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Petrishe v. Tenison

United States District Court, Seventh Circuit

October 15, 2013



JAMES F. HOLDERMAN, District Judge.

On April 11, 2013, Charles Petrishe ("Petrishe"), his wife, Nikki Caputo-Petrishe ("Caputo-Petrishe"), and his mother, Dianne McGann ("McGann") (collectively "Plaintiffs") filed with this court a Third Amended Complaint alleging civil rights violations under 42 U.S.C. § 1983 ("Section 1983"), as well as state law claims for battery, assault, malicious prosecution, intentional infliction of emotional distress, and abuse of process. (Dkt. No. 51 ("3d Am. Compl.").) The Third Amended Complaint generally alleges that Oak Lawn Police Officer Todd Tenison ("Officer Tenison") tasered Petrishe and Oak Lawn Police Officer Scott Kirk ("Officer Kirk") shot Petrishe multiple times on December 8, 2010. ( Id. ¶¶ 8, 20-21, 23-26.) The Third Amended Complaint alleges that both officers seized Petrishe in an objectively unreasonable manner, both by acting without a lawful basis and by using excessive force, thus violating Petrishe's rights under the Fourth Amendment to the United States Constitution. ( Id. ¶¶ 71-83.) Stemming from his own actions in this incident, Petrishe was charged with two counts of attempted first-degree murder and was also prosecuted for the lesser included offense of misdemeanor aggravated assault, but was acquitted of all charges after a three-day bench trial. ( Id. ¶¶ 61-62, 67-68.) Petrishe alleges that Officer Tenison and Officer Kirk conspired to, and did, deprive him of his right to due process under the Fourteenth Amendment of the United States Constitution when they engaged in efforts to suppress and destroy evidence which would have affected the decision to prosecute Petrishe for criminal charges relating to the incident. ( Id. ¶¶ 89-97.)

Pending before this court is a "Motion to Dismiss Pursuant to Rule 12(b)(6)" filed by Officer Tenison, Officer Kirk, and the Village of Oak Lawn (collectively "Defendants"), (Dkt. No. 56 ("Defs.' Mot.")), seeking to dismiss Claim 4 and Claim 5 of the Third Amended Complaint, which allege violations of Petrishe's Fourteenth Amendment right to due process. Plaintiffs have filed their "Response to Motion to Dismiss, " (Dkt. No. 59 ("Pls.' Resp.")), Defendants have filed their "Reply in Support of Motion to Dismiss Pursuant to Rule 12(b)(6), " (Dkt. No. 61 ("Defs.' Reply")), and the matter is now fully-briefed before the court.


For purposes of this background section and evaluating the pending motion to dismiss, this court "presum[es] the truth of the facts alleged in [the] complaint" and "draw[s] all reasonable inferences" in favor of Plaintiffs. Geinosky v. City of Chicago, 675 F.3d 743, 746 (7th Cir. 2012).

On December 8, 2010, Petrishe was at home in Oak Lawn, Illinois, when he began arguing with Caputo-Petrishe. (3d Am. Compl. ¶¶ 8-9.) Soon after the argument began, Caputo-Petrishe called McGann and told her Petrishe was acting suicidal. ( Id. ¶¶ 10-11.) McGann left work to come to Petrishe's home in an attempt to calm Petrishe down. ( Id. ¶ 11.) Her intervention was evidently not effective, as after her arrival "Petrishe took a kitchen knife and began cutting the back of his wrist." ( Id. ¶ 12.) Caputo-Petrishe then "called the police department and informed them that Petrishe was acting suicidal." ( Id. ¶ 14.) In response to this call, Officer Tenison and Officer Kirk arrived at the Petrishe home. ( Id. ¶ 15.) Upon their arrival, Officer Tenison and Officer Kirk were informed by the dispatcher that Petrishe was armed. ( Id. ¶ 18.) Officer Tenison and Officer Kirk walked past Caputo-Petrishe, who was in front of the house and on the phone with the police dispatcher, and entered the Petrishe home. ( Id. ¶ 19.) Upon entering, Officer Tenison and Officer Kirk saw Petrishe standing approximately ten feet from them, with his arms at his side. ( Id. ) Officer Tenison shot Petrishe with a taser, knocking Petrishe to the ground. ( Id. ¶¶ 20-21.) As he was still being tasered, "Petrishe got to his knees and lifted the knife in his right hand." ( Id. ¶ 22.) Officer Kirk then shot Petrishe with a gun at least four times. ( Id. ¶¶ 23-26.) Petrishe sustained serious injuries from the gunshots and was in the hospital for nearly four months while recovering. ( Id. ¶¶ 26-27.) As a result of being shot and the injuries he received, Petrishe and his family have endured significant physical, emotional, and financial hardship. ( See generally id. ¶¶ 27-52.)

Petrishe alleges that, in the aftermath of the shooting, Officer Tenison and Officer Kirk attempted to engage in a cover-up of their unlawful actions by "[m]aking false statements to state investigators, " "[m]aking false statements in judicial proceedings, " "[e]rasing, or causing to be erased 6 seconds from the taser video, " "purposely failing to inventory exculpatory evidence in the form of numerous bullets and shell casings left behind, " "[f]ailing to investigate potential exculpatory evidence by simply leaving the crime scene uninvestigated, " "[m]isleading the prosecution as to the evidence against Petrishe, " and "[w]ithholding potentially exculpatory evidence." ( Id. ¶ 92.)

Petrishe alleges that this cover-up resulted in prosecutors "instituting and continuing charges against him." ( Id. ¶ 93.) On December 19, 2010, Petrishe was charged with two counts of attempted first-degree murder. ( Id. ¶ 61.) On January 7, 2011, Petrishe was indicted by a Cook County Grand Jury on two counts of attempted first-degree murder. ( Id. ¶ 62.) After a three-day bench trial, Petrishe was found not guilty on both counts of attempted first-degree murder, as well as a lesser included offense of misdemeanor aggravated assault. ( Id. ¶ 68.)


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the "sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The plaintiff's complaint need only give a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This means the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and internal quotation marks omitted). In making this determination, this court must not credit "legal conclusions" nor "[t]hreadbare recitals of the elements of a cause of action." Id. Moreover a "plausible" claim is not merely one which is "conceivable" or creates a "suspicion [of] a legally cognizable right of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (citations and internal quotation marks omitted). Instead, the "factual content" is plausible if it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. As the Seventh Circuit has instructed, this involves pleading "enough details about the subject-matter of the case to present a story that holds together." Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). Evaluating a plaintiff's complaint by this standard is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. If the Plaintiff has alleged a plausible set of facts, then the claim for relief "may proceed even if it strikes a... judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556.


I. Due Process Claim under 42 U.S.C. § 1983 (Claim 4)

In Claim 4 of the Third Amended Complaint, Petrishe alleges that Officer Tenison and Officer Kirk "suppressed exculpatory evidence [that] would have prevented the prosecution from instituting and continuing charges against him." (3d Am. Compl. ¶ 93.) Petrishe argues that the suppression of exculpatory evidence by Officer Tenison and Officer Kirk violated his right to due process under the Fourteenth Amendment and that his injuries flowing from the violation are therefore redressable under Section 1983. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material"); Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir. 2011) ("[P]olice officers can be held liable [in the context of a Section 1983 action] under Brady and its progeny when they withhold exculpatory evidence from prosecutors and the withholding of evidence is material.'"), cert. denied, 132 S.Ct. 593 (2011). For a plaintiff to show that his or her due process rights were violated under the reasoning of Brady, "the plaintiff must demonstrate that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material, that is, there was a reasonable probability that prejudice ensued." Alexander v. McKinney, 692 F.3d 553, 556 (7th Cir. 2012). The duty under Brady "extends to impeachment evidence as well as exculpatory evidence" and also to "evidence that is known only to police investigators and not to the prosecutor." Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (per curiam) (internal quotation marks omitted); see also Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001) (holding that police officers who withhold exculpatory information from prosecutors can be "[r]equire[ed]... to pay damages to the victims of their actions").

With respect to the third element of a Brady violation, prejudice exists where there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bielanski v. County of Kane, 550 F.3d 632, 643-44 (7th Cir. 2008) (internal quotation marks omitted). The Seventh Circuit has expressed doubts that "an acquitted defendant can ever establish the requisite prejudice for a Brady violation." Carvajal v. Dominguez, 542 F.3d 561, 570 (7th Cir. 2008); see also Bielanski, 550 F.3d at 644 (same). At the same time, however, the Seventh Circuit has also held open the possibility that a plaintiff might be able to state a due process claim after acquittal, "if... prompt disclosure of the suppressed evidence would have altered the prosecution's decision to proceed to trial." Parish v. City of Chicago, 594 F.3d 551, 554 (7th Cir. 2009). District courts have divided on the subject, as well. Compare Lopez v. City of Chicago, No. 06 C 6252, 2007 WL 3171332, at *3-4 (N.D. Ill. Oct. 24, 2007) (Der-Yeghiayan, J.) (finding no Brady violation where ...

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