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Cannon v. Burge

August 8, 2007

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

In his Complaint, Plaintiff Darrell Cannon alleged that certain personnel with the City of Chicago, the Cook County State's Attorney's Office, Cook County, and the City itself violated his civil rights by torturing him during interrogations held at the Chicago Police Department's Area 2 Detective Division under the direction of Former Chicago Police Lieutenant Jon Burge. Before the Court is Cannon's Motion for Leave to File an Amended Complaint. For the following reasons, the Court, in its discretion, grants in part and denies in part Cannon's motion.

BACKGROUND

I. Original Complaint

On April 13, 2005, Cannon filed his original Complaint against Defendants Jon Burge, John Byrne, Peter Dignan, Michael Bosco, Ray Binkowski, Ray Madigan, Daniel McWeeny, Leroy Martin, Terry Hillard, Thomas Needham, Gayle Shines, the Estate of Charles Grunhard, the City of Chicago (collectively, the "City Defendants"), as well as Cook County State's Attorney Richard Devine, the Cook County State's Attorney's Office, and Cook County (collectively, the "County Defendants"). In his Complaint, Cannon alleged six civil rights violations pursuant to 42 U.S.C. § 1983, including a fair trial/due process claim (Count I), a false arrest and imprisonment claim (Count II), a physical abuse/excessive force claim (Count III), a coercive interrogation claim (Count IV), a deprivation of access to courts claim (Count V), and a Monell claim (Count VI). Plaintiff also alleged six state law violations, including 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 indemnification pursuant to 745 ILCS 10/9-102 (Count XII).

II. Motion to Dismiss

On February 2, 2006, the Court granted in part and denied in part the City and County Defendants' motions to dismiss Cannon's original Complaint. Specifically, the Court concluded that Cannon's federal due process, false arrest and false imprisonment, physical excessive force, and coercive interrogations claims -- including the attendant conspiracy claim -- were timely pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed. 2d 383 (1994). As to Cannon's state law claims, the Court concluded that the City Defendants had waived their arguments regarding Cannon's false arrest/false imprisonment common law claim and that Cannon's intentional infliction of emotional distress and state conspiracy claims were not time-barred. Viewing the facts in a light most favorable to Cannon, the Court concluded that Cannon properly alleged his federal due process claim, as well as his state law malicious prosecution and conspiracy claims. The Court also denied the City Defendants' motion with respect to Cannon's respondeat superior and indemnification claims.

The Court, however, dismissed Cannon's deprivation of access to courts claim (Count V) against both the City and County Defendants. The Court also dismissed Cannon's Section 1983 and common law false arrest claims against State's Attorney Devine, but not the false imprisonment claims. Moreover, the Court dismissed all claims against the Cook County State's Attorney's Office with prejudice. The Court, however, concluded that the remaining claims against State's Attorney Devine in his individual capacity were proper and that the County Defendants had waived their prosecutorial immunity defense. As to the remainder of the parties' arguments concerning the motions to dismiss, the Court presumes familiarity with its February 2, 2006, Memorandum, Opinion, and Order.*fn1

LEGAL STANDARD

"Although Federal Rule of Civil Procedure 15(a) instructs that leave to amend shall be freely given 'when justice so requires,' a district court may deny a plaintiff leave to amend if 'there is undue delay, bad faith[,] or dilatory motive.'" Sound of Music Co. v. Minnesota Mining & Mfg. Co., 477 F.3d 910,922 (7th Cir. 2007) (citations omitted). The Court may also deny a plaintiff's motion for leave to amend if "undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment" would occur. Id. at 922-23 (citations omitted). In other words, "leave to amend is not automatically granted, and may be properly denied at the district court's discretion for reasons including undue delay, the movant's bad faith, and undue prejudice to the opposing party." Crest Hill Land Dev., LLC v. City of Joliet, 396 F.3d 801, 804 (7th Cir. 2005); see also Guise v. BWM Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004) ("district court's decision to grant or deny a motion for leave to file an amended pleading is 'a matter purely within the sound discretion of the district court.'") (citation omitted).

ANALYSIS

In his Motion for Leave to File an Amended Complaint, Cannon seeks to amend his original Complaint relying on the July 19, 2006, Special Prosecutor Investigation Report concerning torture at Chicago Police Department Area 2 under the direction of Former Chicago Police Lieutenant Burge. Based on this report, Cannon seeks to add allegations concerning matters outside of his own underlying criminal proceedings, including the prosecution of Andrew Wilson for murdering two police officers in February 1982, as part of a civil conspiracy claim under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. Cannon also seeks to add Chicago Mayor Richard Daley and former Chicago Mayor Jane Byrne as Defendants to various claims in his original Complaint and the newly alleged RICO claim. In addition, Cannon seeks to incorporate "newly discovery evidence" as part of his Monell claim. Finally, Cannon wants to add Defendant State's Attorney Devine, as well as other named Defendants, to his previously alleged claims and his newly alleged RICO claim.

I. Civil RICO Conspiracy Claim

In Count V of his proposed Amended Complaint, Cannon seeks to add a new claim under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. Defendants, however, argue that Cannon does not have standing to bring his RICO claim, and thus any such amendment would be futile. See Sound of Music, 477 F.3d at 922-23. To establish standing to sue, a plaintiff in a civil RICO action must show injury to "his business or property by reason of a violation of section 1962." See 18 U.S.C. § 1964(c); Evans v. City of Chicago, 434 F.3d 916, 924-25 (7th Cir. 2006). In Evans, the Seventh Circuit explained that the phrase "injured in business or property" under the RICO statute is a standing requirement rather than an element of a RICO cause of action. See id. at 924. Therefore, the issue of whether a RICO plaintiff has incurred an injury to his business or property within the ...


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