                         NONPRECEDENTIAL DISPOSITION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

                                Submitted March 22, 2013*
                                  Decided May 3, 2013

                                          Before

                            DIANE P. WOOD, Circuit Judge

                            JOHN DANIEL TINDER, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 12-2030

EDDIE L. ROBINSON,                             Appeal from the United States District
     Plaintiff-Appellant,                      Court for the Northern District of Illinois,
                                               Eastern Division.
       v.
                                               No. 09 C 3844
AARON BANDY, et al.,
    Defendants-Appellees.                      Matthew F. Kennelly,
                                               Judge.

                                        ORDER

       Defendants Aaron Bandy and Marcus Wietting, police officers in Joliet, Illinois,
arrested Eddie Robinson for sexual assault. The officers arrived at the home of Cynthia
Clarke, the alleged victim, in response to a 911 call made by Clarke’s roommate and
arrested Robinson after conducting interviews at the scene. Robinson was held in the Will


      *
         After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12-2030                                                                             Page 2

County jail for more than three months on a $150,000 bond, later reduced to $75,000. Six
months after he made bail, county prosecutors dismissed the charge. Robinson then filed
this lawsuit in 2009 against the two officers and the City of Joliet, claiming under 42 U.S.C.
§ 1983 that he was unconstitutionally detained, held on excessive bail, and denied equal
protection based on his race. The district court granted summary judgment for the
defendants on all counts. We affirm the judgment.

        During a discovery deposition, Clarke testified that the night before Robinson’s
arrest they had attended a party together and consumed large amounts of alcohol. After the
party, Robinson drove Clarke home and then asked if he could sleep there. Clarke allowed
him to share her bed because her roommate and his friend were occupying the living room.
According to Clarke, on the morning of June 26, 2007, she was awakened by her roommate,
Darryl Montgomery, who said that Robinson had been penetrating her sexually while she
slept. During her deposition Clarke did not recall speaking with police officers at her
house, but Robinson does not deny that she was interviewed and gave a statement.

        The two defendant officers and a trainee who went along to Clarke’s home also
were deposed. All of them testified that Montgomery, the roommate, met them outside
Clarke’s house and told them that he saw Clarke being raped inside the apartment by
Robinson. According to Officer Wietting’s deposition, Montgomery’s friend recounted a
similar version of events. The friend stated that he had first entered Clarke’s bedroom some
time after she and Robinson had gone to bed, and he alerted Montgomery upon observing
Robinson having oral sex with Clarke. When the two of them reentered the bedroom, they
saw that Robinson had pulled Clarke’s clothes up around her neck and was on top of her,
naked, penetrating her. They could see that Clarke was asleep and not responding.
Montgomery told the officers that he yelled at Robinson to stop, and then left the house to
call 911.

         The three police witnesses also testified during their depositions that Clarke, while
still at her home, insisted that she had been raped and wished to press charges. Officer
Bandy described her as “excited,” though he admitted that he had previously encountered
Clarke during his police duties and suspected that she might have “a mental issue.” He
also testified that Montgomery’s friend described Clarke that morning as “not mentally
there.” Both Bandy and Officer Wietting testified that Clarke was visibly intoxicated.

        About Robinson, the defendant officers agreed that he was “evasive” during his
interview and that he changed his story, at first denying any sexual contact with Clarke but
later stating that they had watched pornographic videos and engaged in some sexual
activity together, including oral sex. At his deposition, Robinson maintained that he and
No. 12-2030                                                                              Page 3

Clarke had watched pornographic videos together, which Clarke denied in her testimony.
Robinson also testified that he recalled little from the morning because of his intoxication.

        After interviewing the four occupants of Clarke’s home, Officers Bandy and
Wietting concluded that probable cause existed to arrest Robinson. Officer Wietting and the
trainee took him into custody, while Bandy went with Clarke to the hospital. At the
hospital Clarke was examined for injuries or evidence of sexual assault. She did not have
any apparent physical injuries, but the results of the sexual assault kit were sent to the
police crime laboratory for further analysis. The nurse who aided Clarke that morning
testified that she told Bandy that the physical examination had disclosed no sign of injury.

       At some point after Clarke left the hospital—the precise time is not disclosed in the
record—she went to the police station to retract her statement. According to her deposition,
while at the hospital she came to believe that her judgment had been clouded due to the
amount of alcohol she had consumed at the party, combined with the fact that she had
stopped taking the medicine prescribed for her schizophrenia. After she returned home,
Robinson’s mother and the host of the party came to her house, and she told them she no
longer believed that Robinson had raped her. They drove her to the police station, but she
does not remember speaking to anyone there other than the officer at the front desk.

        At his initial appearance in court the day after his arrest, Robinson waived a hearing
to determine probable cause. On the prosecutor’s recommendation, the judge set bond at
$150,000. More than three months after the arrest, the crime lab released the results of the
sexual assault kit, which was negative for bodily fluids. On Robinson’s motion, the judge
lowered his bond to $75,000 and released him after his mother posted $7,500. Six months
later the case was dismissed.

        The defendants moved for summary judgment, asserting that the undisputed
evidence establishes that probable cause existed for the arrest. They also argued that
Robinson has no evidence linking them to the amount of his bond, or evidence of racial
discrimination or a policy of the City of Joliet to discriminate against suspects on the basis
of race. In opposing summary judgment, Robinson denied any sexual contact with Clarke
and relied primarily on her testimony to undermine the defendants’ assertion of probable
cause. The defendants did not oppose his statement of additional facts.

       The district court concluded that the information the defendant officers possessed at
the time of the arrest—particularly Montgomery’s and his friend’s statements, the existence
and content of which Robinson does not dispute—was sufficient to establish probable
cause. Part of that information, the court reasoned, is Robinson’s shifting story at the scene.
The court added that Robinson’s focus on Clarke’s later retraction and the lack of
No. 12-2030                                                                                Page 4

corroborating physical evidence could not create a material issue concerning the
determination of probable cause made at the time of the arrest. The court ruled that
Robinson had no evidence to support his remaining claims.

        Following the dismissal Robinson filed a motion captioned under Federal Rule of
Civil Procedure 60(b)(6), in which he argued that the defendants effectively had admitted
his version of events by not filing a reply to his own opposition to summary judgment. The
district court denied this motion.

       Robinson’s primary argument on appeal is that the district court erred by excusing
the defendants from responding to his statement of material facts. He contends that
Northern District of Illinois Local Rule 56.1 mandates the filing of a reply where the
nonmoving party has filed its own statement of facts, and that not taking that step
constituted “extraordinary circumstances” warranting relief under Rule 60(b)(6).

        We note initially that Robinson’s motion, despite its label, is better characterized as a
motion under Federal Rule of Civil Procedure 59(e), because his asserted basis for relief is
legal error rather than the kind of extraordinary circumstances required for relief under
Rule 60(b)(6). See Ho v. Taflove, 648 F.3d 489, 495 n.5 (7th Cir. 2011); Obriecht v. Raemisch, 517
F.3d 489, 493–94 (7th Cir. 2008). But ultimately this distinction makes no difference here,
because we conclude that the district court correctly denied the motion.

        Local Rule 56.1 requires the district court to deem admitted those facts that are not
contested in the parties’ submissions related to the motion for summary judgment. N.D. Ill.
R. 56.1(a); Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). Because the moving
party here did not submit a reply, Robinson’s submitted facts were deemed admitted for
purposes of defendants’ motion for summary judgment under that rule. Contrary to
Robinson’s assertion, however, a moving party’s reply to the nonmoving party’s response
is optional. N.D. Ill. R. 56.1(a) (stating that moving party “may submit a concise reply”). But
even with Robinson’s additional facts, summary judgment for the defendants was still
appropriate.

        Robinson also argues that the district court overlooked a genuine issue of material
fact regarding his unlawful-arrest claim. Specifically, he points to the results of the physical
examination performed on Clarke at the hospital, which showed no sign of any physical
injury, as exculpatory evidence dissipating the initial probable cause for his arrest. But a
lack of physical injury does not negate the possibility of an assault, especially in light of the
witness statements that Robinson raped Clarke while she was unconscious. The officers
were entitled to rely on the statements they received at Clarke’s home, which established
probable cause for Robinson’s arrest even in the absence of physical evidence. See Abbott v.
No. 12-2030                                                                                 Page 5

Sangamon Cnty., Ill., 705 F.3d 706, 716 (7th Cir. 2013); Sow v. Fortville Police Dep’t, 636 F.3d
293, 302 (7th Cir. 2011). Even assuming that after the results of the sexual assault kit were
released probable cause no longer existed, that occurred almost four months after
Robinson’s arrest, well after the officers’ responsibility for his custody ended.

        Finally, Robinson challenges the district court’s award of costs to the defendants
and its denial of his motion to file a second amended complaint. But Federal Rule of Civil
Procedure 54(d) provides that costs “should be allowed to the prevailing party.” Robinson
identifies no particular error in the calculation of the costs awarded to the defendants, so
we conclude that the district court did not abuse its discretion. See Harney v. City of Chicago,
702 F.3d 916, 921, 927 (7th Cir. 2012); U.S. Neurosurgical, Inc. v. City of Chicago, 572 F.3d 325,
333 (7th Cir. 2009). Additionally, Robinson required the court’s leave to amend his
complaint a second time, see FED. R. CIV. P. 15(a)(2); Stanard v. Nygren, 658 F.3d 792, 796–97
(7th Cir. 2011), and given that discovery had ended and the motion for summary judgment
was pending when Robinson sought leave to appeal, the district court did not err in
denying the motion. See Sanders v. Venture Stores, Inc., 56 F.3d 771, 773–75 (7th Cir. 1995).

                                                                                     AFFIRMED.
