The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
Alton Logan has sued Chicago police officers Jon Burge, George Basile, Fred Hill, Thomas McKenna, Anthony Katalinic, James Pienta, and Joseph DiGiacomo ("officer defendants") and the City of Chicago ("City") pursuant to 42 U.S.C. § 1983 for violating, conspiring to violate and failing to prevent the violation of, his due process rights (Counts I, II, III) and for violating his rights under the Equal Protection Clause (Count VII). Logan's lawsuit against defendants Burge and Basile also alleges state law claims for malicious prosecution (Count IV), civil conspiracy (Count VI) and for intentional infliction of emotional distress (Count V). Finally, Logan asserts state law respondeat superior (Count VIII) and indemnification (Count IX) claims against the City. Before me now are defendants' motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, I grant in part and deny in part the officer defendants' motions and I grant the City's motion.
On January 11, 1982 Lloyd Wickliffe, an off-duty sergeant with the Cook County Department of Corrections, was shot and killed while moonlighting as an undercover security guard at a McDonald's restaurant in Chicago. Alvin Thompson, an off-duty Cook County Sheriff's Officer also working as an undercover security guard at the restaurant, was shot as well. Alton Logan was arrested in connection with the McDonald's shootings on February 7, 1982. Plaintiff was eventually convicted of killing Wickliffe after two trials, the first conviction having been overturned by the appellate court.
Soon after the McDonald's shootings, Andrew Wilson was arrested in connection with the murders of Chicago police officers William Fahey and Richard O'Brien. While preparing for Wilson's trial for the murders of the two officers, Wilson's lawyers, Dale Coventry and Jameson Kunz, asked Wilson if he was involved in the McDonald's shootings. Wilson admitted to his lawyers that he had, in fact, shot Wickliffe, but gave Coventry authorization to reveal this information only after Wilson's death. After Wilson died on November 19, 2007, while serving a life sentence for murdering Officers Fahey and O'Brien, Coventry and Kunz came forward with an affidavit memorializing Wilson's confession to them. On September 4, 2008, Circuit Court Judge James Schreier vacated Logan's conviction based on actual innocence. Thereafter, Logan filed this lawsuit.
Summary judgment is appropriate where the record shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment initially bears the burden of "identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met its burden, the non-moving party must show there is a genuinely disputed fact by "citing to particular parts of the materials in the record."
Fed. R. Civ. P. 56(c)(1). I must construe all facts in the light most favorable to the non-moving party and draw all justifiable inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A motion for summary judgment will not be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
This case raises an initial evidentiary issue, namely, the fact that during their depositions, defendants Burge, Basile, McKenna, Pienta, and DiGiacomo asserted their Fifth Amendment rights and refused to answer any questions. When a witness in a civil case exercises his Fifth Amendment privilege, adverse factual inferences may be drawn from the witness's silence. LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995) (citations omitted). However, the Seventh Circuit has reiterated the Supreme Court's rule that failure to testify, alone, cannot be taken as an admission of guilt at the summary judgment stage. Id. (citing Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976)). Therefore, "[s]ilence is a relevant factor to be considered [only] in light of the proffered evidence." Id.
Plaintiff argues that the facts of the case in front of me are distinguishable from the facts in other civil cases to have dealt with the issue of a party's invocation of the Fifth Amendment privilege. Specifically, plaintiff contends that the case law does not adequately address the situation which presents itself here: defendants invoke their Fifth Amendment privilege during discovery and then turn around and seek summary judgment, asserting that the plaintiff has no evidence on which to base his claims. The posture of this case is, indeed, different from that in Seguban, where the movant was the plaintiff and the nonmovants invoked their Fifth Amendment rights. But in that case, the Seventh Circuit also recognized that one party's silence will inevitably disadvantage the party's opponent, whose case suffers from the inability to obtain discovery. Seguban, 54 F.3d at 390, n. 4 (citing S.E.C. v. Graystone Nash, Inc., 25 F.3d 187, 191 (3d Cir. 1994) (recognizing that "invocation of the Fifth Amendment poses substantial problems for an adverse party who is deprived of a source of information that might conceivably be determinative in a search for the truth" but holding that the defendants' invocation of the Fifth Amendment privilege during discovery did not warrant an order precluding those defendants from presenting evidence in opposition to summary judgment)).
At least two circuit courts have concluded that a party's refusal to answer questions during discovery is "not enough to create an issue of fact to avoid summary judgment." Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 675 (5th Cir. 1999); Avrigan v. Hull, 932 F.2d 1572, 1580 (11th Cir. 1991) ("The negative inference, if any, to be drawn from the assertion of the fifth amendment does not substitute for evidence needed to meet the burden of production."). The holdings of Curtis and Avrigan comport with the reasoning of Seguban, which noted that allowing an adverse inference to supplant the burden of production would "place too high a cost" on a party's exercise of its Fifth Amendment privilege. Seguban, 54 F.3d at 390 (discussing Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976)). Even in the case before me, then, where Logan has been disadvantaged by the failure of defendants Burge, Basile, McKenna, Pienta, and DiGiacomo to answer questions during their depositions, plaintiff must come forward with some other evidence of defendants' involvement in his injuries.
A. Due Process Claims Against Officer Defendants In their motions for summary judgment, the officer defendants argue that plaintiff has failed to identify any material exculpatory evidence that was withheld from him or to show that certain officer defendants were personally involved in the alleged constitutional violations.
To succeed on a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10, L.Ed.2d 215 (1963), a plaintiff must establish that: "(1) the evidence at issue is favorable to the accused because it is either exculpatory or impeaching; (2) the evidence has been suppressed by the government, either willfully or inadvertently; and (3) the suppressed evidence resulted in prejudice." Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007) (internal quotation marks and citation omitted). Evidence is considered to have been suppressed if "(1) the prosecution failed to disclose evidence that it or law enforcement was aware of before it was too late for the defendant to make use of the evidence, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence." Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001).
Plaintiff contends that he has met his burden of production so as to avoid summary judgment. In arguing that he has presented sufficient evidence to create an issue for a jury, plaintiff relies primarily on the affidavit and testimony of Donald White to support the allegation that the officer defendants, and specifically defendants Burge, Hill, McKenna and Katalinic, knew that Wilson, and not plaintiff, had murdered Officer Wickliffe.*fn1 Defendants, in turn, argue that any information obtained from White was available to plaintiff's attorney's through a ...