NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 27, 2009
Decided May 6, 2009
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐1456
WAYNE A. ADAMS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
Nos. 06 C 3459
OSCAR SZCZERBINSKI, et al.,
Defendants‐Appellees. Virginia M. Kendall, Judge.
O R D E R
Wayne Adams filed suit asserting various § 1983 and state‐law claims against several
Des Plaines, Illinois police officers for their alleged misconduct during his arrest and
detention. The case went to trial, and the jury returned a verdict in favor of the defendants.
Adams appeals, claiming that the district court committed multiple errors before and
during the trial. We affirm.
No. 08‐1456 Page 2
I. Background
While driving his car on River Road in Des Plaines, Illinois, in the late evening of
May 19, 2005, Adams was stopped by Officer Oscar Szczerbinski of the Des Plaines Police
Department. After Officer Dick Lalowski and Sergeant Carol Dougherty arrived on the
scene, Adams was handcuffed, informed of his rights, and transported to the police station.
At the station, Detectives Jeffrey Rotkvich and Michael Holdman frisked and questioned
Adams. In the early morning hours of May 20, 2005, Adams was arrested for battery for
throwing a toothpick at Rotkvich. Commander Richard Rozkuszka was the watch
commander on duty when these events occurred.
On July 13, 2005, Adams1 filed a one‐count complaint against Rotkvich in Illinois
state court for a common‐law battery that allegedly occurred at the station (“the first suit”).
While the first suit was pending, on May 18, 2006, Adams sued Szczerbinski, Lalowski, and
Dougherty in state court, alleging § 1983 claims for false arrest and excessive force against
the three and a state‐law battery claim against Lalowski (“the second suit”). The claims in
the second suit pertained to the alleged River Road incident. The defendants in the second
suit removed the case to the Northern District of Illinois. On February 8, 2007, Adams
amended his complaint in the first suit, adding Holdman and Rozkuszka as defendants and
alleging § 1983 false arrest and excessive force claims against Rotkvich, Holdman, and
Rozkuszka for the events that allegedly took place at the station.2 Those defendants then
removed the first suit to the Northern District of Illinois.3
On March 29, 2007, over Adams’s objection, the district judge in the second suit
consolidated the two cases. Six weeks before trial was scheduled to begin, he moved to add
a § 1983 malicious prosecution count and state‐law malicious prosecution and abuse of
process counts against Rotkvich. The district court denied that motion, finding the
1
Mr. Adams is an attorney who represented himself throughout these proceedings.
2
Adams also brought Monell claims against Rozkuszka, Chief James Prandini, and
the City of Des Plaines. The district court granted summary judgment for those defendants
on those claims, and Adams does not appeal that decision here.
3
While these civil actions were proceeding, Adams was tried in the Circuit Court of
Cook County for criminal battery for throwing the toothpick at Rotkvich. The jury found
Adams not guilty of the charged offense on October 16, 2006.
No. 08‐1456 Page 3
proposed amendments were both untimely and fruitless. Adams filed a motion to
reconsider the court’s ruling, which the district judge took under advisement. Two weeks
before the start of trial, Adams sought leave to add the City of Des Plaines as a defendant
and to assert a respondeat superior liability claim against it based on the two battery claims
against Rotkvich and Lalowski.4 The district judge denied his request as untimely. In
addition, the court denied Adams’s motion to reconsider its earlier ruling, reiterating that
the proposed amendments were untimely and fruitless.
Shortly before the trial began, the court denied Adams’s motion in limine to exclude
the use of the term “traffic stop” by the defendants, their attorneys, and their witnesses at
trial. In addition, the district judge granted the defendants’ motion for sanctions against
Adams for his violations of several local rules. The district court also granted the
defendants’ motion in limine to bar Adams from presenting evidence of his acquittal on the
criminal battery charge. The case proceeded to trial. After the close of the evidence, the
court instructed the jury that an officer may arrest a motorist if he has probable cause to
believe the motorist has committed a traffic offense. The court then posed a special
interrogatory to the jury that asked whether probable cause existed to arrest Adams for any
of several specific offenses.5 On February 1, 2008, the jury returned a verdict in favor of the
defendants on all of Adams’s claims. The district court entered a final judgment on
February 6, 2008, from which Adams now appeals.
II. Discussion
A. Consolidation of the Two Cases
Adams argues that the district court erred when it consolidated the two cases.
Under Federal Rule of Civil Procedure 42(a)(2), a district court may consolidate actions if
they “involve a common question of law or fact.” Adams contends that the district judge
failed to recognize that the two suits were factually distinct and that the preparation
required for the Monell claims was different. “A district court’s decision to consolidate cases
is subject to review only for an abuse of discretion.” King v. Gen. Elec. Co., 960 F.2d 617, 626
(7th Cir. 1992).
4
The City apparently was dismissed from the action after the district court granted it
summary judgment on the Monell claims.
5
In its response to the special interrogatory, the jury found that probable cause existed to
arrest Adams for driving in excess of the posted speed limit and battery against a police officer.
No. 08‐1456 Page 4
However, even if we assume arguendo that the district court abused its discretion in
consolidating the two cases, the harmless error standard set forth in Federal Rule of Civil
Procedure 61 requires us to disregard errors which have no effect upon a litigant’s
substantial rights. Although Adams did not argue in his briefs that he was prejudiced by
the consolidation, at oral argument he stated that the consolidation made presentation of
the case difficult at trial due to the number of defendants and confused the jury.
First, the mere presence of six defendants did not make the presentation of the case
excessively unwieldy. Originally, there were five defendants named in the first suit. Had
the cases not been consolidated and the Monell claims not been dismissed, the trial of the
first suit would have involved five defendants; therefore, it is unreasonable for Adams to
contend that one additional defendant at the actual trial caused him any prejudice. Second,
he does not point to any evidence of jury confusion, nor can we identify any. The
consolidated case involved two relatively brief episodes, one at a stop site and the other at a
police station, with three defendants from each. The claims relevant to each episode were
for false arrest and excessive force under § 1983 and battery under state law. Thus, the
factual background and applicable laws were not so complex as to confuse the jury.
Accordingly, because Adams has not shown that his substantial rights were affected, the
district court’s error (if any) in consolidating the cases was harmless.
B. Denial of Motions for Leave to Amend
Adams also contends that the district court erred when it denied his motion for leave
to amend his complaint to add a § 1983 malicious prosecution count and state‐law malicious
prosecution and abuse of process counts against Rotkvich (“the first motion”), as well as his
subsequent motion for leave to add the City of Des Plaines as a defendant and assert a state‐
law claim for respondeat superior liability against it (“the second motion”). The district
court denied those motions based on the untimeliness and futility of the proposed
amendments.
Under Federal Rule of Civil Procedure 15(a)(2), district courts must give parties leave
to amend pleadings “when justice so requires.” However, a court may refuse to give leave
to amend based upon undue delay, bad faith, dilatory motive, prejudice, or futility. Winters
v. Fru‐Con Inc., 498 F.3d 734, 740 (7th Cir. 2007). We review a district court’s denial of a
litigant’s request for leave to amend a pleading for an abuse of discretion. Foster v. DeLuca,
545 F.3d 582, 583 (7th Cir. 2008). We will find an abuse of discretion if there was no
justifying reason for the district court’s refusal to give leave to amend. Soltys v. Costello, 520
F.3d 737, 743 (7th Cir. 2008).
No. 08‐1456 Page 5
The district court concluded that the first motion, filed by Adams six weeks before
trial was to begin, should not be granted because it was made on the eve of trial and was
based on events he became aware of fourteen months earlier when he was acquitted on the
criminal battery charge. While delay alone is not reason enough to deny a motion to
amend, “‘the longer the delay the greater the presumption against granting leave to
amend.’” Id. (quoting King v. Cooke, 26 F.3d 720, 723 (7th Cir. 1994)). Moreover, “‘[e]leventh
hour additions are bound to produce delays that burden not only the parties to the litigation
but also the judicial system and other litigants.’” Id. (quoting Campbell v. Ingersoll Milling
Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990)). Therefore, the district court was well within its
discretion to deny his first motion because the amendments would have required reopening
discovery and postponing the imminent trial. Regarding the second motion, which was
filed two weeks before trial was set to begin, the district court denied Adams’s request for
leave to amend because the claim against the City for respondeat superior liability could
have been brought much sooner. That conclusion was not an abuse of discretion. The claim
against the City accrued over two‐and‐a‐half years earlier in May 2005, when Rotkvich and
Lalowski allegedly committed batteries against Adams. The court reasonably concluded
that Adams needlessly deferred pleading the basis for that claim until a mere two weeks
before trial was set to begin and that amendment would have caused an unwarranted
protraction of the litigation.
In sum, the district court’s denial of Adams’s motions for leave to amend was
justified; therefore, we find no abuse of discretion. In light of this conclusion, we need not
address the court’s alternate determination that the proposed amendments would have
been futile.
C. Exclusion of Evidence of Acquittal on the Battery Charge
Adams next argues the district court erred by granting the defendants’ motion to
exclude evidence of his acquittal on the criminal battery charge in October 2006.6 He says
the evidence should have been admitted so the jury would not be left to wonder if it might
be finding in favor of a person who had been convicted of battery against a police officer. In
granting the defendants’ motion, the district court was concerned the evidence of Adams’s
acquittal would be prejudicial to the defendants because the jury might conclude the
underlying events (i.e., the detention and interrogation) were also tainted. The court also
stated that the admission of the acquittal could be prejudicial to the defendants because the
6
See supra note 3.
No. 08‐1456 Page 6
standard of proof in the criminal case was beyond a reasonable doubt. During the trial, the
district court instructed the jury to disregard the outcome of the criminal trial. We review a
district court’s decision to exclude evidence for an abuse of discretion. Maher v. City of
Chicago, 547 F.3d 817, 823 (7th Cir. 2008).
“Evidence of acquittal in a criminal action is generally irrelevant and inadmissible in
a civil case involving the same incident ‘since it constitutes a negative sort of conclusion
lodged in a finding of failure of the prosecution to sustain the burden of proof beyond a
reasonable doubt.” Estate of Moreland v. Dieter, 395 F.3d 747, 755 (7th Cir. 2005) (quoting
Borunda v. Richmond, 885 F.2d 1384, 1387 (9th Cir. 1989)). Therefore, and in light of the
potential prejudice the evidence of Adams’s acquittal posed to the defendants, the district
court did not abuse its discretion in excluding it from the trial. In addition, the district court
directed the jury to not be concerned with the outcome of the criminal trial. We generally
presume that a jury heeds the court’s instructions. United States v. Jackson, 540 F.3d 578, 598
(7th Cir. 2008). Therefore, that instruction was sufficient to address Adams’s concern that
the jury might speculate whether it would be finding in favor of a person convicted of a
criminal offense arising out of the underlying events.
D. Jury Instruction and Special Interrogatory on Probable Cause
Next, Adams contends that the district court erred in instructing the jury that an
arrest is constitutional when an officer has probable cause to believe a motorist has
committed a traffic offense. He argues that the instruction did not apply because he was not
arrested by the police during the River Road incident (in spite of the fact that he was
handcuffed, read his rights, and taken to the police station in a squad car). We review a
court’s jury instructions de novo to determine whether, taken as a whole, they accurately
informed the jury of the applicable law. Huff v. Sheahan, 493 F.3d 893, 899 (7th Cir. 2007).
One of the § 1983 claims Adams lodged against the defendants from the River Road
incident was for false arrest. A false arrest is an unreasonable seizure prohibited by the
Fourth Amendment. Ienco v. Angarone, 429 F.3d 680, 683 (7th Cir. 2005). “Because the
existence of probable cause is an absolute defense to a § 1983 false‐arrest claim,” Montano v.
City of Chicago, 535 F.3d 558, 568 (7th Cir. 2008), the defendants requested an instruction that
they did not violate Adams’s constitutional rights if they had probable cause to arrest him
for a traffic offense. Relying on Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001), the
district court instructed the jury that “[u]nder the Constitution, if a police officer has
probable cause to believe that a motorist has committed a traffic offense, the motorist may
No. 08‐1456 Page 7
be placed under arrest, handcuffed, and taken to the jail without violating the constitutional
rights of the motorist.”
A person is considered to be under arrest when, under the relevant circumstances, a
reasonable person would not have believed he was free to leave. DeLuna v. City of Rockford,
Illinois, 447 F.3d 1008, 1014 (7th Cir. 2006). Certainly a reasonable person in Adams’s shoes
would not have thought he was free to leave after being handcuffed, read his rights, and
transported to the police station in a police car; therefore, the district court correctly
concluded that Adams had been placed under arrest. Because Adams had brought claims
for false arrest against the officers involved in the River Road incident and because probable
cause is an absolute defense to such claims, the instruction given by the district court was
appropriate.7
Adams also claims the special interrogatory asking the jury if probable cause existed
to arrest him during the River Road incident should not have been posed because it made
the jury decide an issue of fact that was not necessary to reach a verdict. We review a
district court’s decision to give a special interrogatory for an abuse of discretion. Bularz v.
Prudential Ins. Co. of Am., 93 F.3d 372, 377 (7th Cir. 1996). The district court did not abuse its
discretion in posing the special interrogatory to the jury. Contrary to Adams’s assertion, the
7
Adams’s contention that this instruction was improper because he was not actually
arrested on River Road is curious, inasmuch as he was stopped, handcuffed, read his
Miranda rights, and taken to the police station in a squad car. He argues instead that the
stop was an investigative one governed by the reasonable suspicion standard from Terry v.
Ohio, 392 U.S. 1 (1968). Even if we assume for the sake of argument that Adams is correct
that he was not arrested and that a reasonable suspicion instruction was appropriate, any
error was harmless. Probable cause is a higher standard than reasonable suspicion. United
States v. Brown, 366 F.3d 456, 458 (7th Cir. 2004). Because the jury determined that probable
cause existed to arrest Adams for speeding, it necessarily follows that there was reasonable
suspicion for the stop. Therefore, even if the district court’s instruction was improper (it
was not), any error was harmless.
Adams also complains that the court’s instruction permitted the officers to evade
liability even though the real reason for the stop was not the commission of a traffic offense
but rather for investigative purposes. However, an officer’s subjective reasons for making a
stop do not render the stop invalid as long as the facts known to the officer gave him
probable cause to believe an offense had been or was being committed. See Devenpeck v.
Alford, 543 U.S. 146, 153–55 (2005).
No. 08‐1456 Page 8
special interrogatory asked the jury to decide an issue that was necessary to the
determination of his claims for false arrest: whether probable cause existed to arrest him for
a criminal offense.
E. Denial of Motion to Exclude the Term “Traffic Stop”
Adams also claims that the district court erred in denying his motion to bar the
defendants, their attorneys, and their witnesses from using the term “traffic stop” in
describing the events of May 19, 2005. However, he failed to develop this argument on
appeal; therefore, he has waived it. Hojnacki v. Klein‐Acosta, 285 F.3d 544, 549 (7th Cir. 2002).
F. Order of Sanctions
Adams also asks that we vacate the district court’s order that granted the defendants’
motion for sanctions against him for various violations of the local rules. Again, however,
he has waived the argument by failing to develop it.
III. Conclusion
We find no abuse of discretion in the district court’s denial of Adams’s motions for
leave to amend his complaint, its grant of the defendants’ motion to exclude evidence of
Adams’s acquittal, or its posing of the special interrogatory to the jury. Moreover, any
abuse of discretion by the district court in consolidating the cases was harmless. In
addition, the jury instruction on probable cause was an accurate statement of the law.
Adams has waived his arguments regarding the district court’s ruling on the use of the term
“traffic stop” and its order of sanctions. Accordingly, we AFFIRM the judgment of the
district court.