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MANNING v. DYE

November 5, 2004.

STEVEN MANNING, Plaintiff,
v.
THOMAS DYE; ROBERT BUCHAN; GARY MILLER; JOHN O'ROURKE; and UNITED STATES OF AMERICA, Defendants.



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

For a brief period in 1986, plaintiff Steven Manning, a former Chicago police officer, cooperated with the Federal Bureau of Investigation in a criminal investigation. He had contact with FBI Special Agent John O'Rourke, who was assigned to the Chicago FBI's office's "Squad 9," and helped make a case against two of his associates, Thomas McKillip and Anthony Mammolito. Manning contends that O'Rourke pressed him to become a FBI informant, but he declined, ending his relationship with the Bureau later that year. He says that O'Rourke reacted negatively to this and resolved to retaliate against him. In 1987, Manning filed a lawsuit against the FBI, O'Rourke, and other members of Squad 9, alleging they were improperly manipulating informants to falsely implicate him in criminal activity (the suit was dismissed shortly after its filing).

In 1988, at the urging of O'Rourke, Squad 9 opened an investigation of Manning, who was suspected of involvement in ongoing criminal activity. Agent Robert Buchan was assigned to be the case agent for the investigation. In the interim, Thomas McKillip had been found murdered in Buffalo Grove, Illinois. Buchan contacted Buffalo Grove police detective Robert Quid, who had responsibility for the McKillip homicide investigation, and he ultimately enlisted Quid's assistance and cooperation in the FBI's investigation of Manning. Quid's work on the investigation ended up going far beyond the McKillip homicide.

  In July 1990, the investigation of Manning struck pay dirt. Largely as a result of information from Anthony Mammolito, another Manning associate who was in prison in Louisiana, Manning was charged in Missouri state court with the 1984 kidnapping of Charles Ford, a drug dealer, and Mark Harris, a friend of Ford. Mammolito's cooperation was secured through detective Quid's efforts, and the investigation that led to the Missouri charge had been conducted in significant part by Buchan and Quid.

  After he was charged in Missouri, Manning was arrested in Illinois on a Missouri warrant and was detained at the Cook County Jail while awaiting extradition. Defendants claim the FBI received information from an informant that Manning might be a threat to witnesses against him in the Missouri case. In addition, Manning was suspected of involvement in the disappearance of Jimmy Pellegrino, a former associate of his. While Manning was at the Jail, the FBI, in cooperation with local authorities, arranged for him to be placed in a cell with Thomas Dye, a jail house informant, in the hope of obtaining evidence to be used against Manning. Dye had recently been given a lengthy prison sentence for burglary and was awaiting trial on theft and robbery charges.

  Gary Miller, another FBI agent with Squad 9, was given responsibility for working with Dye. He allegedly told Dye to avoid eliciting information from Manning about the Missouri kidnapping, with which Manning had already been charged. But Dye proceeded to do exactly that. He later testified that during the period they were jailed together, Manning asked him to provide a false alibi in the Missouri case and in return promised to arrange for the main witness against Dye to be killed. Following Manning's conversations with Dye, the FBI worked with Dye's girlfriend, Sylvia Herrera, to elicit information from Manning about the false alibi.

  Dye also claimed that during their jail house conversations, Manning told him that he had killed Jimmy Pellegrino, with whom he had been in business, because Pellegrino had threatened to turn him in to the police. Dye was fitted with a body recorder for the purpose of recording two conversations with Manning in August and September 1990. Both conversations included discussions of how Dye and Manning would help each other in their pending cases. Much later, Dye also claimed that in both conversations, Manning admitted killing Pellegrino. However, no such references appeared on the tape recordings, and no reference to Pellegrino appeared in Miller's debriefing memorandum prepared after the first conversation. Dye ultimately claimed that the admission came during a two-second inaudible gap in the first recording. The recorder had evidently malfunctioned during the second conversation, though there may be reason to believe that Dye switched the recorder off.

  Largely on the strength of Dye's claims, Manning was charged with Pellegrino's murder in Illinois state court in February 1992. In the interim, he was taken to Missouri to stand trial on the kidnapping charges. Manning was tried in October 1991, but the jury deadlocked, and a mistrial was declared. On retrial in January 1992, he was convicted and was given a sentence of life in prison. Anthony Mammolito, a prison inmate and alleged accomplice of Manning whose cooperation had been secured by detective Quid acting at agent Buchan's behest, testified at both trials regarding Manning's participation in the kidnapping. Among other things, Mammolito identified Manning as having picked up the ransom — though he had originally told Quid that he himself, with McKillip, had performed that task. At the second trial, Sylvia Herrera testified about the alleged plan to fabricate an alibi defense. Carolyn Heldenbrand, the sister of one of the kidnapping victims, also testified, identifying Manning as the person she had seen during the ransom drop. Heldenbrand claimed to have picked Manning from a photographic line-up in 1990 conducted by Buchan.

  Manning was returned to Illinois for trial on the Pellegrino murder. Dye testified at the trial regarding Manning's purported admissions to the murder and their conversations about assisting each other in their pending cases. Manning was convicted of the murder and sentenced to death.

  In April 1998, Manning's murder conviction was reversed by the Illinois Supreme Court, and the case was remanded for a new trial, due to the erroneous admission of hearsay consisting of a purported statement by the murder victim to his wife and the erroneous admission of evidence regarding conversations between Dye and Manning regarding their other pending cases. People v. Manning, 182 Ill. 2d 193, 695 N.E.2d 423 (1998). Following the reversal, Cook County prosecutors determined not to pursue Manning further and dropped the case.

  In January 2002, Manning filed this suit against FBI agents Robert Buchan and Gary Miller, the United States, Thomas Dye, Chicago Police detective Louis Rabbit, and the City of Chicago, alleging that they had framed him for the Pellegrino murder and had violated his constitutional rights and committed various torts. After the Court denied a motion by the federal defendants seeking dismissal on immunity and other grounds, see Manning v. Dye, No. 02 C 372, 2003 WL 145423 (N.D. Ill. Jan. 21, 2003), Buchan and Miller took an interlocutory appeal, arguing that they were entitled to absolute or qualified immunity. The Seventh Circuit rejected their contentions. Manning v. Miller, 355 F.3d 1028 (7th Cir. 2003).

  In November 2002, the United States Court of Appeals for the Eighth Circuit ruled that the government's use of informants against Manning after he was charged with the Missouri kidnapping and represented by counsel violated his Sixth Amendment rights and that Sylvia Herrera's testimony should have been excluded from evidence in that case. The court granted a writ of habeas corpus, directing Missouri to release Manning unless it retried him. Manning v. Bowersox, 310 F.3d 571 (8th Cir. 2002). The Missouri authorities declined to do so, and Manning was released from prison. Manning then amended his complaint in this case to include claims that his constitutional rights had been violated by Miller, Buchan, FBI Agent John O'Rourke, and Buffalo Grove detective Quid in the course of obtaining the Missouri conviction. He also named the United States under the Federal Tort Claims Act as well as the Village of Buffalo Grove.

  Manning has since dismissed as defendants Rabbit, Quid, the City of Chicago, and the Village of Buffalo Grove, leaving the three FBI agents, Dye, and the United States. At present, Manning's remaining claims are as follows:
Count Defendants Nature of claim
Count 1 Buchan, Miller Claim under Bivens — Illinois murder Count 2 Dye Malicious prosecution — Illinois murder Count 3 United States FTCA — malicious prosecution — Illinois murder Count 5 Miller, Buchan 42 U.S.C. § 1983 — conspiracy — Illinois murder and Missouri kidnapping Count 6 Miller, Buchan, 42 U.S.C. § 1983 — Illinois murder Dye Count 7 Buchan, Miller, Claim under Bivens — O'Rourke, Dye Missouri kidnapping Count 8 Dye Malicious prosecution — Missouri kidnapping Count 9 United States FTCA — malicious prosecution — Missouri kidnapping Count 10 Miller & 42 U.S.C. § 1983 — Missouri kidnapping Buchan Count 11 Buchan, Miller, RICO — Illinois murder and O'Rourke, Dye Missouri kidnapping Count 12 Buchan, Miller, RICO conspiracy — Illinois kidnapping murder and Missouri O'Rourke, Dye Count 13 United States FTCA — intentional infliction of emotional distress — Missouri kidnapping
  The federal defendants — in other words, all the remaining defendants but Dye — have moved for summary judgment on Manning's claims. In his response to the motion, Manning states that he has no objection to entry of summary judgment in favor of O'Rourke. See Pltf. Resp. at 3 n. 1. The Court will therefore address only the claims against Buchan, Miller, and the United States that are contained in Counts 1, 3, 5, 6, 7, 9, 10, 11, 12, and 13.

  Discussion

  The facts in this case are sharply disputed, and it is anything but clear whether a fact finder would, after seeing and hearing the witnesses, find the facts as Manning presents them. But that is not for the Court to decide in the present context. A summary judgment motion is not a trial-by-paper in which the court reviews all the evidence, determines which side's version is more likely, and rules accordingly. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). On the contrary, a court addressing a summary judgment motion may not weigh the evidence, decide which competing inferences are more likely, or make credibility determinations. See, e.g., Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003); Continental Cas. Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512, 520 (7th Cir. 1999). Rather, we must take the facts, and the inferences reasonably drawn from them, in the light most favorable to the non-moving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morfin v. City of East Chicago, 349 F.3d 989, 996-97 (7th Cir. 2003).

  A. Section 1983 claims (Counts 5, 6 & 10)

  In Counts 5, 6, and 10, Manning asserts claims against Buchan and Miller under 42 U.S.C. § 1983. Defendants argue that they cannot be held liable under section 1983, as that provision requires action under color of state law, whereas they acted under color of federal law. We have scoured Manning's brief and have found no response on this point. Though it could be maintained that the evidence of the FBI agents' actions in concert with Buffalo Grove detective Quid, who is no longer a defendant, might suffice to permit them to be held liable under § 1983, the Court takes Manning's failure to address the point as a concession that summary judgment is appropriate on the § 1983 claims. The Court therefore grants summary judgment in favor of Buchan and Miller on Counts 5, 6, and 10.

  B. Bivens claims (Counts 1 & 7)

  Manning's claims against agents Buchan and Miller are made pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which permits a person whose constitutional rights were violated by a federal law enforcement agent to sue for damages. On Buchan and Miller's interlocutory appeal, the Seventh Circuit said that Manning could pursue a claim based on the defendants "creating false evidence" used to convict Manning of a crime. Manning v. Miller, 355 F.3d at 1033. Manning's claims largely are brought under that rubric.

  1. Illinois murder case

  A fact finder reasonably could find that Buchan and Miller, acting in concert with each other and with others, created false evidence that was essential in convicting Manning of the Pellegrino murder and withheld knowledge of this from prosecutors in the case.

  To begin with, a fact finder could find that the defendants had a motive to try to make a case or cases on Manning to get him off the streets. The motive might have been laudable on its face — their concern that Manning posed to danger to society or to particular individuals — or might have been nefarious one — to show him what happens when informants do not play ball. The nature of the motive, however, is of no consequence to the Court's current inquiry. The significant point is that there is evidence to support a finding that defendants had a reason to try to put together a case against Manning.

  A fact finder reasonably could find that the defendants engaged in an effort to find and recruit someone at the Cook County Jail who could be used as an informant against Manning. This effort led them to Dye, who, they learned, was a "con man" with a "notorious reputation for scamming people" who "could not be trusted on word and actions alone," see Pltf. LR ...


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