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October 13, 2004.


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


Following our June 3, 2004 Memorandum Opinion and Order granting in part and denying in part the Defendants' motion to dismiss Plaintiff Madison Hobley's ("Hobley") complaint,*fn1 Hobley filed an amended sixteen-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"). Presently before us is Defendants' motion to dismiss Counts III, VI, VII, VIII, IX, and X, and portions of Counts IV, V, XI, XII, and XIII of Plaintiff's amended complaint. For the reasons stated below, Defendants' motion to dismiss the amended complaint is granted in part and denied in part.


  The following facts are taken from Hobley's amended complaint. For the purposes of a motion to dismiss, we accept all well-pleaded factual allegations of Hobley's Amended Complaint as true. Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). 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. While he was walking down the hallway to investigate a sounding fire alarm, a glass partition exploded and prevented him from returning to his apartment to rescue his family. (Am. Compl. ¶¶ 12, 13.) Blocked by the fire, Hobley was able to crawl out the back stairway to escape the building. Id. ¶ 14. Ultimately, the fire claimed the lives of seven people, including Hobley's wife and son. Upon discovering that he survived the fire and his family did not, Defendant Officers*fn2 from the Chicago Police Department ("CPD") immediately concluded Hobley was responsible for setting the fire, and took Hobley "from his mother's home less than five hours after he escaped from the deadly fire." Id. ¶ 16. For the entire next day, Hobley was interrogated and tortured by detectives of the CPD's Area 2 Violent Crimes Detective Bureau ("Area 2"). Id. ¶ 17. Defendants Lotito and Dwyer beat Hobley, placed a plastic bag over his head until he lost consciousness, used racially offensive language, and threatened Hobley, in an attempt to coerce Hobley into confessing that he started the fire, but Hobley refused to confess. (Am. Compl. ¶ 18.)

  Because the officers were unable to coerce Hobley into confessing, they fabricated an oral confession that they claimed Hobley gave on the day of the fire. Id. ¶ 20. Dwyer subsequently claimed that he threw away Hobley's written "confession" because it was supposedly rendered illegible after coffee spilled on it. Id. ¶ 22. All written documents created contemporaneously to the interrogation reflect Hobley's denials of involvement in the crime. Id. ¶ 21.

  Hobley alleges one or more of the Defendant Officers conspired to plant physical evidence at the scene of the crime. A gasoline can, which had been logged in as evidence in an unrelated crime, was apparently taken from the CPD's Evidence and Recovered Property Section, and then "discovered" at Hobley's building fourteen hours after the fire. (Am. Compl. ¶ 24.) The planted can indicated no signs of surviving a fire, but it was nonetheless introduced as the can that was used to start the fire in Hobley's apartment building. Id. The Defendant Officers concealed information that the gas can was seized and then planted in Hobley's apartment building and also deliberately withheld a fingerprint report issued by the CPD crimes laboratory following testing conducted on the gasoline can. Id. ¶¶ 25-26.

  Defendant Officers also 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, and only after persistent and improper coercion 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. Id. ¶ 27. 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. (Am. Compl. ¶ 28.) 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. ¶ 29. In his supervisory capacity, Defendant Burge personally knew about, facilitated, and condoned this pattern and practice of misconduct. Burge also failed to stop officers from torturing Hobley. Id. ¶¶ 30-32.

  Thereafter, Hobley was convicted of arson and seven counts of murder, and sentenced to death. Id. ¶ 33. 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. (Am. Compl. ¶¶ 4, 30.)

  According to Hobley, the City of Chicago tolerated and even condoned the "systematic deprivation of due process" by police officers in Area 2, which resulted in the wrongful convictions of him and others. Id. ¶ 36. This "policy and practice" was used to "solve" crimes more expediently and to enhance officers' personal standing in the Department. Hobley's complaint alleges that the methodology for depriving criminal suspects of due process was disturbingly uniform and involved concealing exculpatory information, planting evidence, manipulating witnesses, and fabricating incriminating evidence, including extracting false confessions through coercion and torture. Id. ¶¶ 37-46. There are up to one hundred victims of this practice, with at least thirteen ending up with Hobley on Death Row. Id. ¶ 39. With one exception, all of the victims were African American. (Am. Comp. ¶ 43.) All of the accused police officers are white. Id. ¶ 44. Due process violations by Area 2 police officers have resulted in reversed convictions, new hearings and trials, and at least a dozen civil lawsuits. Id. ¶¶ 45-46.

  During the relevant time period, the CPD's Office of Professional Standards (OPS) failed to investigate many of the allegations of due process violations and rejected approximately 95% of the complaints of abuse that it did investigate. Id. ¶ 50. Hobley alleges that the failure of oversight and punishment is a pattern that continues to the present. (Am. Compl. ¶¶ 51-56.) In September of 1990, an OPS Investigator named Goldston concluded a study of allegations of constitutional violations in Area 2, finding that a preponderance of evidence indicated that systematic and methodical abuse had occurred over a ten year period and that particular command members were aware of and perpetuated the abuse. Id. ¶¶ 57-58. The Goldston Report constituted material exculpatory evidence for Hobley, which was suppressed until 1992, when District Judge Milton Shadur ordered that the report be unsealed. Id. ¶¶ 60-65. After the release of the Goldston Report, "re-investigations" were conducted on nine cases, finding the allegations to be credible and recommending discipline. However, in 1998, five years after the re-investigations, then-Police Superintendent Terry Hillard and his general counsel Thomas Needham made a secret decision to "shelve" the new OPS findings, thereby clearing all of the officers. Id. ¶¶ 67-72. These findings were withheld from Hobley as he litigated his post-conviction petition. (Am. Compl. ¶ 74-77.) Hobley's amended complaint notes that other than Burge, who was fired, and two other officers who served suspensions, Chicago has never disciplined any police officer for any of the allegations of fabricated confessions and has indicated that it will not punish officers in the future. Id. ¶¶ 78-79.

  In alleging damages, Hobley states that he has suffered enormously, including the loss of freedom and "almost-unimaginable indignities of prison and Death Row," all under the specter of an unjust death sentence. Id. ¶ 81. Hobley seeks compensatory damages, costs, and attorneys' fees, as well as punitive damages against each of the Defendant Officers in their individual capacities.

  Hobley's amended complaint asserts sixteen counts, including federal claims brought under § 1983, § 1985(3), the RICO statute, and several state law claims. Defendants have moved to dismiss two counts in their entirety and portions of five counts as time-barred, and they move to dismiss four counts as insufficiently pled.


  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). The Seventh Circuit has acknowledged, however, that "[a] litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense. . . ." U.S. Gypsum v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (internal citation omitted). In U.S. Gypsum, the Seventh Circuit specifically cited to Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002) as "applying this principle to the period of limitations." See also, e.g., Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892 (7th Cir. 2001) (affirming district court's dismissal of claims in the complaint as time-barred at the motion to dismiss stage). III. ANALYSIS

  Defendants move to dismiss Hobley's amended claims for police torture/excessive force (Count IX) and failure to intervene (Count X), arguing that as re-pled, they are still time-barred. Defendants also move to dismiss Hobley's claims for violation of equal protection (Count III), conspiracy to violate equal protection (Count VI), § 1983 conspiracy (Counts IV and V), state civil conspiracy (Count XIII), intentional infliction of emotional distress (Count XII), and Monell Claim (XI) as time-barred to the extent that they are premised on excessive force and failure to intervene. Finally, the Defendants move to dismiss Hobley's claims for RICO violation (Count VII), RICO conspiracy (Count VIII), violation of equal protection (Count III), and conspiracy to violate equal protection (Count VI) as insufficiently pled. We address each of the Defendants' ground for dismissal separately.

  A. Statute of Limitations

  1. Claims Brought under § 1983

  The appropriate statute of limitations period for § 1983 claims is the limitations period for personal injury claims in the state in which the alleged violation occurred. See Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998). In Illinois, this is two years. Id. Federal law, however, determines when a § 1983 action accrues, which is generally "when a plaintiff knows or has reason to know ...

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