Fleming v. Livingston Cnty., Illinois

• Decision Date: 28 March 2012
• Docket Number: No. 11–2170.,11–2170.
• Citation: 674 F.3d 874
• Parties: Roger FLEMING, Plaintiff–Appellant, v. LIVINGSTON COUNTY, ILLINOIS, an Illinois Local Governmental Entity, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

674 F.3d 874

Roger FLEMING, Plaintiff–Appellant,

v.LIVINGSTON COUNTY, ILLINOIS, an Illinois Local Governmental Entity, et al., Defendants–Appellees.

No. 11–2170.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 2012.Decided March 28, 2012.

Richard L. Steagall (argued), Attorney, Nicoara & Steagall, Peoria, IL, for Plaintiff–Appellant.

Michael W. Condon (argued), Yordana Sawyer, Attorneys, Hervas, Condon & Bersani, Itasca, IL, for Defendants–Appellees.

Before MANION and WILLIAMS, Circuit Judges, and CASTILLO, District Judge.^*MANION, Circuit Judge.

Roger Fleming was arrested in the early morning hours of August 4, 2006, in Flanagan, Illinois for allegedly breaking into a home and fondling two teenaged girls. The state filed criminal charges against Fleming, but those charges were eventually dropped for lack of sufficient evidence. Fleming then filed a civil suit in July 2008, asserting that multiple Livingston County officials were liable for false arrest, withholding exculpatory evidence, and denying Fleming necessary medical care while he was incarcerated. Eventually, the district court dismissed several of Fleming's state-law claims and Fleming voluntarily dismissed all but three defendants. This left only Fleming's claim against Sheriff's Deputy David Turner for false arrest under 42 U.S.C. § 1983, and Fleming's indemnification claim against Sheriff Robert McCarty and Livingston County under the Illinois Local Governmental and Governmental Employees Tort Immunity Act. The district court granted summary judgment in favor of the defendants on both claims. For the reasons that follow, we affirm.

I.

In the early morning hours of August 4, 2006, Deputy Turner was on foot patrol in Flanagan, Illinois, a town in Livingston County of a little more than 1,000 people. While on patrol, Turner noticed a man exit a house about a block away from Turner's position. That man, Thomas Troxel, saw Turner and began walking down the street toward him ¹; Turner in turn began walking toward Troxel. Troxel reported to Turner that someone had just broken into Troxel's home and had fondled his two teenaged daughters, Haleigh and Danielle Troxel, who had been sleeping in the living room.

What followed immediately thereafter is not entirely clear from the record: Turner testified that he went with Troxel back to Troxel's home, and Troxel testified that Turner first went to retrieve his police cruiser and conducted a cursory search for the perpetrator before coming to Troxel's home. We are not concerned with this minor contradiction, however, because the time disparity between the two narratives is inconsequential and because the events that follow are largely undisputed. The record is clear that, a short time after meeting Troxel in the middle of the street, Turner went to Troxel's home to interview Troxel's daughters.

On Turner's arrival, Haleigh Troxel told Turner that she, Danielle, and their father were asleep in the living room of their house. Haleigh was awakened by a man who was fondling her, but believed that she was dreaming and therefore rolled over and went back to sleep. A few moments later she was awakened by Danielle yelling, “What are you doing?” Danielle's shout also awakened Thomas Troxel, who then heard Haleigh say, “Dad, someone's in the house.” In the midst of the commotion, the intruder fled through the kitchen—where a light had remained on—and out the back door. As he fled, Haleigh caught a glimpse of the intruder from the back; she reported to Turner that he was wearing camouflage cargo shorts, a dark baseball cap, and, according to Turner, a t-shirt.²

After briefly speaking to Troxel's daughters and acquiring a physical description of the alleged intruder, Turner left the house and began searching for the suspect in his police cruiser. Soon thereafter, he saw a mobile home with its porch light on, situated approximately a half block north of the Troxel home on the same side of the street. Turner stopped at the mobile home, went to the door, and knocked. There was no answer, but as Turner was getting ready to leave he noticed a man walking a dog in an alleyway behind the mobile home. The man—who turned out to be Appellant Roger Fleming—was heading south (in the direction of the Troxel home), but Turner did not immediately stop him. Fleming left the alleyway and veered toward an intersection approximately one block to the west of the Troxel home. Turner, following in his cruiser, intercepted Fleming at the intersection. At the time Turner stopped him, Fleming was wearing camouflage cargo shorts, a black baseball cap, and a dark blue t-shirt. No one else was in the area.

Turner explained to Fleming that he was investigating a break-in and assault, and asked whether Fleming would stay with him while he continued the investigation. Fleming agreed, tied his dog to a nearby fire hydrant, and climbed in the back of Turner's cruiser. Turner called for backup, and another deputy arrived soon thereafter and parked his car behind Turner's. That deputy stayed with Fleming while Turner walked back to the Troxel home.

On returning to the Troxel home, Turner again interviewed the two assault victims. Haleigh Troxel confirmed that the intruder was a white male who was wearing camouflage cargo shorts, a t-shirt, and a dark baseball cap. Based on Haleigh's description, the location at which Turner discovered Fleming, and the short amount of time between when the alleged break-in and assaults occurred and the time Turner intercepted Fleming, Turner believed that he had probable cause to formally arrest Fleming for residential burglary and sexual assault. Although Turner believed he had probable cause to arrest Fleming, he nevertheless sought confirmation from the state's attorney's office before making the felony arrest. Turner called assistant state's attorney Carey Luckman and relayed a summary of the events. Turner testified that he told Luckman that the amount of time between Turner's first interaction with Thomas Troxel to when Turner saw Fleming walking his dog was “two to three minutes, maybe two-and-a-half minutes.” Turner stated that this was merely an estimate, and Luckman testified that Turner had described the time period in “minutes.” Based on the closeness in time between the alleged offense and Turner's initial sighting of Fleming, as well as Haleigh Troxel's description that matched Fleming's appearance, Luckman concluded that Turner had probable cause to arrest Fleming.

Having received confirmation from the state's attorney that he had probable cause, Turner arrested Fleming for the offenses of residential burglary and sexual assault. Turner and other officers who had arrived on the scene then took the additional step of conducting a “show-up,” where Haleigh Troxel viewed Fleming from the back under a streetlight. Haleigh identified Fleming as the intruder. Fleming was then transported to jail and charged with residential burglary, criminal trespass to residence, aggravated sexual assault, and attempted aggravated sexual assault.

The state court later dismissed the charges against Fleming for lack of evidence. Fleming then filed this suit in July 2008. Fleming alleged numerous injuries against multiple defendants under 42 U.S.C. § 1983, and Illinois state law. As noted above, however, the only claims before us on appeal are (1) a claim against Sheriff's Deputy David Turner for false arrest under 42 U.S.C. § 1983, and (2) an indemnification claim against Sheriff Robert McCarty and Livingston County under the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 Ill. Comp. Stat. 10/1–101 et seq.

The discovery deadline was originally set for February 12, 2010, but was extended to August 31, 2010, on the parties' joint motion to continue the deadline. On September 30, 2010—four weeks after the discovery deadline had passed—the defendants filed a motion for summary judgment, asserting both that Turner had probable cause to arrest Fleming and that, even if Turner was mistaken in his belief that he had probable cause, Turner was entitled to qualified immunity because his mistake was objectively reasonable. (The defendants also noted—and Fleming did not dispute—that if the court granted summary judgment in their favor on the false-arrest claim, the state indemnification claim necessarily failed.) Along with his memorandum in response to the defendants' summary judgment motion, Fleming submitted new evidence obtained after the close of discovery. This evidence was compiled by a previously nondisclosed witness, Mr. Harmon Cook, a private investigator, who had taken several photographs of relevant locations and conducted a re-creation of Deputy Turner's actions during the investigation. Cook averred that it took him 6 minutes and 50 seconds to complete all the actions undertaken by Turner, beginning with Turner's initial contact with Thomas Troxel and ending with Turner's discovery of Fleming in the alleyway—twice as long as Turner's estimate of two to three minutes. Using this evidence in his response, Fleming argued that the actual length of Turner's investigation precluded a reasonable probable cause determination.

The defendants objected to the timeliness of Fleming's newly submitted evidence and filed a motion to strike both the evidence itself and the parts of Fleming's argument that were dependent on that evidence. The district court granted the motion, although it noted that, out of an abundance of caution, it would consider the evidence in reaching its summary judgment decision. The court granted the defendants' summary judgment motion (even while taking the untimely submitted evidence into account), holding that qualified immunity applied to Turner and, therefore, that Fleming's claims failed. Fleming now appeals.

II.

On appeal, Fleming first argues that the district court erred in striking Cook's affidavit and photographs. There is no reason, however,...