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Aleman v. Village of Hanover Park

September 29, 2010


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Plaintiff Rick Aleman ("Aleman") filed suit against the Village of Hanover Park and several officers of the Hanover Park Police Department ("HPPD") -- Detective Todd Carlson ("Carlson"), Detective Eric Villanueva ("Villanueva"), and Sergeant Carol Lussky ("Lussky") (together, the "HPPD defendants"). Also named as defendants in the complaint are two officers of the Illinois State Police ("ISP") -- Master Sergeants Joseph Micci ("Micci") and Gerard Fallon ("Fallon") (together, the "ISP defendants"). Aleman's complaint asserts several causes of action under federal and state law based on his arrest in 2005 for the aggravated battery (and subsequently, the first degree murder) of eleven-month-old Joshua Schrik ("Joshua"), a child for whom he had recently begun providing day care services.

The HPPD defendants and the ISP defendants have each moved for summary judgment on all nine counts of Aleman's complaint; Aleman has moved for summary judgment only with respect to Count V. For the reasons discussed below, the defendants' motions for summary judgment are granted and Aleman's motion for partial summary judgment is denied.



In May 2005, Rick Aleman began operating a child care service out of his home in Hanover Park, Illinois. In addition to his own children, Aleman cared for two others -- Carl Gutman's son, J.T., and Adam Michalik's son, Adam, Jr. In September 2005, Aleman had arranged with Jennifer Danielle Schrik ("Danielle") to begin taking care of her son, Joshua. Danielle originally planned to leave Joshua with Aleman beginning on Monday, September 5, 2005. However, because Joshua had become ill, his first day in Aleman's care was Wednesday, September 7. Joshua was still ill on Wednesday, and on Thursday, September 8, Danielle took Joshua to his pediatrician, Dr. Albert Hasson ("Hasson").

At around 8:00 a.m. on Friday, September 9, Danielle dropped Joshua off at Aleman's home. She visited for about twenty minutes. During this period, Carl Gutman and Adam Michalik arrived to drop off their children. At about 9:00 a.m., after the parents had left, Aleman made a frantic phone call to 911. He told the dispatcher that Joshua had stopped breathing and had become unresponsive. The paramedics arrived and took Joshua to St. Alexius Hospital in Hoffman Estates, Illinois.

The HPPD sent Sergeant Lussky to Aleman's home to investigate the incident. Officer Carlson of the HPPD was later sent to St. Alexius to interview Danielle, other family members, and the doctors who were providing Joshua's medical treatment. In addition, the HPPD contacted the ISP and requested assistance from their Child Victimization Unit. The ISP sent Micci, Fallon, and Sergeant Steve Cardona ("Cardona")*fn2 to help with the investigation.


Shortly after the incident, Sergeant Lussky questioned Aleman and his wife, Barbara, at their home. Aleman told the paramedics and others who responded to his 911 call that he realized something was wrong with Joshua when he picked him up from the couch and found that Joshua had gone completely limp. After trying to revive Joshua and to perform CPR, Aleman called 911.

While at the Alemans' home, Lussky received a call from Carlson, who reported that Joshua had been diagnosed with a subdural hematoma with bleeding on the brain and bi-lateral hemorrhaging. Carlson also told Lussky that the doctors believed Joshua was a victim of "Shaken Baby Syndrome."*fn3 Pl.'s Resp. HPPD 56.1 Stmt. (Doc. 150) ¶ 37. At about 11:00 a.m., Lussky asked Aleman and his wife to accompany her to the HPPD Police Station for further questioning. They agreed. Aleman was not placed in handcuffs, and was not told that he was under arrest. However, at around 11:30 a.m., Aleman asked if he could leave the station and return after an hour. Lussky responded, "No. I'd rather have you here." Defs.' Joint Resp. to Pl.'s Stmt. Add'l Facts ¶ 92. The parties agree that at this point, Aleman was not free to leave the station. Defs.'Joint Resp. to Pl.'s Stmt. Add'l Facts ¶ 16.


While the Alemans were at the police station, the HPPD and ISP officers interviewed a number of other witnesses. Micci and Fallon interviewed the first responders to Aleman's 911 call. In general, these witnesses reported that Aleman had appeared distraught when they arrived on the scene, and that he appeared unable to calm down. Hanover Park Fire Lieutenant Paul Rosenthal reported that, according to Aleman, Joshua had been "lying on the couch, propped up"; that Aleman "could not get [Joshua] to have any interaction with either him or the other kids"; and that "all that [Joshua] wanted to do was sleep." Investigative Report notes of Interview with Rosenthal, Micci Aff., Ex. C (Doc. 129-9) at 6. Aleman had also reported that when he went to check on Joshua, "he found him to be cold and clammy" and that Joshua's eyes were "staring into space." Id. HPPD Sergeant John Dossey ("Dossey") told the officers that Aleman had said "at least twice that he did not want to go to jail for the rest of his life and did not want to be unable to see his children." Pl.'s Resp. to ISP 56.1 Stmt. (Doc. 149) ¶ 36.*fn4 In addition, Dossey reported that Aleman had said that Joshua had been crying after his mother left, and that Joshua had cried later on when Aleman tried to get him to interact with the other children.

Meanwhile, Carlson and Cardona interviewed Joshua's family and his treating physicians at St. Alexius. Dr. Gerardo Reyes ("Reyes"), medical director of the hospital's Pediatric Intensive Care Unit, was in charge of Joshua's medical care during his hospitalization. Reyes stated that Joshua had suffered a subdural hematoma. According to Cardona, Reyes opined to a reasonable degree of medical certainty that the injury had been caused by a "violent shake." ISP 56.1 Stmt. ¶ 11. Cardona also testified to remembering specifically that Reyes told him that Joshua's symptoms would have occurred immediately after the trauma, and that afterwards, Joshua would not have been alert and functioning. ISP 56.1 Stmt. (Doc. 129) ¶¶ 12, 13. Carlson likewise testified that he was told by Reyes that the onset of Joshua's injuries would have been immediate. HPPD 56.1 Stmt. ¶ 67.*fn5

Next, Cardona interviewed Dr. Michael Seigle ("Seigle"), an ophthalmologist who had been called to examine Joshua's eyes. Seigle reported that he had found bi-lateral retinal hemorrhages in Joshua's eyes. He also stated that Joshua's injuries were consistent with "Shaken Baby Syndrome." In addition, Seigle stated that Joshua's hemorrhages were "fresh." ISP 56.1 Stmt. ¶¶ 17-19; HPPD 56.1 Stmt. ¶ 98. According to Cardona, Seigle explained that by "fresh," he meant "just occurred." ISP 56.1 Stmt. ¶ 18.

Cardona also interviewed Dr. Hasson, Joshua's regular pediatrician, who had examined Joshua the previous day. According to Hasson, Joshua had been suffering from an ordinary viral infection. ISP 56.1 Stmt. ¶ 23. Hasson reported that Joshua's temperature was 97.1, HPPD 56.1 Stmt. ¶ 77, and that he had detected no abnormalities with Joshua's eyes, ISP 56.1 Stmt. ¶ 24. In addition, Hasson spoke with Sergeant Lussky, telling her that Joshua had "looked great" and that he was unable to provide any explanation as to why Joshua should have collapsed on Friday morning. HPPD 56.1 Stmt. ¶ 81.

In addition to interviewing the doctors, Cardona and Carlson each separately interviewed Danielle Schrik. According to Cardona, Danielle reported that Joshua had been ill since the beginning of the week, that on one day, he had a fever of 103 degrees, that his appetite had decreased, and he had been "fussy." HPPD 56.1 Stmt. ¶¶ 119, 120. She also stated that she had taken Joshua to see his pediatrician earlier that week. Carlson testified that he asked Danielle whether she had ever hit or struck Joshua; he claims that she told him she had not. HPPD 56.1 Stmt. ¶¶ 66, 118. Carlson Dep. at 33:12-17. Cardona testified that he found Danielle to be a credible witness. ISP 56.1 Stmt. ¶ 30.

Finally, Lussky and Fallon interviewed the other parents who had seen Joshua when they dropped off their children at Aleman's home that morning. They spoke with Carl Gutman. The parties do not discuss the substance of his testimony in detail. However, in his deposition, Gutman later testified that the officers' report of their interview omitted his statement that he had grabbed Joshua's hand and checked his head to see if he could "get some type of reaction out of him." See Gutman Dep. at 104:13-107:7; 106:11-14. Lussky and Fallon also interviewed Adam Michalik. He testified that he had seen Joshua lying on the floor that morning. The parties dispute whether Michalik said that Joshua was sleeping at that time or whether Joshua was watching television. Defs.' Joint Resp. to Stmt. Add'l Facts ¶ 18. According to the officers' report, Michalik told them that Joshua was "laying on the floor on the floor and appeared to be watching television," see Michalik Dep. at 42:21-23, but that Michalik later stated that he was unable to recall whether Joshua's eyes were open or closed, see Michalik Dep. at 43:2-5.


At around 5:15 p.m., Aleman was interviewed by Micci and Villanueva at the HPPD Police Station. The interrogation was conducted intermittently for roughly four hours and will be discussed in further detail in connection with Count V of Aleman's complaint. Here it is necessary only to note that, after speaking with his attorney by phone, Aleman signed a form waiving his Miranda rights, and proceeded to recount essentially the same story as the one he had told earlier that morning -- that Joshua had been ill all week, that Joshua was limp when he picked him up that morning, that he tried to perform CPR, and that he had eventually called 911.

Micci then began questioning Aleman and eventually suggested that Aleman might have shaken Joshua violently out of frustration or anger. Aleman adamantly denied having done so. He told Micci that he had shaken Joshua in an attempt to revive him, but he insisted that Joshua had been limp and lifeless before he picked him up from the couch. After repeated denials, Micci showed Aleman photographs of Joshua's injuries and told Aleman that he had spoken with three different doctors who had informed him that Joshua had been shaken in such a way that he would have become unresponsive immediately afterward. Interrogation at 19:26-19:27. Micci later explained in his deposition that he had not spoken with any doctors and that the deception was an interrogation tactic. Micci Dep. at 85:6-10; 104:23-105:6. However, Micci had spoken with several investigators in the case prior to the interview. ISP 56.1 Stmt. ¶ 48. Micci also told Aleman that the events of that morning could not have happened in the way that Aleman had described. Interrogation at 21:56-57.

At a later point in the interview, when Micci asked Aleman how hard he had shaken Joshua in attempting to revive him, Aleman responded "probably hard enough.... I'm ashamed of myself." Pl.'s Resp. to ISP 56.1 Stmt. ¶ 75. The defendants also point to Aleman's statement, "I know in my heart that if the only way to cause [the injury] is to shake that baby, then, when I shook that baby, I hurt that baby," Pl.'s Resp. to ISP 56.1 Stmt. ¶ 77; and again, "I admit it. I did shake the baby too hard. But I didn't mean to. I didn't mean any harm." Pl.'s Resp. to ISP 56.1 Stmt. ¶ 79.

Aleman does not deny making these statements. However, he urges that they be viewed in context, and he emphasizes Micci's repeated claim that Aleman was the only person who could have caused Joshua's injuries. Aleman contends that Micci "extracted apologies from Plaintiff by falsely claiming that he had authoritative medical information that Joshua's injuries could not have occurred before he was brought to Plaintiff's home," and that "[c]onfronted repeatedly with that lie, Plaintiff eventually agreed that if the only time Joshua could have been hurt was at his home, then he must have hurt Joshua in his efforts to revive him and perform CPR." Pl.'s Resp. Br. at 4.

Viewing the interrogation as a whole, this is a plausible account of the interrogation (though not the only plausible account). Even after stating that he had shaken Joshua too hard, Aleman continued to deny and express disbelief that he could have caused Joshua's injuries. Moreover, as noted below, when the prosecutor in charge of the case viewed a video recording of the interrogation some months later, she felt that it was more exculpatory than inculpatory. Pl.'s Stmt. Add'l Facts ¶ 85.

After the interrogation, Aleman was charged with aggravated battery to a child. On September 11, 2005, Villanueva signed the criminal complaint charging Aleman with the offense. The next day, a bond hearing was held. Aleman was released on a bond of $250,000. HPPD 56.1 Stmt. ¶ 34.


Tragically, Joshua passed away on September 13, 2005. Dr. Nancy Jones ("Jones") performed an autopsy the following morning. Carlson and Villanueva were present, ¶¶ HPPD 56.1 Stmt. 57, 69, along with Michael Booker ("Booker"), an investigator for the Department of Children and Family Services ("DCFS"). Jones opined that the manner of Joshua's death was homicide and that the cause of his death was a subdural hematoma due to blunt trauma. HPPD 56.1 Stmt. ¶¶ 101-02. Initially, Jones was unable to determine when Joshua had been injured. Pl.'s Stmt. Add'l Facts ¶ 32; Carlson Dep. at 108:21-109:8.*fn6 However, after speaking again with Carlson later that afternoon, Dr. Jones opined that Joshua's injuries had been sustained on Friday, September 9, 2005. HPPD 56.1 Stmt. ¶ 70.

In her deposition, Jones testified that the officers at the autopsy led her to believe that the parents who had seen Joshua that morning had described him as "fine and behaving normally" before he was left with Aleman. Joint Resp. to Pl.'s 56.1 Stmt. Add'l Facts ¶ 35; Jones Dep. at 33:11-22. She emphasized that her determination regarding the timing of Joshua's injury was based on this information. Jones Dep. 71:2-72:13. Months later, after learning more about Joshua's condition at the time he was left with Aleman, she withdrew her opinion. Joint Resp. to Pl.'s 56.1 Stmt. Add'l Facts ¶ 37.

While the police investigation of Aleman was proceeding, DCFS Investigator Booker was attempting to conduct his own investigation into Joshua's death. Booker told Carlson that he was concerned that the police were not investigating Danielle as a suspect. Pl.'s Stmt. Add'l Facts ¶ 101; Carlson Dep. at 80:12-16. Booker had made several unsuccessful attempts to speak with Danielle. According to Danielle's mother, Nancy Schrik ("Nancy"), Carlson instructed her and Danielle not to speak with Booker. Defs.' Joint Resp. to Pl.'s Stmt. Add'l Facts ¶¶ 128, 130. Carlson himself told Booker that he had instructed Danielle and Nancy not to speak with him and that he wanted to be present for any interviews. Joint Resp. Stmt. Add'l Facts ¶ 130.

Lussky, Villanueva, and an Assistant State's Attorney ("ASA") interviewed Carl Gutman for a second time on September 11, 2005. Gutman stated that Joshua had not been well when he arrived on the morning of September 9. In particular, he emphasized that Joshua had a "vacant stare." Pl.'s Resp. to ISP 56.1 Stmt. ¶ 101. O n September 15, 2005, Carlson signed a criminal complaint charging Aleman with two counts of first degree murder.


About a year later, on November 13, 2006, the charges against Aleman were dropped by entry of nolle prosequi. Assistant State's Attorney Karen Crothers ("Crothers") explained that, based on the evidence before her at that time, she no longer believed that she would be able to meet her burden of proof in prosecuting Aleman. Crothers Dep. at 102:22-103:3. In particular, she stated that after she and other prosecutors viewed the video recording of Aleman's interrogation, they felt that there were inconsistencies between Aleman's actual statements and the officers' characterization of his statements. Pl.'s 56.1 Stmt. Add'l Facts ¶ 88; Crothers Dep. at 104:5-105:12. Crothers also had concerns about Aleman's interrogation. She testified that she felt that Aleman's statements during the interrogation were more exculpatory than inculpatory. Pl.'s Stmt. Add'l Material Facts ¶ 85; Crothers Dep. at 107:12-15.


Summary judgment is appropriate where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue for trial exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant initially bears the burden of "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quotation marks omitted). Once the movant has met this burden, the non-movant "may not rest upon the mere allegations or denials of the adverse party's pleading," but rather "must set forth specific facts showing that ...

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