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Ronald Kitchen v. Jon Burge

February 1, 2012

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

This case arises out of the arrest and interrogation of plaintiff Ronald Kitchen, who claims that his conviction, death sentence, and twenty-one year incarceration were the product of a confession that Chicago Police officers obtained from him through torture. In his First Amended Complaint ("FAC"), plaintiff asserts, inter alia, constitutional claims pursuant to 42 U.S.C. § 1983 as well as various state law claims against individual defendants, the City of Chicago, Cook County, and the Cook County State's Attorney's Office. Currently before me is a motion by Defendants Cook County Assistant State's Attorney Mark Lukanich and Cook County to dismiss all claims against them. For the following reasons, I deny defendants' motion in part and grant it in part.

I. Background

On April 19, 2011, I dismissed the claims asserted against these defendants in plaintiffs' original complaint, concluding that because the only conduct attributed to ASA Lukanich fell within the scope of his prosecutorial function, he was entitled to prosecutorial immunity. I denied plaintiff's motion to reconsider that decision, explaining that the allegations in the complaint were insufficient to allege ASA Lukanich's knowledge and participation in the coercion of plaintiff's confession.

Because I presume familiarity with my April 19, 2011, opinion, which set forth the allegations of the original complaint in significant detail, I now focus, in the context of analyzing the parties' competing arguments, on the factual material alleged for the first time in the FAC.

II. Analysis

Defendants assert three bases for dismissal. First, defendants argue that all of plaintiff's claims against ASA Lukanich are barred by prosecutorial immunity. Second, defendants contend that ASA Lukanich is entitled to qualified immunity. Finally, defendants argue that the Illinois Court of Claims has exclusive jurisdiction over plaintiff's state law claims against ASA Lukanich.

A. Prosecutorial Immunity

Defendants claim that ASA Lukanich is entitled to prosecutorial immunity because all of his alleged conduct falls within his role as a prosecutor. It is well-settled that "[p]rosecutors are absolutely immune from suits for monetary damages under § 1983 for conduct that is intimately associated with the judicial phase of the criminal process." Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003) (quotation marks and citation omitted). The Seventh Circuit has stated that the appropriate inquiry is focused on the function the prosecutor is performing at the relevant time. Houston v. Partee, 978 F.2d 362, 366 (7th Cir. 1992) ("We do not decide whether a prosecutor is entitled to absolute immunity; we decide whether a prosecutor performing a particular function is entitled to absolute immunity.") (emphasis in original). Therefore, the relevant question is what function ASA Lukanich was performing when he engaged in the conduct alleged by plaintiff.

In his FAC, Kitchen makes two significant, new allegations regarding ASA Lukanich's involvement in plaintiff's interrogation and confession. First, Kitchen alleges that ASA Lukanich was called to the station to assist police in coercing Kitchen to make a statement, before Kitchen had admitted to any involvement in the crime for which he had been arrested. (FAC ¶ 42.) Second, Kitchen alleges facts to support his claim that ASA Lukanich knew Kitchen was being tortured, that he participated in the process of coercion that ultimately resulted in Kitchen's involuntary statement, and that he later suppressed evidence of torture. Specifically, Kitchen's FAC adds these factual allegations: (1) that while ASA Lukanich was at Area Three and in the vicinity of the interrogation rooms, Kitchen screamed out in pain multiple times such that ASA Lukanich could hear, and (2) that when ASA Lukanich twice entered the interrogation room he could observe Kitchen's appearance, which showed clear signs of abuse. (FAC ¶ 45.)

Defendants argue that these new factual allegations add nothing to Kitchen's claims and that ASA Lukanich is still entitled to absolute prosecutorial immunity. Defendants insist that the FAC continues to allege only that ASA Lukanich took Kitchen's statement after his arrest. However, as Kitchen has argued, the facts alleged in the FAC, if true, plausibly show that ASA Lukanich was aware of Kitchen's tortured interrogation and knowingly obtained a coerced and involuntary confession.

Defendants rely on Hunt v. Jaglowski, 926 F.2d 689 (7th Cir. 1991), for the proposition that taking a suspect's statement after the suspect informs the ASA that he has been beaten and coerced into confessing falls within the ASA's role as a prosecutor. But Hunt does not help defendants' argument. Not only was Hunt decided on appeal from an order granting a directed verdict after a jury trial, but defendants' presentation of the facts in that case is inaccurate. In Hunt, the Seventh Circuit found that the plaintiff had testified that he had no contact with the ASA defendant until after he had confessed to the police. 926 F.3d at 693. In addition, the Seventh Circuit found that "[t]he police had conducted the investigation of [the] case, as was their function, before [the ASA] was called." Id. Here, by contrast, Kitchen alleges that ASA Lukanich was called to the station during the police investigation and that Kitchen had denied any involvement with the murders at the time ASA Lukanich was first brought into the interrogation room.

Defendants also cite Andrews v. Burge, 660 F.Supp.2d 868 (N.D.Ill. 2009). However, that case does not involve the key issue here, namely, specific allegations to support a claim that the ASA knew torture was being used to coerce a confession. In fact, in Andrews, Judge Zagel found that the only "crucial allegation" against the ASA defendant was that the ASA "was at Area Two and witnessed Andrews refuse to make a confession." 660 F.Supp.2d at 877. In Andrews, the plaintiff relied on an ambiguous statement made by the ASA defendant during an aborted confession. Id. Judge Zagel noted an absence of factual allegations to support a claim that the ASA defendant knew that the plaintiff was being physically abused. Id. at 877-78. Here, by contrast, Kitchen has alleged facts that, taken as true, plausibly show that ASA Lukanich knowingly participated in obtaining a coerced confession.

The facts alleged in the FAC are more akin to those discussed in Tillman v. Burge, No. 10 C 4551, 2011 WL 2975671, 2011 U.S. Dist. LEXIS 79320 (N.D.Ill. July 20, 2011) (Pallmeyer, J.). In Tillman, Judge Pallmeyer held that an ASA defendant was not entitled to prosecutorial immunity where the ASA defendant was present at the station during the interrogation and was alleged to have known that plaintiff was being tortured. 2011 WL 2975671, at *13, 2011 U.S. Dist. LEXIS 79320, at *42. Such personal involvement in an interrogation, Judge Pallmeyer concluded, put the ASA defendant's conduct "outside the scope of ...


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