PHILLIPS v. ALLEN

that Ruby understood her assignment. Furthermore, reading a few lines ahead in the very same testimony that Plaintiff cites removes any doubt about the clarity of Officer Allen's instructions:

Q: How did you word it?

Allen: I asked her did she see anybody in there that she saw before. (Def. SOF, Ex. 20 Motion to Suppress Testimony of Officer Allen at 44:21-22).

* * *

Q: Did the lady tell you that she pointed to Wydrick Phillips because she saw him before?

Allen: She pointed towards him and I asked her what did he do and she explained to me what he did.

Q: What did she tell you he did?

Allen: She told me he was the one that robbed her at the library on the 2nd, shot her in the head and shot her mother in the chest and took her purse. ( Id. at 45:5-13).

Next, Plaintiff takes issue with the fact that Officer Allen told Ruby "are you sure?" and "take your time" after she pointed to individual #1 (who was not Plaintiff) on one of the composites. In McGowan v. Miller, the Seventh Circuit considered a nearly identical fact pattern — a witness hurriedly pointed to one photograph, was asked by a detective "Are you sure?", looked closer, and then picked out the defendant. 109 F.3d 1168, 1174-75 (7th Cir. 1997). The Seventh Circuit found that the question was not suggestive or improper; the detective had wanted to ensure the accuracy of the witness's selection rather than push her towards a particular suspect. Id. Here, the evidence does not suggest that Allen asked Ruby if she "was sure" in order to prod her to choose Plaintiff. First, for what it's worth, Ruby never "chose" individual #1, instead she pointed to him because he had similar features to her attacker. But more importantly, Allen asked the same confirmatory questions of Ruby after she identified Plaintiff. If Allen's questions were meant to encourage her to select Plaintiff, why would he ask Ruby if she was "sure" and if she was "positive" after the desired result had been reached? Without more, as a matter of law, Defendant Officer Allen's statements to Ruby during the lineup were not unduly suggestive. See id. (noting that "[r]emarks that were far more suggestive than" the question "are you sure?" have been held permissible within the standards of due process) (citing United States v. Moskowitz, 581 F.2d 14 (2d Cir. 1978) (witness' viewing of photographs of a six-person lineup, after being told that her original choice was an FBI clerk and that the other two witnesses selected the "right" individual was not unduly suggestive)).

Last, right after Ruby picked Plaintiff, Allen informed her that she had picked Wydrick Phillips, that he lived down the street from her mother, and that he was a friend of Ruby's brother. Plaintiff argues that the purpose of telling Ruby this information was to "reinforce" Ruby's selection after the fact by telling her she had picked Wydrick Phillips, which was the name she had heard in the hospital. In Gregory-Bey v. Hanks, 332 F.3d 1036, 1047 (7th Cir. 2003), the Seventh Circuit considered a similar argument made by a habeas petitioner. There, the petitioner argued that police officers "appeared happy or excited" after witnesses selected petitioner, "thus improperly reinforcing [the witnesses'] identifications." Id. In finding the officers reactions not unduly suggestive, the court stressed the fact that the reactions of course occurred after the identifications had been made. Id. It is difficult to see how an officer's post-identification conduct could affect the reliability of the identification itself. See, e.g. Love v. Young, 781 F.2d 1307, 1310 n. 1 (7th Cir. 1985) (photo lineup not unduly suggestive where potentially suggestive procedure occurred after identification already made).

In any event, Defendants argue that even if the Ruby's mind was somehow tainted by overhearing Plaintiff's name, or that if the procedures Allen employed during the photo lineup were unduly suggestive, the totality of the circumstances as established by the undisputed material facts show that Ruby's identification was reliable. The Court agrees: Even if there were flaws in the way Ruby's identification was produced, the totality of the circumstances shows that Ruby's identification was sufficiently reliable to create probable cause. United States ex. rel. Hudson, 699 F.2d at 923-24; Mitel v. Thieret, 887 F.2d 733, 738 (7th Cir. 1989) (victim's identification of suspect in a photo lineup after seeing suspects picture in the newspaper, even if the product of an unduly suggestive procedure, did not, under the totality of the circumstances, create a substantial likelihood of misidentification).

Reliability of an eyewitness identification is to be determined by considering the totality of the circumstances, with special reference to the five Biggers factors. Biggers, 409 U.S. at 199-200). First, Ruby had a good opportunity to view her attacker. Before she was shot, Ruby struggled with the assailant and was face to face with him. Although Ruby testified that it was unusually dark outside the library during the attack, she also testified that there was a light which illuminated the area. Next, as the victim of a heinous crime, Ruby's degree of attention to the assailant was undoubtedly high. See Biggers, 409 U.S. at 201 (rape victim giving identification testimony "was no casual observer, but rather the victim of one of the most personally humiliating of all crimes"); see also Poole v. Godinez, 12 F.3d 1101, 1993 WL 473670, at *4 (7th Cir. Nov. 17, 1993) (unpublished opinion) (victim of armed robbery's attention would be expressly drawn to her assailant). Ruby's descriptions of her attacker were both thorough and generally consistent over time. The evidence shows that Ruby considered either 30 or 36 photographs. Although her attention lingered on a picture of an individual with similar features to Plaintiff, once Ruby identified Plaintiff, she expressed no uncertainty about her choice. When asked by Officer Allen if she was "sure" and if she was "positive," she replied unequivocally that she was. Through her testimony at trial Plaintiff's criminal trial to her deposition in this case, Ruby unequivocally has maintained that Plaintiff was the one who attacked her. See, e.g. (Pl. Resp. Def. SOF ¶ 147). Finally, the time between the crime and Ruby's identification of Plaintiff was short — less than 24 hours. Courts have held that gaps of weeks and even months between a crime and a first identification do not necessarily render and identification unreliable. See, e.g. Biggers, 409 U.S. at 201 (lapse of seven months between rape and confrontation).

Elizabeth testified in her deposition in this case that as she ran towards her daughter, it was "too black" to see the assailant clearly. At her deposition, Ruby testified that typically, three lights illuminated the area outside the library's south entrance, but on that night only one was on. However, Ruby never testified that it was too dark from her vantage point to see her attacker's face.

Because probable cause to arrest Plaintiff existed, summary judgment on Plaintiff's claims for wrongful arrest and false imprisonment (Count I) is appropriate.

One last point: Plaintiff alleges that he was intentionally framed by Defendants because they "just need[ed] a body" to prosecute. Summary judgment is appropriate whether or not this is true, as probable cause is an absolute defense even if the defendant officers allegedly acted upon a malicious motive. Simmons, 26 F.3d at 654.

B. Defendants are Entitled to Summary Judgment on Plaintiff's Claims for Malicious Prosecution Under § 1983

In Count II (titled "Malicious Prosecution Under § 1983"), Plaintiff alleges that the Defendants "in continuing to arrest and seize Plaintiff without probable cause, right or reason, and then to continue to prosecute him caused Plaintiff to be deprived of liberties guaranteed to him by the 4th and 14th Amendments." To the extent Plaintiff is alleging here that Defendants denied him due process by causing him to suffer a "deprivation of liberty from a prosecution and a contrived conviction" his claim is, in essence, one for malicious prosecution, rather than a due process violation. McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003). As the Seventh Circuit emphasized in Newsome v. McCabe, 256 F.3d 747, 750 (7th Cir. 2001), "the existence of a tort claim under state law knocks out any constitutional theory of malicious prosecution *** because the due process of law is afforded by the opportunity to pursue a claim in state court ***"). See also Parish v. City of Chicago, 594 F.3d 551 (7th Cir. 2009). And Illinois law provides a state remedy for malicious prosecution. See Swick v. Liautaud, 662 N.E.2d 1238, 1242 (1996). Accordingly, Count II is knocked out to the extent that it is duplicative of Count III.

To the extent that Plaintiff is alleging that Defendants violated his substantive due process rights by "railroading" him by failing to disclose evidence to prosecutors, falsifying evidence, and conspiring to frame him, Plaintiff is merely "combining what are essentially claims for false arrest under the Fourth Amendment and state law malicious prosecution into a sort of hybrid substantive due process claim under the Fourteenth Amendment," a practice that the Seventh Circuit has specifically and repeatedly denounced. See, e.g. Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009); McCann, 337 at 786. Either way, the "malicious prosecution" theory articulated in Count II fails.

C. Plaintiff's Brady Claim

In Count I of his complaint, Plaintiff alleges that the Defendants violated his civil rights "without due process of law" when Plaintiff was "falsely arrested, falsely imprisoned, and subjected to great duress." (Cmplt. ¶ 56). In their motion for summary judgment, Defendants interpreted Count I as asserting both a claim for false arrest/false imprisonment and (perhaps appreciating the nature of the evidence in the case) as a due process claim based on a series of Brady violations allegedly committed by the Defendants. In his response brief, Plaintiff somewhat quizzically argues that Count I was indeed intended only to raise a false arrest/false imprisonment claim, not a claim for violation of Plaintiff's right to a fair trial. (Pl. Resp. at 15). However, this statement comes after Plaintiff spends pages laying out the facts of what he terms are a "series of Brady violations in which evidence indicative of innocence was withheld from plaintiff's trial counsel." (Pl. Resp. at 10). Nowhere in Plaintiff's brief does he clarify where in the complaint he intended to raise a Brady claim. In fact, nowhere in the brief does Plaintiff lay out the legal standards for a Brady claim or explain how Defendants' actions amount to one. Failure to properly develop an argument with citation to relevant legal authority constitutes a waiver. See, e.g., Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 964 n. 1 (7th Cir. 2004) ("We have repeatedly made clear that perfunctory and underdeveloped arguments, and arguments that are unsupported by pertinent authority, are waived (even when those arguments raise constitutional issues)."); United States v. Amerson, 185 F.3d 676, 689 (7th Cir. 1999) ("[G]iven our adversarial system of litigation, it is not the role of this Court to research and construct legal arguments open to the parties, especially when they are represented by counsel."). It is not the role of the Court to "scour a record to locate evidence supporting a party's legal argument" or to "research and construct the parties' arguments," see, e.g., Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005); LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 921-22 (7th Cir. 1997), as the Court here was required to do in order to construct Plaintiff's Brady claim.

The Court recognizes that a party opposing summary judgment does not need to cite additional legal authority, provided that the argument depends on the application of facts to well-established legal standards already presented in the moving party's brief. See Davis v. Carter, 452 F.3d 686, 692 (7th Cir. 2006). Whether the standards applying to an acquitted individual attempting to make a claim for damages is "well established" is not at all clear. However, this exception does not excuse a party from its responsibility to marshal its facts in such a way as to show the Court why the relevant legal standards have been met. See also Malec, 191 F.R.D. at 586 ("the analysis section should contain a review of the relevant legal standards supported by citation to caselaw and a thorough application of that law to the specific facts of the case").

However, in the interest of construing the papers submitted by Plaintiff in the light most favorable to him, and because Defendants managed to cobble together a response to Plaintiff's Brady theories, the Court assumes that Plaintiff did in fact intend to raise a Brady-type violation. Regardless, the Court concludes that summary judgment is appropriate for any Brady-type claims that Plaintiff made or could have made.

In Newsome, the Seventh Circuit held that "[d]ue process claims against the police alleging the withholding of evidence should be analyzed under the framework set forth in Brady v. Maryland, 373 U.S. 83 (1963)." 256 F.3d at 752. While most commonly viewed as a prosecutor's duty to disclose to the defense, the duty implicated in Brady extends to the police and requires that they similarly turn over exculpatory/impeaching evidence to the prosecutor, thereby triggering the prosecutor's disclosure obligation. See Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) ("[A] Brady suppression occurs when the government fails to turn over even evidence that is `known only to police investigators and not to the prosecutor ***.'"). In order to establish the elements of a Brady-type due process claim, a plaintiff must demonstrate that (1) the evidence at issue is favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) there is a reasonable probability that prejudice ensued — in other words, "materiality." Parish, 594 F.3d at 554 (citing Carvajal v. Dominguez, 542 F.3d 561, 566-67 (7th Cir. 2008)). Evidence is suppressed for Brady purposes when (1) the prosecution failed to disclose the evidence in time for the defendant to make use of it, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence. United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002) (citing Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001)). Evidence is "material" "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Carvajal, 542 F.3d at 567. When determining whether there is a reasonable probability of prejudice, "the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). In performing the materiality analysis, courts are to consider the cumulative effect of all the suppressed evidence, as opposed to considering each piece alone. See Goudy v. Basinger, 604 F.3d 394 (7th Cir. 2010) (discussing Kyles, 514 U.S. 419). Although the Seventh Circuit has expressed doubts about whether a section 1983 plaintiff who has been acquitted at his criminal trial can ever establish prejudice, in previous cases, the Seventh Circuit has analyzed potential claims in order to determine if the decision to go to trial would have been altered by the suppressed evidence. See Carvajal 542 F.3d at 569; Bielanski v. County of Kane, 550 F.3d 632, 645 (7th Cir. 2008). Thus, Plaintiff (who was acquitted) may still in theory have had a Brady-type due process claim if prompt disclosure of the suppressed evidence would have altered the prosecution's decision to proceed to trial. Id.

1. The Bulk of the Evidence That Plaintiff Identifies was Not Suppressed

On pages 10-14 of his brief, Plaintiff provides a laundry list of purported "Brady violations." As an initial matter, the Court has considered each allegation on Plaintiff's list and finds the vast bulk of the evidence that Plaintiff identifies was not in fact "suppressed" within the meaning of Brady and its progeny. First, the record shows that many of the allegedly withheld pieces of evidence were in fact eventually "ferreted out" (in Plaintiff's words) by Plaintiff's attorneys in time for them to make use of it trial. In fact, Plaintiff admits as much. (Pl. Resp. at 11) ("[Some of Defendants' acts] were unmasked by plaintiff's criminal counsel and, thus, may no longer be actionable Brady violations."). Allegedly suppressed evidence uncovered in time for the defendant to make effective use of it at trial does not support a claim for a Brady violation, even if provided late in the game or during trial. See, e.g. Bielanski, 550 F.3d at 645. Some of Plaintiff's alleged bases for the Brady claim involve Allen's failure to report to the prosecutor that the identifications by Ruby and Elizabeth were flawed (either because Allen allegedly used suggestive procedures, because Elizabeth admitted she got a poor view of the attacker, or because of the taint from the Bufkin interview). The record clearly shows that Plaintiff (through his attorneys) took full advantage of his opportunity to examine Ruby, Elizabeth, Allen, and other Defendant Officers about the all aspects of the various photo identifications and the physical lineup both at trial and at the suppression hearing. See (Pl. Resp. Def. SOF ¶¶ 150 — 157; 164 — 184). Similarly, evidence regarding the "Marty S. Baxter" tip was not suppressed. Allen included information about the call in his police report and counsel for Phillips did question the Defendant Officers about this and the other anonymous tips at the

suppression hearing and at trial. See, e.g. (Pl. Resp. Def. SOF ¶¶ 157, 158, 171, 172, 174, 175). Plaintiff also was well aware of Allen's and the other Defendant Officers' treatment of Plaintiff's tan-colored coat, and their alleged efforts to convince Ruby that it could appear dark in the right lighting conditions. That argument in fact formed one of the bases for Plaintiff's motion to suppress. Plaintiff does not argue (nor is there any evidence in the record to support such an argument) that Plaintiff was hindered in any way from presenting a full defense on any of these topics.

Furthermore, any details of the foregoing that were not disclosed either came out during cross examination of Ruby, Elizabeth, and the other witnesses (including various of the Defendant Officers) or, with Plaintiff's level of knowledge of the crucial facts in mind, could have through the exercise of reasonable diligence. Evidence is not suppressed if it is "otherwise available to the defendant through the exercise of reasonable diligence." O'Hara, 301 F.3d at 569 (citing Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001)); Carvajal, 542 F.3d at 567 (evidence not suppressed when witnesses presence at suppression hearing gave counsel the opportunity to "probe the witnesses and investigate their versions of the relevant events").

Other of the allegations attempt to pin a Brady violation on Officer Allen's alleged false statements to ASA Coakley. See, e.g. Pl. Response at 10 ("Allen falsely told Coakley that plaintiff was arrested wearing a jacket that looked like the jacket worn by the offender as shown in a library security video."). Those claims fail, for the Seventh Circuit specifically has held that "Brady does not extend so far as to provide relief in a situation where a police officer makes a false statement to a prosecutor." Carvajal, 542 F.3d at 567 (citing Harris v. Kuba, 486 F.3d 1010, 1017 (7th Cir. 2007)); see also Ganger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003).

2. Evidence Sent to the Crime Lab

Next, there is the matter of certain evidence submitted to the Illinois State Police Crime Laboratory for testing. The first issue involves fingernail scrapings taken from Ruby the night of the attack. (Pl. Resp. Def. SOF ¶ 160). Soon after he was charged, Assistant State's Attorney Scott Clark filed a Motion for Buccal Swab Samples from Plaintiff, and Plaintiff agreed to the DNA sampling. ( Id. at ¶ 162). Allen took the DNA swab, ( id. at ¶ 163), but there was a delay in having the DNA samples tested by the laboratory. The lab eventually reported that the samples did not match. (However, it must be kept in mind that there is no evidence in the record that Ruby ever scratched her assailant or touched any part of his person other than his coat.) The lab reports memorializing this finding were not made until after Plaintiff was acquitted. However, it appears that Plaintiff may have learned the results of the tests from a verbal report made in court by the State's Attorney during the trial. (Allen Dep. at 69:20-24). Like the evidence discussed above, the Court finds that the results of the DNA test were not suppressed. Chiefly, the reports themselves were not created until after Plaintiff was acquitted; accordingly, there was no physical report to turn over prior to or during trial. Additionally, the record suggests that Plaintiff's counsel may have learned the results of the test in time to make use of them at trial.

The next issue involves the tan-colored coat that Plaintiff was wearing when he was arrested. Although Defendant Officer Allen had Plaintiff's coat under police inventory since the night of the arrest, Allen did not send the coat to the crime laboratory for gunpowder residue testing until September 25, 2006, when Plaintiff's trial was underway — 19 months later. (Def. Resp. Pl. SOAF ¶ 98). A report dated September 28, 2006 concluded that the coat had not been in the environment of a discharged firearm. ( Id.). It is unclear whether Plaintiff's counsel learned of the results of this test during Plaintiff's trial.

The third issue is the matter of two anonymous letters received by Ruby while Plaintiff was in custody awaiting trial. Ruby provided the letters to police sometime in advance of trial. The first letter was examined by the crime lab on February 9, 2006. It threatens Ruby and advises her to "just stick to your story he was a good fall guy." The second letter was examined on February 27, 2006, and purports to be from the actual assailant. It reads in part "I robbed you and you robbed [Plaintiff] his family and the system." Police never provided the letters or the lab reports which discussed them to defense counsel. ASA Clark never knew about the letters. On November 27, 2006 (after Plaintiff was acquitted) a lab report examining fingerprints found on one of the letters concluded that they did not match Plaintiff's fingerprints.

Again, to recover on a claim for a Brady-type deprivation of due process, Plaintiff must prove that (1) the evidence at issue is favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) there is a reasonable probability that prejudice ensued — in other words, "materiality." Parish, 594 F.3d at 554. Both the anonymous letters and the results of the gunpowder residue tests were clearly favorable to Plaintiff. While it is not entirely clear that both pieces of evidence were suppressed, the Court assumes for the purposes of this motion that they were. Plaintiff's Brady claim fails however, because no reasonable jury could conclude that the letters and the results of the residue test were "material" — in that "there is a reasonable probability that, had the evidence been disclosed to the defense", Carvajal, 542 F.3d at 567, "the decision to go to trial would have been altered." Mosley v. City of Chicago, 2010 WL 2943907 (7th Cir. July 29, 2010) (citing Bielanski, 550 F.3d at 645). The favorable evidence simply could not "reasonably be taken to put the whole case in such a different light as to undermine confidence in the outcome." Carvajal, 542 F.3d at 568 (quoting Kyles, 514 U.S. at 435).

ASA Coakley testified in her deposition that her decision to proceed to trial was based in large part on the strength of Ruby's (and Elizabeth's) identifications of Plaintiff. (Pl. Resp. Def. SOF ¶¶ 143, Coakley Dep. at 29:8-12). The evidence that Plaintiff identifies would have had absolutely no effect on the strength of the identifications, especially Ruby's. The anonymous letters (which Plaintiff must admit could have been sent by anyone) have limited evidentiary value. That the coat Plaintiff was wearing when he was arrested (which Plaintiff has consistently maintained was not the coat worn by the shooter) did not test positive for gunpowder residue is not strong exculpatory evidence in Plaintiff's favor. No reasonable jury could conclude that the withheld evidence was "of the nature to cause a prosecutor to drop the charges entirely." See Bielanski, 550 F.3d at 645; see also id. (upholding dismissal of Brady claim because "earlier disclosure of this evidence would not have resulted in dismissal of the charges prior to trial" when "[f]or the most part, the evidence is impeaching rather than exculpatory" and only "weakened parts of the prosecution's case but was not the type of evidence that would have precluded the charges entirely"); Carvajal, 542 F.3d at 567 (reversing denial of motion for summary judgment on Brady-type claim when the nature of the allegedly-withheld evidence showed no "reasonable probability" that the charges would have been dropped). This conclusion is bolstered by the extraordinarily high standard of prejudice that an acquitted § 1983 plaintiff must show in order to prove a claim — in essence, that in the absence of the suppressed evidence, Plaintiff did not receive a "fair trial," which means "a trial resulting in a verdict worthy of confidence." Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434). For all of these reasons, summary judgment in favor of the Defendants is appropriate on Plaintiff's Brady claim, to the extent that Plaintiff intended to assert such a claim.

In fact, even if all of the evidence that Plaintiff identifies as having been withheld (including the evidence discussed in Section A above) were indeed suppressed, the Court would still find that the cumulative effect of the withheld evidence would not rise to the level of materiality required for an acquitted defendant to succeed on a Brady-type claim.

D. Plaintiff's Monell Claim

There is no vicarious liability under respondeat superior against a government entity for the acts of its employees. Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120 (1992). Congress did not intend a municipality to be liable unless the action complained of was done pursuant to official municipal policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. Monell v. New York City Department of Social Services, 436 U.S. 665, 694 (1978); see also Collins, 503 U.S. at 120-121, Pembaur v. City of Cincinnati, 475 U.S. 469, 477 (1986); City of Canton v. Harris, 489 U.S. 378 (1989); Bd. of Cty. Comm. of Bryan Cty., OK v. Brown., 520 U.S. 397 (1997). "Misbehaving employees are responsible for their own conduct[;] `units of local government are responsible only for their policies rather than misconduct by their workers.'" Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (quoting Fairley v. Fermaint, 482 F.3d 897, 904 (7th Cir. 2007)).

A plaintiff can establish a municipal policy in one of three ways, either by "(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority." Roach v. City of Evansville, 111 F.3d 544, 548 (7th Cir. 1997). Consequently, to establish liability against the Village, a Plaintiff must prove that: "(1) he suffered a deprivation of a federal right; (2) as a result of either an express municipal policy, widespread custom, or deliberate act of a decision-maker with final policy-making authority for the [Village]; which (3) was the proximate cause of his injury." Ienco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 2002).

Plaintiff argues that the Village is liable for failing to adequately train and supervise the Defendant Officers. See Resp. at 24 citing Kitzman-Kelley v. Warner, 203 F.3d 454, 459 (7th Cir. 2000). Municipal liability may arise through a policy of inadequate training. City of Canton, 489 U.S. at 388. However, before analyzing whether a municipality caused a plaintiff's harm, a court must determine that the harm suffered by the plaintiff was in fact a deprivation of a federal right. See Collins, 503 U.S. at 120 ("[P]roper analysis requires us to separate two different issues when a § 1983 claim is asserted against a municipality: (1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation."). As this Court has determined that Plaintiff's constitutional rights have not been violated, his claim against the Village fails as a matter of law. Accordingly, summary judgment is granted on Count V.

Because the Court has concluded that the Defendant Officers did not violate any of Plaintiff's constitutional rights, it need not discuss Defendants' alternative line of defense that the Defendant Officers are protected by the doctrine of qualified immunity.

F. Plaintiff's Claim State Law Claims

In addition to his § 1983 claims, Plaintiff also sued the Defendants under the state law torts of malicious prosecution (Count III) and intentional infliction of emotional distress (Count IV). Because the Court has granted summary judgment as to all claims (in Counts I, II, and V) over which it has original jurisdiction, it must now address whether to retain jurisdiction over those state law claims. See 28 U.S.C. § 1367(c)(3). The Seventh Circuit consistently has stated that "it 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." Groce v. Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999); Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995); Brazinski v. Amoco Petroleum Additivies Co., 6 F.3d 1176, 1182 (7th Cir. 1993). Finding no justification for departing from that "usual practice" in this case, the Court dismisses without prejudice the state law claims for malicious prosecution and intentional infliction of emotional distress asserted in Counts III through IV of the complaint. Count VI (Indemnity by Village of Bellwood), which relies on an Illinois statute ( 745 ILCS 10/9-102) is similarly dismissed without prejudice.

In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir. 1994), the Seventh Circuit noted that there occasionally are "unusual cases in which the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point to a federal decision of the state-law claims on the merits." The first example that the Court discussed occurs "when the statute of limitations has run on the pendent claim, precluding the filing of a separate suit in state court." Id. at 1251. That concern is not present here, however, because Illinois law gives Plaintiff one year from the dismissal on jurisdictional grounds of state law claims in federal court in which to refile those claims in state court. See 735 ILCS 5/13-217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir. 2008). Dismissal without prejudice also is appropriate here because substantial judicial resources have not been committed to the state law counts of Plaintiff's complaint. Wright, 29 F.3d at 1251. Finally, this is not a circumstance in which "it is absolutely clear how the pendent claims can be decided." Id.

IV. Motion to Disqualify Plaintiff's Attorneys and to Strike Affidavit

Also before the Court is Defendants' motion to strike affidavits pursuant to FRCP 37(c)(1) and motion to disqualify plaintiff's counsel [86]. Defendants take issue with two affidavits submitted in support of Plaintiff's response to Defendants' motion for summary judgment: one signed by John P. DeRose (one of Plaintiff's attorneys) and another signed by J.B. Carr (a neighbor of Elizabeth Graham's).

In his response to Defendants' motion [92], Plaintiff states that he has "no objection to the court disregarding or striking Mr. DeRose's affidavit." Accordingly, Defendants' motion to strike the DeRose affidavit is granted. Defendants also ask the Court to disqualify Plaintiff's attorneys and reopen discovery to allow their depositions because the DeRose affidavit shows that both Mr. DeRose and Mr. Crooks (Plaintiff's other attorney) have "knowledge material to" Plaintiff's Brady claims. In part because this Court has granted summary judgment on or dismissed all of Plaintiff's federal law claims (including any Brady-type claims), this portion of Defendants' motion is denied.

Last, Defendants ask the court to strike the affidavit of J.B. Carr because Carr was not identified as a witness in Plaintiff's Federal Rule of Civil Procedure 26(a)(1) disclosures and because Defendants had no opportunity to depose Carr. The Carr Affidavit simply states that (1) he a neighbor of and acquainted with Plaintiff's mother and Elizabeth, (2) he is acquainted with both Plaintiff and Ruby, and (3) he as seen Ruby and Plaintiff interacting together in his presence. The affidavit does not say when he observed Ruby and Plaintiff interacting. It is undisputed that at some point during Ruby's life, she knew Plaintiff (however she testified that she knew him only by a nickname). (Pl. Resp. Def. SOF ¶ 74). Since the Carr affidavit adds nothing beyond what the Court already has accepted as a fact at least for purposes of this motion, Plaintiff would suffer no prejudice were the Court to strike it. Accordingly, Defendants' motion to strike is granted with respect to the Carr Affidavit. R. 37(c)(1).

IV. Conclusion

For the foregoing reasons, Defendants' motion for summary judgment [70] is granted as to Counts I, II, and V and the remaining state law claims (Counts III, IV, and VI) are dismissed without prejudice. Defendants' motion to strike affidavits and disqualify Plaintiff's counsel [86] is granted in part and denied in part.

Dated: September 28, 2010