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June 2, 2004.


The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District


Plaintiff Madison Hobley ("Hobley") filed this twelve-count complaint alleging various federal and state law claims against the City of Chicago and seven current and former members of the Chicago Police Department (collectively, "Defendants").*fn1 Presently before us is Defendants' motion to dismiss, For the reasons stated below, Defendants' motion is granted in part, and denied in pan, I. BACKGROUND*fn2

On January 6, 1987, a fire broke out in an apartment building on the south side of Chicago where Hobley lived with his wife and son. Early that morning, Hobley awoke to the sound of a fire alarm and entered the hallway to investigate. While he was walking down the hallway, a glass partition exploded and prevented him from returning to his apartment to rescue his family. As the fire raged in the hallway, Hobley was able to crawl out the back stairway to escape the building. (Compl. ¶ 13), Ultimately, the fire claimed the lives of seven people, including Hobley's wife and son, Hobley states that upon discovering that he survived the fire and his family did not. Defendant Officers*fn3 from the Chicago Police Department ("CPD") immediately concluded Hobley was responsible for setting the fire. (Compl. ¶ 15). According to his complaint, Hobley was taken "from his mother's home less than five hours after he escaped from the deadly fire." Id. For the entire next day, Hobley was interrogated by detectives of the CPD's Area 2 Violent Crimes Detective Bureau ("Area 2"). (Compl. ¶ 16). Defendants Lotito and Dwyer, both detectives in the bureau, attempted to coerce Hobley into confessing that he started the fire. (Compl. ¶ 17), Specifically, Lotito and Dwyer beat Hobley, placed a plastic bag over his head until he lost consciousness, used racially offensive language, and threatened Hobley. Id. Hobley refused to confess, (Compl, ¶ 18).

  According to the complaint, because the officers were unable to coerce Hobley into confessing, they fabricated an oral confession that they reported Hobley gave on the day of the fire. (Compl. ¶ 19). Dwyer subsequently claimed that he threw away Hobley's "confession" because it was supposedly rendered illegible after coffee spilled on it. (Compl. ¶ 21). All written documents created contemporaneously to the interrogation reflect Hobley's denials of involvement in the crime. Id. ¶ 20.

  Hobley alleges one or more of the Defendant Officers conspired to plant physical evidence at the scene of the crime. According to Hobley, a gasoline can, which had been logged in as evidence in another, unrelated crime that had occurred three weeks prior to the fire in Hobley's building, was apparently confiscated from the CPD's Evidence and Recovered Property Section. (Compl. ¶ 23). The officers pretended to find this gasoline can at the scene of the fire in Hobley's building fourteen hours after the fire. The planted can did not indicate any signs that it had survived a fire. Id. At Hobley's trial, the gasoline can was introduced as the can that was used to start the fire in Hobley's apartment building. The Defendant Officers concealed information that the gas can was seized from a different and unrelated fire and subsequently planted in Hobley's apartment building. Id. ¶ 24. The Defendant Officers also deliberately withheld a fingerprint report issued by the CPD crimes laboratory following testing conducted on the gasoline can. Id. ¶ 25.

  In furtherance of the conspiracy to frame Hobley, Defendant Officers produced two individuals who claimed to have seen Hobley purchase gasoline on the night of the fire. One witness was initially uncertain of his identification. Only after persistent and improper pressure from the Defendant Officers did the witness state that perhaps Hobley, who he had seen in a lineup, "favored" the man he saw purchase the gasoline. (Compl, ¶ 26). In exchange for testimony implicating Hobley, Defendant Officers and Defendant Commander Jon Burge apparently provided "assistance" to a second witness, who faced criminal problems of his own. (Compl. ¶ 27). Defendant Officers and Burge then withheld this information. Defendant Garrity and other Defendant Officers also falsely reported that Hobley had failed a polygraph examination. Id. ¶ 28. Thereafter, Hobley was convicted of arson and seven counts of murder. (Compl. ¶ 29). He was sentenced to death,

  According to Hobley, the City of Chicago ignored the police corruption and torture occurring at Area 2 which resulted in the wrongful convictions of him and others. (Compl. ¶ 32). The complaint states that findings reveal that there was a pattern and practice of torture of suspects by Area 2 Violent Crimes detectives during the time period relevant to this case. The CPD's Office of Professional Standards concluded in November 1990 that the physical abuse at Area 2 included psychological coercion and physical torture. Command members, including defendant Burge, were aware of the systematic abuse and either participated in it themselves or failed to take action to stop it, (Compl. ¶ 33), Hobley alleges that as a result of the beatings and physical abuse administered by Defendant Officers, he suffered physical pain and discomfort. He also suffered mental anguish and emotional distress, (Compl, ¶ 31),

  After several appeals, the Supreme Court of Illinois granted Hobley leave to conduct discovery into the circumstances of his conviction. (Compl. ¶ 3). Hobley spent thirteen years on Death Row and over sixteen years in prison before the former Governor of Illinois, George Ryan, granted Hobley a full pardon on grounds of innocence. Hobley was released from prison on January 10, 2003. (Compl. ¶¶ 4, 30).

  Hobley then brought this twelve-count complaint against the City of Chicago and the following members of the CPD in their individual capacities: Chicago Police Commander Jon Burge; Detective Robert Dwyer; Detective James Lotito; Detective Virgil Mikus; Detective Daniel McWeeney; Detective John Paladino; and Sergeant Patrick Garrity. Counts I-IV and VIII are brought pursuant to 42 U.S.C. § 1983. Count I alleges Hobley was subjected to excessive force, specifically, police torture by Defendants Dwyer and Lotito inflicted pursuant to the policy and practice of the Chicago Police Department. Hobley contends that the CPD encouraged the misconduct by failing to adequately train, supervise, and control its officers; facilitated constitutional violations by failing to punish and discipline prior instances of misconduct; and failed to timely act despite actual knowledge of the abuses. In Count II, Hobley avers that Defendants Mikus and Garrity, and possibly others, failed to intervene to prevent the torture to which Hobley was subjected by Defendants Lotito and Dwyer. Count III alleges plaintiff was deprived of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. Specifically, Defendant Officers deliberately withheld exculpatory evidence, provided false evidence, and thereby misled and misdirected the state criminal prosecution of Hobley. In Count IV, Hobley asserts that Defendant Officers and CPD's Office of Professional Standards allegedly conspired to deem citizen complaints of wrongdoing lodged against CPD officers as unfounded even when meritorious. Thus, Defendant Officers believed that they could act with impunity. This conspiracy resulted in Hobley being subjected to excessive force and other constitutional injuries. Moreover, Hobley asserts Defendant Officers entered into an agreement which sought to deprive Hobley of his rights to be free from police torture, false arrest, and malicious prosecution as guaranteed by the Fourth and Fourteenth Amendments. In furtherance of this alleged conspiracy, Defendants Burge, Lotito, Dwyer, Paladino, Garrity, and Mikus agreed to conceal the fact that Hobley never confessed and had not failed a polygraph examination. Additionally, Defendants Burge, McWeeney, Paladino and some or all of the other Defendant Officers agreed to assist in tainting the testimony of the State's witnesses or to assist in planting the gas can. All agreed to conceal these facts, as well as the fingerprint report, from Hobley and the court, Hobley asserts that the actions alleged in Counts II-IV were also undertaken pursuant to the policy and practices of the CPD. In Count VIII, Hobley alleges he was improperly seized and arrested without legitimate probable cause,

  Hobley's complaint also includes state law claims of civil conspiracy in Count V, intentional infliction of emotional distress in Count VI, battery in Count VII, malicious prosecution in Count X,*fn4 respondeat superior in Count XI, and indemnification in Count XII. Finally, in Count IX, Hobley alleges Defendant Officers committed an assault and battery upon him by reason of his race, thereby committing a hate crime as defined by, and in violation of, the Illinois Hate Crime Act, 720 III. Comp. Stat. 5/12-7.1, Hobley seeks compensatory damages, costs, and attorneys' fees as well as punitive damages against each of the Defendant Officers in their individual capacities. Defendants have moved to dismiss several counts of the complaint.


  For the purposes of this motion, we must accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in plaintiff's favor. Jang v, A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). In considering a motion to dismiss, a court may also take judicial notice of matters of public record. See Palay v. United States, 349 F.3d 418, 425 n.5 (7th Cir. 2003), The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to decide the adequacy of the complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Therefore, a complaint should not be dismissed "unless 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(1957).


  Defendants attack Hobley's complaint on a variety of grounds, namely, that Hobley is barred from re-litigating many of the issues raised in his complaint under the doctrine of collateral estoppel, several counts are barred by the applicable statutes of limitations, Defendants are entitled to absolute immunity with regard to any claims that they testified falsely, and two counts fail to state a claim on which relief may be granted. Initially, we note that the Seventh Circuit has recently made clear that because both statute of limitations and collateral estoppel are affirmative defenses, a plaintiff need not anticipate or attempt to diffuse these defenses in his complaint. United States Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003) (explaining that statute of limitations and issue preclusion are affirmative defenses); Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003); Deckard v. General Motors Corp., 307 F.3d 556, 560 (7th Cir. 2002) ("A motion to dismiss was improper since release is an affirmative defense, Fed.R.Civ.P. 8(c), and the existence of a defense does not undercut the adequacy of the claim."). In terms of issue preclusion, given the Seventh Circuit's statements in U.S. Gypsum, 350 F.3d at 626 ("None of these is a good ground on which to dismiss [the] complaint — and the latter two are not permissible even in principle, because the statute of limitations and issue preclusion ...

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