Shirlena Barnes v. City of Centralia

                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 19-1377
SHIRLENA BARNES,
                                               Plaintiff-Appellant,
                                v.

CITY OF CENTRALIA, ILLINOIS, and MICHAEL PEEBLES,
                                       Defendants-Appellees.
                    ____________________

         Appeal from the United States District Court for the
                     Southern District of Illinois.
     No. 3:17-cv-01366-NJR-RJD — Nancy J. Rosenstengel, Judge.
                    ____________________

 ARGUED SEPTEMBER 10, 2019 — DECIDED NOVEMBER 26, 2019
                ____________________

    Before WOOD, Chief Judge, and KANNE and BRENNAN, Cir-
cuit Judges.
    BRENNAN, Circuit Judge. While arresting gang members in
Centralia, Illinois, police officer Michael Peebles felt intimi-
dated when Shirlena Barnes, a city resident with gang connec-
tions, drove up and yelled derogatory epithets. Later, Barnes
posted statements on social media that Peebles believed
threatened him and his family. As a private citizen, Peebles
submitted a complaint to the police department and
2                                                         No. 19-1377

participated no further. After a police investigation, Barnes
was arrested, and a criminal prosecution followed. The state
later dismissed the charges, and Barnes sued Peebles and the
City of Centralia asserting her civil rights were violated. The
district court granted summary judgment to the officer and
the city, which we affirm.
                              I. BACKGROUND
    We review de novo the district court’s grant of summary
judgment, drawing our own legal and factual conclusions
from the record. Tapley v. Chambers, 

 (7th Cir.
2016). We construe all facts and reasonable inferences in the
nonmovant Barnes’s favor. 

 (citing Gordon v. FedEx Freight,
Inc., 

 (7th Cir. 2012)).
    A gang named the “Rude Boyz” is well known in the City
of Centralia in downstate Illinois. Two of its members threat-
ened a twelve-year-old boy who witnessed a gang-related
shooting in a park. The threats were investigated by Peebles,
who over the years has arrested many of the Rude Boyz and
became the “go-to guy” in the Centralia police department for
intelligence on the gang. Peebles and Centralia Police Ser-
geant Jamie James found and arrested the two gang members
on open warrants for weapons and other charges.
   As the officers took the two into custody, Barnes drove by
the scene. According to Peebles, Barnes parked her car across
the street and yelled “bald motherf*****” and “thirsty.”1 In a
witness statement given later that day, Peebles identified
Barnes as yelling the epithets at him. In later deposition


    1 Per Barnes’s counsel at oral argument and references in discovery,
“thirsty” means overzealous or overaggressive in arresting individuals.
No. 19-1377                                                    3

testimony, Peebles admitted he could not identify exactly who
was yelling. He concluded the insults were directed at him
because he was the only bald individual there.
    James was present at the arrests and did not recall specifi-
cally what Barnes yelled. He believed Barnes was angry and
that she tried to intimidate Peebles into not arresting the two
gang members. Barnes later denied yelling at the arrest scene
and said she was speaking with a relative in another vehicle.
    Law enforcement knew that Barnes had connections with
the gang. Barnes and Peebles were familiar with each other
through police contacts with several of Barnes’s family mem-
bers. Officers understood that the Rude Boyz used Barnes’s
home as a safehouse. Video of the park shooting shows
Barnes’s daughter retrieving the suspect’s bicycle. Before the
arrests, Barnes complained about Peebles to city authorities.
According to Barnes, she did not know if, at the time of the
arrests, any of her family members were involved in gang ac-
tivity. She also said she did not know the two Rude Boyz
whom Peebles and James arrested.
   The evening of the arrests, Barnes posted on Facebook:
“This thirsty b**** Mike out here on the same on [sic] bulls***.”
After someone responded to her post, Barnes posted a second
time: “But this b**** don’t believe that what goes around
come[s] around and when you got kids of your own.”
   A secretary at the Centralia police department saw the
posts and texted Peebles who was at home. Peebles felt, based
on earlier attempts by the gang at intimidation, that these
were credible threats against him and his family, so he called
Assistant State’s Attorney Melissa Doran. The prosecutor told
Peebles she could not tell him what to do but that he could file
4                                                    No. 19-1377

a report like a private citizen if he desired. Peebles then called
Sergeant James about the Facebook posts and the conversa-
tion with Doran. He told James he felt Barnes had threatened
his family.
   Sergeant James dispatched another officer to Peebles’s
house to take a written voluntary statement. Peebles said
Barnes was at the scene of the arrest of known gang members
and yelled “bald head motherf*****” at him. Peebles also re-
layed the content of Barnes’s Facebook posts, his belief that
his “kids and family” were threatened, and his desire “to
make sure nothing happens to [his] family.”
    James also texted the assistant state’s attorney:
       Sgt. James: Hey Melissa, its [J.] [J]ames. I talked
       with [Peebles] and just wanted to clarify before
       we acted. You want us to arrest her after 9 but
       no offense report just a vague pc [probable
       cause] sheet?
       Prosecutor Doran: Pretty much. That will give
       me a chance to talk to Matt about it before he
       decided right away what to do with the case[.]
       However, as I told [Peebles], I can’t tell you guys
       that you should or should not arrest anyone.
       That discretion lies solely with you. As the stat-
       ute re: intimidation of a public official is written
       this is a debatable case since it isn’t clear to me
       whether this was a specific unique threat of
       harm vs a generalized threat of harm (as the
       statute reads). As always however, what may
       not be able to be proven beyond a reasonable
No. 19-1377                                                               5

        doubt still may have probable cause since it is a
        much lower burden.
    Based on Barnes’s association with the Rude Boyz and the
content of her posts, James concluded Barnes had credibly
threatened Peebles and his family. James testified that he be-
lieved the Rude Boyz had “put out a hit” on Peebles, and he
also witnessed Barnes’s behavior at the arrests. Given this,
James decided to arrest Barnes for intimidation. He concluded
this decision was within his sole discretion. After the arrest,
the Marion County State’s Attorney charged Barnes with in-
timidation and aggravated intimidation. See 720 ILCS 5/12-6;
720 ILCS 5/12-6.2. Three months later the state stopped pur-
suing those charges and Barnes’s prosecution ended.2
    As a result of Barnes’s arrest and prosecution, she sued
Peebles for unlawful seizure and malicious prosecution under

 and Illinois state law. She also claimed the
City of Centralia, under Monell v. Dep’t of Soc. Servs. of the City
of New York, 

 (1978), was civilly liable for an ex-
press policy or widespread practice that motivated her arrest
and prosecution.
    The parties engaged in discovery, including several depo-
sitions. Peebles and James testified Peebles made his com-
plaint against Barnes as a private citizen. Peebles said his only
role in the arrest and prosecution was as the complaining wit-
ness providing a voluntary statement. He did not know what
crimes Barnes was eventually charged with and was never


    2 The handwritten nolle prosequi (refuse to pursue) motion by prosecu-

tor Doran states “[d]ue to the Court’s recent ruling in the People v. Reich-
enbach preliminary hearing, the People are electing not to proceed at this
time.”
6                                                   No. 19-1377

contacted by the assistant state’s attorney after the case was
filed. Peebles also said that when he made his statement he
was seeking to get Barnes arrested and prosecuted. Barnes ad-
mitted she wrote the Facebook posts about Peebles but said
she did not intend that Peebles see them. Per Barnes, her state-
ment about “what goes around comes around” referred to
“karma” and that you should treat other people’s kids the
way you want yours to be treated.
   The defendants moved for summary judgment on all of
Barnes’s claims, which the district court granted.
                         II. DISCUSSION
    Summary judgment is appropriate when “the admissible
evidence shows that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to judgment as
a matter of law.” Hanover Ins. Co. v. N. Bldg. Co., 

 (7th Cir. 2014) (citing FED. R. CIV. P. 56(c)). For Barnes’s
§ 1983 claims to survive summary judgment, she must pre-
sent sufficient evidence of a genuine issue of material fact that
a constitutional deprivation occurred. Homoky v. Ogden, 

 (7th Cir. 2016).
    A. Under Color of State Law
    A law enforcement officer can be liable under § 1983 if the
officer deprives the plaintiff of a federally guaranteed right
while acting “under color of state law.” Wilson v. Price, 

 (7th Cir. 2010). “Action is taken under color of
state law ‘when it involves a misuse of power, possessed by
virtue of state law and made possible only because the wrong-
doer is clothed with the authority of state law.’” 

 (quoting
Honaker v. Smith, 

, 484–85 (7th Cir. 2001)). Not
every action by a state official or employee occurs under color
No. 19-1377                                                    7

of state law. Hughes v. Meyer, 

 (7th Cir. 1989).
“A state officer’s conduct does not constitute acting under
color of state law unless it is ‘related in some way to the per-
formance of the duties of the state office.’” Wilson, 

 (quoting Honaker, 262 F.3d at 485). “Section 1983 does not
cover disputes between private citizens, even if one happens
to be an officer.” Plaats v. Barthelemy, 

 (7th
Cir. 2016).
    Although Peebles is a police officer, and the interaction
with Barnes which led to her arrest occurred during Peebles’s
employment, Peebles complained about Barnes’s yelling and
Facebook posts as a private citizen, not as an investigating of-
ficer. The circumstances surrounding Barnes’s arrest and
prosecution confirm Peebles’s role was limited to that of a
complaining witness. A different officer took Peebles’s state-
ment. Peebles did not arrest Barnes and had no role in her ar-
rest. James had sole discretion to decide whether to arrest
Barnes, and Peebles did not know if Barnes would be arrested.
James also witnessed some of Peebles’s allegations because
James was present when the two gang members were ar-
rested. Based on this evidence James concluded probable
cause existed that Barnes had committed the crime of intimi-
dation. James’s text message with the prosecutor shows she
was not directing James to arrest Barnes. Further, Peebles did
not know what crimes the state would charge Barnes with, if
any. And during the prosecution, the assistant state’s attorney
did not contact Peebles. All of this confirms Peebles acted as a
private citizen complaining about a purported crime, distinct
and apart from his job as police officer.
   No evidence supported Barnes’s allegation that Peebles
acted under color of state law when Peebles claimed Barnes
8                                                    No. 19-1377

had threatened him. See, e.g., Gibson v. City of Chicago, 

 (7th Cir. 1990) (“[A] mere assertion that one is a
state officer does not necessarily mean that one acts under
color of state law.”). Peebles reported an alleged crime. This
was a private act that did not involve any exercise of state au-
thority. Law enforcement officers, like all other citizens, may
invoke the state’s protection without rendering themselves li-
able under § 1983. See Mauntel v. Briscoe, 

, at
*1 (N.D. Ill. 1995) (citing Stengel v. Belcher, 

(6th Cir. 1975)) (holding police officer was not acting under
color of state law when he called the station to report assault
and the department knew he was a police officer). Indeed, in
her deposition Barnes admitted Peebles’s complaint was pri-
vate.
    Barnes argues the statements she made at the arrest of the
gang members were constitutionally protected and thus can-
not be used to establish probable cause of a crime. This argu-
ment misses the mark because Barnes’s protests connected
her to Peebles (the only bald officer at the arrests) and to her
later social media posts, a fact she admitted toward the end of
her deposition. She also contends repeatedly that “a reasona-
ble jury may conclude” alternative outcomes based on the
facts discovered. None of these scenarios contains evidence
that Peebles was anything other than a private citizen or that
his police duties related to Barnes’s claims. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 

 (noting “some
metaphysical doubt as to the material facts” does not defeat
summary judgment motion).
    With no evidence Peebles acted under color of state law in
his role as a witness in Barnes’s arrest and prosecution, Barnes
cannot prove Peebles violated Barnes’s Fourth Amendment
No. 19-1377                                                    9

rights against unlawful seizure and malicious prosecution un-
der § 1983.
   B. Alleged Monell Violation
    Barnes also alleges the City of Centralia, through its police
department, should be liable as a result of Peebles’s actions.
Because a municipality cannot be held liable under § 1983 on
a theory of respondeat superior, Monell, 

, a
plaintiff must identify a municipal “custom, policy or practice
that effectively caused or condoned the alleged constitutional
violations.” Matthews v. City of E. St. Louis, 

(7th Cir. 2012).
    In the district court, Barnes based her Monell claim on the
city’s alleged failure to discipline officers who unlawfully
seize others and purportedly cover up unlawful seizures. The
district court granted defendants summary judgment on that
claim, concluding Barnes had failed to offer admissible evi-
dence in support of her assertions. On appeal, Barnes alters
her theory, arguing the city failed to train and supervise its
officers, which caused her alleged constitutional violation.
    Barnes’s new theory of liability under Monell meets the
same fate as her previous one. First, by failing to argue this
theory in the district court, she has waived it on appeal. See
Economy Folding Box Corp. v. Anchor Frozen Foods Corp., 

 (7th Cir. 2008) (citations omitted). “[T]o reverse
the district court on grounds not presented to it would under-
mine the essential function of the district court.” 

 (quoting
Boyers v. Texaco Ref. & Mktg., Inc., 

, 812 (7th Cir.
1988)) (internal quotation marks omitted).
   Second, Barnes has not identified any evidence that sup-
ports her new theory of liability. While Barnes has cited cases
10                                                   No. 19-1377

in the failure to train and failure to supervise contexts, she has
neither referenced nor even alluded to any evidence to sup-
port Monell liability based on her new theory. Monell claims
require evidence, but Barnes has offered none. See Jenkins v.
Bartlett, 

, 491–93 (7th Cir. 2007) (noting munici-
pality may not be held liable under Monell for failure to ade-
quately train or supervise officers when plaintiff fails to
demonstrate any constitutional violation by municipal em-
ployee).
    Barnes’s sole contention on this topic is that Centralia
failed to train its officers in handling profanity and that her
profanity was the cause of her arrest. But Barnes submits no
evidence in support of this claim, much less evidence that a
failure to train or supervise was “the moving force” behind
Peebles reporting her or James arresting her. See Monell, 

 (referencing “official policy as the moving force of
the constitutional violation”). So Barnes’s Monell claim
against Centralia fails.
       C.     Illinois Malicious Prosecution Claim
     Finally, Barnes claims that Peebles instituted legal pro-
ceedings against her, violating Illinois’s law against malicious
prosecution. To prevail on such a claim, a plaintiff must
demonstrate: (1) the commencement or continuance by the
defendant of an original judicial proceeding against the plain-
tiff; (2) the termination of the proceeding in favor of the plain-
tiff; (3) the absence of probable cause for such proceeding; (4)
malice; and (5) damages. Grundhoefer v. Sorin, 

 (Ill. App. Ct. 2014). Illinois courts have long recognized
that suits for malicious prosecution are not favored because
persons acting in good faith should not be deterred from re-
porting crimes by the fear of unfounded suits. See, e.g., Beaman
No. 19-1377                                                     11

v. Freesmeyer, 

, ¶ 24 (Ill. 2019); Joiner v. Benton
Comm. Bank, 

 (Ill. 1980).
    Under its supplemental jurisdiction, the district court con-
cluded probable cause existed that Barnes committed a crime.
Because the third element (absence of probable cause) could
not be satisfied, the court granted Peebles summary judgment
on this claim. We need not reach the question of probable
cause, though, because we see two flaws with Barnes’s claim:
she has not shown malice (the fourth element) or termination
of the criminal case in her favor (the second element).
    First, to show malice, Barnes must prove the prosecution
was initiated for a reason other than to bring Barnes to justice.
Holland v. City of Chicago, 

 (7th Cir. 2011). In
her summary judgment response, Barnes asserted “her arrest
was a result of malice of Defendant Peebles.” On appeal, she
states: “Peebles was doing more than merely relaying facts to
the Centralia police department [and] that he was acting with
malice.” That is all Barnes claims regarding Peebles’s alleged
malice. And Barnes cites no evidence in support of these bare
assertions, notwithstanding opportunity to do so. Barnes
“does not address the other officers, nor does [she] offer any
details about why [she] believes [Peebles] acted maliciously.”
Jackson v. Village of Grayslake, 

, *5 (N.D. Ill.
Sept. 9, 2016). Unsupported recitation of the elements without
actual evidence cannot survive a motion for summary judg-
ment. See, e.g., Jones v. Merchants Nat’l Bank & Trust Co., 

 (7th Cir. 1994).
12                                                          No. 19-1377

    Second, Barnes failed to show why the case was termi-
nated in her favor.3 In her response to defendants’ summary
judgment motion, Barnes argued the second element was sat-
isfied because defendants “admit the charges against Plaintiff
were dismissed.” But dismissal is not the requirement; rather,
Barnes must show termination of the proceeding in her favor
“for reasons that indicate [her] innocence.” Filimoniuk v.
Nilles, 

, at *5 (Ill. App. Ct. June 14, 2019) (cit-
ing Ferguson v. City of Chicago, 

 (Ill. 2004));
see also Joiner, 

 (“It is clear that the settled law
bars a malicious prosecution action predicated upon criminal
proceedings which were terminated in a manner not indica-
tive of the innocence of the accused.”).
    Here, the nolle prosequi order did not reflect the specific
reasons for its entry. The order merely stated: “Due to the
Court’s recent ruling in the People v. Reichenbach preliminary
hearing, the People are electing not to proceed at this time.”
The record does not reveal the nature of the ruling, or how the
Reichenbach case might relate to Barnes. The order also does
not indicate the case was dismissed with prejudice such that
the State of Illinois will not pursue the charge in the future.
See Filimoniuk, 

, at *5 (noting an “order dis-
missing the case without prejudice removes the case from the
docket, but allows the person who filed it to refile the charges
within the applicable statute of limitations period”). While the
nolle prosequi order ended the prosecution, it was not




     3While the parties did not address this issue on appeal, we elect to
address it for the sake of completeness. See, e.g., Wallace v. Baldwin, 

 (7th Cir. 2018).
No. 19-1377                                                   13

indicative of Barnes’s innocence or that the case had termi-
nated in her favor.
    Barnes has not submitted evidence as to why the prosecu-
tor entered the nolle prosequi order. Given this, “we cannot
presume that the charges were dismissed without prejudice
because plaintiff was innocent.” 

 Because the “bare use of
the nolle prosequi order, which did not state its reasons for its
entry, did not establish that the criminal proceedings were
terminated in a manner consistent with [Barnes’s] innocence,”
this claim fails. Swick v. Liautaud, 

 (Ill.
1996) (clarifying a plaintiff’s burden of proof in a malicious
prosecution action to require evidence of termination in a
manner consistent with plaintiff’s innocence).
                         III. CONCLUSION
  For these reasons, we AFFIRM the grant of summary judg-
ment to the defendants.