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Linder v. McPherson

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

January 29, 2015

STEPHEN B. LINDER, Plaintiff,
v.
DARRYL McPHERSON, KEVIN SHIRLEY, AEJEAN CHA, MARK BLUMBERG, and the UNITED STATES OF AMERICA Defendants.

ORDER & OPINION

JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on Defendants' Darryl McPherson, Kevin, Shirley, Aejean Cha, and Mark Blumberg ("the Individual Defendants") Motion to Dismiss (Doc. 13) and the United States' Motion to Dismiss (Doc. 23). Plaintiff filed responses in opposition (Docs. 19, 27), to which the respective Defendants filed replies (Docs. 24, 28). For the reasons stated below, both motions are granted.

INTRODUCTION AND PROCEDURAL HISTORY

This case emerges from the United States' failed prosecution of Deputy United States Marshal Stephen B. Linder ("Plaintiff" or "Linder"). A grand jury indicted Linder on January 2012 on charges of excessive force and tampering with witnesses. The indictment was based, in part, on allegations that Linder had used excessive force against the father of a fugitive on July 8, 2010. On March 5, 2013, Judge Virginia Kendall of the Northern District of Illinois dismissed the indictment against Linder on the ground that government employees involved in the prosecution had violated his Sixth Amendment right to compulsory process of witnesses and his Fifth Amendment right to due process. Linder has brought this Complaint based on the actions taken by Defendants as part of this prosecution. Linder alleges, among other things, that Marshal McPherson conducted an improper preliminary investigation, improperly assisted in the subsequent investigation of the incident, and sent an improper email which instructed United States Marshal Services ("USMS") employees to not speak with Linder or his attorneys. Linder alleges that Shirley, Cha, and Blumberg intimidated and coerced witnesses into providing false information about the incident, intimidated witnesses so that they would not cooperate with Linder and his defense team, and that Shirley submitted affidavits in the criminal case that contained knowingly false statements.

Plaintiff filed his first Complaint pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) on April 15, 2014, alleging that the Individual Defendants violated his rights under the Fifth and Sixth Amendments. (Doc. 1). On August 7, 2014, Plaintiff amended his Complaint to add claims against the United States under the Federal Torts Claims Act (FTCA) for malicious prosecution and intentional infliction of emotional distress. (Doc. 12). All Defendants named in the First Amended Complaint have filed Motions to Dismiss for failure to state a claim upon which relief can be granted. (Docs. 13, 23).

BACKGROUND[1]

Linder began his employment with the USMS in April of 2003. Starting in 2007, he worked as part of the Great Lakes Regional Task Force ("Task Force"), a USMS-led conglomerate of law enforcement agencies tasked with capturing violent fugitives in and around Chicago.

On July 8, 2010, Linder and other Task Force members were in Cicero, Illinois, searching for a fugitive who was wanted for murder. As part of the investigation, Linder questioned Santiago Solis, the fugitive's father, in the back seat of a passenger van. Secret Service Agent Eric Petkovic and Deputy U.S. Marshal Harry Sims were both seated in the front of the van while Linder questioned Solis. Two days later, Sims reported to another Deputy Marshal, Deputy Stenson, that he had seen Linder strike Solis. Sims prepared a report charging that Linder had used excessive force during his interview of Solis, and submitted it to Deputy U.S. Marshal Ken Robinson. Sims later told Stenson that he had "jumped the gun" by filing the report that Linder used excessive force, and that he had not filed an accurate and complete report.

After receiving Sims' report, Robinson referred it to U.S. Marshal Daryl McPherson and Chief Deputy Marshal John O'Malley. O'Malley referred the report to the USMS Office of Inspection, and McPherson then became personally involved in investigating Sims' allegations. First, he summoned Linder to his office and questioned him. During this questioning, neither McPherson nor any of the other USMS employees that were present advised Linder of any rights he might have. Later, McPherson directed two Deputy U.S. Marshals - Paul Banos and Rick Walenda - to interview Solis, the alleged victim. Banos and Walenda interviewed Solis in Cicero on July 13, 2010. They reported to McPherson that Solis did not say anything about an alleged assault until the third time he was asked about it, and then said that a Cicero police officer had hit him. They also reported that Solis did not have any injuries to his face, and provided McPherson with pictures of his face. McPherson sent Banos and Walenda back to Cicero to take more pictures of Solis. McPherson reassigned Linder from the Task Force to the USMS District Office on July 15, 2010.

The USMS referred the complaint that Linder had used excessive force to the Department of Justice's Office of the Inspector General. On July 26, 2010, the OIG announced that it would conduct an official investigation into the complaint. Defendant Special Agent Kevin Shirley conducted the investigation. The Complaint alleges that McPherson assisted Shirley in conducting the investigation in a number of ways, and that the two regularly communicated by email or telephone during an 18-month investigation. As part of his investigation, Shirley first enlisted McPherson's help to "ambush" Linder and interrogate him in an effort to get him to confess. At Shirley's request, McPherson told Linder that he needed to meet with him. Once Linder arrived to meet with McPherson, McPherson brought him to meet with Shirley and quickly left.

Shirley later enlisted McPherson's help in having him confiscate Linder's phone and also in helping him set up meetings with USMS witnesses he wished to interview. Specifically, Shirley notified McPherson of the employees he wished to interview. McPherson then notified the employees that they would be interviewed by Shirley and other OIG agents. Shirley allegedly preferred that interviews be set up this way, because USMS witnesses were less likely to decline a voluntary interview with the OIG after their boss notified them about it.

Shirley, along with Assistant U.S. Attorneys Cha and Blumberg, interviewed dozens of witnesses. Linder alleges that Shirley, Cha, and Blumberg attempted to get witnesses to testify favorably for the government and discourage them from testifying in favor of Linder. He also alleges that they intimidated and harassed witnesses into changing their stories.

A number of witnesses complained about the manner in which Shirley, Cha, and Blumberg treated them. For example, Ed Farrell, who oversaw the Task Force, reported that the three conducted their interview with him in a confrontational manner, accused him of lying, alleged that he had engaged in wrongdoing, and made misrepresentations about the availability of immunity. Lieutenant Ted Stajura testified that Shirley threatened to bring him before the grand jury on bogus charges. Cook County Sheriff's Department Chief of Police DeWayne Holbrook complained that Shirley engaged in a pattern of intimidation during his interviews. Berwyn Police Detective John Hadjioannou testified that Shirley intimidated him during his first interview, and AUSA Blumberg accused him of being a liar and threatened him with consequences in a second interview.

The United States secured an indictment against Linder on January 12, 2012. Following the indictment, McPherson sent an email to all USMS staff in the Northern District of Illinois that instructed them on "specific rules that must be adhered to by USMS employees during the pendency of federal criminal proceedings against a DUSM from our district." (Doc. 12 at ¶ 36). Specifically, the email instructed USMS to restrict personal contact and socialization with Linder and instructed them to not discuss the case with Linder's attorneys without prior approval from USMS management. McPherson reviewed and approved a second email which was sent on February 2, 2012. This email supplemented the original guidance and warned USMS staff that failure to comply with the original guidance would "be dealt with through the U.S. Marshals Service's official discipline process and Employee Relations." ( Id. at ¶ 37). Linder was put on indefinite suspension without pay on March 13, 2012.

Linder moved to dismiss the indictment on April 20, 2012, after his defense team unsuccessfully attempted to interview nine potential witnesses. Prior to a hearing on the motion to dismiss the indictment held on September 18, 2012, Shirley prepared affidavits for a number of USMS employees after meeting with them to discuss their willingness to meet with Linder's defense team. The affidavits, which were filed in the criminal proceeding, each contained a statement that the employee did not have information that could be helpful to the defense. Linder alleges that with respect to two employees - Deputy Paul Zitsch and Banos - these statements were knowingly false.

During the hearing, a number of witnesses testified that they refused to speak with Linder's defense team because of the emails sent by McPherson, which they characterized as defining a U.S. Marshal policy that they not speak with the defense team, and the tactics of Shirley, Cha, and Blumberg. Judge Kendall dismissed the indictment on March 5, 2013.

LEGAL STANDARD

In ruling on a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), "the court must treat all well-pleaded allegations as true and draw all inferences in favor of the non-moving party." In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009). The complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).

To survive a motion to dismiss, a plaintiff's complaint must contain sufficient detail to give notice of the claim, and the allegations must "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plausibility standard requires enough facts "to present a story that holds together, " but does not require a determination of probability. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). Though detailed factual allegations are not needed, a "formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp., 550 U.S. at 555.

DISCUSSION

Linder's four-count Complaint can be divided into two sections. In Counts I and II, Linder states constitutional torts against the Individual Defendants. In Counts III and IV, Linder states common law torts against the United States pursuant to the FTCA. As explained in more detail below, Counts I and II are dismissed for the same reason: Linder has failed to allege constitutional injury and the Individual Defendants would be entitled to qualified immunity. Similarly, Counts III and IV are also dismissed for the same reason: the claims are based upon discretionary actions engaged in by McPherson and Shirley, all of which are exempt from FTCA liability.

I. Counts I and II - Bivens Claims Against the Individual Defendants

Plaintiff's first two claims are Bivens claims against McPherson, Shirley, Cha, and Blumberg for alleged violations of his Fifth and Sixth Amendment rights. Defendants have moved to dismiss these Counts under two theories. First, they argue that no Bivens remedy exists for these sorts of alleged constitutional violations, and that it would be inappropriate in these circumstances to create a new one. Second, they argue that Plaintiff's Bivens claims, should they be appropriate, are barred by qualified immunity. The Court assumes without deciding that Bivens provides a cause of action in these circumstances, but concludes that the Individual Defendants are entitled to qualified immunity.

A. Whether a Bivens Cause of Action Exists

The parties have expended a substantial amount of ink arguing over the appropriateness of a Bivens remedy in this circumstance. In Bivens, the Supreme Court recognized an implied private right of action for damages against federal officers alleged to have violated a person's Fourth Amendment rights. 403 U.S. at 397. As the Individual Defendants point out, Bivens remedies are disfavored. See Correctional Srvs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (observing that the Supreme Court has extended the Bivens holding only twice in 30 years, and otherwise "consistently rejected invitations to extend Bivens "). This is because the theory under which Bivens was decided has fallen out of favor with federal courts. See Robinson v. Sherrod, 631 F.3d 839, 842 (7th Cir. 2011)(explaining that "the concept that for every right conferred by federal law the federal courts can create a remedy above and beyond the remedies created by the Constitution, statutes, or regulations" is no longer in favor).

The Supreme Court, in Wilkie v. Robbins, synthesized its case law on implied private rights of action for damages for constitutional violations. See 551 U.S. 537, 550 (2007). It explained that "any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee, " and provided two steps for courts to consider before creating new Bivens remedies. Id. First, courts must consider whether "any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Id. Second, "courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation." Id.

There is currently no Bivens remedy recognized for constitutional violations such as those alleged by Plaintiff, and it is unclear to the Court whether a Bivens action is appropriate in these circumstances.[2] Although Bivens actions are disfavored, the Court is not convinced that the Seventh Circuit would not authorize such a claim in this context.

The Court first considers whether there is an alternative remedial scheme available to Plaintiff. See Wilkie, 551 U.S. at 50. The Individual Defendants argue that Plaintiff had an adequate remedy in that he was able to adequately defend himself against criminal charges and "walked, scot-free." (Doc. 13 at 10-11). In support of this position, Defendants rely upon Wilkie, where the Supreme Court concluded that a landowner did not have a private right of action against the Bureau of Land Development for retaliating against him when he exercised his ownership rights over land. 551 U.S. at 549-62. In Wilkie, the Supreme Court identified four separate groups of difficulties that the plaintiff faced, one of which was "charges brought against him." Id. at 551. It concluded that with respect to those harms, the plaintiff "had some procedure to defend and make good on his position." Id. at 552. Defendants argue that like the plaintiff in Wilkie, the criminal justice system "in fact afforded [Linder] with a remarkably comprehensive and effective means of protecting his rights, " along with "an extraordinary remedy" - the dismissal of the indictment. (Doc. 13 at 11).

Defendants' suggestion would leave Plaintiff without the prospect of a compensatory remedy, the availability of which has proved to be important in determining whether an alternative remedy is adequate. In Wilkie, the Supreme Court did not limit its discussion of the plaintiff's available remedies to his ability to defend himself. Rather, it also referred to procedures to "defend and make good on his position, " which included a possible "state-law action for malicious prosecution, " a remedy that is undoubtedly compensatory. 551 U.S. at 552. Similarly, in Engel v. Buchan, the Seventh Circuit recently held that a Bivens action based upon an FBI agent's Brady violation exists, in part because there was no other compensatory remedy available. 710 F.3d 698, 705-08 (7th Cir. 2013). The defendant in that case suggested a number of potential remedial schemes that might provide roughly similar incentives as money damages to the defendants, including habeas corpus. ...


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