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Gary Engel v. Robert Buchan

March 4, 2011

GARY ENGEL, PLAINTIFF,
v.
ROBERT BUCHAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Gary Engel ("Engel") has sued former FBI Agent Robert Buchan ("Buchan") and former Village of Buffalo Grove ("Village") Police Officer Robert Quid ("Quid"), charging each of them with violations of state and federal law*fn1 following Engel's release in 2010 after 19 years of incarceration. In response Buchan and Quid have filed partial motions to dismiss Engel's claims based on Brady and on the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and Buchan has also sought to cloak himself in the protective mantle of qualified immunity.*fn2 For the reasons set out hereafter, both motions (1) are denied as to Engel's Brady-based claim, with respect to which Buchan is not entitled to qualified immunity, and (2) are granted as to Engel's RICO claims.*fn3 Fed. R. Civ. P. ("Rule") 12(b)(6) Standard Under Rule 12(b)(6) a party may seek dismissal of a complaint for "failure to state a claim upon which relief can be granted." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) did away with the formulation first announced in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." As Twombly, 550 U.S. at 562-63 put it:

Conley's "no set of facts" language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. Twombly, id. at 570 held instead that a complaint must provide "only enough facts to state a claim to relief that is plausible on its face." Or put otherwise, "[f]actual allegations must be enough to raise a right to relief above the speculative level" (id. at 555).

But almost immediately thereafter the Supreme Court issued another opinion that seemed to cabin Twombly somewhat. Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) has explained that further development:

Two weeks later the Court clarified that Twombly did not signal a switch to fact-pleading in the federal courts. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). To the contrary, Erickson reaffirmed that under Rule 8 "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" 127 S.Ct. at 2200, quoting Twombly, 127 S.Ct. at 1964. Taking Erickson and Twombly together, we understand the Court to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8.

It is on those terms that the familiar Rule 12(b)(6) principles still require the district court to accept as true all of plaintiff's well-pleaded factual allegations, drawing all reasonable inferences in plaintiff's favor (Christensen v. County of Boone, 483 F.3d 454, 457 (7th Cir.2007)(per curiam)).*fn4

Factual Background*fn5

Engel's ordeal began when Buchan and Quid initiated a murder investigation involving Engel's friend Steve Manning, a former Chicago police officer (¶¶10, 11). Although that initial investigation led nowhere, defendants built cases against Manning for another murder--that of James Pellegrino---and for the Missouri kidnaping of two drug dealers (¶¶12, 13, 15).

Manning was ultimately convicted of murder in Illinois and kidnaping in Missouri (¶24). Defendants, believing that Engel had participated in the Missouri kidnaping, had attempted to secure Engel's cooperation in securing that conviction (¶¶17-20). When Engel disclaimed all involvement and refused to cooperate (¶¶19-21), defendants brought kidnaping charges against Engel, which led to his conviction by a Missouri jury and a 90-year prison sentence (¶22).

After he had spent a decade in prison, Manning's Illinois murder conviction was overturned in 1998, and in 2002 the Court of Appeals for the Eighth Circuit threw out his Missouri kidnaping conviction (¶25). Manning was released after neither state sought to retry him (id.), and he then brought civil rights claims in this District Court against Buchan, Quid, Village and an additional FBI agent (¶26). In that action, assigned to this Court's colleague Honorable Matthew Kennelly, Manning asserted a Brady-based claim against Buchan under the auspices of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and joined the United States as a defendant under the Federal Tort Claims Act ("FTCA") (¶29).

Judge Kennelly held that Buchan was not entitled to qualified immunity on the Brady-based claim, and that decision was then affirmed in Manning v. Miller, 355 F.3d 1028, 1035 (7th Cir. 2004) ("Manning I"). In late 2004 Manning tried his Brady-based claims to a jury, leaving his tort claims against the United States to be decided by Judge Kennelly (¶31). Manning received an over $6.5 million jury verdict on his constitutional claims against all defendants (¶32). In a significant reversal of fortune, however, Judge Kennelly ruled against Manning on his FTCA claims and found that decision compelled the setting aside of the jury verdict (¶¶34-36).*fn6

Engel had evidently kept abreast of Manning's civil rights suit, for he filed a habeas corpus petition based on the evidence of law enforcement misconduct adduced during Manning's federal trial (¶39). In February 2010 the Missouri Supreme Court vacated Engel's conviction on the ground that Buchan and Quid had committed Brady violations in withholding exculpatory evidence (see State ex rel. Engel v. Dormire, 304 S.W.3d 120, 129 (Mo. 2010)(en banc)). Engel then filed this action in May 2010.

In late 2010 Buchan made it known that he would refuse to answer discovery until there was a ruling (and potentially an appeal) on his entitlement to qualified immunity. On October 21, 2010 this Court granted Engel's motion to compel Buchan to answer the discovery requests as to the non-RICO claims. Buchan then moved to stay proceedings while he appealed what he labeled the "effective denial" of qualified immunity on the Brady claim. On December 3, 2010 this Court certified the appeal as frivolous and denied the motion to stay proceedings on the ground that Manning I had earlier denied Buchan qualified immunity for nearly identical misconduct on the Brady claims. On December 21, 2010 the Court of Appeals dismissed Buchan's appeal on the basis that it lacked jurisdiction. With all the pieces in place, and with the case having returned to this Court's docket after its brief sojourn to the Court of Appeals, the relevant portions of defendants' motions to dismiss are now ripe for decision.

Bivens Claim

Buchan asserts that a remedy under Bivens should not be "extended" to violations of a right to a fair trial under Brady. But that contention cannot be squared with precedent from both the Supreme Court and our Court of Appeals.

As for the Supreme Court, Davis v. Passman, 442 U.S. 228 (1979) relied on Bivens in expressly recognizing a cause of action and a damages remedy for violations of the Fifth Amendment's Due Process Clause.

And our Court of Appeals has followed suit by consistently permitting Bivens claims that target due process violations (see, e.g., Alejo v. Heller, 328 F.3d 930, 932 (7th Cir. 2003) and Hoosier Bancorp of Ind., Inc. v. Rasmussen, 90 F.3d 180, 182 (7th Cir. 1996)). And there is no question that the wrong asserted here--a violation of the right to a fair trial, which is derived from the Due Process Clause--undoubtedly falls within those parameters.

Even more directly in point and most important for present purposes, Manning I, 355 F.3d at 1031 specifically held under the facts of that case that the Brady-based claim there could proceed under the authority of Bivens. Although Manning I stopped short of stating that all Brady claims could be brought under Bivens, it implied that such a broad holding would be consistent with Seventh Circuit precedent that recognizes Bivens as an appropriate vehicle for due process violations (id. at 1031 n.1). But even when confined to its facts, Manning I forecloses Buchan's argument in this action because Buchan himself was a defendant in that litigation and the two cases involve virtually identical conduct.

Buchan mysteriously ignores the Manning litigation in his briefing, offering instead a lengthy exposition on the Supreme Court's jurisprudence of implied rights of action (B. Mem. 2-8). Buchan's only reference to Manning I came in his November ...


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