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June 9, 2005.

DAVID CRAIG, Plaintiff,

The opinion of the court was delivered by: AMY J. ST. EVE, District Judge


Plaintiff David Craig brings this four-count Complaint alleging excessive force, due process violations, conspiracy, and a state law malicious prosecution claim against Chicago Police Officers J.A. Huayamave, J. Arroyo, J.M. Uzubell, M.S. Janus, and the City of Chicago. Before the Court is Defendants Huayamave's and Janus's Partial Motion to Dismiss Counts II and IV pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court denies Defendants' motion to dismiss.


  The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of a complaint, not the merits of the case. Triad Assoc., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). The Court will only grant a motion to dismiss 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." Centers v. Centennial Mortgage, Inc., 398 F.3d 930, 933 (7th Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed.2d 80 (1957)). When determining a motion to dismiss, the Court is restricted to reviewing the pleadings, which consist of the complaint, any attached exhibits, and the supporting briefs. See Thompson v. Illinois Dept. of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). In making its determination, the Court must assume the truth of the facts alleged in the pleadings, construe the allegations liberally, and view them in the light most favorable to the plaintiff. Centers, 398 F.3d at 333.


  The relevant facts alleged in Craig's Complaint, and regarded as true for the purposes of this motion, are as follows: On March 5, 2004 at about 1:30 a.m., several police officers, including Defendant Officers Huayamave, Arroyo, Uzubell, and Haleas, approached Craig, pushed him against a chain link fence, took him down to the ground, and then arrested him. (R. 1-1, Compl. ¶¶ 5, 6.) The officers placed Craig in a squadrol where his hands remained handcuffed behind his back. (Id. ¶ 7.) Officer Janus entered the squadrol and proceeded to hit Craig in the eye with his fist while Craig remained handcuffed. (Id. ¶ 8.) Officer Janus then threw Craig on the ground and the other officers proceeded to kick and beat Craig. (Id.)

  Craig further alleges that Defendants caused false charges of resisting/obstructing an officer and battery to be filed against him. (Id. ¶ 10.) Subsequently, in April 2004, Huayamave and Janus falsely filed an amendment to the resisting arrest charge by stating that Craig was "flailing his arms and pushing the P.O. off him." (Id. ¶ 11.) In or about April 2004, Huayamave and Janus filed a false amendment to the battery charge stating that Craig "struck the victim [Janus] with his fists and kicked the victim with his legs repeatedly, causing P.O. Janus' knuckle to shatter." (Id. ¶ 12.) Craig further alleges that in December of 2004, Janus filed another false amendment to the battery charge by crossing out the previous amendment and substituting that Craig "kicked PO Janus in the chest and hit PO Janus about the chest with his hands causing bruising and swelling." (Id. ¶ 13.)

  On or about December 13, 2004, Craig stood trial for the resisting and/or obstructing arrest and battery charges and the jury found him not guilty. (Id. ¶ 14.) Because of the acts and omissions of Defendants, Craig alleges that he sustained physical injuries, humiliation, and indignities, and suffered great physical, mental, and emotional pain and suffering. (Id. ¶ 15.)

  On January 11, 2005, Craig filed the a four-count Complaint against the City of Chicago and Chicago Police Officers Huayamave, Arroyo, Uzubell, Haleas, and Janus seeking to recover for violations of his rights under the federal constitution and Illinois state law. In his Complaint, Craig asserts Counts I and III against all of the individual Defendants for excessive force and conspiracy. In Count II, Craig alleges a due process claim against Defendants Huayamave and Janus only. Finally, in Count IV, Craig brings a malicious prosecution claim under Illinois law against Officers Janus and Huayamave and the City of Chicago.


  I. Count II — Due Process Violation

  In Count II of the Complaint, Craig alleges a due process claim against Huayamave and Janus in violation of 42. U.S.C. § 1983. Section 1983 provides a cause of action against any person who, acting under color of state law, deprives another person of a right, privilege, or immunity secured by the United States Constitution or federal laws. See 42 U.S.C. § 1983; Lekas v. Briley, 405 F.3d 602, 606 (7th Cir. 2005). The standards for a successful Section 1983 claim against local police officers are well known. Ienco v. City of Chicago, 286 F.3d 994, 997-98 (7th Cir. 2002). To prove an officer's liability, a plaintiff must show that (1) the officer deprived the plaintiff of a federal right and (2) the officer was acting under color of state law at the time of the deprivation. Id.

  Here, Craig alleges that Huayamave and Janus deprived him of his due process right to a fair criminal trial on the charges of battery and resisting arrest and/or obstructing justice. Specifically, Craig alleges that Huayamave and Janus submitted false charges in the criminal complaints, false amendments to the charges, and false police reports. Craig further alleges that Defendants withheld exculpatory evidence from the prosecution.

  Defendants, however, argue that Craig has not sufficiently alleged a denial of his due process rights to a fair trial because the decision to charge a criminal defendant and proceed to trial falls solely within the discretion of the prosecutor, not the police. In Brady v. Maryland, the Supreme Court held that a prosecutor's failure to disclose favorable, material evidence violates a defendant's procedural due process rights. 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963). Police officers, however, may face liability for a Brady violation when they fabricate inculpatory evidence or conceal exculpatory evidence. Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001). Therefore, Defendants' assertion that Craig cannot bring his due process claim ...

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