Roger Fleming v. LIVINGSTON COUNTY, ILLINOIS, an Illinois Local Governmental Entity

The Honorable Ruben Castillo, of the Northern District å
of Illinois, is sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2170
ROGER FLEMING,
Plaintiff-Appellant,
v.
LIVINGSTON COUNTY, ILLINOIS,
an Illinois Local Governmental Entity, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-CV-01174—Joe Billy McDade, Judge.
ARGUED JANUARY 6, 2012—DECIDED MARCH 28, 2012
Before MANION and WILLIAMS, Circuit Judges, and
CASTILLO, District Judge.å
MANION, Circuit Judge. Roger Fleming was arrested
in the early morning hours of August 4, 2006, in Flanagan,

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2 No. 11-2170
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. Even-
tually, 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 Gov-
ernmental Employees Tort Immunity Act. The district
court granted summary judgment in favor of the defen-
dants 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

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No. 11-2170
3
At first blush, one might question why Troxel was ostensibly 1
not in a hurry to seek help. Apparently, Troxel had under-
gone several bypass surgeries and could not run.
the street toward him ; Turner in turn began walking1
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 con-
ducted 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

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4 No. 11-2170
Haleigh also stated in an affidavit filed in this lawsuit that 2
she told Turner the man was wearing a “t-shirt,” but later in
her deposition she stated that she had told Turner the
intruder was wearing a “light colored t-shirt.”
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, ac-
cording to Turner, a t-shirt.2
After briefly speaking to Troxel’s daughters and ac-
quiring 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 approxi-
mately 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 Ap-
pellant Roger Fleming—was heading south (in the di-
rection of the Troxel home), but Turner did not immedi-
ately 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

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No. 11-2170
5
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 investiga-
tion. 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 inter-
viewed 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

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6 No. 11-2170
was “two to three minutes, maybe two-and-a-half min-
utes.” 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 descrip-
tion that matched Fleming’s appearance, Luckman con-
cluded 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 iden-
tified Fleming as the intruder. Fleming was then trans-
ported to jail and charged with residential bur-
glary, 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 Em-
ployees Tort Immunity Act, 745 Ill. Comp. Stat. 10/1-101
et seq.

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No. 11-2170
7
The discovery deadline was originally set for Feb-
ruary 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 neces-
sarily failed.) Along with his memorandum in response
to the defendants’ summary judgment motion, Fleming
submitted new evidence obtained after the close of dis-
covery. This evidence was compiled by a previously non-
disclosed witness, Mr. Harmon Cook, a private investiga-
tor, who had taken several photographs of relevant loca-
tions 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 pre-
cluded a reasonable probable cause determination.
The defendants objected to the timeliness of Fleming’s
newly submitted evidence and filed a motion to strike

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8 No. 11-2170
both the evidence itself and the parts of Fleming’s argu-
ment 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, to analyze this issue
because it would be a purely superficial exercise: as
noted above, in making its summary judgment ruling,
out of an abundance of caution the district court con-
sidered the very evidence it struck. We would be hard-
pressed to find that the district court abused its
discretion in excluding this late-filed evidence—evidence
which the defendants neither had the opportunity to
challenge in discovery nor address in their summary
judgment motion. But even considering this evidence,
as the district court did, Fleming cannot succeed on his
second challenge on appeal—a challenge to the district
court’s decision that the defendants were entitled to
summary judgment based on qualified immunity.
We review a district court’s granting of summary
judgment de novo, viewing all facts and construing all

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No. 11-2170
9
inferences in the light most favorable to the non-
moving party. Muhammed v. City of Chicago, 316 F.3d
680, 682 (7th Cir. 2002) (citing Outlaw v. Newkirk, 259 F.3d
833, 836 (7th Cir. 2001)). We will affirm if “the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).
Section 1983 allows citizens whose constitutional
rights have been violated by public officials to sue those
officials in their individual capacities. See Jenkins v.
Keating, 147 F.3d 577, 583 (7th Cir. 1998). In this case,
Fleming alleges that Turner violated his Fourth Amend-
ment right to be free from unreasonable searches and
seizures by arresting Fleming without probable cause.
Turner responds that he had probable cause to arrest
Fleming or, at a minimum, that he was entitled to
qualified immunity. When, as here, the defendants have
raised a qualified immunity defense to a false-arrest
claim, “we will review to determine if the officer
actually had probable cause or, if there was no
probable cause, whether a reasonable officer could have
mistakenly believed that probable cause existed.”
Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998)
(citations omitted).
A. Probable Cause
We first address the issue of whether Turner had proba-
ble cause to arrest Fleming. Indeed, if Turner actually
did have probable cause to arrest Fleming, “then a Fourth

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10 No. 11-2170
Amendment claim for false arrest is foreclosed.” Holmes
v. Village of Hoffman Estate, 511 F.3d 673, 679-80 (7th Cir.
2007) (citing Morfin v. City of E. Chicago, 349 F.3d 989,
997 (7th Cir. 2003)). “A police officer has probable cause
to arrest when, at the moment the decision is made, the
facts and circumstances within her knowledge and of
which she has reasonably trustworthy information
would warrant a prudent person in believing that the
suspect had committed or was committing an offense.”
Qian v. Kautz, 168 F.3d 949, 953 (7th Cir. 1999) (citations
omitted). This standard “does not require that the
officer’s belief be correct or even more likely true than
false, so long as it is reasonable.” Id. (citing Texas v.
Brown, 460 U.S. 730, 742 (1983)).
The district court held that it could not “definitively
state that probable cause existed as a matter of law.”
The court noted two pieces of the factual record that
were particularly problematic to Turner’s probable-cause
determination: first, that Haleigh Troxel testified at her
deposition that she had reported to Turner that the in-
truder was wearing a light-colored t-shirt, but Fleming
was wearing a dark-colored t-shirt when he was appre-
hended; and second, that Fleming had a dog with him
when Turner first sighted him in the alleyway, but none
of the Troxels mentioned the presence of a dog at the
time the suspect broke in to their house.
Despite the district court’s reticence to do so, Turner
asks us to hold that probable cause existed as a matter
of law. It is of course true that we may affirm the
district court “on any ground that finds support in the

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No. 11-2170
11
Fleming asserts that “the court’s legal determination of 3
qualified immunity must be deferred when there are triable
issues of fact on the reasonableness of the police officer’s
conduct to await a jury determination of the disputed fact[s] . . .
which informs the court’s decision on qualified immunity.”
(continued...)
record.” Roland v. Langlois, 945 F.2d 956, 962 n.11 (7th
Cir. 1991) (citations omitted). But we typically reserve
a further exploration of the factual record for instances
in which “we do not specifically follow the reasoning
of the district court.” Id. Here, in opining about the
lack of existence of probable cause, the district court
merely cited the two factual discrepancies noted above;
it did not expound on their significance. Rather, the
district court spent the majority of its time analyzing
Turner’s qualified immunity defense, which ultimately
led to the same summary judgment outcome. Because
we believe that the district court’s qualified immunity
holding may be affirmed on its face, and thus that the
granting of summary judgment was proper, we decline
Turner’s invitation to disturb the district court’s deci-
sion to deny summary judgment on the issue of probable
cause.
B. Qualified Immunity
The question of whether Turner actually had probable
cause to arrest Fleming is separate from the question
relating to qualified immunity. “Qualified immunity3

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12 No. 11-2170
(...continued) 3
That was once the law of our circuit, see Frazell v. Flanigan, 102
F.3d 877, 886-87 (7th Cir. 1996) (citations omitted), but has
long since been abandoned following the Supreme Court’s
decision in Saucier v. Katz, 533 U.S. 194 (2001). See Marshall ex
rel. Gossens v. Teske, 284 F.3d 765, 772 (7th Cir. 2002) (“[E]ven
in cases in which the question of qualified immunity is
factually intertwined with the question of whether officers
violated the Fourth Amendment . . . , judges must still make
an immunity determination separate from the jury’s finding
on whether the officers violated the plaintiff’s constitu-
tional rights.” (citing Saucier, 533 U.S. at 197)).
protects public officials from liability for damages if their
actions did not violate clearly established rights of which
a reasonable person would have known.” Catlin v. City
of Wheaton, 574 F.3d 361, 365 (7th Cir. 2009) (citations
omitted). There is no question that Fleming’s constitu-
tional right to be free from arrest without probable cause
was clearly established at the time of the incident.
Humphrey, 148 F.3d at 725 (citing Baker v. McCollan, 443
U.S. 137, 142 (1979); Gerstein v. Pugh, 420 U.S. 103, 111
(1975)). Yet “the corresponding doctrine of qualified
immunity for police officers has also long been recog-
nized.” Id. (citing Pierson v. Ray, 386 U.S. 547, 555-58
(1967)). That corresponding doctrine provides that a
defendant is entitled to qualified immunity in a false-
arrest case when, if there is no probable cause, “a reason-
able officer could have mistakenly believed that prob-
able cause existed.” Id. (citations omitted). Thus, as long
as Turner reasonably, albeit possibly mistakenly, believed

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No. 11-2170
13
that probable cause existed to arrest Fleming, then
Turner is entitled to qualified immunity. Id. This
standard is often dubbed “arguable probable cause.” Id.
(citations omitted). Arguable probable cause is estab-
lished “when ‘a reasonable police officer in the same
circumstances and with the same knowledge and pos-
sessing the same knowledge as the officer in question
could have reasonably believed that probable cause
existed in light of well-established law.’ ” Id. (quoting
Gold v. City of Miami, 121 F.3d 1442, 1445 (11th Cir. 1997)).
In this case there was certainly arguable probable
cause. The undisputed evidence showed that within
seven minutes of being informed of a possible break-in
and assault, Turner spotted Fleming in an alleyway
approximately one-half block from the crime scene.
Fleming was the only person in the area and he substan-
tially matched the description of the intruder that one
of the victims had given to Turner—he was wearing a
baseball cap, t-shirt, and camouflage cargo shorts. From
this evidence, a police officer could have reasonably,
if mistakenly, believed that probable cause existed to
arrest Fleming. This is true even if Haleigh had
described Turner’s t-shirt as “light-colored” because
witnesses often have minor details incorrect. See Catlin,
574 F.3d at 365-66 (affirming the grant of qualified im-
munity to police officers on a false-arrest claim where
minor variations existed between the description given
to the officers and the actual appearance of the suspect
arrested, and stating that the officers were “required to
show only the reasonableness of their belief that the

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14 No. 11-2170
person they arrested was the person they were seeking;
they [we]re not required to show that they knew with
certainty that the person they arrested was the per-
son they were seeking”). Significantly, before arresting
Fleming, Turner contacted state’s attorney Luckman
and relayed this information to him. Luckman agreed
that, based on the facts Turner presented, Turner had
probable cause to arrest Fleming.
Fleming responds that qualified immunity is inappro-
priate because the evidence supports the conclusion
that Turner fabricated evidence to gain the requisite
probable cause to arrest Fleming. Specifically, Fleming
claims that Cook’s investigation revealed that Turner’s
investigation took seven minutes instead of the two to
three minutes that Turner claimed, that Haleigh’s testi-
mony shows that the perpetrator was wearing a “light-
colored” t-shirt, and that Turner could not have
seen Fleming walking his dog in the alleyway from
Turner’s position on Fleming’s porch, as Fleming had
said. We take the latter point first. Contrary to
Fleming’s argument, Turner never testified that he was
on Fleming’s porch when Turner saw Fleming in the
alleyway; rather, Turner testified that he noticed
Fleming as he “was getting ready to leave.” From a posi-
tion just a few feet away in Fleming’s driveway—where
Turner’s cruiser was parked—Turner could easily have
noticed Fleming walking in the alleyway “a little to the
south” of Turner’s own location. Thus, there is no evi-
dence calling into question Turner’s statement that he
saw Fleming walking his dog in the alleyway.

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No. 11-2170
15
The disparity in time (two to three minutes versus
seven minutes) and the t-shirt color are also insufficient
to save Fleming’s case for two reasons. First, to show
that Turner fabricated evidence, Fleming needed to
present evidence that Turner deliberately submitted
false testimony or recklessly disregarded the truth.
Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1126 (9th
Cir. 2002) (quoting Hervey v. Estes, 65 F.3d 784, 789-90
(9th Cir. 1995)). But Turner testified that the two-to-three-
minute time-frame that he ascribed to his investigation
was an “estimate,” leaving plenty of room for an actual
time period that was a few minutes greater. And there
is no evidence that Turner deliberately falsified or reck-
lessly disregarded the perpetrator’s description. Second,
even if Turner had fabricated evidence, that is not
enough; rather, the falsifications must be “ ‘material’ to
the finding of probable cause.” Id. (quoting Hervey, 65
F.3d at 789)). And the test is an objective one for the
court: we ask whether “the officer’s behavior [in falsi-
fying the evidence] has an effect on the ultimate is-
sue” of whether the officer made a reasonable probable
cause determination. Hervey, 65 F.3d at 789-90. Neither
the claimed disparity in the t-shirt color, nor the longer,
albeit still extraordinarily abbreviated, length of time
between the assault and seeing Fleming, affects the ar-
guable probable cause analysis. Indeed, even if Turner
had falsified his testimony, because Fleming’s attire sub-
stantially matched Haleigh’s description and Fleming
was the only person within one block of the crime scene
within seven minutes of the alleged crime, Turner still

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16 No. 11-2170
In challenging arguable probable cause, Fleming also points 4
to the fact that he was walking a dog when spotted by Turner.
But the proximity of Fleming’s house to the scene would
have left him plenty of time to flee the Troxels’ house, return
to his own house, discover that his dog needed to be
walked, and then leave his house with the dog—all before
Turner noticed him walking in the alleyway.
Besides the phone call placed to Luckman, Turner took the 5
additional precautionary step of conducting a “show-up,” where
Haleigh Troxel positively identified Fleming as the intruder.
But the show-up occurred after both Turner’s probable cause
determination and Fleming’s arrest; therefore, it was not part
of the sequence of events that gave rise to the alleged harm
in this case and we will not consider it in our inquiry. How-
ever, had the arrest taken place after Haleigh’s positive iden-
tification there would certainly have been probable cause
to arrest Fleming.
could have reasonably believed that he had probable
cause to arrest Fleming.4
We also note that Turner’s act in calling state’s attor-
ney Carey Luckman goes a long way toward solidi-
fying his qualified immunity defense. As we have5
stated before, “[c]onsulting a prosecutor may not give
an officer absolute immunity from being sued for false
arrest, but it goes far to establish qualified immunity.
Otherwise the incentive for officers to consult prosecu-
tors—a valuable screen against false arrest—would be
greatly diminished.” Kijonka v. Seitzinger, 363 F.3d 645, 648
(7th Cir. 2004) (citation omitted). Under these circum-
stances, Turner had arguable probable cause and was

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No. 11-2170
17
entitled to qualified immunity. In turn, Sheriff McCarty
and Livingston County are entitled to summary judg-
ment on the indemnification claims. See 745 Ill. Comp.
Stat. 10/2-109 (“A local public entity is not liable for
an injury resulting from an act or omission of its em-
ployee where the employee is not liable.”).
III.
The district court did not abuse its discretion in
granting the defendants’ motion to strike Fleming’s
untimely submitted evidence. Additionally, because
a reasonable police officer in Turner’s position could
have believed that probable cause existed to arrest
Fleming, the district court did not err in granting sum-
mary judgment to Turner on the basis of his quali-
fied immunity defense. For these reasons, we AFFIRM.
3-28-12

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