Andre T. Evans v. ANDREW M. MATSON and ROBERT RASMUSSEN

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 10, 2024*
Decided May 16, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-2954
ANDRE T. EVANS,
Plaintiff-Appellant,
v.
ANDREW M. MATSON and ROBERT
RASMUSSEN,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20-C-476
Lynn Adelman,
Judge.
O R D E R
Andre Evans filed this lawsuit alleging that police officers Andrew Matson and
Robert Rasmussen violated his rights under the Fourth Amendment, see 42 U.S.C.
§ 1983, and state law when they entered his apartment without a warrant, used a Taser
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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on him, and arrested him on charges that were later dismissed. He appeals the entry of
summary judgment for the officers on his claims of false arrest and malicious
prosecution. Because Evans does not contest the court’s decision that the officers had
qualified immunity for the warrantless entry and arrest, and because he lacked
sufficient evidence for his malicious prosecution claim to withstand the summary
judgment motion, we affirm.
We view the facts in the light most favorable to Evans, the nonmoving party, and
draw reasonable inferences in his favor. Abbott v. Sangamon County, 705 F.3d 706, 709
(7th Cir. 2013). In April 2014, Officers Matson and Rasmussen of the Racine, Wisconsin,
Police Department responded to a burglary-in-progress call. They heard a description of
the suspect as an African American male, about 5’8”, wearing a navy blue jacket. The
officers drove down the street where the suspect was last seen and saw someone who
seemed to match the description—Evans. They followed him to an apartment building
and entered it together. The parties dispute what happened next.
Matson attests that he saw Evans, who looked “startled,” run down the hallway,
enter an apartment, and try to close the door, dropping a dark object in the process.
Matson then pushed the door open and entered the apartment. According to Matson,
Evans turned to face him in a “boxer’s stance,” and Matson ordered Evans to drop to
the ground. But instead, per Matson, Evans moved toward the officer. Matson then
fired his Taser at Evans and handcuffed him; Matson testifies that he used his Taser in
self-defense and to obtain compliance. Rasmussen adds that he heard Matson yelling
from inside the apartment and then saw that Matson had stunned Evans with the Taser.
Evans, on the other hand, swears that he did not know he was being followed
until he was entering the apartment and felt someone push on the door as he tried to
close it. He turned around to see Matson. According to Evans, he and Matson began
“fighting for the door,” and when Evans then let go of the door, Matson entered the
apartment. Evans attests that he ran inside, put his hands in the air, and did nothing
else before Matson deployed the Taser and arrested him. There is no dispute that
Matson found a loaded gun on the floor near the doorway.
Evans was detained for one week before he posted cash bond. He was a suspect
in the burglary but was never charged with it. He was, however, charged with
possessing a firearm as a felon, W IS . S TAT. § 941.29, and resisting or obstructing a police
officer, WIS . S TAT. § 946.41(1). Evans successfully moved to suppress all evidence
obtained from the warrantless entry into the apartment, and in March 2016, the
prosecution dismissed the state charges.

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No. 23-2954 Page 3
In March 2020, Evans, who was incarcerated at the time, sued Matson and
Rasmussen, among other defendants. After screening the complaint, 28 U.S.C.
§ 1915A(a), the district court allowed him to proceed on claims that the officers
unlawfully entered his apartment and seized him, that Matson used excessive force,
and that both officers maliciously prosecuted him. The court dismissed claims against
all other defendants.
After discovery, the officers moved for summary judgment, arguing that none of
their actions was unconstitutional and that Evans’s malicious prosecution claim—which
they said was exclusively a matter of state law—failed because Evans lacked evidence
that the officers acted maliciously or that they were responsible for initiating charges.
Alternatively, they argued, they were entitled to qualified immunity on each claim.
The court partially granted the motion for summary judgment. As to the false
arrest claim, the court determined that the officers had probable cause, and that, even if
they did not, they were entitled to qualified immunity. On the malicious prosecution
claim, the court agreed with the defendants that there was no such claim under the
federal Constitution and concluded, as a matter of state law, that Evans had insufficient
evidence to raise a genuine issue of material fact. The court denied the motion for
summary judgment on the claim of excessive force, which the parties later settled.
Evans appeals, and we review the summary judgment decision de novo. Abbott,
705 F.3d at 713.
Evans makes virtually no arguments in his opening brief on appeal, and
although his reply brief substantially develops several arguments, that is too late to
avert waiver. United States v. Foster, 652 F.3d 776, 787 n.5 (7th Cir. 2011) (“The reply brief
is not the appropriate vehicle for presenting new arguments or legal theories to the
court.” (quoting United States v. Feinberg, 89 F.3d 333, 341 (7th Cir. 1996))).
Evans does assert in the opening brief that the state judge’s suppression ruling is
preclusive on the issue of probable cause, but this is incorrect because, to have
preclusive effect under Wisconsin law—which governs here, see First Weber Grp., Inc. v.
Horsfall, 738 F.3d 767, 773 (7th Cir. 2013)—the earlier litigation must have been against
the same party or a party whose legal interests align with those of the current
defendants. United States v. Mendoza, 464 U.S. 154, 158–59 (1984); Cannon v. Armstrong
Containers Inc., 92 F.4th 688, 706 (7th Cir. 2024). The officers were not party to the state
criminal case. Nor do their interests align with any party in that case—they do not have
any substantive legal relationship to those parties, the claims are different, and no
statute here allows preclusion. See Cannon, 92 F.4th at 708. Thus, the officers did not

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have “sufficient opportunity to be heard” in state court, and preclusion would not be
“fundamentally fair.” Id. at 706.
The one other argument we discern in Evans’s briefs is that the district court was
wrong to interpret the malicious prosecution claim as arising exclusively under state
law. Evans correctly asserts that such a claim exists under the federal Constitution and
can be raised via 42 U.S.C. § 1983. The Supreme Court of the United States has observed
that its “precedents recognize” what it called “a Fourth Amendment claim under § 1983
for malicious prosecution.” Thompson v. Clark, 596 U.S. 36, 42, 44 (2022); see Mitchell v.
Doherty, 37 F.4th 1277, 1284 n.3 (7th Cir. 2022). The Court referred to the claim as
“unreasonable seizure pursuant to legal process.” Thompson, 596 U.S. at 42 (citing,
e.g., Manuel v. City of Joliet, 580 U.S. 357, 363–364, 367–368 (2017)). Provided that the
conduct results in the plaintiff’s “seizure,” the claim arises if a criminal prosecution
(1) was instituted without probable cause; (2) for a “malicious” motive—a purpose
other than bringing the defendant to justice; and (3) “ended without a conviction.”
Thompson, 596 U.S. at 44, 49. Evans satisfies the seizure requirement because he spent
about a week in pretrial detention, see Manuel, 580 U.S. at 365–67, and he obtained a
favorable termination because the State dropped all charges.
Still, Evans’s federal malicious prosecution claim would fail. First, as police
officers, Matson and Rasmussen did not institute the criminal prosecution against
Evans. See Washington v. Summerville, 127 F.3d 552, 559–60 (7th Cir. 1997) (citing Albright
v. Oliver, 510 U.S. 266, 279 n.5 (1994) (Ginsburg, J., concurring)); Colbert v. City of Chicago,
851 F.3d 649, 655–56 (7th Cir. 2017) (applying Illinois law). Police officers’ influence
generally ends where a prosecutor’s begins. See Colbert, 851 F.3d at 655; Reed v. City of
Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996). Here, the Racine County District Attorney
brought the charges and pursued a conviction (unsuccessfully), and Evans never
alleged that he was charged without probable cause. See Thompson, 596 U.S. at 49;
Manuel, 580 U.S. at 368 (explaining that probable cause did not develop between
baseless arrest and initiation of prosecution). Nor did he allege, or provide evidence,
that Matson and Rasmussen did anything after the arrest that made them responsible in
the prosecution, such as misleading the prosecutors. See Reed, 77 F.3d at 1053–54;
Snodderly v. R.U.F.F. Drug Enf’t Task Force, 239 F.3d 892, 901 (7th Cir. 2001); Colbert,
851 F.3d at 655. And second, as the district court also noted, Evans has not provided any
evidence that the officers acted with malice; at most, he articulates why, in hindsight,
the officers should not have suspected him of the robbery. Malice requires something
more, such as a lack of good faith, a failure to adequately investigate, or personal

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animosity. See Welton v. Anderson, 770 F.3d 670, 674 (7th Cir. 2014); Holland v. City of
Chicago, 643 F.3d 248, 255 (7th Cir. 2011) (applying Illinois law).
As to the other constitutional claims, even if Evans had raised his arguments in
the opening brief, his appeal could not succeed. In addition to ruling on the merits, the
district court determined that the officers had qualified immunity for their actions
surrounding the arrest. This was an independent ground for granting the
summary-judgment motion with respect to those claims. And because he does not
challenge this ruling on appeal, Evans forfeits any arguments he might have that the
ruling was wrong. Webster v. CDI Indiana, LLC, 917 F.3d 574, 578 (7th Cir. 2019); Klein v.
O'Brien, 884 F.3d 754, 757 (7th Cir. 2018).
AFFIRMED

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