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Ronald Kitchen v. Jon Burge

April 19, 2011

RONALD KITCHEN, PLAINTIFF,
v.
JON BURGE, ET AL.,
DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

On August 25, 1988, plaintiff Ronald Kitchen ("Kitchen") was arrested and interrogated in connection with the murders of Rose Marie Rodriguez, Daniel Rodriguez, Deborah Sepulveda, Peter Sepulveda, and Rebecca Sepulveda ("the Rodriguez/Sepulveda murders"). After making an incriminating confession, he was convicted, sentenced to death, and spent twenty-one years in prison. Kitchen claims that he was tortured into confessing by several Chicago Police officers and their supervising Lieutenant, Jon Burge ("Burge"). He further claims that his case is only one of many in which African-American males were tortured by Burge and other officers into confessing to crimes they did not commit. According to Kitchen, this was known to a number of City officials, who conspired with one another to keep the information from reaching the public.

Kitchen's twelve-count complaint alleges several causes of action against the various participants in this alleged conspiracy. In addition to Burge, Kitchen brings claims against a number of other now-retired members of the Chicago Police Department: John Byrne, Michael Kill, Thomas Byron, and John Smith (the "officer defendants"). Kitchen has also named several City officials, including former police superintendents Leroy Martin and Terry Hillard; Hillard's assistant, Thomas Needham, and Gayle Shines, Director of the Chicago Police Department's Office of Professional Standards ("OPS") (together, the "municipal defendants"). Further, Kitchen has sued former Assistant State's Attorneys Mark Lukanich ("Lukanich") and John Eannace ("Eannace") (together, the "ASA defendants"); and former Cook County State's Attorney and Mayor of Chicago, Richard M. Daley ("Daley"). Finally, Kitchen has sued the City of Chicago ("the City"), Cook County ("the County"), and the Cook County State's Attorney's Office ("SAO").

Each of these groups of defendants has filed a motion to dismiss claims asserted against them in Kitchen's complaint. For the reasons discussed below, Daley's and the ASA defendants' motions to dismiss are granted; the officer defendants' and the municipal defendants' motions to dismiss are granted in part and denied in part.

I.

According to the allegations in Kitchen's complaint, which I must accept as true for purposes of this motion, Kitchen was initially implicated in the Rodriguez/Sepulveda murders by an associate, Willie Williams ("Williams"). After learning of the crime, Williams, who was incarcerated at the time, contacted Officer Smith and claimed that Kitchen had confessed to committing the murders with an associate named Marvin Reeves ("Reeves"). Smith informed ASA Lukanich of this information, and they subsequently obtained a court order allowing them to listen in on Williams's phone conversations with Kitchen and Reeves. When these failed to produce any incriminating information, police arrested Kitchen on unrelated auto theft charges. He was brought to Area 3 Police Headquarters and handcuffed to the wall of an interrogation room, where he was questioned for sixteen hours. During that time, he was deprived of food and sleep, and was subjected to torture and racial insults by Burge, Byron, and Kill.

Kitchen alleges that Lukanich entered the room on two separate occasions during his interrogation. In each instance, he asked Kitchen whether he was willing to speak with him. Instead of confessing, however, Kitchen asked to speak with a lawyer. Lukanich left the room and the verbal and physical abuse resumed. When Kitchen could no longer endure the torture, he agreed to make a statement. Lukanich returned to the interrogation room, and Kill recited a step-by-step account of the murders. After each step in the narrative, Lukanich asked Kitchen if Kill's account was accurate. Kitchen simply answered with a "yes" after each question. Lukanich then drafted a statement and Kitchen signed it. In the statement, Kitchen admitted to being present at the scene of the crime, but he denied having committed the murders himself.

Kitchen later filed a pretrial motion to suppress his confession. Kill, Byron, Smith, and Lukanich falsely testified at the hearing that Kitchen had voluntarily confessed and denied that Kitchen had been tortured or coerced.

Lukanich and others had additional meetings with Williams in order to refine his story about Kitchen's alleged confession. Although never disclosed to Kitchen's defense counsel, promises were made to Williams in exchange for his testimony, including money and early release from prison. Additionally, the defendants suppressed exculpatory evidence suggesting that others, including Deborah Sepulveda's husband, had committed the murders. Based solely on his false confession, the officers' perjured testimony, and Williams's fabricated statement, Kitchen was tried, convicted, and sentenced to death.

Kitchen claims that during roughly the same time period, many other African-American males were tortured by Burge and other Area 2 and Area 3 detectives into confessing to crimes they did not commit. He claims that the officers' use of torture was known to a number of public officials who actively worked to cover it up. In particular, Kitchen alleges that Mayor Daley, who served as Cook County State's Attorney from 1981 to 1989, was aware of the torture from at least as far back as 1982. Also involved in the conspiracy were Leroy Martin, Commander of the Area 2 Detective Division, and who served as Superintendent of Police for the City of Chicago from 1987 to 1992; Gayle Shines, OPS Director from 1990 to 1998; Terry Hillard, Police Superintendent from 1998-2004; and Hillard's chief administrative aid, Thomas Needham.

Among other things, Kitchen's complaint alleges that these defendants worked to suppress a 1990 report prepared by Chicago Police OPS investigator Michael Goldston ("the Goldston Report"), which "found that there was systemic abuse of suspects held in custody at Area 2 and that Area 2 command personnel were aware of the systematic abuse and encouraged it by actively participating or failing to take action to stop it." Compl. ¶ 88. The report also found that Burge and Byrne were the "prime movers" behind the abuse. Id. When the report was finally released, the defendants sought to publicly discredit it.

Similarly, Kitchen alleges that in 1993, the OPS re-opened investigations into several Area 2 interrogations and concluded that a number of detectives had engaged in torture. Between 1993 and 1998, Shines acted in collusion with the other defendants to suppress the information "by secreting the files that contained those findings in her personal office." Compl. ¶ 100. Moreover, after Hillard became Police Superintendent in 1998, he and Needham worked to overturn the OPS's findings in the reopened cases.

Kitchen later filed a Second Amended Post-Conviction Petition. His conviction was vacated by the Circuit Court of Cook County, and he was granted a new trial. On July 7, 2009, an order of nolle prosequi was entered and he was released from custody.

II.

Rule 12(b)(6) permits a court to dismiss a claim where plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The court must accept as true the allegations of the complaint and draw all reasonable inferences in favor of plaintiff. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (internal citation omitted). To survive a Rule 12(b)(6) motion, "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). The facts must provide the defendant with "fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted). The plaintiff need not plead particularized facts, but the factual allegations in the complaint must be enough to raise a right to relief above the speculative level. Id.

Count I

Count I of Kitchen's complaint alleges that the defendants violated 42 U.S.C. § 1983 by fabricating inculpatory evidence and suppressing exculpatory evidence in connection with his case. The various groups of defendants have raised different objections to Kitchen's claim.

The Officer Defendants

The officer defendants do not seek outright dismissal of Count I. Rather, they seek to establish that the claim is not actionable "beyond the ambit of Brady." According to the officer defendants, regardless of the way in which the claim is characterized by Kitchen, he is in fact seeking to assert a federal claim for malicious prosecution -- a cause of action that the Seventh Circuit has explicitly and repeatedly declined to recognize. See, e.g., Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001). Hence, the officer defendants contend that Count I should be construed strictly as a Brady claim.

The specific due process claim that Kitchen asserts here has been recognized in many other cases. See, e.g., Fields v. City of Chicago, No. 10 C 1168, 2011 WL 1326231, at *4 (N.D. Ill. Apr. 4, 2011); Howard, 2004 WL 2397281, at *9; Patterson v. Burge, 328 F. Supp. 2d 878, 889 (N.D. Ill. 2004) ("Patterson I"); Corbett v. White, No. 00 C 4661, 2001 WL 1098054 (N.D. Ill. Sept. 17, 2001). Although defendants in the latter cases, like the defendants here, have often insisted that the claim is a way of asserting a federal malicious prosecution claim by other means, courts have consistently rejected this argument. The difference, as Judge Andersen has put it, is that "[m]alicious prosecution claims require allegations that the Defendants commenced or continued criminal proceedings against the plaintiff without probable cause," whereas the claim here "arise[s] from allegations that Defendants concealed exculpatory evidence from prosecutors, thereby denying him the right to a fair trial." Howard, 2004 WL 2397281, at *9. Although Kitchen contends that he should be allowed to bring a malicious prosecution claim under § 1983 and he purports to preserve the claim "pending possible consideration of the issue in the United States Supreme Court," Kitchen Resp. to Officer Defs. at 5 n.5; see also Pl.'s Resp. Mun. Defs. at 4 n.1, he disavows any intention of pressing such a claim in earnest here. In short, the defendants' concerns about Count I's scope are misplaced.

The officer defendants further argue that Count I -- and indeed all counts of the complaint -- should be dismissed as to defendant Byrne. I agree. Bryne is not alleged to have directly participated in Kitchen's torture. Rather, the complaint simply alleges that Byrne was Burge's "right hand man," and that, like Burge, Bryne "engaged in a pattern and practice of torture and brutality himself, and also supervised, encouraged, sanctioned, condoned and ratified brutality and torture by other detectives, including the Police Officer Defendants named herein." Compl. ¶ 8. These generic and conclusory allegations are not sufficient to assert a claim against Byrne. Accordingly, I grant the officer defendants' motion to dismiss Byrne from the complaint.

The Municipal Defendants

The municipal defendants assert several arguments for Count I's dismissal. First, they argue that Kitchen's claim fails because it rests on an unsound doctrinal underpinning. In particular, they maintain that Count I is based on a Fourth Amendment theory of "continued imprisonment," which, like the § 1983 malicious prosecution claim, has been expressly rejected by the Seventh Circuit. See, e.g., Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir. 2004) (noting that the Seventh Circuit has "repeatedly rejected the 'continuing seizure' approach" and stating that the "scope of a Fourth Amendment claim is limited up until the point of arraignment"). Second, the municipal defendants argue that Kitchen seeks to hold them liable for failing to investigate the allegations of torture surrounding Areas 2 and 3. They contend that the claim fails because the Seventh Circuit has held that law enforcement officers have no duty to investigate potentially exculpatory information once they have probable cause to arrest a suspect. See, e.g., Garcia v. City of Chicago, Ill., 24 F.3d 966, 970 (7th Cir. 1994) ("[O]nce police officers have discovered sufficient facts to establish probable cause, they have no constitutional obligation to conduct any further investigation in the hopes of uncovering potentially exculpatory evidence.")(quotation marks omitted). Further, the municipal defendants contend that Kitchen's claims against them fail because he does not allege that they had any direct involvement in his torture and other violations of his rights. Indeed, Shines, Hillard, and Needham point out that they had not even obtained their relevant positions as municipal officers at the time of the alleged torture.

These objections misapprehend the nature of Kitchen's claim. As Kitchen explains, for example, Count I does not allege a continuing violation of his Fourth Amendment rights by suppressing exculpatory evidence; he asserts that their actions constituted a continuing violation of his due process right to a fair trial. Similarly, Kitchen does not claim that the municipal defendants are liable for failing to search for evidence that might have proved his innocence; he claims that the defendants worked actively to suppress evidence indicating his innocence. Nor is Kitchen's claim undermined by the fact that certain of the municipal defendants had not yet been hired or appointed to their respective positions at the time he alleges that he was tortured, for Count I seeks to hold them liable for suppressing evidence of his innocence after they had assumed the positions in which they are sued.

The municipal defendants' other main argument is that no causal connection can be established between their alleged conduct and Kitchen's injuries. As they point out, Kitchen's theory is that if the municipal defendants had not suppressed information about Burge's and other officers' practices of coercing and torturing suspects into making false confessions, Kitchen himself would never have been forced to confess and he would never have been convicted. The municipal defendants claim that the "chain of inferences necessary to conclude plaintiff would have been exonerated sooner if Hillard, Needham, and Shines would have investigated and/or disclosed the re-opened OPS investigations unrelated to plaintiff is too tenuous." Municipal Defendants' Mem. at 9.

This argument has frequently been advanced in other cases arising out of the of coercive interrogation methods as Areas 2 and 3. See, e.g., Cannon, 2006 WL 273544, at *12; Orange v. Burge, No. 04 C 0168, 2005 WL 742641, at *13 (N.D. Ill. March 30, 2005) ("Orange I"); Patterson I, 328 F. Supp. at 888, 890; Howard, 2004 WL 2397281, at *13. Courts have consistently rejected the argument on the ground that it raises factual questions that cannot be decided on a motion to dismiss. The reasoning of these cases is persuasive. At the present stage, the municipal defendants are entitled to dismissal of Count I only if the complaint lacks "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). I cannot say as a matter of law that no causal relationship can be demonstrated between the municipal defendants' conduct and Kitchen's coerced confession.

It is true that, despite their initial determinations to the contrary, the courts in Orange and Patterson later held that the inferential chain was indeed too weak to support plaintiffs' claims. See Orange v. Burge, No. 04 C 0168, 2008 WL 4425427, at *5 (N.D. Ill. Sept. 29, 2008) ("Orange II"); Patterson v. Burge, No. 03 C 4433, 2010 WL 3894433, at *3 (N.D. Ill. Sept. 27, 2010) ("Patterson II"). Importantly, however, the later determinations were made in the context of summary judgment motions -- not, as here, on a motion to dismiss.*fn1

In sum, given the facts and procedural posture of this case, I am not persuaded by any of the municipal defendants' arguments for Count I's dismissal. Accordingly, ...


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