor logs in his report to the State’s Attorney,
the record does not establish that Saville even knew about
the potentially exculpatory cottage logs. See Kim, 858
N.E.2d at 577. Moreover, even if within Saville’s knowl-
edge, the cottage logs have little exculpatory value. At
most, the logs establish that the shift supervisor was
responsible for knowing A.M.’s whereabouts during a
single thirty-minute window of A.M.’s cleaning detail.
The logs are not inconsistent with Saville’s report that,
on the night of the alleged sexual encounter, A.M. was
outside of her cell on a cleaning detail and Johnson was
working as a supervisor. So even taking the cottage
logs into account, Saville had substantial evidence of
Johnson’s guilt.
With respect to Johnson’s dispute that he never con-
fessed to watching A.M. strip as Saville claimed, we
accept Johnson’s version for summary judgment pur-
poses. As the above cases make clear, however, the fact
that the plaintiff disputes his confession does not
12 No. 08-4314
preclude summary judgment if the remaining, undisputed
facts establish probable cause as a matter of law. Logan,
246 F.3d at 926; Cervantes, 188 F.3d at 811. We conclude
that the undisputed facts in this case “would lead a
person of ordinary care and prudence to believe or to
entertain an honest and sound suspicion” that Johnson
was guilty of criminal sexual assault. Fabiano, 784 N.E.2d
at 266.
Finally, Johnson argues that the district court misap-
plied Illinois law by examining whether Saville had
“probable cause to arrest,” as opposed to “probable cause
to initiate a criminal prosecution.” According to Johnson,
the critical element of his malicious prosecution claim is
the absence of probable cause to prosecute, not the
absence of probable cause to arrest. The former is easier
to prove, Johnson continues, because an officer who
makes a split-second arrest may justifiably rely on less
reliable evidence than a prosecutor who initiates a
criminal prosecution.
Johnson’s argument touches on the commonsense
observation that the type of evidence that will support a
finding of probable cause depends on the nature of the
crime and the officer’s role in the criminal proceedings.
Courts assess probable cause based on “the totality of the
circumstances,” Cervantes, 188 F.3d at 813, and those
circumstances include the extent of the officer’s involve-
ment in the criminal case and, relatedly, the amount of
evidence available to the officer. So if an officer makes a
split-second, warrantless arrest of a riotous protester, the
court might simply ask whether the surrounding circum-
No. 08-4314 13
stances gave the officer “probable cause to arrest.” Penn v.
Harris, 296 F.3d 573, 577 (7th Cir. 2002). If, as here, an
officer conducts an extended investigation, interviews
the suspect, and allegedly lies to the grand jury in order
to obtain an indictment—while incidentally arresting
the suspect along the way—the court might frame the
inquiry as whether all of the available evidence pro-
vided “probable cause for the prosecution.” Cervantes, 188
F.3d at 810.
However, Johnson goes too far in suggesting that the
district court erred by referring to Saville’s probable
cause “to arrest” rather than probable cause “to prose-
cute.” Whether the officer simply makes an arrest or
conducts an extended investigation, the basic underlying
inquiry is the same: does all of the evidence available to
the officer support an objectively reasonable belief that
the suspect was guilty of the crime? Compare Penn, 296
F.3d at 576-77 (“Probable cause exists when, based on the
facts known, a reasonable person would believe a person
was guilty of committing an offense.”), with Cervantes,
188 F.3d at 811 (“Probable cause means the existence of
such facts and circumstances as would excite the belief,
in a reasonable mind, acting on the facts within the knowl-
edge of the prosecutor, that the person charged was
guilty of the crime for which he was prosecuted.” (quota-
tion omitted)). We, like the district court, have ex-
amined that evidence and conclude that Saville acted
with probable cause when investigating the charges
against Johnson, preparing his report for the State’s
Attorney, and testifying before the grand jury. That
gives Saville a complete defense to Johnson’s Illinois
malicious prosecution claim.
14 No. 08-4314
B. Federal Malicious Prosecution Claim
In addition to his state-law claim, Johnson asserts a
federal malicious prosecution claim grounded in the
Fourth Amendment. More specifically, Johnson invites
us to revisit Newsome v. McCabe, 256 F.3d 747 (7th Cir.
2001), which he characterizes as foreclosing his Fourth
Amendment malicious prosecution claim. We can think
of several reasons to decline Johnson’s invitation.
First, we agree with the district court that Johnson
forfeited his Fourth Amendment malicious prosecution
claim by failing to develop it in his summary judgment
brief. Johnson asks that we overlook forfeiture because
his theory of malicious prosecution was barred by
Newsome, so attempting to argue that theory to the
district court would have been futile. See Ienco v. City of
Chicago, 286 F.3d 994, 999 (7th Cir. 2002) (declining to
penalize a plaintiff “for failing to convincingly argue . . . a
cause of action at summary judgment” that was fore-
closed by prior circuit precedent). What Johnson fails to
acknowledge is that this exception to forfeiture applies
only when an “intervening change in the law” removes
the precedential bar. Id. Unlike the situation described in
Ienco, no intervening decision by this court has under-
mined Newsome; it is Johnson who, for the first time
on appeal, attacks Newsome and proposes a novel reading
of the Fourth Amendment. As Saville points out, the
novelty of Johnson’s Fourth Amendment claim makes
the case for forfeiture even more compelling. See Kunz
v. DeFelice, 538 F.3d 667, 681 (7th Cir. 2008) (“Especially
on a question that would require the application of a
No. 08-4314 15
novel legal theory to a new set of facts . . . the district
court must have the first opportunity to rule with the
benefit of full briefing and consideration.”).
Johnson suggests that the Supreme Court’s decision in
Wallace v. Kato, 549 U.S. 384 (2007), is an intervening
change in the law that undermines Newsome’s rationale.
All that the Court said in Wallace was that it has “never
explored the contours of a Fourth Amendment mali-
cious-prosecution suit under § 1983 . . . and . . . do[es] not
do so here.” Id. at 390 n.2. This footnote statement on
what the Court hasn’t decided does not require us to
reexamine circuit precedent. Moreover, Wallace was not
“intervening” with respect to Johnson’s lawsuit. Wallace
came down on February 21, 2007; Johnson filed his com-
plaint in the district court on April 20, 2007; Johnson did
not file his brief in opposition to summary judgment
until September 9, 2008. If Johnson thought that Wallace
gave a new, federal flavor to his malicious prosecution
claim, it required no clairvoyance to include that argu-
ment in his summary judgment brief to the district court.
Second, Johnson over-reads Newsome as foreclosing his
federal claim. We held in that case that the “due process
clause” does not support a constitutional tort of
malicious prosecution if state law provides a parallel
remedy. Newsome, 256 F.3d at 751. Newsome left open the
possibility of a Fourth Amendment claim against officers
who misrepresent evidence to prosecutors, provided
that the statute of limitations for such a claim has not
expired. See id. at 749-50. Circuit precedent did not neces-
sarily prevent Johnson from bringing a Fourth Amend-
16 No. 08-4314
ment claim based on Saville’s allegedly false report to
the State’s Attorney and grand jury testimony. See
McCullah v. Gadert, 344 F.3d 655, 659 (7th Cir. 2003) (recog-
nizing a Fourth Amendment wrongful arrest claim
against an officer who allegedly gave false information
in an incident report and at a preliminary hearing).
Finally, even if we reached the merits of Johnson’s
Fourth Amendment malicious prosecution claim, we do
not see how Johnson would prevail. Although Johnson’s
brief does not delineate the elements of the federal mali-
cious prosecution claim that he asks us to recognize, it is
likely that one such element would be the absence of
probable cause to initiate criminal proceedings. See Fox v.
DeSoto, 489 F.3d 227, 237 (6th Cir. 2007) (Although the
contours of a Fourth Amendment malicious prosecution
claim “remain uncertain . . . such a claim fails when
there was probable cause to prosecute . . . .”). Given our
holding that Johnson’s state-law malicious prosecution
claim fails because Saville acted with probable cause,
his federal claim would fail for the same reason.
III. Conclusion
Johnson’s malicious prosecution claim fails because he
has not shown a genuine issue of material fact as to
whether Saville acted with probable cause when pursuing
criminal charges against him. We A FFIRM the district
court’s grant of summary judgment in favor of Saville.
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