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Gordon v. Devine

October 14, 2008


The opinion of the court was delivered by: Judge Marvin E. Aspen


Presently before are two Motions to Dismiss: one filed by Defendants Officer Doerge, Officer R. Baltazar, and Sergeant Mark O'Connor (collectively, "Defendant Officers"); and one filed by Defendants Richard A. Devine, Merle Shearer, Mark Ertler, Rivanda Doss, Andrew Dalkin, Celeste Stack, along with Cook County (collectively the "SAO Defendants"). The Defendant Officers argue that various counts of Plaintiff Kenneth Gordon's ("Gordon") Amended Complaint should be dismissed as time-barred or for failure to state a claim. For the reasons described below, we grant their motion in part and deny it in part. The SAO Defendants motion presents various arguments, including that the individual Defendant State's Attorneys are entitled to absolute immunity, that this court lacks subject matter jurisdiction over the state law claims against them, and that Cook County cannot be held liable as a matter of law. For the reasons described below, we grant their motion.


At 4:30 a.m. on July 25, 2001, Defendant Officers pulled over and arrested Gordon near 931 N. Kilpatrick. (Compl. ¶¶ 19, 20.) Gordon alleges that Defendant Officers prepared a false complaint and police report, which falsely charged him with possession of a stolen vehicle belonging to Arthur Johnson. (Id. ¶ 23.) Based on Defendant Officers' report, on July 26, 2001, the State filed a criminal complaint against Gordon for possession of Arthur Johnson's stolen vehicle. (Id. ¶¶ 24, 25.) The criminal complaint appeared to include Arthur Johnson's signature, however, it also indicated that the complainant was "Arthur Johnson/Todd Johnson." (Id. ¶¶ 24, 26.) Gordon alleges that neither Todd Johnson, nor Arthur Johnson signed the criminal complaint and that neither of them owned the car at issue. (Id. ¶¶ 27, 28.)

On August 13, 2001, Officer Doerge testified before a Cook County grand jury that he had personally spoken with Arthur Johnson, who said he had never given Gordon permission to possess his car. (Id. ¶¶ 32, 34, 35.) Gordon alleges that this testimony was "a complete fabrication." (Id. ¶ 33.) Based on this testimony, Gordon was indicted on August 16, 2001, for violation of 625 ILCS 5/4-103(a)(1), receiving or possession a stolen vehicle, and 720 ILCS 5-19-2, possession of burglary tools. (Id. ¶¶ 29, 30, 36.)

Gordon was arraigned on September 6, 2001, but his case was continued until September 20, 2001. (Id. ¶¶ 37, 39.) On that day, Gordon's public defender informed the court that the complaining witness's report was missing. (Id. ¶ 41.) After multiple continuances, the Defendant State's Attorneys informed the court on February 6, 2002 that the State was not ready for trial because the victim was not present. (Id. ¶ 42.) Gordon alleges that this implied that the prosecution had spoken to Arthur Johnson, when they had not. (Id.) Defendant State's Attorneys also told the court that they needed an additional continuance in order to obtain vehicle records. (Id. ¶ 43.)

On April 8, 2002, Shearer informed the court that he was still not ready for trial because two officers were absent. (Id. ¶ 44.) That same day, Shearer also filed an answer to discovery, which indicated that the State might call "Arthur 'Todd' Johnson," a representative of Bionic Auto Parts and Sales, Inc., and representatives of Tech. Credit Union as witnesses. (Id. ¶¶ 45, 46.) Shearer also told the court that his office would give Gordon's attorney copies of any automobile records that it received. (Id. ¶ 49.)

Gordon later learned from Secretary of State records that "Todd Johnson" had surrendered title to the car on May 14, 2001. (Id. ¶¶ 57, 59.) These records also revealed that Go America Insurance possessed the car and that a salvage certificate had been issued to Bionic Auto Parts, showing that it had owned the car at the time of Gordon's trial. (Id. ¶ 59.) In addition, even though Defendant State's Attorneys had obtained these records from the Secretary of State and knew that "Arthur Johnson" had never owned the car, they never turned over these records to Gordon's counsel despite his requests. (Id. ¶¶ 47, 61-63.) Gordon alleges that withholding this evidence was a Brady violation and that Defendant Officers and Defendant State's Attorneys conspired to withhold this evidence in order to ensure his conviction. (Id. ¶¶ 61, 66.)

Gordon's bench trial was set for April 25, 2002. (Id. ¶ 50.) Just before the bench trial was about to begin, Shearer "intentionally and falsely informed" Gordon's public defender, Craig Rosenthal ("Rosenthal"), that "the 'owner' of the vehicle, 'Todd Johnson,' was on 'phone hold' and was willing and available to testify at trial that day." (Id. ¶¶ 50, 51, 64.) Rosenthal then spoke on the phone with someone who "falsely and intentionally identified himself as Todd Johnson." (Id. ¶ 52.) This person indicated that he owned the car, did not know Gordon, and had never given Gordon permission to use the car. (Id.) He also stated that the car was in perfect condition at the time it was stolen. (Id.) Gordon alleges that Shearer made these false representations and arranged this call in order "to induce Rosenthal to enter into a false stipulation regarding the element of ownership, which Rosenthal ultimately ended up agreeing to." (Id. ¶¶ 51, 53, 65.) Shearer then filed the stipulation with the court, knowing the information contained within it to be false. (Id. ¶ 54.) For example, as explained above, Shearer stipulated that Johnson was the owner of the car, when in fact Defendants knew that Go America Auto Insurance, Inc. was the actual owner on July 25, 2001. (Id. ¶ 55.)

On April 25, 2002, Gordon was found guilty of possessing a stolen vehicle and not guilty of possessing burglary tools. (Id. ¶ 67.) He alleges that his conviction was "based on the false testimony of Defendant Officers and the fraudulent stipulation obtained by Defendant State's Attorneys." (Id.) On May 23, 2002, Gordon was sentenced to nine years in prison. (Id. ¶ 68.)

On February 23, 2004, Gordon filed a Petition for Post-Conviction based upon the Illinois State's Attorneys' violations of his civil rights. (Id. ¶ 69.) Specifically, he alleged prosecutorial misconduct and Brady violations. (Id.) Defendant State's Attorneys Ertler, Dalkin, and Doss, who reported to Defendant State's Attorney Stack, were assigned to Gordon's case. (Id. ¶ 71.) Gordon alleges that despite knowing about the "gross prosecutorial misconduct" that had occurred at his trial, Defendant State's Attorneys "engaged in a course of conduct designed to delay [his] post-conviction proceedings . . . in an effort to protect their own interests." (Id.) For example, one month prior to Gordon's scheduled release date, Ertler offered to release him if he would waive his civil rights claims against Defendant State's Attorneys. (Id. ¶ 72.) Furthermore, Gordon alleges that these actions "were taken outside of the scope of their prosecutorial functions" because Gordon had already been convicted. (Id. ¶ 73.)

Gordon served a total of four and one-half years in prison and then was placed on parole for one year and eight months. (Id. ¶ 74.) On June 14, 2007, after Gordon had been released, Judge Vincent Gaughan granted Gordon's petition for post-conviction relief, dismissed the indictment, and vacated his conviction and sentence. (Id. ¶ 75.)

On January 16, 2008, Gordon filed a Complaint against Defendant Officers, the City of Chicago ("City"), Cook County, and Defendant States' Attorneys in federal court. He amended his Complaint on June 6, 2008. His Amended Complaint alleges fifteen claims. He alleges four claims against Defendant Officers and the City: a § 1983 claim for violating his Due Process right to a fair trial, fair appeal, and fair post-conviction proceedings ("Count I"); a § 1983 claim for failure to intervene ("Count V"); a § 1983 claim for unlawful arrest ("Count XI"); and (4) a state law claim for false imprisonment ("Count XII"). He alleges three claims against Defendant State's Attorneys, and Cook County: a § 1983 claim for violating his Due Process right to a fair trial ("Count II"); a § 1983 claim for Brady violations ("Count III"); and a § 1983 claim for failure to intervene ("Count VI"). In addition, he alleges a § 1983 Monell claim against Cook County ("Count IX"); a claim under 745 ILCS 10/9-102 against the City and Cook County ("Count XIV"); and a respondeat superior claim against the City, Cook County, and the Office of the Cook County State's Attorney ("Count XV"). Finally, he alleges five claims against all Defendants: § 1983 conspiracy claim ("Count IV"); a state law claim for malicious prosecution ("Count VII"); a state law conspiracy claim ("Count VIII"); a state law claim for intentional infliction of emotional distress ("Count X"); and a state law claim for "negligence - willful and wanton conduct" ("Count XIII").

Defendants Officers now move to dismiss Counts IV, V, VIII, XI, XII, and XIII as against them. The SAO Defendants move to dismiss all claims against them.


The purpose of a motion to dismiss under 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Accordingly, a court may grant a motion to dismiss under Federal Rule of Procedure 12(b)(6) only if a complaint lacks "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007); see Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618-19 (7th Cir. 2007); EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007). A sufficient complaint need not give "detailed factual allegations," but it must provide more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 127 S.Ct. at 1964-65 (2007); Killingsworth, 507 F.3d at 618-19. These requirements ensure that the defendant receives "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 127 S.Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102 (1957)); see also Fed. R. Civ. P. 8(a). In evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Thompson v. Ill. Dep't of Prof'l Reg., 300 F.3d 750, 753 (7th Cir. 2002).


I. Defendant Officers' Motion to Dismiss

Defendant Officers argue that Counts IV, V, and VIII are time-barred under federal law, that Counts XI and XIII are time-barred under state law, and that Count XIII should be dismissed for failure to state a claim. We address these arguments below.

A. Federal Claims: Statute of Limitations

Counts IV, V, and VIII allege various § 1983 claims. The parties do not dispute that the statute of limitations for these claims is two years;*fn1 however, they dispute when this limitations period began to accrue. Defendant Officers argue that Counts XI, IV, and V accrued at the time of Gordon's arrest on July 25, 2001, and thus are time-barred. Gordon argues that these claims did not accrue until his sentence was vacated on June 14, 2007.

While "courts must look to the law of the state to identify the length of the statute of limitations and any relevant tolling rules, 'the accrual date of a § 1983 cause of action is a question of federal law and is not resolved by reference to state law.'" Johnson v. Garza, No. 07 C 6862, 2008 WL 2700296, at *2 (N.D. Ill. July 11, 2008) (quoting Wallace, 127 S.Ct. at 1094-95 (emphasis in original)). Under federal law, § 1983 claims accrue "when a plaintiff has a 'complete and present cause of action,' namely, when a plaintiff 'can file suit and obtain relief.'" Hill v. City of Chi., No. 06 C 6772, 2007 WL 1424211, at *3 (N.D. Ill. May 10, 2007) (quoting Wallace, 127 S.Ct. at 1095). This involves a two-part inquiry: we must first "identify the injury," and then "determine the date on which the plaintiff could have sued for that injury. That is the date that the plaintiff knew or should have known that his constitutional rights had been violated." Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006) (citations omitted); see also Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992); Hill, 2007 WL 1424211, at *2.

Another important principle we must keep in mind when examining the statute of limitations of § 1983 claims, is whether permitting a § 1983 claim "would undermine a criminal conviction if vindicated." Wallace v. City of Chi., 440 F.3d 421, 425 (7th Cir. 2006) (citing Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994)). In Heck v. Humphrey, the Supreme Court compared habeas corpus relief with § 1983 relief, and held that a § 1983 claim that "would necessarily imply the invalidity of conviction or sentence," cannot be brought until the conviction has been invalidated. 512 U.S. at 487, 114 S.Ct. at 2372; see also Wallace, 440 F.3d at 425. In other words, the statute of limitations for a § 1983 action that does necessarily imply the invalidity of a conviction does not begin to accrue until the conviction has been invalidated.

In 2007, the Supreme Court adopted a distinctive accrual rule for § 1983 false arrest and false imprisonment claims. Wallace, 127 S.Ct. at 1096-97, 1100. The Court held that "the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process." Id. at 1100. The Court reasoned that because false arrest and false imprisonment claims imply that the victim is detained without legal process, they end, and thus accrue, "once the victim becomes held pursuant to such process-when, for example, he is bound over by a magistrate or arraigned on charges." Id. at 1096 (emphasis in original).

1. False Arrest (Count XI)

The parties dispute when Gordon's false arrest claim accrued, and thus, when the two-year statute of limitations began to run. Although neither party cites the Wallace decision, it explicitly applies to Fourth Amendment false arrest claims.*fn2 Id. at 1100. Thus, Gordon's false arrest claim began to accrue at the date he became "detained pursuant to legal process." Id. Here, Gordon was arraigned on September 6, 2001, and therefore, his false arrest claims accrued on that date. See id. at 1100; see also Hill, 2007 WL 1424211, at *3. Accordingly, Count XI is untimely and dismissed.*fn3

2. Conspiracy (Count IV)

Defendant Officers argue that Gordon's conspiracy claim is untimely because it accrued either when he was arrested or when he learned of the alleged Brady violation, which at the very latest was when he filed his Petition for Post-Conviction Relief on February 23, 2004. (Mot. at 12.) Gordon responds that his claims are timely because under the Heck doctrine he could not have brought them until after ...

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