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Walker v. Considine

United States District Court, N.D. Illinois, Eastern Division

December 3, 2014

JOSEPH CONSIDINE, STAR NO. 15831, Defendant.


SARA L. ELLIS, District Judge.

Plaintiff Lawrence Walker sues Chicago Police Officer Joseph Considine for various alleged constitutional violations stemming from his arrest on January 5, 2012. Officer Considine moves to dismiss three of those claims: Count III (Illinois state law malicious prosecution claim), Count IV (failure to disclose exculpatory evidence), and Count V (failure to investigate). Officer Considine's motion to dismiss [69] is granted in part and denied in part. Because Walker's malicious prosecution claim relates back to his initial complaint, the motion to dismiss Count III is denied. Walker agrees to dismiss Count IV, so Officer Considine's motion is granted as to that claim. Count V is also dismissed because Walker's failure to investigate claim is not separately cognizable under § 1983 and is duplicative of his unlawful detention claim.


On January 5, 2012, someone discharged a firearm in the first floor apartment at 5216 S. Wells Street, Chicago, Illinois. Mr. Walker lived downstairs, in the basement apartment. Mr. Walker was not the owner of the firearm and did not fire the weapon.

Officer Considine and Officer Alaniz responded to the 5216 S. Wells first floor apartment in response to a call of shots fired. Walker and Alease Robinson were present in the first floor apartment. Before questioning either Walker or Ms. Robinson, the officers placed Walker in handcuffs in the back seat of a patrol car. The officers then interviewed Ms. Robinson. Ms. Robinson told the officers that the gunshots were fired by her ex-boyfriend, Michael Mitchell, who had fled the scene. Despite this information, the officers arrested Walker for aggravated assault with a firearm and unlawful use of a firearm.

Prior to trial, those charges were dropped and Walker was charged as an armed habitual criminal. Walker alleges that at the trial on September 26, 2012, Officer Considine did not testify truthfully that Ms. Robinson told him the gunshots were fired by her ex-boyfriend, the owner of the gun, and not Walker. Walker was found guilty of the charge of being an armed habitual criminal. On December 17, 2012, on Walker's motion, the court set aside the conviction and dismissed all charges. Walker had been incarcerated since his arrest on January 5, 2012, and alleges various damages, including loss of possessions at his former residence, inability to work, and emotional damages.


A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.


I. Count III (Malicious Prosecution)

Walker's Third Amended Complaint contains an Illinois state malicious prosecution claim against Officer Considine. Officer Considine moves to dismiss this claim as time-barred because it was not filed within one year of the incident and does not relate back to Walker's original pro se complaint. Specifically, Officer Considine asserts that malicious prosecution requires a finding of malice and no such state of mind is even hinted at in the first complaint.

A plaintiff bringing a state law tort claim against an Illinois governmental entity or employee must do so within the one-year statute of limitations period, even if that claim is joined with a § 1983 claim. See Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005); 745 ILCS 10/8-101(a). However, under Federal Rule of Civil Procedure 15(c), a plaintiff may amend his or her timely-filed original complaint to add an otherwise time-barred claim, and thereby relate it back to the date of the original complaint, if "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed. R. Civ. Pro. 15(c)(1)(B).

Walker's initial complaint was filed July 23, 2013, within one year of the December 17, 2012 order setting aside his conviction and thus within the state statute of limitations. See Zitzka v. Vill. of Westmont, 743 F.Supp.2d 887, 926 (N.D. Ill. 2010) ("A cause of action for malicious prosecution does not begin to accrue until the criminal proceeding on which it is based has been terminated in the plaintiff's favor." (quotation marks omitted) (citation omitted)); Doc. 6. Walker's current complaint was filed September 3, 2014.[2] Doc. 64. A district court will allow a claim to "relate back" "where an amended complaint asserts a new claim on the basis of the same core of facts, but involving a different substantive legal theory than that advanced in the original pleading." See Batiste v. Dart, No. 10-cv-3437, 2011 WL 4962945, at *4 (N.D. Ill. Oct. 19, 2011) (quoting Bularz v. Prudential Ins. Co. of Am., 93 F.3d 372, 379 (7th Cir. 1996) (quotations omitted)).

Walker's malicious prosecution claim arises from the same core of facts related to his arrest as his initially filed "Statement of Claim." In the initial ...

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