United States District Court, N.D. Illinois, Eastern Division
August 29, 2005.
MICHAEL EVANS Plaintiff,
CITY OF CHICAGO, Present and Former Chicago Police Officers ANTHONY KATALINIC, FRED HILL, WILLIAM MOSHER, JOHN McCABE, THOMAS McKENNA, DENNIS BANAHAN, JOSEPH DiLEONARDI, JOHN GRIFFITH, RICHARD O'CONNELL, PAUL NEALIS, PETER DIGNAN, THOMAS FERRY, PATRICK McGROARTY, JOSEPH DiGIACOMO, ROY MARTIN, EDWARD LERACZ, DANIEL SWICK, and JOHN RYAN Defendant.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Evans ("Evans") filed this fourteen-count
amended complaint alleging various federal and state law claims
against the City of Chicago and eighteen current and former
members of the Chicago Police Department (collectively,
"Defendants"). Presently before this Court are Defendants'
motions to dismiss. For the reasons stated below, Defendants'
motions are granted in part and denied in part. I. BACKGROUND
At this stage of the proceedings, all well-pled facts are taken
as true. On January 14, 1976, a nine-year-old girl named Lisa
Cabassa disappeared while walking in her neighborhood on
Chicago's southeast side. Her body was found later that night in
an alley several miles away from where she had been last seen.
She had been raped and murdered.
At the time, Plaintiff Michael Evans was a seventeen-year-old
high school student at Bowen High School in Chicago, with no
criminal record or any prior involvement with the criminal
justice system. He lived with his parents and siblings and spent
his free time playing the clarinet. He also played baseball and
The Chicago Police Department ("CPD") investigation of the
Cabassa murder was led by Defendant DiLeonardi, a Chicago Police
Commander, and Defendant Griffith, a Chicago Police Lieutenant
and the commanding officer of the Chicago Police Area 2
Homicide/Sex Unit ("Area 2"). Defendants O'Connell, Ferry, and
McGroarty were Chicago Police Sergeants assigned to Area 2, under
the direct supervision and command of Defendants DiLeonardi and
Griffith. Defendants Katalanic, Hill, McCabe, Mosher, McKenna,
Dignan, DiGiacomo, Banahan, Nealis, Leracz, Martin, Swick, and
Ryan were duly appointed Chicago Police Detectives assigned to
Area 2, under the the direct supervision of the Defendant Chicago
According to Evans' amended complaint, rather than conduct the
necessary police work to solve the Cabassa murder, Defendants
conspired among themselves and with others to make it appear that
Evans and another man, Paul Terry, were guilty of the crime. To
this end, Evans contends that Defendants stretched and
manipulated facts and evidence to fit the "false hypothesis" that
Evans and Terry committed the murder. Defendants manufactured
"evidence" and unlawfully manipulated and coerced witnesses to falsely
implicate Evans. Specifically, the unlawful witness manipulation
included coercing false, incriminating statements from Sam
Parker, Keith Jones, Columbus Thomas, and Judith Januszewski
through threats of physical violence, actual physical violence,
improper psychological intimidation and pressure, and unduly
oppressive confinement conditions. The resulting statements were
neither true nor the product of the witnesses' free will.
Defendants coerced a false and incriminating statement from Evans
through these same means. In addition, Defendants denied Evans
access to his mother and to an attorney during his interrogation
even though Evans was a juvenile at the time.
Defendants detained witness Januszewski in the police station
until late in the night against her will. They did not release
her until her husband arrived at the station and demanded her
release. Defendants repeatedly visited Januszewski and pressured
her to change material details from her initial description of
the night of the murder, including the time she allegedly left
her workplace, so as to implicate Evans falsely. Januszewski
changed her statement and implicated Evans, whom she had known
for over a year, after more than forty days of persistent and
improper pressure by Defendants.
In addition, Evans alleges that Defendant Officers disregarded
or destroyed exculpatory evidence including police reports,
notes, and statements that should have been preserved with CPD
files, but were not. Evans contends that Defendant Officers
deliberately failed to investigate and follow up on information
that would have established the guilt of other individuals. In so
doing, Defendants unlawfully suppressed information that would
have implicated other individuals and exonerated Evans. Moreover,
Defendants created sworn police reports that contained materially
false "evidence," including statements attributed to witnesses who in fact never made those statements, and used these reports
to unlawfully detain and prosecute Evans. The Defendant Police
Officers withheld exculpatory and material evidence from Evans
and in some instances, from the prosecutors as well.
Specifically, Defendants withheld information about the existence
of exculpatory information concerning Januszewski and other
witnesses that would have tended to exonerate Plaintiff.
According to Evans, the Chicago Police Department maintained a
policy and practice of systematically suppressing exculpatory
information and material evidence by intentionally secreting
discoverable information in so-called "street files." These files
were routinely withheld from the State's Attorney's Office and
from criminal defendants, and were subsequently destroyed.
Consistent with this policy and practice, Evans contends that
Defendants concealed exculpatory evidence within the street files
which was never disclosed to his defense attorneys and since have
destroyed the files. This evidence would have exonerated Evans.
Moreoever, Evans contends that this policy and practice was
"consciously approved at the highest policy-making level for
decisions involving the police department." (Pl.'s Am. Compl. ¶
According to the complaint, Defendants manipulated a line-up
identification of Mr. Terry in order to imply that he was
Plaintiff's co-conspirator in the Cabassa murder. Defendants then
withheld information about the manipulated line-up identification
from Plaintiff's defense counsel.
In May and June of 1976, Evans was put on trial for the
kidnapping, rape, and murder of Lisa Cabassa. He was convicted.
Shortly therafter, the Illinois trial court learned that the
State improperly had failed to disclose to Evans' defense team
that financial assistance had been provided to Januszewski, the
key prosecution witness; the trial court accordingly granted
Evans' motion for a new trial. In April 1977, therefore, Evans was
retried for the Cabassa crime along with his new co-defendant,
Paul Terry, whom Defendants had wrongfully implicated as Evans'
co-conspirator. Evans and Terry were found guilty at this second
trial. The trial court sentenced them to terms of 200 to 400
years' imprisonment. As a result of Defendant Police Officers'
unlawful conduct, Evans alleges that he suffered emotional pain
and suffering. He was placed in the Illinois prison system where
he faced the stigma of having been convicted for raping and
murdering a child. He was shunned, and worse, by the inmate
population. Consequently, Evans asserts that he has suffered
"almost unfathomable damages." (Pl.'s Am. Compl. ¶ 42).
Shortly after Lisa Cabassa's body was discovered, swabs were
used to take DNA samples from her vagina and rectum. The rectal
swab revealed the presence of semen but DNA testing technology
was not sufficiently developed to enable investigators to
identify the person or persons responsible for its presence in
the victim. The swabs, however, were preserved. Over two decades
later, when more sophisticated DNA testing technology became
available, Evans petitioned under Illinois law to conduct DNA
testing at his own expense. In July 2002, the Illinois courts
approved his petition. Orchid Cellmark laboratory, formerly known
as Cellmark Diagnostics, tested the DNA samples and established
conclusively that neither Evans nor Terry were the source of the
semen found in the victim's body. This result was later confirmed
by a second lab, Bode Technology Group. The DNA testing results
directly contradicted the theory under which Evans and Terry had
Based on the DNA testing results, Evans and Terry filed
petitions for relief from their convictions. The State did not
oppose their petitions. On May 23, 2003, Judge Dennis J. Porter vacated Evans' conviction and released him and Terry immediately.
The Cook County State's Attorney, Richard A. Devine, proceeded to
dismiss all charges against Evans on August 22, 2003. Devine
explained his decision in a letter to the Chicago Tribune,
stating that Evans and Terry had been "wrongly incarcerated for
27 years." (Pl.'s Am. Compl. ¶ 34).
Chicago Police Department Practices and Procedures
According to the complaint, a group of Chicago Police Officers
in Area 2, including some or all of Defendant Police Officers,
"engaged in a systematic pattern of coercion, fabrication of
evidence, withholding of exculpatory information, and other
illegal tactics, the sum total of which completely corrupted the
investigative process." (Pl.'s Am. Compl. ¶ 48). Specifically,
there was an institutional desire to "solve" crimes expediently,
without regard to actual guilt or innocence, in order to enhance
individual officers' personal standing in the Department. This
desire was known to command personnel, including supervisory
Defendants in this case, who also participated in the practice.
Evans further contends that municipal policymakers exhibited
deliberate indifference to this departmental policy and practice.
As a result of the Area 2 abuses, at least thirteen criminal
defendants were wrongfully sentenced to death. Evans avers that
these widespread abuses occurred because the City failed to
implement sufficient training of its police officers and declined
to implement a legitimate oversight or disciplinary mechanism.
Instead, according to Evans, the Department's investigative and
disciplinary system was, and is, for all practical purposes,
nonexistent. (Pl.'s Am. Compl. ¶ 515-2). Evans alleges that as a
result of the investigative abuses and improper coercion,
manipulation, and physical abuse by the Defendant Police
Officers, he suffered mental anguish and emotional distress. Instant Claims
Evans brought this fourteen-count amended complaint against the
City of Chicago and the following present and former Chicago
Police Officers in their individual capacities: Commander Joseph
DiLeonardi; Lieutenant John Griffith; Sergeant Thomas Ferry;
Sergeant Richard O'Connell; Sergeant Patrick McGroaty; Detective
Anthony Katalanic; Detective Fred Hill; Detective John McCabe;
Detective William Mosher; Detective Thomas McKenna; Detective
Peter Dignan; Detective Joseph DiGiacomo; Detective Dennis
Banahan; Detective Paul Nealis; Detective Edward Leracz;
Detective Roy Martin; Detective Daniel Swick; and Detective John
Ryan. Counts I-V and VII-IX are brought pursuant to
42 U.S.C. § 1983. Count I alleges Defendants withheld exculpatory evidence,
fabricated inculpatory evidence, and misdirected and misled the
criminal prosecutors, resulting in Plaintiff's unjust criminal
conviction. Evans alleges that the Defendant Police Officers'
misconduct denied him his constitutional right to a fair trial
and a fair appeal, in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. In
addition, Evans contends that this misconduct was intentionally
undertaken pursuant to the policy and practice of the Chicago
Police Department with willful indifference to his constitutional
rights, and was objectively unreasonable. In Count II, Evans
asserts that all of the Defendants, while acting individually,
jointly, and in conspiracy, under color of law and within the
scope of their employment, caused Plaintiff to be falsely
imprisoned in violation of his constitutional rights. Count III
alleges that one or more of the Defendants used unjustified
violence against Evans to coerce him to confess to a crime he did
not commit. In Count IV, Evans avers that Defendants denied him
his right to counsel in violation of the Sixth Amendment to the
U.S. Constitution. Count V alleges that Defendants denied Evans equal protection of the law in violation
of his constitutional rights. Specifically, Defendants actively
participated in or personally caused misconduct in terms of
abusing minority criminal suspects to coerce confessions and
obtain unjust convictions. Evans contends that this misconduct
was "motivated by racial animus and constituted purposeful
discrimination." In addition, it affected minorities in a
"grossly disproportionate manner vis-a-vis similarly-situated
Caucasian individuals." (Pl.'s Am. Compl. ¶ 78). In Count VII,
Evans asserts that Defendants agreed among themselves to frame
him for the Cabassa murder, thereby depriving him of his
constitutional rights. Specifically, before and after Evans'
convictions, each of the Defendants further conspired to deprive
Plaintiff of exculpatory materials to which he was lawfully
entitled and which would have led to his more timely exoneration.
As a result, Evans' rights were violated and he suffered
financial damages and severe emotional distress and anguish.
Count VIII alleges that Defendants acted to deny Evans the right
of access to the courts by wrongfully suppressing and destroying
information and evidence, which deprived Evans of constitutional
claims against potential defendants. In addition, Evans asserts
that Defendants' actions diminished his ability over the passage
of years and accompanying erosion of evidence to prove his claims
against those potential defendants. In Count IX, Evans contends
that during the constitutional violations previously alleged, one
or more of the Defendants and others as-yet unknown, failed to
intervene to prevent the abuses and violations of his
constitutional rights to which Evans was subjected by the
Count VI alleges that Defendants conspired, directly or
indirectly, for the purpose of depriving Evans of equal
protection of the law in violation of 42 U.S.C. § 1985(3). Evans' complaint also alleges state law claims of malicious
prosecution in Count X, civil conspiracy in Count XI, intentional
infliction of emotional distress in Count XII, respondeat
superior in Count XIII, and indemnification in Count XIV.
Defendant City of Chicago, pursuant to Federal Rules of Civil
Procedure 12(b)(6), 12(e), and 12(f), has moved to dismiss Counts
III, IV, VI, VII, and VIII of Plaintiff's amended complaint.
Defendant Police Officers have moved pursuant to Federal Rules of
Civil Procedure 12(b)(6) and 12(f) to dismiss Counts I, III, IV,
VI, VII, VIII, and IX of Evans' amended complaint.
II. STANDARD OF REVIEW
For the purposes of a motion to dismiss, the Court must accept
as true all well-pleaded facts in the complaint and draw all
reasonable inferences in the plaintiff's favor. Jang v. A.M.
Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). Thus,
the court will dismiss a complaint under Rule 12(b)(6) only if
"it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations."
Ledford v. Sullivan, 105 F.3d 354, 357 (7th Cir. 1997) (quoting
Hishon v. King & Spalding, 467 U.S. 69, 78 (1984)). Any
ambiguities are construed in favor of the plaintiff. Curtis v.
Bembenek, 48 F.3d 281, 283 (7th Cir. 1995). The liberal notice
pleading standard of federal practice applies to civil rights
claims brought under 42 U.S.C. § 1983. Leatherman v. Tarrant
County Narcotics Intell. & Coord. Unit, 507 U.S. 163, 164-69
(1993). However, the court need "not strain to find inferences
favorable to the plaintiffs which are not apparent on the face of
th[e] . . . complaint." Coates v. Illinois State Bd. of Ed.,
559 F.2d 445, 447 (7th Cir. 1977). III. ANALYSIS
A. Statute of Limitations
Defendants claim that several of Evans' claims are barred by
the applicable statute of limitations. At the outset, this Court
notes that the Seventh Circuit has stated that the statute of
limitations is an affirmative defense that a plaintiff need not
anticipate or attempt to address in a complaint. U.S. Gypsum Co.
v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003);
see also Reiser v. Residential Funding Corp., 380 F.3d 1027,
1030(7th Cir. 2004) ("[B]ecause the period of limiations is
an affirmative defense it is rarely a good reason to dismiss
under Rule 12(b)(6)."). When, however, a plaintiff admits that
the applicable limitations period has expired, then the statute
of limitations issue may be resolved on its face. Barry Aviation
Inc. v. Land O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 688
(7th Cir. 2004). But generally, "[u]nless the complaint
alleges facts that create an ironclad defense, a limitations
argument must await factual development." Foss v. Bear, Stearns
& Co., Inc., 394 F.3d 540, 542 (7th Cir. 2005).
1. Section 1983 Claims
The appropriate statute of limitations for a § 1983 claim is
the limitations period for personal injury claims in the state
where the alleged constitutional violation occurred. Wilson v.
Garcia, 471 U.S. 261, 275-76 (1985); Ashafa v. City of
Chicago, 146 F.3d 459, 461 (7th Cir. 1998). The alleged
violations in this case all occurred in Illinois, which has a two
year statute of limitations for personal injury claims.*fn1
Id.; see also Booker v. Ward, 94 F.3d 1052, 1056 (7th
Cir. 1996). Federal law, however, determines when a § 1983 action
accrues. Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir.
1992). Under the United States Supreme Court's decision in Heck v.
Humphrey, 512 U.S. 477 (1994), if a judgment for plaintiff on
his § 1983 claims "would necessarily imply the invalidity of his
conviction or sentence," the statute of limitations does not
begin to run until that conviction or sentence has been
terminated in plaintiff's favor. Heck, 512 U.S. at 486-87.
Thus, if a § 1983 claimant wishes to toll the statute of
limitations, he or she first "must prove that the conviction or
sentence has been has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus." Id. A damages
claim that necessarily demonstrates the invalidity of a
conviction may not be brought while the conviction stands.
Gonzalez v. Entress, 133 F.3d 551, 553 (7th Cir. 1998). The
Seventh Circuit further has stated that "a claim based on
wrongful conviction and imprisonment d[oes] not accrue until the
pardon." Newsome v. McCabe, 256 F.3d 747, 749 (7th Cir.
2001) (citing Heck v. Humphrey, 512 U.S. 477 (1994)).
a. Coerced Confession
Defendant Police Officers contend that Evans' coerced
confession claim (Count III) accrued when the alleged misconduct
occurred, that is, in 1976. Both Defendant Police Officers and
Defendant City of Chicago note that Plaintiff fails to plead with
specificity as to the date the alleged conduct occurred. Given
the other facts provided in the complaint, however, this Court
finds that the misconduct occurred between the date of the crime,
January 14, 1976, and the commencement of the first trial in May
1976. Defendants assert that because the misconduct occurred in
1976, the statute of limitations likewise began to run in 1976
because Plaintiff knew or had reason to know that he had been
coerced into confessing. Under that reasoning, the statute would have run no later than 1981. In addition, Defendants
contend that Plaintiff fails to plead any set of facts that would
toll the statute or postpone the accrual of his § 1983 action,
because a coerced confession would not necessarily demonstrate
the invalidity of the confession as required by Heck.
Specifically, Defendant City of Chicago alleges that claims based
on coercive interrogation and related conduct are actionable
immediately because success on such claims is not incompatible
with a subsequent conviction.
Plaintiff contends that his claim is not premised on the
alleged misconduct itself, but rather on the inducement that
misconduct provided to prosecutors to initiate a wrongful
prosecution. Evans argues that success on his coerced confession
claim depends on whether he can establish that Defendants induced
prosecutors to commence a wrongful prosecution and further,
induced a wrongful conviction. Like the claims in Heck, these
claims tend to imply the invalidity of Evans' conviction and
could not have been brought prior to the May 23, 2003 vacation of
The question for this Court is whether a favorable judgment for
Evans on his coerced confession claim would necessarily imply the
invalidity of his conviction or sentence. It is not entirely
clear from Plaintiff's complaint whether the coercion yielded a
confession rather than simply a coerced incriminating statement.
This Court need not determine whether the statement constituted a
confession because other factors doom Plaintiff's § 1983 coerced
confession claim. Because the harmless error doctrine applies to
coerced confessions, a judgment in favor of Evans on his § 1983
claim would not necessarily imply the invalidity of his
conviction. See Arizona v. Fulminante, 499 U.S. 279, 310-11
(1991). Thus, Evans could have brought his coerced confession
claim as soon as the claim accrued. The parties agree that the
misconduct occurred in 1976 and that the statute of limitations would have begun to run
at that time unless Heck applied. Because Heck does not
apply, this claim is time-barred. Count III is hereby dismissed.
b. Denial of Right to Counsel
Defendants argue that Plaintiff's § 1983 claim (Count IV) for
deprivation of his Sixth Amendment right to counsel during his
interrogation should be denied. They contend that Plaintiff
provides no facts to support his claim, such as the date of the
alleged denial of counsel, the manner in which counsel was
denied, or who was involved. Moreover, Defendants assert that
Plaintiff fails to provide the consequences of the alleged denial
of the right to counsel on any statements or actions that harmed
Plaintiff. Defendants argue that Plaintiff's amended complaint
fails to allege a causal connection between their alleged conduct
and the resulting injury. Finally, Defendants note that Plaintiff
described this claim as based on the Sixth Amendment in his
amended complaint. Defendants aver that the Sixth Amendment does
not apply to station house interrogations such as this. Plaintiff
responds, in a footnote in his response brief to the City of
Chicago's motion, that "[i]nasmuch as adversary proceedings had
not been instituted against Mr. Evans at the time of the
interrogation, Count IV should refer to the Fifth Amendment, not
the Sixth." (Pl.'s Am. Compl. at 10, n. 1). Defendants contend
that by conceding that the Sixth Amendment cannot serve as the
basis for asserting a denial of right to counsel, Plaintiff has
pled himself out of court.
Plaintiff again contends that his claim is based on a theory
that certain Defendant Police Officers claimed to have secured a
confession from him following an illegal interrogation; that the
confession, but not the illegal means used to procure it, was
documented in one of the official case reports; that this false
police report then persuaded prosecutors to charge Evans, which
they otherwise would not have had sufficient evidence to do; and that
this prosecution, once commenced, was bound to continue despite
the fact that the so-called confession was later found
inadmissible. Evans avers that Defendants' misconduct in
reporting his confession, without disclosing that it was coerced,
constitutes an independent constitutional violation.
Evans fails to show, however, that Defendants' conduct violated
his Sixth Amendment right to counsel. In fact, Evans' amended
complaint fails to plead facts to show that he had a
Sixth Amendment right to counsel for conduct asserted. The
United States Supreme Court has held that the Sixth Amendment right to
counsel only attaches once the initiation of adversarial criminal
proceedings. See Moran v. Burbine, 475 U.S. 412, 431 (1986)
(citations omitted); United States v. Craig, 573 F.2d 455, 475
(7th Cir. 1977), cert. denied, 439 U.S. 820 (1978);
Jerricks v. Bresnahan, 880 F. Supp. 521, 524 (N.D. Ill. 1995).
Adversarial proceedings include formal charges, indictment,
information, arraignment, and preliminary hearings. Jerricks,
880 F. Supp. at 525. In this case, Evans' claim of a
Sixth Amendment violation alleges a station house detention and
interrogation, which does not trigger a Sixth Amendment right to
counsel. Plaintiff's attempt to "cure" this pleading deficiency
by stating in his response brief that "Count IV should refer to
the Fifth Amendment, not the Sixth" is unavailing. As a matter of
law, Evans cannot state a claim for a violation of his
Sixth Amendment right to counsel; therefore, Defendants' motion to
dismiss Count IV is granted. c. Failure to Intervene
Count IX alleges that Defendants failed to intervene to prevent
violations of Evans' constitutional rights. Defendant Police
Officers argue that Evans' claim for failure to intervene is
untimely because it should have been brought within two years of
his arrest in 1976. While a claim for failure to intervene
generally should be brought immediately because the injury is
compensable even in the face of a subsequent conviction, the
Heck accrual rule ultimately determines the claim's validity.
See Wiley v. City of Chicago, 361 F.3d 994, 997 (7th Cir.
2004) (citation omitted). Thus, this Court must determine whether
success on Evans' claim would necessarily imply the invalidity of
his conviction. To do so, this Court must first determine what
conduct underlies the failure to intervene claim. Defendant
Police Officers argue that the failure to intervene claim is
based on Evans' time-barred coerced confession claim and
therefore should be barred. See Hobley v. Burge, No. 03 C 3678,
2004 WL 2658075, at *6 (N.D. Ill. 2004) ("Hobley II").
Plaintiff responds that the failure to intervene claim relates
to Defendants' failure to prevent any of the alleged misconduct
and constitutional violations, including falsifying police
reports, inducing prosecution and, ultimately, wrongful
conviction. To the extent that this claim is based on the series
of constitutional violations occurring post-arrest and through
Evans' trial and post-conviction proceedings, its success will
necessarily implicate the validity of the underlying conviction.
Heck, 512 U.S. at 486-87. Thus, it survives a motion to
dismiss. See U.S. Gypsum, 350 F.3d at 626. To the extent,
however, that this claim relates to the time-barred coerced
confession claim, it is likewise time-barred. See Hobley II,
2004 WL 2658075, at *6. This Court denies Defendants' motions to
dismiss Count IX. d. Section 1983 Due Process Claim
Count I asserts a violation of Evans' due process rights under
the Fourteenth Amendment to the United States Constitution.
Specifically, Evans claims that the Defendants "deliberately
withheld exculpatory evidence, as well as fabricated false
reports and other evidence, thereby misleading and misdirecting
the [Plaintiff's state] criminal prosecution." (Pl.'s Am. Compl.
¶ 56). The Defendant Police Officers argue that these allegations
support a claim of malicious prosecution but not one of violation
of due process. Illinois law provides a cause of action for
malicious prosecution, which Evans alleges in Count X. Relying on
McCann v. Mangialardi, 337 F.3d 782 (7th Cir. 2003),
Defendant Police Officers contend that Evans is barred from
bringing a federal constitutional claim in the same regard. In
addition, Defendant Police Officers assert that the rule of
absolute testimonial immunity bars any claim of a violation of
Plaintiff's right to a fair trial. See Briscoe v. LaHue,
460 U.S. 325, 326 (1983).
Plaintiff contends that his Count I is "an archetypical due
process claim." Evans relies on Brady v. Maryland, 373 U.S. 83
(1963) and Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001)
(Newsome I) for the proposition that § 1983 claims exist
whenever a police officer withholds material exculpatory
information, thereby denying the right to a fair trial. Newsome
I, 256 F.3d at 749-53. In addition, Plaintiff asserts that the
fabrication of false evidence to procure a conviction has always
violated the Constitution. See, e.g., Manning v. Miller,
355 F.3d 1028, 1033 (7th Cir. 2004).
In McCann, the Seventh Circuit quoted Newsome I, stating
"`the existence of a tort claim under state law knocks out any
constitutional theory of malicious prosecution." McCann,
337 F.3d at 786. But the Seventh Circuit in Newsome I stated that
"[plaintiff] does have a due process claim in the original sense of that phrase he did not receive a
fair trial if the prosecutors withheld material exculpatory
details." Newsome I, 256 F.3d at 752 (citing Brady v.
Maryland, 373 U.S. 83 (1963)). In addition, "a prosecutor is
responsible for learning of and disclosing all exculpatory
evidence known to the police." Id. (citing Kyles v. Whitley,
514 U.S. 419, 437-38 (1995)). A claim along these lines is "a
genuine constitutional tort." Id. (citing Jones v. Chicago,
856 F.2d 985 (7th Cir. 1998) and Jean v. Collins,
221 F.3d 656 (4th Cir. 2000)). Evans alleges that such a violation
occurred in his case and he has plead sufficient facts to state a
claim. Accrual of Evans' due process claim was postponed by the
Heck rule until the exoneration and pardon.
Second, Defendant Police Officers argue that Evans' due process
claim should be dismissed to the extent that Evans claims any of
the Defendant Police Officers gave false testimony against him
under the rule of absolute testimonial immunity. Briscoe v.
LaHue, 460 U.S. 325, 326 (1983). The United States Supreme Court
held in Briscoe that law enforcement officials are absolutely
immune against claims of false or perjured testimony even when
that testimony allegedly deprived a party of his right to a fair
trial. Id. An exception to the absolute immunity rule exists,
however, for so-called complaining witnesses. Cervantes v.
Jones, 188 F.3d 805, 809 (7th Cir. 1999), overruled on
other grounds by Newsome v. McCabe, 256 F.3d 747, 751 (7th
Cir. 2001). A "complaining witness" is defined as "one who
actively instigated or encouraged the prosecution of the
plaintiff." Cervantes, 188 F.3d at 809. In his due process
claim, Evans avers that "[a]bsent [Defendant Police Officers']
misconduct, the prosecution of Plaintiff could not and would not
have been pursued." (Pl.'s Am. Compl. ¶ 56). This Court finds
that it is reasonable to infer from Evans' amended complaint that
Defendants could be characterized as "complaining witnesses" and
therefore disqualified from absolute immunity. The determination of who is a complaining witness is a question
of fact and thus, should not be resolved on a motion to dismiss.
Anthony v. Baker, 955 F.2d 1395, 1399 (10th Cir. 1992). For
these reasons, this Court denies the Defendant Police Officers'
motion to dismiss Evans' count I.
e. Denial of Access to Courts
Count VIII avers that Defendants denied Plaintiff the right of
access to courts by wrongfully suppressing and destroying
information which deprived Plaintiff of constitutional claims
against potential defendants. Access to courts claims fall into
two categories. Christopher v. Harbury, 536 U.S. 403, 413
(2002). The first category includes "systemic official action"
claims, in which official action prevents a plaintiff from
preparing or filing a lawsuit at the present time. Id. In the
second category are claims arising from official acts that
allegedly have caused a plaintiff to lose or inadequately settle
an otherwise meritorious case; to lose an opportunity to sue; or
to lose an opportunity to seek a particular form of relief. Id.
Evans' access to courts claim falls into the second, or
backward looking, category. The ultimate object of the second
category of access to courts claims is not judgment in a future
lawsuit but simply judgment in the access claim itself. Harbury
at 414. Harbury specifies that in order to properly plead an
access to courts claim, a plaintiff must show that he lost or was
otherwise unable to maintain a specific legal remedy. When the
claim is backward looking, like this one, the plaintiff must
describe the underlying cause of action in the complaint and also
"must identify a remedy that may be awarded as recompense but
[is] not otherwise available in some suit that may yet be
brought." Id. at 415.
In the instant case, Evans has failed to meet the requirements
of Harbury. Specifically, he has not identified either the
cause of action that Defendants' actions caused him to forfeit or
the specific remedy that would not be otherwise available to him.
Without such allegations, he fails, as a matter of law, to state
a claim upon which relief can be granted. For the reasons
articulated in Newsome, this Court grants Defendants' motions
to dismiss Count VIII.
2. Civil Rights Conspiracy Claims
Evans alleges three conspiracy claims. Count VI alleges a
conspiracy claim under 42 U.S.C. § 1985(3); Count VII alleges a
conspiracy claim under 42 U.S.C. § 1983; and Count XI alleges a
conspiracy claim under state law. Defendants have moved to
dismiss Counts VI and VII.
a. § 1985(3) Conspiracy Claim
First, Defendants claim that the intra-corporate conspiracy
doctrine bars Evans' Section conspiracy claims. The
intra-corporate conspiracy doctrine holds that employees and
managers of a corporation, who are jointly pursuing its lawful
business, are not considered to be conspirators when acts that
fall within the scope of their employment are said to be
discriminatory or retaliatory. Wright v. Ill. Dep't of Children
& Family Servs., 40 F.3d 1492, 1508 (7th Cir. 1994); see
also Howard v. City of Chicago, No. 03 C 8481, 2004 WL 2397281,
at *11 (N.D. Ill. Oct. 25, 2004).
In Wright, the Seventh Circuit applied the doctrine to bar a
§ 1985(2) claim brought against the Illinois Department of
Children and Family Services. The Wright court reasoned that
"large bureaucratic agencies such as the DCFS are functionally
the equivalent of corporations in that their employees and
officials jointly endeavor to provide a product or service and
reach decisions pursuant to a unified, hierarchical structure"
and thus the intra-corporate conspiracy doctrine applied to
individual members of the department. Wright, 40 F.3d at 1508.
But the Seventh Circuit noted that the doctrine's bar against § 1985
claims was not absolute, stating "[i]n sum, then, except in
egregious circumstances, intra-entity discussions that result in
discriminatory or retaliatory actions lie outside the scope of §
1985." Id. at 1508-1509.
The Seventh Circuit has recognized two exceptions to the
intra-corporate conspiracy doctrine. One exception applies when
plaintiff shows that the employees were motivated by personal
bias. Hartman v. Bd. of Tr. of Cmty. Coll. Dist. No. 508,
4 F.3d 465, 470 (7th Cir. 1993) (discussing the applicability
of the intra-corporate conspiracy doctrine to § 1985(3) claims).
In such an instance, "the interests of the corporation would have
played no part in the employees' collective action, so the action
could not have been taken within the scope of employment." Id.
The second exception applies when the conspiracy was "part of
some broader discriminatory pattern" or when it "in any way
permeated the ranks of the organization's employees." Id. at
470-71. Although the Seventh Circuit has not defined the "broader
discriminatory pattern" exception, it has identified relevant
factors to consider, including the number of agents involved, the
number of acts involved, and the nature and scope of the
conspiracy itself. See, e.g., Boloun v. Williams, No. 00 C
7584, 2002 WL 31426647, at *11-12 (N.D. Ill. Oct. 25, 2002);
Jefferson v. City of Harvey, No. 98 C 5834, 2000 WL 15097, at
*4-5 (N.D. Ill. Jan. 5, 2000). The amended complaint in this case
alleges acts occurring over the course of an extended period of
time, involving multiple individuals both in and outside the
Chicago Police Department, and that, if true, amounted to a broad
discriminatory pattern that permeated the ranks of the
Defendants' employees. In addition, if the Defendant Police
Officers conspired among themselves rather than following any
departmental policy, it could reasonably be inferred that they
did so for reasons of personal bias. If true, they acted outside
the scope of their employment and the intra-corporate conspiracy doctrine would not apply. For these reasons, it is
inappropriate to dismiss Evans' § 1985(3) (Count VI) claim at
b. § 1983 Conspiracy Claim
The Seventh Circuit has not determined whether the
intra-corporate conspiracy doctrine applies to § 1983 conspiracy
claims. Indeed, there is a split between courts in this district
on the applicability of the doctrine to such claims. See, e.g.,
David v. Village of Oak Lawn, No. 95 C 7368, 1996 WL 210072, at
*4 (N.D. Ill. A[r. 29, 1996) (Gettleman, J.); Chavez v. Ill.
State Police, No. 94 C 5307, 1996 WL 66136, at *7-8 (N.D. Ill.
Feb. 13, 1996) (Manning, J.); Northen v. City of Chicago, No.
93 C 7013, 1999 WL 342441, at *4 (N.D. Ill. May 17, 1999)
(Holderman, J.); Cooper v. Harris, Nos. 98 C 1623 & 98 C 1624,
1999 WL 261742, at *3 (N.D. Ill. Apr. 13, 1999) (Grady, J.);
Salto v. Mercado, No. 96 C 7168, 1997 WL 222874, at *1 (N.D.
Ill. Apr. 24, 1997) (Zagel, J.); Howard v. City of Chicago, No.
03 C 8481, 2004 WL 2397281, at *12 (N.D. Ill. Oct. 25, 2004)
(Andersen, J.). Several judges have refused to apply the doctrine
to cases involving allegations of police misconduct. See Newsome
v. James, No. 96 C 7680, 2000 WL 528475, at *14 (N.D. Ill. Apr.
26, 2000) (Plunkett, J.) (citing cases). As noted in Judge
Plunkett's decision in Newsome, the intra-corporate conspiracy
doctrine was developed "to shield corporations and their
employees from liability for routine, collaborative business
decisions." Newsome, No. 96 C 7680, 2000 WL 528475, at *15.
Newsome found that framing the plaintiff for murder did not
qualify as routine police department decision-making. Id.
Evans' § 1983 conspiracy claim likewise addresses conduct that is
far removed from what was contemplated as a routine,
collaborative business decision. For that reason, this Court
denies Defendants' motions to dismiss Count VII. B. City of Chicago's Motion to Strike Portions of
The City of Chicago has moved to strike certain portions of
paragraph 17 of Evans' amended complaint as duplicative,
immaterial, and/or impertinent to Evans' claims. Paragraph 17
alleges that Defendant Police Officers coerced false and
incriminating statements from Plaintiff, Sam Parker, Keith Jones,
Columbus Thomas, and Judith Januszewski through "coercive and
unconstitutional tactics." The Defendant City of Chicago argues
that paragraph 17 fails to establish a causal connection between
Defendants' alleged conduct and the resulting injury; and that
the allegations about coerced statements are immaterial to Evans'
conspiracy claims. Plaintiff avers that paragraph 17 demonstrates
that Defendants' conduct was willful, systematic, and supports
his allegations of witness manipulation, an important part of his
due process claim.
This Court does not favor motions to strike unless it is clear
that the matter at issue has no bearing on the litigation. In
this case, the allegations in paragraph 17 cannot be said to have
no bearing on the litigation and this Court accordingly declines
to strike them.
C. City of Chicago's Motion to Clarify the Monell Claim
The City of Chicago seeks to have this Court require Evans to
amend his pleadings with respect to his apparent Monell claim
against the City. In its motion, the City notes that Plaintiff's
response to the City's motion to dismiss Plaintiff's original
complaint appeared to clarify his claim. In the interim,
Magistrate Judge Schenkier issued an order denying the individual
Defendants' Rule 12(e) motion on the ground that "Plaintiff's
allegations here are by no means `skeletal.'" Evans v. City of
Chicago, No. 04 C 3570 (N.D. Ill. Nov. 30, 2004) (order denying motion to clarify). This Court agrees with the magistrate judge's
reasoning, which it finds applicable to the amended complaint.
For this reason, the City's motion to clarify is denied.
For the foregoing reasons, Defendants' motions to dismiss are
granted as to Counts III, IV, and VIII; and denied as to Counts
I, VI, VII, and IX. Defendant City of Chicago's motion to strike
and motion to clarify are denied.
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