United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Plaintiff Latherial Boyd sued defendants City of Chicago, Chicago Police Officers Richard Zuley, Lawrence Thezan, Steve Schorsh, John Murray, and Wayne Johnson, the estate of Chicago Police Officer Andrew Sobolewski, and unknown Chicago Police Officers, seeking damages he suffered from the 8, 582 days spent wrongfully incarcerated for two murders. Defendants have moved to dismiss Count II of the nine count amended complaint pursuant to Federal Procedure Rule 12(b)(6). Count II alleges that defendants violated plaintiff's Fourteenth Amendment Due Process rights under 42 U.S.C. § 1983 by fabricating evidence, which was used to arrest and convict him of a murder he did not commit. For the reasons discussed below, defendants' motion to dismiss is denied.
In the early morning hours of February 24, 1990, police found Michael Fleming ("Fleming") and Ricky Warner ("Ricky") suffering from gunshot wounds in the Wrigleyville area of Chicago. Fleming died at the scene. Ricky was immediately transferred to a hospital. The bullet had severed his spine, and doctors declared him paralyzed from the neck down. After interviewing Ricky, who identified plaintiff as the shooter, and Ricky's father, Herbert Warner, who identified plaintiff as a person who previously threatened the Warner family over a drug debt, police arrested plaintiff and charged him with murder.
After a bench trial in December 1990, plaintiff was convicted and sentenced to 82 years in prison. While in prison, he filed numerous appeals, petitions for post-conviction relief, petitions for habeas corpus relief, and petitions for executive clemency. In 2012, the Conviction Integrity Unity of the Cook County State's Attorney's Office began evaluating plaintiff's case, and learned of evidence and information that could have altered the trial and conviction. In September 2013, Cook County State's Attorney Anita Alvarez moved to vacate the conviction. Cook County dismissed all charges on September 10, 2013. Plaintiff received a Certificate of Innocence on September 25, 2013.
Plaintiff's initial complaint alleged eight counts, including malicious prosecution, against the City of Chicago and various police officers. His first amended complaint added one additional claim: fabrication of evidence pursuant to 42 U.S.C. 1983. Defendants seek to dismiss the fabrication of evidence claim, arguing that evidence fabrication claims against police officers are not viable under 42 U.S.C. 1983, and an adequate state law remedy in Illinois exists.
In evaluating a motion to dismiss, the court accepts the amended complaint's well-pleaded factual allegations as true and draws any reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 55-56 (2007). A motion to dismiss for failure to state a claim tests the sufficiency of the complaint, not its merits. Gibson v. City of Chicago , 910 F.2d 1510, 1520 (7th Cir. 1990). To survive the motion, the complaint must allege sufficient facts that, if true, would raise a right to relief above the speculative level, showing that the claim is plausible on its face. Twombly , 550 U.S. at 555. To be plausible on its face, the complaint must plead facts sufficient for the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
In Count II of the first amended complaint, plaintiff alleges that defendants fabricated and solicited false evidence, including witness statements, police reports, and physical evidence, which were then used at trial to secure his wrongful conviction. As a result of this conduct, plaintiff argues he was denied his constitutional due process rights under the Fifth and Fourteenth Amendments. Defendants have moved to dismiss Count II pursuant to Fed. P. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. They argue that Newsome v. McCabe , 256 F.3d 747 (7th Cir. 2001), and its progeny hold that a plaintiff cannot bring a due process claim based on the allegation that police officers fabricated or falsified evidence because a state law remedy for such a claim exists.
In holding that fabrication of evidence is not actionable because the state law remedy of malicious prosecution exists,  the Newsome court noted that "[t]he existence of a tort claim under state law knocks out any constitutional theory of malicious prosecution." 256 F.3d at 750; see also McCann v. Mangialardi , 337 F.3d 782, 786 (7th Cir. 2003) (stating that petitioner could not bring a claim that a police official violated his procedural due process rights because Illinois has a common law action for malicious prosecution).
Following the Seventh Circuit, courts in this district have held either that a fabrication of evidence claim does not give rise to a constitutional claim, or that, even though fabrication of evidence violates due process, the existence of a state law remedy for malicious prosecution compels plaintiffs to bring their claims under state law rather than under the due process clause. See Caine v. Burge , 897 F.Supp.2d 714, 722 (N.D. Ill. 2012) (" Newsome, Brooks [v. City of Chicago , 564 F.3d 830 (7th Cir. 2009)], [and] Fox [v. Hayes , 600 F.3d 819 (7th Cir. 2010), ]... clearly hold that claims alleging that police officers falsified or fabricated evidence sound only in malicious prosecution and therefore are not actionable... so long as state law supplies an adequate remedy."); Cihak v. City of Chicago, No. 12 C 10418, 2013 WL 3944411 (N.D. Ill. July 31, 2013) (holding that under Seventh Circuit precedent, fabrication of evidence allegations do not give rise to a constitutional due process claim).
Yet, as thoroughly discussed in Bianchi v. McQueen, No. 12-cv-00364, 2014 WL 700628 (N.D. Ill. Feb. 24, 2014), the well-settled law on fabrication of evidence claims has been narrowed by a number of more recent Seventh Circuit opinions. Although no Seventh Circuit opinion has explicitly overturned Newsome, these subsequent cases have consistently narrowed it, suggesting that an allegation of evidence fabrication can support a due process claim if the plaintiff has been convicted, sentenced, and jailed for crimes he or she did not commit. Bianchi, 2014 WL 700628, at *10-12; Miles v. McNamara, No. 13 C 2395, 2014 WL 948884, at *6 (N.D. Ill. Mar. 11, 2014).
In particular, Whitlock v. Brueggemann , 682 F.3d 567 (7th Cir. 2012), suggested a change in the breadth of Newsome's applicability. In Whitlock, the plaintiffs, who were found guilty of two murders, spent 21 years and 17 years in prison respectively. 682 F.3d at 570. Their convictions were reversed due to numerous Brady violations, and both brought suit against state officials. Id . Among various constitutional claims, the plaintiffs alleged that police and a prosecutor fabricated evidence in an effort to convict the plaintiffs for the murders. Id. at 580. In its analysis, the Whitlock court first focused on whether a fabrication of evidence claim violated defendants' constitutional rights. Id . The court noted that due process has been violated when a police officer fabricates evidence against a criminal defendant, and that evidence is later used to deprive the defendant of liberty. Id . The Whitlock court ultimately held that an investigating prosecutor who fabricates evidence used to deprive the criminal defendant of his or her liberty cannot claim qualified immunity because his actions violate the defendant's clearly established due process rights. 682 F.3d ...