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November 22, 1999


The opinion of the court was delivered by: Castillo, District Judge.


Billy Wardell ("Wardell") and Donald Reynolds ("Reynolds") sued the City of Chicago, Pamela Fish, and unknown City of Chicago employees for violating their civil rights under 42 U.S.C. § 1983 and for intentional infliction of emotional distress. The defendants filed a joint motion to dismiss, which we deny for the reasons stated below.


On May 3, 1986, two women, J.C. and C.H., were sexually assaulted in the vicinity of the University of Chicago campus in Chicago, Illinois. Chicago police officers investigating the assaults prepared Vitullo kits from samples taken from the two victims, which were given to the Chicago Police Department Crime Laboratory (CPD Lab) for testing. The victims stated that they had been assaulted by three black males, all approximately 20-25 years old. On May 6, J.C. and C.H. identified Reynolds as one of their attackers. Reynolds was immediately arrested. On June 6, the victims viewed a photograph line-up of six men, including Wardell. C.H. picked a photograph of Wardell and stated, "this could be one of the guys." J.C. did not identify anyone from the photo line-up. On June 10, Wardell was taken into custody. Later that day, the victims viewed him in a line-up. Wardell was the only subject who was required to wear a hooded sweatshirt (one of the victims stated that her attacker had worn a hooded sweatshirt). In addition, Wardell was the only subject required to say "are you trying to play dead?," a question asked by one of the attackers. C.H. identified Wardell, but J.C. did not. Wardell was then arrested and charged with offenses related to the attacks.

C.H. stated that she had dug her nails into the penis of her attacker. Plant material with blood on it was recovered where C.H. was attacked and given to the CPD Lab for testing. Although blood evidence is usually tested in the trace section before being tested in the serology section of the CPD lab to avoid contamination, the plaintiffs allege that Pamela Fish, a CPD Lab employee reversed the order of testing, thereby exposing the evidence to contamination.*fn1 No CPD Lab reports were produced regarding: (1) the blood type or comparing the blood to the blood of the suspects; (2) the victims' fingernail scrapings which were included in the Vitullo kits; or (3) a comparison of the fingernail evidence to blood or trace evidence from the suspects. However, Maria Pulling, a CPD Lab forensic expert, analyzed trace evidence and prepared a CPD Lab report, dated June 17, 1986, summarizing her findings. The plaintiffs allege that this report contained significant evidence exculpating them.

The plaintiffs' defense counsel in the Wardell/ Reynolds trial requested the results of any scientific tests and any exculpatory evidence from the prosecution. However, they neither received the Pulling report nor were they given Pulling's name as a potential witness. Reynolds requested DNA testing in his criminal trial, but the plaintiffs allege that, due in part to the paucity of evidence in that case, the request for DNA testing was denied. The plaintiffs assert that proper production of the Pulling report would have given the trial judge sufficient evidence to grant the request for DNA testing, which would have exculpated them. The plaintiffs allege that the defendants concealed the exculpatory evidence pursuant to a policy or custom, created, carried-out, or condoned since 1980 of concealing exculpatory evidence, in at least 300 cases involving African-American suspects.

Wardell and Reynolds were both prosecuted and found guilty of aggravated criminal sexual assault, armed robbery, attempted criminal sexual assault and attempted armed robbery. They were sentenced to 69 years in prison, but later resentenced to 55 years following an appeal. After their trial and convictions, Wardell and Reynolds filed post-conviction petitions, requesting DNA testing. The DNA testing that was conducted proved that Wardell and Reynolds were not guilty of the offenses charged. Their convictions were vacated on November 17, 1997, and after spending eleven and a half years in prison, subsequently were granted clemency and pardoned by the State of Illinois. They now bring this suit to recover damages for deprivation of their right to due process in violation of the Fifth and Fourteenth Amendments of the Constitution. In addition, they seek damages for the deprivation of their right to be free from unreasonable seizure and imprisonment in violation of the Fourth and Fourteenth Amendments of the Constitution. Finally, they present supplemental state law claims for intentional infliction of emotional distress.


I. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure does not test whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim for which relief may be granted. Pickrel v. City of Springfield, Ill., 45 F.3d 1115, 1118 (7th Cir. 1995). In ruling on a motion to dismiss, the court must presume all of the well-pleaded allegations of the complaint to be true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). Dismissal under Rule 12(b)(6) is proper only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 791 (7th Cir. 1996).

II. Violation of Right to Due Process

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) the perpetrator of the alleged conduct was acting under color of state law; and (2) the alleged conduct deprived the plaintiff of a right, privilege, or immunity guaranteed by the Constitution or the laws of the United States. Papapetropoulous v. Milwaukee Transport Servs., Inc., 795 F.2d 591, 595 (7th Cir. 1986). In addition, "a causal connection must exist between the defendant's actions and the injury resulting from the constitutional violation." Id. Although § 1983 claims are not subject to a heightened pleading standard, a plaintiff nonetheless must allege facts that, if believed, would show that a federal right was actually violated. The factual allegations must identify what the defendant did to cause a constitutional violation. Id.; McTigue v. City of Chicago, 60 F.3d 381 (7th Cir. 1995) (Fed.R.Civ.P. 8 does not require detailed factual pleading, but the plaintiff's assertions must still direct the defendant to the factual cause of the plaintiff's alleged injury). The plaintiffs allege that Fish, unknown employees, and the City, acting under color of state law, violated their constitutional right to due process.

A. Fish and Unknown Employees

The plaintiffs allege that the defendants Fish and unknown employees acted under color of state law, satisfying the first requirement of a § 1983 claim. (R. 32, Pls.' Second Consolidated Compl. ¶¶ 45.) Furthermore, the plaintiffs' factual allegations regarding the deprivation of their right to due process satisfy the pleading requirement under the Federal Rules of Civil Procedure. Specifically, the plaintiffs allege that Fish and unknown employees: (1) concealed exculpatory evidence; (2) facilitated and condoned the custom of concealing exculpatory evidence; (3) failed to test available blood evidence related to the crime; and (4) failed to avoid contamination of the trace evidence. It is well established that "[a]ny nondisclosure of material exculpatory evidence by the government results in a violation of the defendant's due process rights." United States v. Bhutani, 175 F.3d 572, 577 (7th Cir. 1999); see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Favorable evidence is material if "its suppression undermines confidence in the outcome of the trial"; this does not require ...

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