The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Defendants, the City of Chicago, et al., ask this Court to reconsider its judgment and Order of January 12, 2012 (the "Order"). In that Order this Court granted in part and denied in part the Defendants's Motion for Summary Judgment. (Doc. 148). In so holding, the Court determined that disputed issues of material fact existed to preclude summary adjudication on all but one of Plaintiff Timothy Petty's claims. As part of the Court's ruling, the Court held that Petty could pursue his constitutional claims based on the Defendants' alleged violations of his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and under Brady v. Maryland, 373 U.S. 83 (1963). Additionally, the Court determined that disputed issues of material fact precluded summary adjudication of Petty's claim of conspiracy to commit due process violations. The Court denied summary judgment on Petty's pendent state-law claims of malicious prosecution, intentional infliction of emotional distress, civil conspiracy to imprison and maliciously prosecute, as well as his derivative claims against the City under the doctrine of respondeat superior and for indemnification. The Court granted summary judgment in the Defendants' favor on Petty's claim for false imprisonment.
The Defendants now ask this Court to reconsider its Order as it relates to the two constitutional claims. Having thoroughly reviewed and reconsidered its prior holding in this case in light of the additional briefing by the parties, the Court now reverses part of its original Order and grants summary judgment in favor of the Defendants on the two constitutional claims. As all of the remaining counts are supplemental claims under Illinois state law, the Court declines to exercise jurisdiction over those claims and dismisses this case for process in Illinois state court should Petty choose to proceed there.
Although the Defendants do not articulate the procedural rule by which they bring their Motion, the Court presumes that the Motion is brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. The Court entered the Order on January 12, 2012, and the Defendants brought their Motion to Reconsider on January 31, 2012, within the 28-day time limit for the Court to construe it as arising under Rule 59(e). Therefore, the Motion was brought timely. Under Rule 59(e) a district court may entertain a "motion to alter or amend a judgment." Fed. R. Civ. P. 59(e). A district court reviews its prior judgment under Rule 59(e) to determine whether "there exists a manifest error of law or fact so as to enable the court to correct its own errors and thus avoid unnecessary appellate procedures." Divane v. Krull Elec. Co., Inc., 194 F.3d 845, 847 (7th Cir.1999), (citing Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996)); see also Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). "However, it is well-settled that a Rule 59(e) motion is not properly utilized to advance arguments or theories that could and should have been made before the district court rendered a judgment." Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007) (internal citations omitted). In contrast to Rule 60(b), which is "an extraordinary remedy" authorizing the Court to grant relief to a party from a final judgment for certain enumerated reasons such as excusable neglect or fraud, relief under Rule 59(e) requires a "lower threshold of proof" and is not considered an "extraordinary remedy." Helm v. Resolution Trust Corp., 43 F.3d 1163, 1166 (7th Cir. 1995); see also Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir. 1993) (distinguishing the "more liberal standard of Rule 59(e)" from the "exacting standard of Rule 60(b)"). The denial of summary judgment against a party that was entitled to a grant of summary judgment merits reconsideration under Rule 59(e). See Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998).
The decision to grant a Rule 59(e) motion lies in the absolute discretion of the district court. See Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996). The opportunity to correct itself is a prerogative that the Court always enjoys, and therefore the Court now reconsiders its prior ruling. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)) ("A court has the power to revisit prior decisions of its own ... in any circumstances such as where the initial decision was 'clearly erroneous and would work a manifest injustice.' "); see also Moro, 91 F.3d at 875 (citing Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)) (Rule 59(e) allows a district court to correct its own errors).
The bulk of the disagreement between the parties concerns the proper application of Brady v. Maryland, 373 U.S. 83 (1963), to Petty's case, and whether Petty can maintain a due process challenge for the alleged misconduct by the Defendants and his resulting prosecution. Petty argues that this Court was correct in its determination that the Defendants violated his right to a fair trial under the Fifth and Fourteenth Amendments and under Brady. In holding for Petty, the Court found that a Brady claim could lie even though Petty was acquitted of the charges against him at trial. Relying on Parish v. City of Chicago, 594 F.3d 551 (7th Cir. 2009), the Court ruled that the inquiry under Brady for when evidence is suppressed "is not tied to the time of trial, but rather to the time at which the prosecution made its decision to proceed to trial." (Order at 12). The Court held that the record contained genuine issues of material fact as to the timing of Petty's awareness of the potentially exculpatory evidence and its suppression, and then proceeded to review the degree of prejudice to Petty as a result of the suppression. The Court then concluded that Petty could maintain a viable constitutional claim for a violation of his due process right to a fair trial.
Upon further briefing by the parties, the Court changes its appraisal of the legal import of the disputed issues of fact regarding the timing of the disclosure of the allegedly suppressed exculpatory evidence against Petty. While there is a genuine issue of fact as to the length of time that the evidence may have been suppressed, and while that length may provide support for Petty's pendent state-law causes of action, because the evidence was not suppressed so as to prevent Petty's use of it at his trial, or suppressed for such a time as to deprive the the prosecutor of the opportunity to drop the charges against Petty, Petty cannot maintain a claim for violations of due process under the Fifth or Fourteenth Amendments under Brady.
As the Court already noted in the Order, a Brady violation consists of three elements, all of which the plaintiff must prove. See Carvajal v. Dominguez, 542 F.3d 561, 566-567 (7th Cir. 2008). A plaintiff must show: (1) the prosecution suppressed evidence, either willfully or inadvertently; (2) the evidence at issue was favorable to the accused, either being exculpatory or impeaching; and (3) the evidence was material to an issue at trial. See Youngblood v. West Virginia, 547 U.S. 867, 869-870 (2006); United States v. Villasenor, 664 F.3d 673, 683 (7th Cir. 2011); United States v. Stallworth, 656 F.3d 721, 731 (7th Cir. 2011); United States v. Palivos, 486 F.3d 250, 255 (7th Cir. 2007). Evidence is "suppressed" if "(1) the prosecution failed to disclose the evidence 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." United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002); see also United States v. Are, 590 F.3d 499, 510 (7th Cir. 2009); United States v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996) (collecting cases).
The obligations of Brady extend to police officers, who must turn over potentially exculpatory evidence to prosecutors. See Youngblood, 547 U.S. at 870 (citing Kyles v. Whitley, 514 U.S. 419, 438 (1995) ("[a] Brady violation occurs when the government fails to disclose evidence materially favorable to the accused ... even evidence that is known only to police investigators and not to the prosecutor.")); see also Steidl v. Fermon, 494 F.3d 623, 630-632 (7th Cir. 2007); Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001). The government is under no obligation pursuant to Brady to disclose exculpatory evidence that the accused already knows. See United States v. Mahalick, 498 F.3d 475, 478-479 (7th Cir. 2007); United States v. Dawson, 425 F.3d 389, 393 (7th Cir. 2005). Although the government is required to turn over exculpatory evidence, any delay in turning over that evidence to the accused only offends due process under Brady if the delay prevented the accused from receiving a fair trial. See Collier v. Davis, 301 F.3d 843, 850 (7th Cir. 2002); O'Hara, 301 F.3d at 569; Boss Pierce, 263 F.3d 734, 740 (7th Cir. 2001). Indeed, all that Brady requires is that the evidence be turned over before the end of the accused's trial, so that the accused can still make use of it. See United States v. Gray, 648 F.3d 562, 567 (7th Cir. 2011) ("The Brady rule is not a rule of pretrial discovery."); see also United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996); United States v. Allain, 671 F.2d 248, 255 (7th Cir. 1982).
In its original Order, the Court determined that material questions of fact existed as to whether the evidence in question was suppressed and thus whether Petty could prove the second prong of the Brady inquiry. The Court then proceeded to an analysis of the third prong of Brady. Upon further review, the Court now finds that while there are genuine issues of fact as to when the suppressed evidence came to Petty's attention, there is no issue as to the critical fact in a Brady analysis that Petty became aware of the evidence in time to make use of the benefits of that evidence at his trial.
In their Motion to Reconsider, the Defendants draw the Court's attention to certain facts, and certain state court documentation, that are dispositive of the suppression issue. Frederick Tarver identified the information that Petty claims is exculpatory when Tarver filed his complaint against the City alleging coercion by the Defendants in obtaining his identification of Petty. (Def. SOF ¶ 35; Doc. 130-11, Pl. Exhibit P, Complaint, Johnson, et al., v. City of Chicago, et al., Case No. 03 C 6620, U.S. District Court for the Northern District of Illinois, Filed November 24, 2004).*fn1 On October 14, 2005, Tarver testified at a deposition for his civil suit against the City that "police officers conducting the lineup told Mr. Tarver who to pick out of the lineup." (Def. SOF ¶ 36). On January 12, 2006, Tarver testified on Petty's behalf at Petty's hearing to suppress Tarver's identification testimony. (Def. SOF ¶¶ 39-47). Petty made use of the evidence he obtained at that time because he called Tarver to testify about the alleged coercion in both his suppression hearing and in his subsequent criminal trial, which is exactly the information that Petty claims was withheld from him. (Def. SOF ¶ 52; Doc. 120-16, Def. Exhibit P, Trial Transcript, People v. Petty, Case No. 03-CR-28185, Circuit Court of Cook County, Illinois, Aug. 21, 2006, Pgs. 25-101). Therefore, while Petty may not have been aware of Tarver's suit the moment it was filed in 2004, Petty was unquestionably aware of Tarver's allegations that the Defendants coerced him into identifying Petty as the shooter by the time of Petty's suppression hearing in 2006. (Def. SOF ¶¶ 34-46; Doc. 130-11, Pl. Exhibit P, Complaint, Johnson, et al., v. City of Chicago, et al., Case No. 03 ...