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Orange v. Burge

September 29, 2008


The opinion of the court was delivered by: James F. Holderman, Chief Judge


On January10, 2003, plaintiff Leroy Orange ("Orange") was pardoned by then-Governor George H. Ryan, after serving nineteen years on death row for a crime Orange says he did not commit. Orange promptly filed a civil rights lawsuit against numerous defendants, including former Assistant Cook County State's Attorney Dennis Dernbach ("Dernbach"). Orange claims that Dernbach is liable under 42 U.S.C. § 1983 for depriving Orange of his right to a fair trial and for Orange's wrongful conviction (Count I) and for engaging in coercive interrogation (Count IV). Orange also claims under state law that Dernbach is responsible for false imprisonment (Count VII), malicious prosecution (Count VIII), intentional infliction of emotional distress (Count IX), and conspiracy (Count X).*fn1 Dernbach's Second Amended Motion for Summary Judgment (Dkt. No. 485) is now before the court. For the reasons set forth in the analysis that follows, Dernbach's motion is granted in part and denied in part. Count VII is dismissed with prejudice. All other claims against defendant Dernbach remain pending.


The court's sole function in addressing a motion for summary judgment is to determine whether there is a genuine issue of fact that requires trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). In the Northern District of Illinois, Local Rule 56.1 guides the parties through the summary judgment process, outlining the procedures for setting facts before the court in the manner most helpful to the court's determination of whether there is a factual dispute for trial. See Brown v. GES Exposition Serv., Inc., 03 C 3921, 2006 WL 861174, at *1 (N.D. Ill. Mar. 31, 2006) (Lefkow, J.) ("The purpose of Local Rule 56.1 is to isolate legitimately disputed facts and assist the court in its summary judgment determination."). Through "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence," Local Rule 56.1 distills the evidence uncovered during discovery into its essential components. Bordelon v. Chicago Sch. Reform Bd. of Tr., 233 F.3d 524, 527 (7th Cir. 2000).

In briefing a motion for summary judgment, both the moving party and the nonmoving party are afforded an opportunity to set the evidentiary record before the court. Specifically, Local Rule 56.1(b)(3)(C) permits the nonmoving party to submit "a statement, consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment." N.D. Ill. R. 56.1(b)(3)(C). The burden then shifts to the movant to rebut all properly submitted additional facts; failure to respond to the additional facts results in their admission:

"If additional material facts are submitted by the opposing party pursuant to section (b), the moving party may submit a concise reply in the form prescribed in that section for a response. All material facts set forth in the statement filed pursuant to section (b)(3)(C) will be deemed admitted unless controverted by the statement of the moving party."

N.D. Ill. R. 56.1(a). The Seventh Circuit has "consistently and repeatedly upheld a district court's discretion to require strict compliance with its local rules governing summary judgment." Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004).

In this case, Orange filed a 56.1(b)(3)(C) statement after first seeking permission from the court to exceed the usual forty-paragraph allotment. (Dkt. No. 507.) Without any explanation or excuse, Dernbach has filed no response to Orange's 114 paragraphs of asserted facts. The court finds that the proper exercise of its discretion dictates that Orange's 56.1(b)(3)(C) additional facts must be deemed admitted for purposes of Dernbach's summary judgment motion. The court therefore recites these facts as set forth in Orange's 56.1(b)(3)(C) statement, including any relevant undisputed facts set forth in Dernbach's Local Rule 56.1(a)(3) statement, as well.

General Background

On January 11, 1984, four individuals were murdered at an apartment in Chicago. (Def.'s R. 56.1(a)(3) Stmt. ¶ 5.) Chicago Police detectives investigating the murders learned that Orange had been in the apartment with the victims on the night in question. (Id. ¶ 6.) On the afternoon of January 12, 1984, Orange was arrested on an unrelated misdemeanor warrant and transported to Area 2 Police Headquarters ("Area 2") for questioning about the murders. (Id.; Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 25.) Orange's half brother, Leonard Kidd ("Kidd"), was also brought to Area 2 on January 12, 1984, for questioning about the murders. (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 95.)

At the time of Orange's arrest, Dernbach was working as an Assistant State's Attorney ("ASA") in the Cook County State's Attorney Office, serving as Deputy Supervisor of the Felony Review Unit. (Def.'s R. 56.1(a)(3) Stmt. ¶ 3.) Felony Review Assistants work twenty-four hours a day with the various police Areas, assisting the police in various investigations. (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 2.) On January 12-13, 1984, Dernbach's job was to go to Area 2 when called by the police, review the evidence in the case, take a statement from Orange (if Orange was willing to give one), and determine what charge, if any, should be brought against Orange based on the evidence. (Def.'s R. 56.1(a)(3) Stmt. ¶ 18.)*fn2

The Interrogation

Orange arrived at Area 2 around 3:20 p.m. on the afternoon of January 12, 1984. (Pl.'s R. 56.1(b)(3)(C) Stmt. ¶ 26.) Orange was placed in an interrogation room and confronted with allegations about the murders by two white male detectives. (Id. ¶ 26.) Orange responded with denials and disbelief. (Id. ¶ 26.) The next thing Orange remembers is somebody sticking his hand inside the door, flicking the light switch off, roughing him up, and putting a bag over his head. (Id. ¶ 27.) There were two or three detectives involved in this incident, and they said "you are going to tell us where the f-ing knife is, nigger," and "you are going to talk." (Id. ¶ 28.) Orange thinks that the bag may have been over his head for 45 seconds to a minute, and he tried to bite through it. (Id. ¶ 29.) Eventually, the detectives who had bagged Orange left the room, and the first detectives returned, turned on the light, and resumed the interrogation. (Id. ¶ 30.)

When Orange continued "not to have the right answers," one of the detectives said "I thought you were ready to cooperate." (Id.) Orange then told these detectives about the bagging. (Id. ¶ 31.) At the time, the detectives were going in and out of the room, talking to others outside the door. (Id.) Orange was then bagged again, this time with the lights on. (Id. ¶ 33.) He held his breath and was punched between his chest and stomach. (Id.) Orange believes that commanding Lieutenant Jon Burge ("Burge") was going in and out of the room during the second bagging, or being consulted outside the door by the other detectives. (Id.) Dennis McGuire ("McGuire") was the lead detective on the murder investigation. (Id. ¶ 32.) Robert Flood ("Flood") and Leonard Bajenski ("Bajenski") were main participants in the investigation and interrogation of both Orange and Kidd. (Id.)

When the interrogation was again resumed, Orange continued to say "I don't know what you're talking about." (Id. ¶ 34.) There may have been a third bagging, which was interrupted by someone outside the room. (Id. ¶ 35.) People were walking in and out during the bagging incidents. (Id.)

Orange was then taken to a nearby interrogation room where Kidd was being held. (Id. ¶ 36.) Kidd looked beaten and bruised and like he had been crying. (Id.) Upon seeing Kidd's condition, Orange told him "just tell them I did it and they'll leave you alone." (Id.)

Orange returned to the initial interrogation room. (Id. ¶ 37.) The detectives said "so tell me what happened," and Orange responded "you want somebody said he done it, okay, I done it, [but] I don't have a story for you." (Id.) Orange said this so that they would quit doing what they were doing to Kidd and what they were doing to Orange. (Id.) The interrogators insisted that if Orange had committed the crimes, he should take them to the weapons, but Orange was unable to do that, and he kept saying over and over that he did not know where the weapons were. (Id. ¶ 38.) Orange was called "a few more niggers" throughout the evening. (Id. ¶ 39.)

At about 9:30 p.m., Burge called Dernbach at his home and summoned him to Area 2. (Id. ¶ 40.) Dernbach arrived at Area 2 about 10:30 p.m. and had a conversation about the case with Burge, outside Burge's office in the general detectives' work area. (Id. ¶ 41.) Burge informed Dernbach of what had occurred up to the present time, what the status of the case was, and that the detectives "had not completed their investigation yet." (Id.)

From approximately 11:00 p.m. to 12:30 a.m., Dernbach had conversations with detectives McGuire, Flood, Bajenski, and others concerning the status of the investigation, either in the general detective work area, just outside one of the interview rooms, or in one of those rooms. (Id. ¶ 45.) The detectives showed Dernbach photographs of the victims, and a photograph of a large kitchen knife. (Id.) While Dernbach was engaged in this conversation, he saw Orange brought back into Area 2 from a trip to search at his mother's house for a sweater, and placed in a nearby interrogation room which opened into or faced the detective work area. (Id. ¶¶ 47-48.)

The detectives proceeded to "go back and forth" "telling [Orange] the story" all night long. (Id. ¶ 49.) They fed Orange the story they wanted him to tell and the chronological order, and if he got it wrong they would say "no, no, no, it don't go like that. It go like this." (Id.) Sometimes they said the information came from Kidd, on other occasions it came from the detectives. (Id. ¶ 50.) This feeding of the story to Orange went on all night. (Id.) A state's attorney was also doing the same thing as the detectives, showing photographs and saying "it went like this, it went like that." (Id. ¶ 51.) Orange had been alternatively saying that he did the murders, and ...

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