                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-1430
JEFFREY MANNOIA,
                                             Plaintiff-Appellant,
                                v.

DAVID G. FARROW, Detective,
                                            Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
        No. 05 C 3274—Samuel Der-Yeghiayan, Judge.
                         ____________
ARGUED SEPTEMBER 29, 2006—DECIDED FEBRUARY 7, 2007
                  ____________


 Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge. In February 2005, during
a scheduled weekend visit, Jeffrey Mannoia took his
two minor children from Wisconsin to his family home
in Hawaii without the knowledge or permission of his
estranged wife and the mother of the children. His wife
filed a complaint with the Gurnee, Illinois Police Depart-
ment, which was investigated by Detective David Farrow.
Child abduction charges were filed against Mannoia
and he was arrested in Maui. The charges against him
were later dropped, and Mannoia sued Farrow, alleging
that Farrow violated his Fourth Amendment rights by
intentionally misrepresenting the facts to the judge who
issued the arrest warrant. The district court found that
2                                                No. 06-1430

there was probable cause to support the issuance of the
arrest warrant and granted Farrow’s summary judg-
ment motion in its entirety. We affirm the district
court’s judgment because Mannoia has not shown that
Farrow deliberately or with a reckless disregard for the
truth made misrepresentations to the issuing judge that
were necessary to her probable cause determination.
Because Mannoia cannot establish that Farrow violated
his Fourth Amendment rights, we conclude that Farrow is
protected from Mannoia’s suit by the defense of qualified
immunity.


                    I. BACKGROUND
  This case arises from a child custody dispute between
two married but separated parents, Christine and
Plaintiff-Appellant Jeffrey Mannoia.1 In April 2004,
Kenosha County Child Welfare Services removed the
couple’s two children from Christine’s care. Around that
time, Mannoia took the children to his family’s home in
Hawaii. In the fall of 2004, Mannoia brought the children
to Illinois and enrolled them in school in Gurnee, Illinois.
At the beginning of February 2005, Christine took the
children for a weekend visit, and afterwards refused to
return them to Mannoia. She enrolled them in school in
Kenosha, Wisconsin and on February 21, 2005, she
obtained a child support order from the Wisconsin Cir-
cuit Court. The order indicated that Christine was the
“custodial person” and Mannoia was the “non-custodial
person.” On February 26, 2005, Christine allowed Mannoia
to take the children for a weekend visit. Without inform-
ing Christine, Mannoia took the children back to Hawaii.



1
  To distinguish between the appellant and the mother of the
children, we will refer to Christine Mannoia by her first name.
No. 06-1430                                             3

On February 28, 2005, Christine filed a written statement
with the Gurnee Police Department alleging that Mannoia
had not returned the children on February 27, 2005, as
arranged.
  Christine provided the police department with a copy
of the February 21 child support order from the Wiscon-
sin court. Defendant-Appellee Detective David Farrow,
whose conduct is at the core of this appeal, called the
Kenosha County Circuit Court Clerk’s Office to ascertain
the nature of the order. Farrow spoke with an employee
in the Family Division who informed him that the order
dealt with support rather than custody issues. The em-
ployee also told Farrow that the Mannoias were still
married. Farrow asked the employee if she could clarify
the terms “custodial” and “non-custodial” found in the
order, and she said that she could not. During the course
of his investigation, Farrow also learned from Mannoia’s
employer that Mannoia had recently been terminated
because he had become unreliable and was not showing
up for work. Mannoia also had informed his former
employer that he planned to return to Hawaii. In addition,
two relatives of Mannoia’s girlfriend told Farrow that
Mannoia had taken the children to Hawaii. Farrow
checked Mannoia’s cell phone records, which revealed that
Mannoia’s cell phone was being used in Hawaii. He also
tried, unsuccessfully, to reach Mannoia at his parents’
home in Hawaii.
  After completing his investigation, Farrow spoke with
two Lake County Assistant State’s Attorneys (“ASAs”),
Geoffrey Howard and John Matthew Chancey. Farrow
told the ASAs that Christine was the custodial parent of
the children and that Mannoia had moved to Hawaii with
the children and did not return them after a scheduled
visit. Farrow also showed the ASAs the child support
order, records of Mannoia’s cell phone usage, and the
police report. After reviewing this information, the ASAs
4                                             No. 06-1430

determined that there was a sufficient factual basis for
authorizing a charge against Mannoia for child abduction
in violation of 720 Ill. Comp. Stat. 5/10-5(b)(1). ASA
Howard and his secretary then prepared the arrest
warrant for Farrow to present to Lake County Circuit
Court Judge Victoria Martin. Farrow appeared before
Judge Martin with only the warrant in his possession
and represented that there was a valid order granting
custody to Christine. He did not show her the child sup-
port order. After the warrant was issued, Mannoia was
charged with child abduction and arrested in Maui on
March 4, 2005. The children were placed in temporary
foster care in Maui until they were returned to Christine.
The charges against Mannoia were later dropped.
  Mannoia filed suit against Farrow under 42 U.S.C.
§ 1983, claiming a violation of his Fourth Amendment
right to be free from arrest and seizure without prob-
able cause; he also brought supplemental state claims
for false arrest and malicious prosecution. After discovery
concluded, Farrow moved for summary judgment on
Mannoia’s claims. He also moved to strike portions of
Mannoia’s Local Rule 56.1(b)(3)(B) Statement of Addi-
tional Undisputed Facts (“Local Rule 56.1 Statement”)
and portions of Mannoia’s response to the motion for
summary judgment that included expert testimony on
police procedures. The district court granted Farrow’s
motion to strike because it found that Mannoia violated
Federal Rule of Civil Procedure 26(a)(2) by failing to
disclose the expert testimony to Farrow until after Far-
row filed his motion for summary judgment. The court
then granted Farrow summary judgment on all of
Mannoia’s claims, finding that (1) Farrow’s investigation
of Christine’s complaint and the child support order was
reasonable; (2) there was no evidence to support Mannoia’s
claim that Farrow withheld facts from ASA Howard;
and (3) a trier of fact would find Farrow’s statement to
No. 06-1430                                               5

Judge Martin reasonable. Mannoia seeks reversal of the
district court’s decision.


                     II. ANALYSIS
A. Farrow’s Motion to Strike
  We review for an abuse of discretion the district court’s
decision to strike the expert’s affidavit submitted by
Mannoia in opposition to Farrow’s motion for summary
judgment. Holbrook v. Norfolk S. Ry. Co., 414 F.3d 739,
745 (7th Cir. 2005). Under this standard, decisions that
are reasonable and not arbitrary will not be disturbed. Id.
(citing Adusumilli v. City of Chi., 164 F.3d 353, 359 (7th
Cir. 1998)).
   On October 13, 2005, the district court issued an order
giving the parties until November 18, 2005 to conduct
limited discovery on the issue of qualified immunity.
During this time, the parties took depositions and ex-
changed written discovery requests. On December 1, 2005,
after the discovery period had closed, Farrow filed his
motion for summary judgment. In opposing that motion,
Mannoia submitted the affidavit of a police procedures
expert witness as an exhibit to his Local Rule 56.1 State-
ment. In the affidavit, the expert offered the opinion that
“[n]o reasonably well trained police officer given the facts
which Detective Farrow knew or which he could reason-
ably have obtained, would believe that there was prob-
able cause to arrest Mr. Mannoia for the crime of child
abduction.” Pl. ’s Local Rule 56.1 Statement Ex. N at 3.
Farrow moved to strike this affidavit and related portions
of Mannoia’s response memorandum, and the district court
granted the motion concluding that Mannoia did not
disclose the expert testimony as required by Federal Rule
of Civil Procedure 26(a)(2), but waited until after Farrow
filed his summary judgment motion.
6                                               No. 06-1430

  Per Rule 26(a)(2), “a party shall disclose to other parties
the identity of any person who may be used at trial to
present evidence under Rules 702, 703, or 705 of the
Federal Rules of Evidence.” Mannoia’s argument that
“there was no request” to disclose expert witnesses fails
in light of Rule 26(a)(2)(C)’s requirement that such dis-
closures “be made at the times and in the sequence
directed by the court.” It is undisputed that Mannoia did
not disclose his expert witness within the time-frame
provided in the district court’s October 13 order. As for
Mannoia’s contention that he was unable to retain an
expert until after the close of discovery when the deposi-
tion transcripts were prepared, it was his duty to seek
relief from the court. In addition, Mannoia was required
by Rule 26(e) to supplement his 26(a) disclosures of all
individuals having discoverable information upon learn-
ing that his disclosures were incomplete. Mannoia does
not contend that he did not consider the need to retain
an expert during the discovery period. The district
court’s decision to strike Mannoia’s expert witness affida-
vit and accompanying argument for non-compliance with
Rule 26(a) was well within its discretion. See Fed. R. Civ.
P. 37(c)(1) (A party who, without “substantial justifica-
tion,” fails to make a disclosure required by Rule 26(a)
cannot rely on the withheld evidence “at a trial, at a
hearing, or on a motion.”). So, we affirm the district court
on this ground.


B. Farrow’s Qualified Immunity Defense
  Next, we review de novo the district court’s grant of
summary judgment in favor of Farrow. Gillis v. Litscher,
468 F.3d 488, 492 (7th Cir. 2006). All facts and reasonable
inferences must be construed in the light most favorable
to Mannoia as the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party
No. 06-1430                                               7

will prevail on a motion for summary judgment if “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
   In response to Mannoia’s § 1983 claim, Farrow asserts
the defense of qualified immunity, which, if established,
shields him from suit. Saucier v. Katz, 533 U.S. 194, 200
(2001). Qualified immunity may be raised by an officer in
a suit challenging the constitutionality of his actions with
respect to the application of a warrant. See Neiman v.
Keane, 232 F.3d 577, 579 (7th Cir. 2000). Although the
privilege of qualified immunity is a defense, the plain-
tiff carries the burden of defeating it. Molina ex rel.
Molina v. Cooper, 325 F.3d 963, 968 (7th Cir. 2003). In
Saucier, the Supreme Court established a two-part test
for resolving the issue of qualified immunity. Under this
test, the court first determines whether the facts alleged,
considered in the light most favorable to the party as-
serting injury, show that the officer’s conduct violated a
constitutional right. Saucier, 533 U.S. at 201. If the
court so finds, it then considers whether the constitu-
tional right violated was firmly established at the time
of the alleged injury, such that a reasonable officer
would understand that his actions are in violation of that
right. Id.
  Turning to Saucier’s first prong, then, we begin by
addressing Mannoia’s assertion that Farrow violated his
Fourth Amendment rights by causing an arrest warrant to
be issued without probable cause. See U.S. Const. amend.
IV; Beauchamp v. City of Noblesville, 320 F.3d 733, 742
(7th Cir. 2003). We note that “[p]robable cause is only a
probability or substantial chance of criminal activity, not
8                                               No. 06-1430

a certainty that a crime was committed.” Beauchamp, 320
F.3d at 743. Mannoia was arrested pursuant to a facially
valid warrant; therefore, Farrow violated Mannoia’s
rights only if a reasonably well-trained officer in Farrow’s
position should have known that the information he
provided in support of the warrant would have failed to
establish probable cause and that he should not have
applied for the warrant in the first place. Id. at 742. To
establish that such a violation occurred, Mannoia must
show that Farrow “knowingly or intentionally or with a
reckless disregard for the truth, made false statements
to the judicial officer, and that the false statements
were necessary to the judicial officer[’s] determinations
that probable cause existed for the arrest[ ].” Id. at 742-43
(citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).
A reckless disregard for the truth can also be established
by showing that Farrow failed to inform the judge of
facts that he knew would detract from a finding of proba-
ble cause. See id. at 743.
  A review of the record indicates that there was probable
cause to arrest Mannoia on the child abduction charge.
Farrow began his investigation after receiving a com-
plaint from Christine that Mannoia had taken their
children, not just a few miles away, but to Hawaii. Farrow
learned that Mannoia had indeed left his job and moved
to Hawaii. The child support order reviewed by Farrow,
while not an order of custody, indicated that Christine
was the “custodial person” and Mannoia was the “non-
custodial person.” And, it would be highly unusual for a
custodial parent to be ordered to pay child support as
Mannoia was ordered to do. Although an order of custody
did not exist, the child support order amply supports
the reasonable inference that during the relevant period,
Christine had custody of the children.
 In his attempt to establish the occurrence of a Fourth
Amendment violation, Mannoia makes much of Farrow not
No. 06-1430                                                  9

disclosing his conversation with the Clerk’s Office em-
ployee about the child support order to the ASAs.2 Ac-
cording to Mannoia, the information provided by that
employee definitively established that no custody order
existed, and it was critical evidence that should have
been revealed. However, whether or not Farrow disclosed
to the ASAs his conversation with the Clerk’s Office
employee is immaterial because she provided him with
no information that needed to be disclosed. The conver-
sation did little to establish the meaning of the order that
was not already apparent from the face of the document,
as the document itself stated that Christine was the
custodial person. Indeed, the ASAs testified that Farrow’s
comments regarding the meaning of the order would
have had no impact on their evaluation—they personally
examined the order, and, using their legal expertise,
concluded that the order satisfied the requirements of
the child abduction statute. “Consulting a prosecutor
may not give an officer absolute immunity . . . but it goes
far to establish qualified immunity.” Kijonka v. Seitzinger,
363 F.3d 645, 648 (7th Cir. 2004).
  After the ASAs decided on the charges, Farrow appeared
before Judge Martin to obtain the warrant. Mannoia
claims that Farrow deliberately falsified information when
he told the judge that there was a valid custody order.3


2
  Farrow may or may not have told the ASAs about his conver-
sation with the Clerk’s office; the record is not conclusive on
this point. However, because we are required to draw all rea-
sonable inferences in the non-movant’s favor in determining
whether summary judgment is proper, see Anderson, 477 U.S.
at 255, we will assume that Farrow did not reveal this conver-
sation in seeking the arrest warrant.
3
 No court reporter was present in the courtroom when Judge
Martin issued the warrant. Judge Martin Dep. 5. The judge
                                                 (continued...)
10                                                 No. 06-1430

However, because Farrow consulted the ASAs, Farrow
reasonably believed the support order constituted a
valid custody order, and any statements he may have
made to Judge Martin regarding the order reflected that
reasonable belief. As such, Farrow cannot be found, as
Mannoia argues, to have intentionally withheld the child
support order from Judge Martin because he knew it
would be “fatal” to his request for an arrest warrant. The
order had been reviewed by the ASAs who then decided
to file child abduction charges against Mannoia; therefore,
Farrow had no reason to believe that the order would
have detracted from the judge’s finding that probable
cause existed to arrest Mannoia.
  In sum, Mannoia has not shown that Farrow deliberately
made false statements necessary to Judge Martin’s
probable cause determination or that Farrow failed to
tell Judge Martin facts he knew would undermine a
finding of probable cause. Because Farrow cannot be
found to have violated Mannoia’s constitutional rights in
procuring the arrest warrant, it is unnecessary to con-
sider the second part of the Saucier inquiry, i.e., whether
the violated right was clearly established at the time of
the alleged injury. 533 U.S. at 201. Therefore, we con-
clude that Farrow is immune from suit on Mannoia’s
§ 1983 claim. In addition, our finding that the arrest
warrant was supported by probable cause precludes
Mannoia from recovering on his claims of false arrest and
malicious prosecution because under Illinois law, lack of
probable cause is an essential element of both torts. See



(...continued)
testified that she recalled Farrow either telling her or confirm-
ing when asked that there was a valid order for custody. Id. at
6, 8. However, at Farrow’s deposition, he denied telling Judge
Martin that such an order existed. Farrow Dep. 105.
No. 06-1430                                           11

Reynolds v. Meynard, Inc., 850 N.E.2d 831, 837 (Ill. App.
Ct. 2006).


                  III. CONCLUSION
  The district court’s entry of summary judgment was
proper and is hereby AFFIRMED.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                  USCA-02-C-0072—2-7-07
