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Mary Johnson v. John Dossey

March 30, 2012

MARY JOHNSON, PLAINTIFF,
v.
JOHN DOSSEY, KEVIN LAUDE, DENNIS ROGERS, JOHN RAYBURN,
DROPKA & RAYBURN FIRE INVESTIGATION, INC., KEVIN MCMAHON, AND THE ALLSTATE CORPORATION A/K/A ALLSTATE INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Mary Johnson brings Section 1983 claims alleging due process and Brady v. Maryland, 373 U.S. 83 (1963), violations, as well as various Illinois state law claims alleging malicious prosecution, false arrest and false imprisonment, and civil conspiracy. Defendants John Dossey, Kevin Laude, Dennis Rogers, John Rayburn, Dropka & Rayburn Fire Investigation, Inc., Kevin McMahon, and the Allstate Insurance Company ("Allstate") move for summary judgment with respect to all of these claims. In addition, Johnson moves for partial summary judgment against Laude. For the reasons stated below, the court grants the summary judgment motions of Laude, Dossey, Rogers, Rayburn, Dropka & Rayburn Fire Investigation, Inc., McMahon, and Allstate. The court denies Johnson's motion for partial summary judgment against Laude.*fn1

I. BACKGROUND

This case centers on a fire that occurred in the rented home of the plaintiff, Mary Johnson, and the ensuing investigation of that fire by law enforcement officials and Allstate. Johnson was arrested, indicted by a grand jury, and convicted of aggravated arson and insurance fraud for her alleged role in starting the fire; her insurer, Allstate, denied her insurance claim. After Johnson had been convicted and had served over a year in prison, her counsel discovered an official "cause and origin" report prepared by federal Alcohol, Tobacco and Firearms ("ATF") Special Agent John Gamboa indicating the absence of an accelerant and thus suggesting that Johnson may not have started the fire. As a result, Johnson was granted a new trial. At her second trial, she was acquitted. After her acquittal, Johnson filed this suit against the defendants.

A. The Johnson and Ruffai Fires

Johnson moved to a home located at 1174 San Simeon in Hanover Park, Illinois, in 1999. At some point in 2001, Johnson became delinquent on her rent and her landlord, Gurpreet Gill, began eviction proceedings. Johnson resolved this issue with Gill when she agreed to vacate her home in early 2002. Meanwhile, on December 15, 2001, Johnson purchased a $30,000 renter's insurance policy with Allstate. In January or February 2002, Johnson made an offer to buy a home in Aurora, Illinois. The closing on that property was scheduled for March 29, 2002.

On the morning of March 26, 2002, shortly after Johnson left for work, a fire occurred at Johnson's residence ("the Johnson fire"). Johnson had been home alone that morning; her son, daughter, and nephew who lived with her at the time were elsewhere. Shortly after Johnson arrived at work, Johnson was told to call her mother and drive home. While driving home, Johnson was informed that her house was on fire. After Johnson returned home and spoke with police on the scene, she went to the Hanover Park police station to answer questions. Johnson left the police station around 1:00 PM that afternoon and contacted her insurer, Allstate, to file an insurance claim. Johnson subsequently filed a proof of loss statement with Allstate listing losses totaling over $50,000, which Allstate received on April 24, 2002.

At some point prior to the fire, Johnson was romantically involved with Tai Ruffai. On December 31, 2000, Ruffai went to the Hanover Park police station to report that Johnson had made threats to burn down his property. When Ruffai returned home early on the morning of January 1, 2001, he discovered that there had been a fire in his home ("the Ruffai fire"). Although Johnson was charged with causing the Ruffai fire and the Ruffai fire charge was included in Johnson's first trial (along with charges arising from the fire at her own home), she was acquitted of this charge.

B. The Law Enforcement Investigations and Reports

Detective John Dossey, a state certified fire investigator, investigated the Johnson fire on behalf of the Hanover Park police department. He had had prior contact with Johnson in connection with the Ruffai fire and was aware of the evidence linking her to that fire. Dennis Rogers was the Detective Commander of the DuPage County Fire Investigation Task Force (the "Task Force"), which was also involved in investigating the Johnson fire. On the day of the Johnson fire, ATF Special Agent Gamboa conducted a cause and origin investigation at the fire scene on behalf of the Task Force. Kevin Laude, who prosecuted arson cases for the DuPage County State's Attorney's Office and who would ultimately prosecute the arson case against Johnson, considered himself a member of the Task Force, representing the DuPage County State's Attorney's Office.

John Rayburn is a certified fire investigator employed by Dropka & Rayburn Fire Investigation, Inc. Rayburn was retained by Allstate in connection with the investigation of the Johnson fire. Kevin McMahon was the Allstate insurance claims investigator working on the Johnson fire case.

On April 1, 2002, Detective Commander Rogers informed Allstate's adjuster that the fire in Johnson's home was "suspicious." Rogers also informed the adjuster, who relayed this information to McMahon, that Johnson was a suspect in the Ruffai fire. Allstate assigned Johnson's claim to its Special Investigations Unit, designating McMahon to investigate Johnson's claim. Allstate retained Rayburn to perform a cause and origin investigation on its behalf. Rayburn collected debris samples from Johnson's home on or about April 10, 2002, which he submitted to Great Lakes Analytical for testing on April 11, 2002. Rayburn used the information he received from Great Lakes Analytical, along with information from Joseph Leane, a consulting engineer who inspected Johnson's home in April 2002, to produce his own cause and origin report.

The investigations of the Johnson fire generated a number of reports: a Task Force Report, dated March 27, 2002; a cause and origin report prepared by Agent Gamboa ("the Gamboa Report"), which is undated but deals with an examination conducted on the day of the fire; a report prepared by Great Lakes Analytical (the "Great Lakes Report"), dated April 17, 2002; and Rayburn's report, dated December 14, 2002.

The Task Force Report notes that the fire originated in the kitchen (See Ex. 65 at MJ2184). It states explicitly that "S/A Gamboa from ATF will file a C/O [cause and origin] report." *fn2

The Great Lakes Report, which analyzed the debris collected by Rayburn for McMahon and Allstate, concluded that "[a]liphatic hydrocarbons in the range of a medium petroleum distillate (MPD) were detected" in a sample that Rayburn obtained from the southeast corner of Johnson's kitchen. (Ex. 68, Laude Dep., Ex. 4.)

Rayburn's December 14, 2002 report was completed after Allstate had denied Johnson's claim. The actual report has not been provided to the court. It has been established, however, that Rayburn was of the opinion that the sample he collected from the fire scene was positive for charcoal lighter fluid based on an undocumented verbal conversation between Rayburn and Dirk Hedglin, a forensic chemist who prepared the Great Lakes Report, as well as Rayburn's personal observation, also undocumented and not disclosed until 2011, that he smelled charcoal lighter fluid in the sample prior to sending it to Great Lakes. Rayburn's report apparently concluded that charcoal lighter fluid was found in a sample of debris taken from Johnson's home. This conclusion was erroneous.

The Gamboa Report is the crux of the legal claims in this case. Like the Task Force Report, the Gamboa Report stated that the cause of the fire was "undetermined" at the time of the report (Ex. 70 at MJ2187), and that the "undetermined fire will continue to be investigated" by the Task Force. (Id. at MJ2190.) Significantly, however, it also indicated that a canine fire scene examination had been conducted, and that the canine "did not detect any flammable or combustible accelerants in the residence." (Id. at MJ2187.)*fn3 It is undisputed that Johnson was not given this report prior to her first trial. It was discovered by her second attorney, after she had been convicted and served considerable time in jail. Johnson was granted a new trial because her trial judge ruled that the Gamboa Report was exculpatory evidence and should have been turned over to her pursuant to Brady. The primary issue which divides the parties here is whether the failure to turn over the report, or the failure to disclose the results of the canine examination before Johnson's first trial, is evidence of tortious conduct under Illinois law or constituted a constitutional violation under federal law. The defendants claim that they did not have the report before Johnson's first trial, although there is evidence that some of them knew of the results of the canine examination at or around the time Agent Gamboa examined the scene and the report was found in the files of the DuPage County Arson Task Force approximately thirteen months after Johnson's first trial.

C. The April 5, 2002 Meeting at the Hanover Park Police Department

Johnson contends that a meeting held at the Hanover police department on April 5, 2002 to discuss the Johnson fire was at the center of the conspiracies she alleges. Dossey, Rogers and Laude were present at this meeting, as were McMahon and Rayburn, although the defendants assert that 30-45 minutes of the meeting involved law enforcement only and that McMahon and Rayburn were invited in for only five to ten minutes. (Defs' Joint 56.1(a)(3) Stmt. ¶¶ 174, 175.) Johnson disputes this assertion, but the material she cites in support fails to contradict it. In any event, it is undisputed that it was "normal procedure" for McMahon (and presumably Rayburn) to be invited to such a meeting because law enforcement tries to include all entities that are involved in an ongoing fire investigation where the cause is undetermined. During the meeting, Dossey served McMahon with a "Form II request," which, pursuant to Illinois law, see 215 Ill. Comp. Stat. § 145/1, requires that insurance companies investigating fire claims release their investigatory materials to law enforcement. It is common and routine for the Task Force to rely upon findings of engineers hired by insurance companies to investigate the electrical or mechanical causes of fires, since the Task Force lacks the resources to hire such engineers itself. Similarly, Allstate routinely requests police and fire department reports, including witness reports, as it did in this case.

A critical issue is whether Agent Gamboa's findings, and/or the negative canine examination, were discussed at the April 5, 2002 meeting. In trial testimony at Johnson's second trial, Agent Gamboa, who was not deposed in this case, testified that it is "part of our procedure" to make reports such as his available to the members of the Task Force. (Ex. 12 at 70.)*fn4 Johnson relies heavily on a statement of Kevin Laude, given in the course of his deposition in this case: when asked whether a discussion of the findings of the Task Force during the April 5 meeting included the fact that a canine examination did not detect the presence of an accelerant, he testified, "I think it must have." (Ex. 68, Laude Dep. at 52.) Rogers testified that he knew as of March 26, 2002 that the canine examination had been negative for the presence of an accelerant, but he further testified that he did not "know if [he] would [have] share[d]" that information during the meeting.

(Ex. 23, Rogers Dep. at 93.)*fn5 Dossey testified that he did not believe that he was made aware of any evidence that "had ruled out the presence of an accelerant" at the meeting. (Ex. 22, Dossey Dep. at 105.) Rayburn did not recall any discussion of the canine examination at the meeting (Ex. 24, Rayburn Dep. at 35), and McMahon testified that neither the canine search nor Agent Gamboa's ...


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