Johnson v. Saville

• Citation: 575 F.3d 656
• Decision Date: 29 July 2009
• Docket Number: No. 08-4314.,08-4314.
• Parties: Larry JOHNSON, Plaintiff-Appellant, v. Karl SAVILLE, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

575 F.3d 656

Larry JOHNSON, Plaintiff-Appellant, v. Karl SAVILLE, Defendant-Appellee.

No. 08-4314.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2009.

Decided July 29, 2009.

Kenneth N. Flaxman (argued), Chicago, IL, for Plaintiff-Appellant.

Paul Berks (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendant-Appellee.

Before EVANS, WILLIAMS, and TINDER, Circuit Judges.

TINDER, 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 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 supervisor 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 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 report for the DuPage County State's Attorney summarizing 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, including Saville's claim that Johnson confessed to watching A.M. strip. The grand jury returned an indictment 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 "suppressed" for Brady purposes. The court also held that 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 nonmoving 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.

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 commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination 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, 169 Ill.2d 504, 215 Ill.Dec. 98, 662 N.E.2d 1238, 1242 (1996) (quoting Joiner v. Benton Cmty. Bank, 82 Ill.2d 40, 44 Ill.Dec. 260, 411 N.E.2d 229, 232 (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 "complete 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, 336 Ill.App.3d 635, 271 Ill.Dec. 40, 784 N.E.2d 258, 266 (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 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 plaintiff, 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, 368 Ill.App.3d 648, 306 Ill.Dec. 772, 774, 858 N.E.2d 569, 571 (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. 306 Ill.Dec. at 778-79, 858 N.E.2d at 575-76. Although the victim later recanted her accusation and the officers...