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Michael Tillman v. Jon Burge

November 2, 2011

MICHAEL TILLMAN, PLAINTIFF,
v.
JON BURGE, FORMER CHICAGO POLICE DEPARTMENT COMMANDER; RICHARD M. DALEY, FORMER MAYOR AND FORMER STATE'S ATTORNEY; JOHN BYRNE, FORMER CPD SERGEANT; PETER DIGNAN, FORMER CPD DETECTIVE; RONALD BOFFO, FORMER CPD DETECTIVE; JACK HINES, FORMER CPD DETECTIVE; GEORGE PATTON, FORMER CPD DETECTIVE; ESTATE OF JOHN YUCAITIS, FORMER CPD DETECTIVE; TIMOTHY FRENZER, FORMER COOK COUNTY ASA; LEROY MARTIN, FORMER CPD SUPERINTENDENT; TERRY HILLARD, FORMER CPD SUPERINTENDENT; GAYLE SHINES, FORMER OPS DIRECTOR; THOMAS NEEDHAM, FORMER AIDE TO THE CPD SUPERINTENDENT; CITY OF CHICAGO; COOK COUNTY, ILLINOIS; AND COOK COUNTY STATE'S ATTORNEY'S OFFICE, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

In a July 20, 2011, memorandum opinion, this court denied Defendant Richard M. Daley's motion to dismiss Counts V and X of Plaintiff Michael Tillman's Complaint. See Tillman v. Burge, ___ F. Supp. 2d ___, 2011 WL 2975671, at *22-24 (N.D. Ill. July 20, 2011). In those counts, Tillman alleges that Daley participated in a conspiracy to violate Illinois state law, and in a racially motivated conspiracy to deny Tillman the equal protection of the laws in violation of 42 U.S.C. §§ 1985 and 1986. The court also recognized that Plaintiff's allegations raised a conspiracy claim under 42 U.S.C. § 1983.*fn1 For the reasons set forth below, the court denies Defendant Daley's motion for reconsideration, filed on August 5, 2011.

DISCUSSION

The court maintains broad authority to reconsider an interlocutory order. Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 694 n.5 (7th Cir. 2007); see also FED. R. CIV. P. 60(b). A district judge retains "inherent authority to reconsider an interlocutory order because such orders are 'subject to revision at any time before the entry of judgment adjudicating all the claims.'" Zurich Capital Mkts. Inc. v. Coglianese, 383 F. Supp. 2d 1041, 1045 (N.D. Ill. 2005) (citing FED. R. CIV. P. 54(b)). Though Rules 59(e) and 60(b) govern post-judgment motions, courts often refer to the standards set forth in those rules when discussing motions for reconsideration of interlocutory orders, and indeed, the standards are similar. For example, "[a] district court may reconsider a prior decision when there has been a significant change in the law or facts since the parties presented the issue to the court, when the court misunderstands a party's arguments, or when the court overreaches by deciding an issue not properly before it." United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008); see also Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006) ("The authority of a district judge to reconsider a previous ruling in the same litigation . . . is governed by the law of the case, which authorizes such reconsideration if there is a compelling reason, such as a change in, or clarification of, law that makes clear that the earlier ruling was erroneous.").

The court's ruling on the motion to dismiss is not a final order, but it was not "intended as [a] mere first draft[ ], subject to revision and reconsideration at a litigant's pleasure." Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). In addressing this motion, the court notes that in his original motion to dismiss [65], Defendant Daley made only brief mention of conspiracy allegations, arguing in a single paragraph that "[t]he claim of conspiracy does not invalidate Mr. Daley's entitlement to absolute immunity." (Def. Richard M. Daley's Mot. to Dismiss Pl.'s Compl. ¶ 16.) Defendant did incorporate the Defendant Officers' arguments on the conspiracy issue. (Id. ¶ 3 n.2.) Those arguments, however, were also relatively brief: Defendant Officers asserted that the conspiracy claims lacked specificity; that the conspiracy claim should fall along with the other constitutional claims; and that there was no racially motivated § 1985 conspiracy. (Defendant Officers' & City of Chicago's Mem. at 10-12.)

Daley presents two principal arguments in favor of his motion for reconsideration: First, he argues that the court "mistakenly relied on allegations pertaining to his role as Cook County State's Attorney in sustaining plaintiff's conspiracy claims against him" because he is entitled to absolute prosecutorial immunity with regard to those actions. (Def.'s Mot. ¶ 5.) Second, he contends that "plaintiff's allegations fail to support any conclusory assertion that Mr. Daley as Mayor was part of a conspiracy to cover up and suppress evidence because his challenged conduct as Mayor did not amount to unlawful suppression." (Id.) The court takes each argument in turn.

I. Absolute Immunity

Defendant contends that he enjoys absolute immunity for all actions at issue in this case that he allegedly engaged in as State's Attorney, a position he held from 1981 to 1989. (Def.'s Mot. ¶ 6.) In denying Daley's motion to dismiss the conspiracy claims, Defendant urges, the court relied improperly on four allegations in the Complaint relating to Daley's time as State's Attorney. Specifically, Plaintiff has alleged that Daley "closely monitored developments in the manhunt" for Andrew Wilson, another arrestee allegedly tortured by Burge and other Defendants. (Compl. ¶ 52.) As a result of that monitoring, Plaintiff alleges, Daley "learned from numerous sources of the widespread abuse . . . , including the torture and abuse of Andrew Wilson and did nothing to prevent or stop that torture and abuse or to discipline, investigate, or otherwise bring to justice Burge and the other detectives who perpetrated it." (Id.) Second, Plaintiff alleges that Daley was informed of Wilson's arrest on February 14, 1982; though he does not suggest that Daley personally knew of Wilson's alleged torture as it was occurring, Plaintiff asserts that Daley's subordinates knew of the torture and did nothing to stop it. (Id. ¶ 56.) Between the time of Wilson's arrest and Plaintiff's own arrest, the State's Attorney's Office, under Daley's direction, "prosecuted at least thirty African American men who were tortured by Defendants Burge and Byrne and Area 2 detectives." (Id. ¶ 63.) Plaintiff alleges that Daley did not disclose exculpatory information with regard to torture under Burge's watch that would have undermined those prosecutions, nor did he pursue an investigation into other allegations of torture. (Id.) Finally, Plaintiff alleges that, because he presumably reviewed cases in which the death penalty was at issue, Daley knew that Wilson and many other African American men claimed to have been tortured in identical ways. (Id. ¶ 65.) Despite his knowledge of credible claims of torture, Plaintiff alleges, Daley declined to investigate the wrongdoing and failed to disclose exculpatory information. (Id.)

Defendant Daley is correct that he is shielded by prosecutorial immunity for much of his alleged conduct, such as concealment of exculpatory evidence. Imbler v. Patchman, 424 U.S. 409, 431 (1976). Plaintiff's conspiracy claim, however, presents a more complicated question than whether Daley enjoys immunity for his own actions-the question is whether he enjoys immunity for the actions of others involved in the conspiracy. Defendant argues that he does, and cites Judge Bucklo's statement that "the Seventh Circuit has expressly held that 'prosecutors do not lose their absolute immunity by allegations that they conspired to perform actions that are shielded by immunity.'" Kitchen v. Burge, No. 10 C 4093, 2011 WL 1485301, at *9 n. 2 (N.D. Ill. Apr. 19, 2011) (quoting Johnson v. City of Joliet, No. 1:04CV06426, 2006 WL 1793574, at *5 (N.D. Ill. June 27, 2006)) (citing French v. Corrigan, 432 F.2d 1211 (7th Cir. 1970)). The court agrees. Daley certainly would not loseimmunity for his concealment of exculpatory evidence, for which he would otherwise be immune, simply because he conspired with others to engage in the concealment. But "the function of conspiracy doctrine is . . . to yoke particular individuals to the specific torts charged in the complaint." Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). The real question, therefore, is whether Daley enjoys immunity for the non-immune actions of others involved in the conspiracy.

The Seventh Circuit has explained that a prosecutor is not always absolutely immune from conspiracy suits when the conspiracy involves acts by non-immune coconspirators. In Pena v. Mattox, a prosecutor claimed immunity in a lawsuit alleging that the prosecutor had conspired with a state court judge and others to falsely charge the boyfriend of the judge's niece with a felony; their goal was to keep the boyfriend imprisoned while the niece's family took her out of the state to deliver the boyfriend's child and put the child up for adoption. 84 F.3d 894, 895-96 (7th Cir. 1996). Prosecutorial immunity has its limits, as the Seventh Circuit explained:

[Defendant] claims immunity as a prosecutor . . . , and rightly so with regard to everything that he did. . . . But the complaint alleges that he was a member of a conspiracy that went beyond the criminal prosecution of the plaintiff. A prosecutor has no immunity for the acts that he does outside his role as a prosecutor; and the law of conspiracy would impute to him, as a coconspirator, the acts of the other, nonprosecutor members of the conspiracy. The acts directly connected with the criminal prosecution were not the most significant acts committed in furtherance of the conspiracy. . . .

It would not do to strip a judge or prosecutor of his immunity merely because he conspired with nonimmune persons. But we are pretty sure that this principle does not extend to a case in which the conduct of the prosecutor's coconspirators includes acts wholly unrelated to the prosecutorial role. No doubt prosecutorial immunity would be worth little if it could be stripped away upon proof that the prosecutor "agreed" with his principal witness that the latter would fabricate evidence against the accused. But to take the next step and hold that it protects a prosecutor who hires a hit man to kill the accused should the latter be acquitted would carry the immunity both outside its historical scope and beyond the point at which it is necessary to protect prosecutors from being harassed by suits by the prosecuted. Buckley [v. Fitzsimmons, 509 U.S. 259, 277 (1993)] holds that a prosecutor lacks absolute immunity for violating the plaintiff's rights while conducting investigative work even if that work produces evidence that the prosecutor could with absolute immunity present to a grand jury. We do not think the prosecutor's liability is less if he hires the investigator rather than conducting the investigation himself, and agrees that the investigator shall proceed without regard to the rights of the persons investigated.

Id. at 896-97 (citations omitted).*fn2 The Pena court acknowledged that the prosecutor enjoyed absolute immunity for his actions "such as the drafting or authorization of the original criminal complaint against the plaintiff, the procuring of the warrant, the request to increase [the boyfriend's] bail, and the request that [the boyfriend] be forbidden, as a condition of his punishment, to see [the niece]." Id. Absolute immunity did not, however, extend to nonprosecutorial acts of coconspirators, such as taking the niece out of the state and putting the child up for adoption, which could be imputed to the prosecutor. Id.

Thus, whether a prosecutor enjoys immunity for the actions of non-immune coconspirators appears to turn on whether the underlying activity at issue goes "beyond the criminal prosecution of the plaintiff" and whether the non-immune coconspirators commit acts "wholly unrelated to the prosecutorial role." Id; see also Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1145 (2d Cir. 1995)("As this Court and others [sic] circuits have repeatedly held, since absolute immunity covers 'virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate,' when the underlying activity at issue is covered by absolute immunity, the 'plaintiff derives no benefit from alleging a conspiracy." (emphasis added) (citation omitted) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) and Hill v. City of New York, 45 F.3d 653, 659 n.2 (2d Cir. 1995))). Put another way, the operative question is whether the underlying constitutional violation committed by the coconspirator is one that, had it been committed by the prosecutor, would be covered by prosecutorial immunity. This ...


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