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Worthem v. Nolan

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

July 16, 2015

MICHAEL NOLAN, ET AL., Defendants.


WILLIAM T. HART, District Judge.

Plaintiff James Worthem brings this action to recover for deprivation of constitutional and state law rights against defendant Chicago police officers Michael Nolan, M. R. Scott, J. Ferraro, Ralph Benavides, Matthew Ripley, J.J. Murphy, Detective Y. Badge #20871, Detective R. H. Badge #17921, E. Oswald, and C. Saladino, the City of Chicago, and Assistant Appellate Defenders Michael Bennett and Michael Wilson. The court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. ยงยง 1331, 1343, and 1367.

Before the court are two motions pursuant to Fed.R.Civ.P. 12(b)(6). Defendants Oswald and Saladino contend that this action is time-barred as to them. Defendants Bennet and Wilson contend that Counts VIII and IX fail to state a cause of action for willful and wanton misconduct within the meaning of the Public and Appellate Defender Immunity Act, 745 ILCS 19/5.

Criminal Proceedings[1]

Following a bench trial in the Circuit Court of Cook County, Illinois, Worthem was found guilty of robbery and sentenced as a Class X offender to 20 years' imprisonment. The trial court denied a motion to quash his arrest and suppress evidence and found that the officers had probable cause to arrest Worthem based on the evidence known to the officers at the time.

The facts, as stated in state court opinions as they pertain to Worthem's arrest, relate a robbery of Concepcion[2] Solis on April 22, 2007. Solis was walking on the 3900 block of West Grand Avenue in Chicago when she noticed that she was being followed by a man and a woman. When she reached the intersection of LeMoyne Street and Pulaski Road, the man pushed her to the ground and snatched her purse. Solis chased the offender. She saw the woman who had previously been following her assist the man into the rear gate of the building at 3958 Grand Avenue. The woman came out of the building and asked Solis if they could "settle in a good way." Solis fled and called the police.

When the police arrived, Solis told them what had happened-as best she could, since she spoke little English and the officers spoke no Spanish-and took them to the apartment building at 3958 Grand Avenue. The female offender was still on the street. Officer Nolan detained her and called for a Spanish-speaking officer. Solis described the man who robbed her as a 40-year-old white male, between 5'9" and 5'10" inches tall weighing 198 pounds. The female offender, identified as Anita Garcia, told Nolan that she lived in an apartment at 3958 West Grand Avenue with her boyfriend, James Worthem. Officer Nolan obtained a photograph of James Worthem on his squad car computer. Garcia identified James Worthem as her boyfriend. Solis did not make a photo identification at that time. Officer Nolan wrote a police report, in which he stated that a "possible offender" was a "white male in his forties" who "matches description, Worthem James." He turned his report over to detectives for further investigation.

On the following day, Officer Scott was assigned to investigate the robbery. After reading the police reports and speaking with detectives, he went to the area to search for the offender. He saw Worthem and placed him under arrest. At the police station, Solis identified Worthem in a police lineup. After being given Miranda warnings, Worthem made an inculpatory statement.

Later, the police discovered Solis's purse on the roof of the building at 3958 West Grand Avenue.

An indictment was returned on May 4, 2007. Plaintiff was found guilty on February 4, 2008.

On direct appeal, defendant contented that the State violated Brady v. Md., 373 U.S. 83 (1963), and Illinois Supreme Court Rule 412 when it failed to produce a photo array viewed by the victim. A panel of the Illinois Appellate Court affirmed, holding that the State could not be found at fault for failing to produce what it did not possess. The opinion also states that the trial court found that the police had probable cause for the arrest of plaintiff. The conviction was affirmed. People v. Worthem, 398 Ill.App.3d 1106, 988 N.E.2d 1125 (1st Dist.) (unpublished), appeal denied, 237 Ill.2d 588, 938 N.E.2d 530 (2010), cert. denied, 131 S.Ct. 1004 (2011).

After his direct appeal, Worthem filed a post-conviction petition under the Post-Conviction Hearing Act ("the Act"), 725 ILCS 5/122, in which he asserted that he was arrested without probable cause and that his appellate counsel was ineffective for failing to raise the issue on direct appeal. The Act provides a means by which a defendant may challenge his conviction for substantial deprivation of federal or state constitutional rights. It is a collateral attack on a prior conviction. The Act creates a three-stage procedure. At the second stage of proceedings, which was the point at which the trial court ruled, the Circuit Court must determine whether the petition and any accompanying documentation is sufficient to make a substantial showing of a violation of rights. In order to move to the third-stage evidentiary hearing, the petition must be supported by the record. After hearing arguments by both parties, the Circuit Court dismissed the petition.

Worthem appealed the dismissal of his post-conviction petition to the Illinois Appellate Court. A different panel of the Appellate Court resolved a claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Court held Worthem made a sufficient showing that there was not probable cause to permit his warrantless arrest and that he was prejudiced by appellate counsel's failure to raise the issue on direct appeal. The Appellate Court remanded the case to the Circuit Court to hold a third-stage evidentiary hearing on Worthem's post-conviction petition. People v. Worthem, 2013 IL App (1st) 121474-U, 2013 WL 6576047 (1st Dist. Dec. 12, 2013).

On remand to the Circuit Court, after a third-stage hearing, the Circuit Court found ineffective assistance of counsel because counsel failed to raise on direct appeal the absence of probable cause to permit a warrantless arrest. The court granted the post-conviction petition for a new trial. ...

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