Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cannon v. Burge

February 2, 2006

DARRELL CANNON, PLAINTIFF,
v.
FORMER CHICAGO POLICE LT. JON BURGE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Darrell Canon asserts twelve causes of action against multiple Defendants alleging various constitutional and state law violations resulting from or related to the torture he allegedly endured on November 2, 1983. Cannon brings this suit against Jon Burge, John Byrne, Peter Dignan, Michael Bosco, Ray Binkowski, Ray Madigan, Daniel McWeeny, Leroy Martin, Terry Hillard, Thomas Needham, Gayle Shines, the City of Chicago (collectively, the "City Defendants")*fn1 , Richard Devine, the Cook County State's Attorney's Office, and Cook County (collectively, the "County Defendants"). Plaintiff asserts the following six civil rights violations under 42 U.S.C. § 1983: deprivation of the right to a fair trial and wrongful conviction (Count I), false arrest and false imprisonment (Count II), torture and physical abuse (Count III), coercive interrogation (Count IV), due process violation for deprivation of access to courts (Count V), and a Monell policy claim (Count VI). Plaintiff also asserts the following six state law violations: false arrest and imprisonment (Count VII), malicious prosecution (Count VIII), intentional infliction of emotional distress (Count IX), conspiracy (Count X), respondeat superior (Count XI), and an indemnification claim pursuant to 745 ILCS 10/9-102 (West 2005) (Count XII). The City and County Defendants both move to dismiss the complaint Canon filed on April 13, 2005 (the "Complaint"). For the reasons set forth below, the Court grants in part and denies in part the City Defendants' motion to dismiss, and the Court grants in part and denies in part the County Defendants' motion to dismiss.

BACKGROUND

I. The Parties

A. Plaintiff

Plaintiff Darrell Cannon ("Plaintiff") is a United States citizen. (R. 1-1; Compl. at ¶ 3.)

B. The City Defendants

Defendant John Burge ("Burge") was a Chicago Police Lieutenant and the commanding officer of the Chicago Police Area 2 Detective Violent Crimes Unit. (Id. at ¶ 4.) Burge served as the commanding officer of Defendants John Byrne, Peter Dignan, Charles Grunhard, Michael Bosco, Ray Binkowski, Ray Madigan, and Daniel McWeeny. (Id.) In 1988, Leroy Martin promoted Burge to the position of Commander of Area 3 Detective Division. (Id.) According to Plaintiff, Burge held this position until 1991, when the Chicago Police Department fired him for the torture and abuse of Andrew Wilson. (Id.) Plaintiff alleges that Burge both "engaged in a pattern and practice of torture and brutality himself, and also supervised, encouraged, sanctioned, condoned and ratified brutality and torture by other detectives." (Id.) Defendant John Byrne ("Byrne") was Chicago Police Sergeant in the Chicago Police Area 2 Detective Violent Crimes Unit. (Id. at ¶ 5.) Byrne was the supervisor of Peter Dignan, Charles Grunhard, Michael Bosco, Ray Binkowski, Ray Madigan, and Daniel McWeeny. (Id.) Plaintiff alleges that Byrne also engaged in and encouraged others to engage in the practice of torture and brutality. (Id.) Defendants Peter Dignan ("Dignan"), Charles Grunhard ("Grunhard"), Michael Bosco ("Bosco"), Ray Madigan ("Madigan"), Ray Binkowski ("Binkowski"), and Daniel McWeeny ("McWeeny") (collectively, the "Defendant Officers") were Chicago Police Detectives in the Detective Division at Area 2 Violent Crimes Unit who allegedly engaged in a pattern and practice of torture and brutality.*fn2 (Id. at ¶ 6.)

Defendant Leroy Martin ("Martin") was the Superintendent of Police for the City of Chicago between 1987 and 1992. (Id. at ¶ 7.) In 1983, Martin was Commander of the Area 2 Detective Division, Burge's direct supervisor, and Byrne's and the Defendant Officers' command supervisor. (Id.) Defendant Terry Hillard ("Hillard") was the Superintendent of Police for the City of Chicago between 1998 and 2004. (Id. at ¶ 8.) Hillard was also Thomas Needham's direct supervisor. (Id. at ¶ 9.) Defendant Thomas Needham ("Needham") was counsel to and administrative assistant for Hillard between 1998 and 2002. (Id.) Defendant Gayle Shines was the Director of the Office of Professional Standards of the Chicago Police Department from 1990 to 1998. (Id. at ¶ 10.) Defendant City of Chicago (the "City") is an Illinois municipal corporation and is and/or was the employer of Burge, Byrne, the Defendant Officers, Martin, Hillard, Needham, and Shines. (Id. at ¶ 11.)

C. The County Defendants

Defendant Richard Devine ("Devine") was counsel to the City of Chicago and represented Burge from 1988 to 1996. (Id. at ¶¶ 51, 53.) As counsel for Burge, Plaintiff alleges that Devine received evidence that Burge tortured suspects. (Id. at ¶ 53.) In 1997, Devine became the State's Attorney of Cook County, a position he currently holds. (Id. at ¶ 12.) Plaintiff alleges that after becoming the State's Attorney of Cook County, Devine: (1) made false public statements discrediting evidence of torture; (2) refused to investigate allegations regarding Area 2 and Area 3 detectives' use of torture and abuse; (3) suppressed evidence of torture, including evidence of Plaintiff's torture; and (4) used his position to maintain the wrongful conviction and imprisonment of Plaintiff and other victims of torture. (Id. at ¶54.)

Defendant Cook County (the "County") is a governmental entity within the State of Illinois. (Id. at ¶ 13.) Defendant Cook County State's Attorney's Office is a part of Cook County and it, along with the County, employ Devine. (Id.)

II. Plaintiff's Allegations

A. Plaintiff's Underlying Arrest, Interrogation, Confession, and Prosecution

On or about October 26, 1983, A.D. McChristian shot and killed Darrin Ross. (Id. at ¶ 15.) The Area 2 Violent Crimes Unit, under the supervision and control of Burge and Byrne and with the participation of the Defendant Officers, investigated the homicide. (Id.) According to Plaintiff, Burge and Byrne directed McWeeny and Madigan to threaten and coerce A.D. McChristian's brother, Tyrone McChristian, to falsely implicate Plaintiff as an accomplice to the Ross homicide. (Id. at ¶ 16.) McWeeny included Tyrone McChristian's statement in a police report. (Id. at ¶ 17.) Plaintiff alleges that on the morning of November 2, 1983, Byrne, Dignan, Bosco, and Binkowski, together with three other Area 2 detectives, went to an apartment on the south side of Chicago and arrested Plaintiff without probable cause. (Id. at ¶ 18.) During the arrest, Byrne used profanity towards Plaintiff and his fiancé and pointed guns at their heads, and Grunhard assaulted Plaintiff with a crowbar. (Id. at ¶ 19.)

Following Plaintiff's arrest, Dignan, Byrne and Grunhard drove Plaintiff to the area of 80th and Phillips Streets. (Id. at ¶ 20.) During the ride, Plaintiff alleges that Dignan said, among other things, "nigger, where's A.D.," and hit Plaintiff on his knee with a flashlight. (Id.) Next, they took Plaintiff to an interrogation room at Area 2, suggested inculpatory answers, showed Plaintiff an electrical cattle prod, and told him "nigger, you going to tell us where A.D.'s at," among other things. (Id. at ¶ 21.) Byrne, Dignan and Grunhard then took Plaintiff to a remote area by 103rd and Torrence Streets, while Bosco and Binkowski followed. (Id. at ¶ 22.) At that location, Byrne, Dignan and Grunhard took Plaintiff out of the car and questioned him about the Ross homicide and A.D. McChristian's whereabouts. (Id. at ¶ 23.) According to Plaintiff, Byrne, Dignan and Grunhard then subjected him to the following forms of torture: (1) performed mock executions by placing a gun in his mouth and pulling the trigger; (2) attempted to suspend Plaintiff in the air while he was handcuffed; and (3) used an electric cattle prod on Plaintiff. (Id. at ¶¶ 24-28.) Throughout the torture, Byrne, Dignan and Grunhard continued to interrogate Plaintiff about the Ross homicide. (Id.) Plaintiff alleges that as a result of the torture, he gave a false and coerced statement to McWeeny and later to the assistant state's attorney, implicating himself as an accomplice to the Ross homicide. (Id. at ¶¶ 31, 32.)

Plaintiff alleges that his coerced confession served as evidence throughout his prosecution. (Id. at ¶ 35.) Additionally, Byrne, Dignan, Grunhard, Bosco, Binkowski, McWeeny, and two other Area 2 detectives committed perjury at the suppression hearings and at trial. (Id. at ¶ 36.) Burge, Byrne, Dignan, Grunhard, McWeeny, Bosco, and Binkowski, along with others, allegedly suppressed the fact that Plaintiff's confession was false and the product of a pattern and practice of torture at Area 2, and destroyed the instruments used in the torture. (Id. at ¶ 37.) According to Plaintiff, his coerced statement resulted in his 1984 conviction for the murder of Darrin Ross. (Id. at ¶ 39.)

B. Plaintiff's 42 U.S.C. § 1983 Action Against Byrne, Dignan and Grunhard

In 1986, Plaintiff filed a 42 U.S.C. § 1983 action against Defendants Byrne, Dignan and Grunhard alleging violations of Plaintiff's constitutional rights in connection with the alleged excessive force used against Plaintiff on November 2, 1983.*fn3 (Id. at ¶ 41) (R. 28-1; City Defs.' Mot. to Dismiss, Ex. C.) On February 8, 1988, Plaintiff entered into a settlement agreement with the City of Chicago,*fn4 Byrne, Dignan and Grunhard, whereby Plaintiff, who had legal representation, accepted $3,000 in exchange for dismissing the 1986 action (the "1988 Stipulation").*fn5 (R. 1-1; Compl. at ¶ 41.) (R. 28-1; City Defs.' Mot. to Dismiss, Ex. B.) Plaintiff alleges that he only accepted the $3,000 settlement because "Defendants successfully suppressed, destroyed, and covered up their torture of Plaintiff, numerous other cases of torture, and the implements of torture." (R. 1-1; Compl. at ¶ 41.)

C. Investigations into Pattern and Practice of Torture at Area 2

On November 7, 1983, the Office of Professional Standards of the Chicago Police Department (the "OPS") opened an investigation into Plaintiff's allegations of torture. (Id. at ¶ 38.) The OPS entered "not sustained" findings approximately a year later and neither Martin nor the OPS took disciplinary actions against the Defendant Officers. (Id.) According to Plaintiff, in November 1984 and February 1985, OPS Director David Fogel ("Fogel") secretly provided to Police Superintendent Fred Rice ("Rice") summaries of numerous cases of torture that Burge committed. (Id. at ¶ 40.) Rice took no action. (Id.) Rice, Fogel, their successors, the City and the City's lawyers allegedly suppressed these summaries. (Id.) They were ultimately discovered in an inspection in August 2004. (Id.)

In 1990, after Plaintiff was convicted and entered into the 1988 Stipulation, the OPS completed an investigation into allegations of torture of suspects, including Plaintiff, at Area 2. (Id. at ¶ 42.) In a secret report that Martin received, the OPS set forth its findings that from 1973 to 1985, there was a practice of systematic abuse of suspects, including Plaintiff, at Area 2. (Id.) This report also stated that Burge and two other Area 2 detectives tortured Andrew Wilson and recommended removing Burge from his position. (Id. at ¶ 43.) In February 1992, a federal court ordered the release of the secret report. (Id. at ¶ 45.) Plaintiff alleges that following the release of the report, Martin and the Mayor attempted to publically discredit the report. (Id. at ¶ 46.) According to Plaintiff, the Mayor, who served as State's Attorney of Cook County from 1981 to 1988, had notice of the abuse at Area 2, but refused to prosecute any Area 2 detectives in connection with such abuse. (Id. at ¶ 47.) Additionally, Plaintiff alleges that Martin, Shines and others refused to investigate other allegations of torture. (Id. at ¶ 48.)

In January 1992, Martin and the City admitted that Burge and those under his command tortured suspects. (Id. at ¶ 49.) According to Plaintiff, in February 1993, the Chicago Police Board fired Burge for torturing Andrew Wilson. (Id. at ¶ 50.) Also in 1993, the OPS reopened investigations into approximately 10 Area 2 torture cases, included Plaintiff's. (Id. at 55.) The OPS then found that Byrne, Dignan and Grunhard "racially abused and tortured Plaintiff." (Id.) Shines allegedly suppressed these findings from 1993 to 1998, when she left office. (Id. at ¶ 57.) According to Plaintiff, in 1998, Hillard and Needham, among other things, overturned the OPS findings regarding the torture of Plaintiff and five other individuals and suppressed the OPS findings from Plaintiff. (Id. at ¶ 58.)

D. Dismissal of Charges Against Plaintiff

In 1997, an Illinois appellate court ordered that Plaintiff receive a new suppression hearing so that he could present the newly discovered evidence of torture. (Id. at ¶ 59.) This hearing commenced in 1999. (Id. at ¶ 60.) At the hearing, Plaintiff presented such evidence of torture. (Id.) According to Plaintiff, "[t]he State's Attorney's Officer, rather than to again elicit the knowingly false and perjured testimony of the Defendant Officers, dismissed Plaintiff's case on April 14, 2004." (Id.) At the time of his release, Plaintiff had spent twenty-one years in prison for the murder of Darrin Ross. (Id. at ¶ 63.)

ANALYSIS

I. Legal Standard

The City and County Defendants bring their motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion tests whether plaintiff has "state[d] a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court views "the complaint in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from those allegations in his or her favor." Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003). The Court, however, is "not obliged to accept as true legal conclusions or unsupported conclusions of fact." Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002). 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." Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed. 2d 59 (1984).

II. City Defendants

A. 1988 Settlement Agreement

The City Defendants ask the Court to dismiss the Complaint on various grounds. The Court turns first to the purported preclusive effect of a settlement agreement that Plaintiff entered into with some of the City Defendants approximately seventeen years prior to filing the Complaint. In 1986, Plaintiff filed a 42 U.S.C. § 1983 action against Byrne, Dignan and Grunhard alleging violations of Plaintiff's constitutional rights in connection with the alleged excessive force used against Plaintiff on November 2, 1983. (R. 1-1; Compl. at ¶ 41) (R. 28-1; City Defs.' Mot. to Dismiss, Ex. C.) On February 8, 1988, Plaintiff entered into a settlement agreement whereby Plaintiff, who was represented by counsel, accepted $3,000 in exchange for dismissing the 1986 action against Byrne, Dignan and Grunhard. (R. 1-1; Compl. at ¶ 41) (R. 28-1; City Defs.' Mot. to Dismiss, Ex. B.) The City Defendants argue that "Plaintiff's claims in this action are barred by the settlement of his 1986 lawsuit, which was based upon the same events that underlie his present complaint." (R. 26-1; City Defs.' Mot. to Dismiss at 4.) Plaintiff argues that the 1988 Stipulation does not cover the claims he asserts in the Complaint and that the 1988 Stipulation is not valid or enforceable. The Court addresses the scope and the enforceability of the 1988 Stipulation individually.

1. Scope of the 1988 Stipulation

Plaintiff and the City Defendants agree that Illinois law governs the interpretation of the 1988 Stipulation. In Illinois, "[i]t is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts." Chubb v. Amax Coal Co., Inc., 125 Ill. App. 3d 682, 685, 466 N.E.2d 369, 372, 80 Ill. Dec. 917, 920 (5th Dist. 1984); see also Laserage Tech. Corp. v. Laserage Labs., Inc., 972 F.2d 799, 802 (7th Cir. 1992). "The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction." Chubb, 125 Ill. App. 3d at 686, 466 N.E.2d at 372, 80 Ill. Dec. at 920. "A release cannot be construed to include claims not within the contemplation of the parties." Carlile v. Snap-on Tools, 271 Ill. App. 3d 833, 838, 648 N.E.2d 317, 321, 207 Ill. Dec. 861, 865 (4th Dist. 1995) (citations omitted). "Where a written agreement is clear and explicit, a court must enforce the agreement as written. Both the meaning of the instrument, and the intention of the parties must be gathered from the face of the document without the assistance of parol evidence or any other extrinsic aids." Rakowski v. Lucente, 104 Ill.2d 317, 323, 472 N.E.2d 791, 794, 84 Ill. Dec. 654, 657 (Ill. 1984).

The 1988 Stipulation, on its face, is clear and unambiguous. It provides that Plaintiff understands, upon advice of his counsel, and agrees that such Judgment is a final and total settlement of all claims he has, or may have in the future, arising either directly or indirectly out of the incident which was the basis of this litigation, and that such finality is applicable to the remaining Defendant, the City of Chicago, its officers, agents and employees.

(R. 28-1; City Defs.' Mot. to Dismiss, Ex. B at ¶ 12.) Because the 1988 Stipulation is clear, unambiguous and specific, the Court will look to the document itself to determine its meaning and the parties' intent. See Rakowski, 104 Ill.2d at 323, 472 N.E.2d at 794, 84 Ill. Dec. at 657; see also Ainsworth Corp. v. Cenco Inc., 158 Ill. App. 3d 639, 650, 511 N.E.2d 1149, 1156, 110 Ill. Dec. 829, 836 (1st Dist. 1987); Crown Corr, Inc. v. Wil-Freds Constr., Inc., No. 94-6535, 2000 WL 1809996, at *3 (N.D. Ill. Dec. 11, 2000); Rail-Ways, Inc. v. Indiana & Kensington R.R. Co., No. 95-1526, 1998 WL 792481, at *4 (N.D. Ill. Nov. 9, 1998). The 1988 Stipulation, on its face, releases all claims that arise directly or indirectly from the "incident." The 1986 complaint makes clear that the "incident" is Byrne's, Dignen's and Grunhard's treatment of Plaintiff on November 2, 1983.*fn6 (R. 28-1; City Defs.' Mot. to Dismiss, Ex. C at 3.) Likewise, Plaintiff's treatment on November 2, 1983 serves as the basis for the Complaint. (See, e.g., R. 1-1; Compl. at ¶¶ 18-30.) Because the "incident" serves as the basis for the Complaint, the twelve causes of action Plaintiff asserts in it necessarily arise either directly or indirectly from the "incident." Therefore, the 1988 Stipulation, on its face, purports to cover those causes of action.

Plaintiff does not argue that the 1988 Stipulation is ambiguous, nor does he contest that the twelve causes of action he alleges in the Complaint arise directly or indirectly from the "incident." Instead, Plaintiff argues that an examination of the circumstances surrounding the execution of the 1988 Stipulation reveals that the parties did not intend to release the claims that are currently before the Court. As addressed above, the Court does not look to extrinsic evidence to determine the parties' intent because the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.