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Ruiz-Cortez v. City of Chicago

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

October 26, 2016



          Harry D. Leinenweber, Judge United States District Court

         Before the Court are the parties' Cross Motions for Summary Judgment. For the reasons stated herein, Defendant Noel Sanchez's and Defendant City of Chicago's Motions for Summary Judgment [ECF Nos. 239 and 247, respectively] are granted; Defendant Glenn Lewellen's Motion for Summary Judgment [ECF No. 232] is granted in part and denied in part; and Plaintiff Refugio Ruiz-Cortez's Motion for Summary Judgment [ECF No. 235] is denied.


         A party moving for summary judgment must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, all facts and reasonable inferences are construed in favor of the nonmovant. Id. at 248-49. Nonetheless, summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         Litigants may cite to “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” to support their positions in summary judgment. Fed.R.Civ.P. 56(c). However, “[a] party may not rely on inadmissible hearsay to avoid summary judgment.” MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 656 (7th Cir. 2011). With some exceptions, “hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial.” Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). Finally, “the proponent of hearsay bears the burden of establishing that the statement is admissible.” Hartford Fire Ins. Co. v. Taylor, 903 F.Supp.2d 623, 640 (N.D. Ill. 2012).


         Because all four parties in this case have moved for summary judgment, the Court must do a Janus-like recitation of the facts so that “[a]s to each motion the nonmovant's version of any disputed fact [is] credited.” Padilla v. City of Chi., 932 F.Supp.2d 907, 914 (N.D. Ill. 2013). Despite the contentious exchanges of statements of facts, the parties here agree on substantial portions of the record. Where there are disagreements, the Court will note whose version of the events is being recounted. Facts that are specific to a party's argument as to a particular claim will be discussed in the analysis as they become relevant.

         In 1999, Plaintiff Ruiz-Cortez (“Ruiz-Cortez”) was convicted of possession with intent to distribute 10 kilograms of cocaine and sentenced to 17.5 years in prison. United States v. Ruiz, 99-CR-493, ECF No. 35. In 2010, ten years into serving his sentence, Ruiz-Cortez's conviction was vacated on the request of the United States Attorney's Office (the “USAO”) and he was immediately released. Id., ECF Nos. 50, 52. The cause for the dismissal was an investigation leading to eventual arrest of Defendant Chicago Police Officer Lewellen (“Lewellen”). As a result of Lewellen's arrest, the USAO concluded that “no reasonable fact-finder would have found the defendant guilty” and on this ground, moved to vacate Ruiz- Cortez's conviction. Id., ECF. No. 50. Importantly, one of the people whom Lewellen was charged of having conspired with was a police informant named Saul Rodriguez (“Rodriguez”). (See, United States v. Rodriguez, 09-CR-332.)

         Lewellen was one of two Chicago police officers who had arrested Plaintiff back in 1999 and who testified at Plaintiff's trial. (See, ECF No. 234, Ex. D (Lewellen's Test. against Ruiz-Cortez).) During this time, Lewellen worked in the narcotics section of the Chicago Police Department (“CPD”) as part of a 10-man team. (See, ECF No. 241, Ex. C (Sanchez's Dep.) 33-1:7.) Lewellen had recruited Rodriguez as a paid confidential informant (“CI”) for the CPD in 1996. (See, ECF No. 233 (Lewellen's Statement of Facts (“SOF”)) ¶ 3.) In accordance with CPD's policy, Lewellen had Rodriguez sign a form obligating the latter not to engage in any illegal activity while serving as a CI. (ECF No. 237, Ex. J.)

         Shortly after Rodriguez signed this agreement, the Drug Enforcement Agency (“DEA”) seized over 150 pounds of marijuana from his car. (ECF No. 244 (City's SOF) ¶ 40.) A DEA agent by the name of Alan Doescher (“Doescher”) testified in a deposition taken for this case that he received two phone calls from Lewellen around this time. (ECF No. 234, Ex. X (Doescher's Dep.) 7:12-15.) According to Doescher, Lewellen informed him that Rodriguez was a CI and asked him to cease the investigation because it could compromise other matters on which Rodriguez was providing information. (Doescher's Dep., 7:22-10:15, 48:22-50:18.) Doescher replied that he would need to speak to his superior at the USAO. (Doescher's Dep., 10:15, 50:20-24.) Doescher then relayed the conversation with Lewellen to Assistant U.S. Attorney Haywood McDuffie (“McDuffie”). (Doescher's Dep., 21:9-19.) Sometime later, he received a letter from McDuffie informing him that “pursuant to [his] request, ” the USAO had terminated the investigation into Rodriguez. (ECF No. 237, Ex. L (McDuffie's Letter).) It does not appear from the factual record that Doescher or another attorney from the USAO communicated with other CPD or City of Chicago personnel about Rodriguez.

         In 1997, Rodriguez was arrested by Chicago police officers with a handgun in his back pocket. (ECF No. 244, Ex. 22 (arrest report).) Rodriguez was charged with failure to register a firearm, but the case against him was nonsuited. (ECF No. 244, Ex. 23 (quasi-criminal complaint) and Ex. 24 (disposition in People v. Saul Rodriguez, No. 97125928701).)

         Rodriguez proved to be a fruitful informant for the CPD. During the period from 1996 to 2000, Rodriguez provided information on 65 occasions, leading to the seizure of thousands of kilograms of cocaine and marijuana. (ECF No. 263, Pl.'s Resp. to City's SOF, ¶¶ 52-53 (admitting the above).) CPD records show that Rodriguez was paid $803, 359.00 for this information. Id. ¶ 54. As the records also show, one of the occasions for which Rodriguez provided information is that leading up to Ruiz-Cortez's arrest. (ECF No. 244, Ex. 25.)

         Several weeks before Ruiz-Cortez's arrest, the DEA and the CPD's narcotics section had engaged in a joint investigation and surveillance of his residence based on information provided by Rodriguez that drug activity was being conducted at the location. (ECF No. 264 (Pl.'s Resp. to Lewellen's SOF) ¶ 16 (admitting the above).) During this surveillance, law enforcement observed two individuals removing a large package from Plaintiff's residence after meeting with a resident there. Id. at ¶ 17. The teams followed the individuals and searched their vehicle, finding 56 kilograms of cocaine in the package. The police arrested both men. Id. at ¶ 18.

         On July 8, 1999, Defendant Lewellen and Defendant Sanchez (“Sanchez”), another member of the narcotics section, went to perform additional surveillance on Plaintiff's residence. (Pl.'s Resp. to Lewellen's SOF, ¶ 19.) According to Sanchez's testimony at Ruiz-Cortez's trial, his testimony at Lewellen's trial, as well as his deposition in this case, he and Lewellen arrived at the house sometime around 3:00 p.m., at which point Lewellen set up his surveillance at the back of the residence while Sanchez set up at the front and watched the residence from his vehicle. (See, ECF No. 241, Ex. G (Sanchez's Test. against Ruiz-Cortez) 4-5; Ex. F (Sanchez's Test. against Lewellen) 10-11; and Ex. C (Sanchez's Dep.) 122:18-23.)

         Sanchez stated that he could not see Lewellen from his position and that he did not see Ruiz-Cortez during the surveillance. (See, Sanchez's Test. against Lewellen at 13-16 and ECF No. 265 (Pl.'s Resp. to Sanchez's SOF) ¶ 10 (admitting that at no point when Sanchez was conducting surveillance in the front of the residence could he view Lewellen or the back of the residence).) Sanchez testified that he and Lewellen maintained contact during the stake-out, with Lewellen “calling out” to Sanchez periodic updates over the police radio and cell phones. (See, Sanchez's Test. against Ruiz-Cortez at 7 and Sanchez's Test. against Lewellen at 14.) At some point, Lewellen called out to Sanchez that a Hispanic man, dressed in all white, entered the back of the residence. Lewellen further reported that this man would periodically poke his head outside as if looking for something. (See, Sanchez's Test. against Ruiz-Cortez at 11-12 and Sanchez's Test. against Lewellen at 15-16.) Plaintiff, however, contends that Lewellen could not have seen him at his apartment before 6:00 p.m. since he did not get home until after that time. (See, ECF No. 262 (Pl.'s Resp. Sanchez's Mot. Summ. J.) 4-5.) Plaintiff argues that either Sanchez's testimony is false or Lewellen was lying to Sanchez about what Lewellen saw, “hardly what . . . long time partners would do to each other.” Id. at 6.

         Sanchez testified that around 7:30 p.m. Lewellen called out that a silver car had approached the back of the residence and that the driver gave a head signal to the man in white who came outside when the car approached. (See, Sanchez's Test. against Ruiz-Cortez at 12-13 and Sanchez's Test. against Lewellen at 857-859.) Lewellen told Sanchez that the man went back to the residence after receiving the signal and then came out again, at which point Lewellen said, “this is it.” Id. Sanchez understood this to mean that a narcotics transaction was happening. He called for backup, waited the few minutes for the first responding officer to arrive, and then sprinted to join Lewellen in the back. Id.

         Sanchez further testified that when he reached the back of the residence, he saw that Lewellen was carrying a bag believed to contain narcotics. (See, Sanchez's Test. against Ruiz-Cortez at 15 and Sanchez's Test. against Lewellen at 859.) Lewellen motioned to Sanchez that the man in white had run back inside the residence. (See, Sanchez's Test. against Ruiz-Cortez at 15 and Sanchez's Test. against Lewellen at 859, 863.) Sanchez waited for Lewellen to secure the narcotics in the trunk of his car before following him to the apartment where Lewellen had seen the man disappear into. (See, Sanchez's Test. against Ruiz-Cortez at 15 and Sanchez's Test. against Lewellen at 863-864.) The officers knocked and Ruiz-Cortez, dressed all in white, answered the door. Lewellen then placed Ruiz-Cortez under arrest. (See, Sanchez's Test. against Ruiz-Cortez at 15 and Sanchez's Test. against Lewellen at 865.)

         After the arrest, Lewellen and Sanchez spoke to DEA agents who had also arrived on the scene. One of the DEA agents, Rebecca Branum (“Branum”), authored a DEA report and an affidavit and testified at a preliminary hearing to Ruiz-Cortez's trial. As Branum was not at the scene until after the arrest, her account of what happened was not based on personal knowledge but rather her understanding and recall of what the police officers told her. (See, ECF No. 241, Ex. H (Branum's Prelim. Test.) 7 and ECF No. 241, Ex. I (Branum's Dep.) 13:21-16:21.)

         At Ruiz-Cortez's trial, Lewellen testified to personally observing the events relayed above. (See, ECF No. 234, Ex. D, 25-59.)

         Ruiz-Cortez took the stand at his trial. He denied ever having seen the yellow bag in which the drugs were recovered during the evening of July 8, 1999. (See, ECF No. 234, Ex. A. 210:9-10 and Pl.'s Resp. to Lewellen's SOF ¶ 39.) As Ruiz-Cortez stated to the judge during his sentencing hearing, “I never had those drugs in my house.” (ECF No. 234, Ex. B 7:15-17 and Pl.'s Resp. to Lewellen's SOF ¶ 47.) He did not present duress as a defense. (Pl.'s Resp. to Lewellen's SOF ¶ 40.)

         In 2012, a jury convicted Lewellen of conspiracy to possess with intent to distribute cocaine. (Rodriguez, 09-CR-332, ECF No. 802.) Rodriguez, a co-defendant in the case, cooperated with the Government and testified against Lewellen. Rodriguez testified that Lewellen told him to keep selling drugs after signing him up at as a CI; that “if I got arrested he would keep me out of it”; that Lewellen “was able to talk to them” when Rodriguez was arrested in 1997 with a gun; and that when the CPD stopped paying Rodriguez a thousand dollars for each kilogram of cocaine seized, Lewellen “ma[d]e it right” by giving Rodriguez two kilograms of cocaine. (ECF No. 237, Ex. G (Rodriguez's Test.), 2892:21-2911.)

         As is relevant to Ruiz-Cortez's arrest, Rodriguez testified that he told Lewellen that he was sending one of his couriers, a woman by the name of Lisette Venegas (“Venegas”), to pick up 20 kilograms of cocaine “from one of Changa's supplier's worker.” (Rodriguez's Test. at 2922-2924.) Rodriguez expected that if Lewellen or other officers seized money or drugs as a result of the information he provided, he would get paid as a CI and Venegas, a woman that Lewellen knew from before, would be let go. (Id. at 2923-2924.) This transaction turned out to be the event leading up to Ruiz-Cortez's arrest.

         Venegas stated in her deposition that on July 8, 1999 she went to Ruiz-Cortez's address to pick up drugs per Rodriguez's instructions. (ECF No. 241, Ex. R (Venegas's Dep.), 27:15-32:23.) Rodriguez told her that “[a] guy is going to come out, he's going to give you something, just grab it and take it.” (Id. at 34:2-8.) Venegas stated that she arrived at the apartment “sometime in the morning, ” possibly before noon, and grabbed a bag from a Hispanic guy. (Id. at 34:16-35:5.) She pulled up to the back of the house, “walked up a couple of steps and kind of went halfway in and halfway out, and he was already there. And I grabbed the bag and turned around and left.” (Id. at 34:9-15.) After she got the bag, Venegas walked to her car and put it in the trunk. (Id. at 39:18-21.) She did not get in her car, however, as “there was another car blocking my way.” (Id. 43:4-45:17.) The driver of the car, a white male, opened her trunk, grabbed the bag, and told her to get out of there. (Id. 46:1-48:5.) Venegas drove away and saw the other vehicle take off in the opposite direction. (Id. 48:7-49:5.)

         Plaintiff brings this suit against Chicago police officers and the City of Chicago. (ECF No. 131, Third Am. Compl.) In his Complaint, Plaintiff admitted that he indeed stored cocaine at his apartment but alleged that he did so under the coercion of Carlos Rodriguez (“Carlos”), a.k.a. Changa, who was, as later discovered, a criminal associate of Saul Rodriguez. (Id. ¶¶ 23, 30.) Plaintiff said that Carlos approached him several times, offering him an opportunity to make more money than he was currently earning, but that Plaintiff refused him each time. (See, ECF No. 241, Ex. D (Ruiz-Cortez's Dep.) 66-68.) Carlos then insinuated that Plaintiff's family would meet with an “accident” if he did not accede to his demands. (See, Compl. ¶¶ 25-26 and Ruiz-Cortez's Dep. 80-85.) Still, Plaintiff refused. (See, Compl. ¶ 28 and Ruiz-Cortez's Dep. 86-87.) Carlos and another man then showed up at Plaintiff's apartment one week later with bags containing narcotics. Carlos told Plaintiff, “You have to do it. Think about your family.” (See, Compl. ¶¶ 28-30 and Ruiz-Cortez's Dep. 98-103.) Plaintiff understood that he was to store the drugs until people came to pick them up. (See, Ruiz-Cortez's Dep. 110-113.)

         Plaintiff admitted that he kept the cocaine picked up by the two individuals that the DEA and CPD arrested. (ECF No. 264 (Pl.'s Resp. to Lewellen's SOF) ¶¶ 16-17.) He also admitted that moments before his arrest, Venegas met him at his apartment and took the cocaine stored there. (Ruiz-Cortez's Dep. 163-174.) He disputes, however, that Lewellen saw him do so in the manner Lewellen testified to at Plaintiff's trial. According to Ruiz-Cortez, Venegas came to his apartment to retrieve the drugs, got into the apartment, took the cocaine, and then walked off to her car alone. (Ruiz-Cortez's Dep. 168-173.) Lewellen intercepted the woman, took the drugs, and let her go because he knew she was a part of his co-conspirator's criminal enterprise. (ECF No. 237 (Pl.'s SOF) ¶¶ 46, 53 (relying on Rodriguez's Test. against Lewellen and Venegas's Dep.).) Lewellen also kept half of the drugs to himself and only inventoried 10 kilograms to the system instead of the 20 kilograms that the woman took from Plaintiff's apartment. (Pl.'s SOF ¶¶ 44 (relying on Rodriguez's Test. against Lewellen).) Lewellen then came to Plaintiff's door with Sanchez to arrest him.

         In sum, Plaintiff alleges that Lewellen and Sanchez framed him for the crime and the City of Chicago is also responsible. He brings a Motion for Partial Summary Judgment against Lewellen and the City of Chicago. In turn, Lewellen, Sanchez, and the City seek summary judgment against Plaintiff.

         III. ANALYSIS

         Ruiz-Cortez names as Defendants in this lawsuit Lewellen and Sanchez, other unknown Chicago police officers, and the City of Chicago. Against the named individual Defendants, Plaintiff asserts the following causes of action: a Due Process claim based on fabrication of evidence and withholding of Brady materials (Count I); a claim for conspiracy to violate Plaintiff's Due Process rights (Count II); and a malicious prosecution claim based on Illinois law (Count III). Against the City of Chicago, Plaintiff brings a single municipality liability or Monell claim (Count IV). After discussing some preliminary matters, the Court addresses each of these causes of action in turn.

         A. Unknown Chicago Police Officers

         The City of Chicago moves to have the unknown Chicago police officers dismissed from the case. The Court grants this request.

         Plaintiff has not attempted to name or serve with process any Chicago police officers other than Sanchez and Lewellen. Discovery appears to have closed, and the trial date is now less than two months away. In line with Seventh Circuit precedent, the unnamed defendants should be dismissed. See, Williams v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007) (dismissing an unnamed defendant from the case due to the plaintiff's “failure to identify this defendant and the lack of any record that this individual was served with process”).

         In addition, because more than two years have passed since Plaintiff's criminal case was dismissed, any new defendants will have a statute of limitations defense. See, 745 Ill. Comp. Stat. Ann. 10/8-101 (setting the statute of limitations for an Illinois malicious prosecution claim at one year) and Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008) (explaining that in Illinois, the statute of limitations for § 1983 claims is two years). Therefore, the unknown officers are dismissed from this case. See, Baker v. Ghidotti, No. 11 C 4197, 2014 U.S. Dist. LEXIS 41750, at *36 (N.D. Ill. Mar. 28, 2014) (dismissing unnamed defendants for the same reasons).

         B. Ruiz-Cortez's Perjury

         Defendant Lewellen argues that Ruiz-Cortez should not be allowed to bring this lawsuit since he perjured himself at his criminal trial. Lewellen acknowledges that the power to dismiss the claims of a party who perjured himself is at the discretion of a district court. See, Secrease v. W. & S. Life Ins. Co., 800 F.3d 397, 401 (7th Cir. 2015) (reviewing “for an abuse of discretion the court's selection of dismissal or default as a sanction for serious misconduct”). This Court declines to dismiss Plaintiff's lawsuit.

         As the Seventh Circuit has said, “while perjury is a serious offense, one can imagine cases in which a sanction of dismissal would be excessive.” Allen v. Chi. Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003). In particular, where “the opposing litigant had perjured himself as well, ” dismissal may be inappropriate given the “the egregiousness of the conduct . . . in relation to all aspects of the judicial process.” See, Id. and Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003) (internal quotation marks omitted).

         In this case, Plaintiff and Lewellen both have leveled accusations of perjury against one another. Even assuming for the sake of the argument that Lewellen is correct and Plaintiff is an admitted perjurer who is guilty of the underlying crime, it was Lewellen's criminal misconduct that allowed Plaintiff to be released from prison when he still had seven more years to serve. Whether true or not, the USAO was of the belief that “in light of the newly-discovered evidence [of Lewellen and associates' illicit activities] there is virtually no admissible evidence of defendant's guilt” and so moved to have Ruiz-Cortez immediately released from prison. United States v. Ruiz, 99-CR-493, ECF No. 50. See also, Fed. R. Evid. 803(3) (allowing for the use of the USAO's filing as evidencing its motive or intent when it moved to dismiss Plaintiff's indictment). If Lewellen is right, then a guilty man was let free, and this injustice was due to the effect Lewellen's conduct had on the USAO's ability to prosecute. Lewellen thus comes to this Court with “unclean hands, ” and the Court will not preemptively shield him from civil penalties by dismissing Plaintiff's suit. See, Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815(1945) (stating that the doctrine of unclean hands “gives wide range to the equity court's use of discretion in refusing to aid the unclean litigant”).

         C. Lewellen's Fifth Amendment Invocations

         Ruiz-Cortez and Lewellen argue over how this Court should treat Lewellen's Fifth Amendment invocations at his deposition. In this circuit, courts considering summary judgment motions may draw adverse inferences against civil litigants who invoke their Fifth Amendment right. See, SEC v. Lyttle, 538 F.3d 601, 604 (7th Cir. 2008) (reviewing a grant of summary judgment and explaining that evidence of wrongdoing could be “enforced by the inference . . . of guilt from [a defendant's] refusal to testify”). See also, Padilla, 932 F.Supp.2d at 919. Such adverse inferences are permissive and not required. Evans v. City of Chi., 513 F.3d 735, 741 (7th Cir. 2008).

         For several reasons, this Court will not use the invocation of the Fifth Amendment against Lewellen. First, the questions that Plaintiff asked Lewellen during his deposition for which he asserted his Fifth Amendment privilege are questions that form the crux of Plaintiff's case against Lewellen - to-wit, that Lewellen testified falsely regarding what he saw in the hours leading up to Plaintiff's arrest. If the Court were to deem Lewellen's silence as admissions to the questions, this would come perilously close to entering judgment against Lewellen. But silence, and adverse inferences drawn from it, cannot be the sole basis for finding liability. LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995) (“Silence is a relevant factor to be considered in light of the proffered evidence, but the direct inference of guilt from silence is forbidden.”).

         Second, the questions that Plaintiff asked Lewellen on which Lewellen invoked his Fifth Amendment are on matters that implicate other Defendants in this case. For example, Plaintiff asked, “And when Sanchez testified at the Ruiz-Cortez trial that you radioed him that Ruiz-Cortez was carrying the plastic bag, that testimony of Sanchez was false, wasn't it?” and “Did you falsely testify against Ruiz-Cortez at his trial as part of the CPD's plan to protect Saul Rodriguez as an informant by diverting the attention of the federal authorities from your and Saul Rodriguez's drug-dealing activities and onto Ruiz-Cortez?”. Drawing an adverse inference on questions like this would unfairly prejudice Co-Defendants Sanchez and the City of Chicago.

         Finally, the Court also finds it relevant that one of the allegations the government brought in Lewellen's criminal case was obstruction of justice “including but not limited to, the December 21, 1999 false testimony of GLENN LEWELLEN in United States v. Refugio Ruiz-Cortez” but that the jury did not convict Lewellen on this count of racketeering conspiracy. See, Rodriguez, 09-CR-332, ECF No. 271 (Third Superseding Ind.) 8-9. Therefore, the Court will not infer, as Plaintiff would have it, that “Lewellen's answers would, if truthful, tend to subject him to criminal liability.”

         D. Evidentiary Issues

         The parties have raised a host of evidentiary issues, including numerous requests that the Court strike opposing parties' assertions and responses for violating Local Rule 56.1. Requiring strict compliance with local rules is within the discretion of the district courts and is done (at least partly) so that the courts do not have to “wade through improper denials and legal argument in search of a genuinely disputed fact.” Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 527-29 (7th Cir. 2000). The Court, having waded, forgoes wholesale striking of responses. It will consider the content of the parties' Statements of Facts as well as their evidentiary foundation in reviewing the parties' Motions.

         E. Fabrication of Evidence Claim

         Finally, we arrive at Plaintiff's first cause of action whereby Plaintiff asserts that Sanchez and Lewellen violated his Due Process by fabricating evidence used against him. It should be emphasized that this fabrication claim is distinct from a Due Process claim stemming from a failure to disclose under Brady. See, Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003) (explaining that the problem for the defendant “was not that evidence useful to him was being concealed; the problem was that the detectives were giving false evidence”) rev'd on other grounds, 440 F.3d 421, 4223 (7th Cir. 2006). See also, Saunders-El v. Rohde, 778 F.3d 556, 561-62 (7th Cir. 2015). Simply put, a Brady claim focuses on what the officers should have said (but did not), whereas a fabrication claim rests what the police officers did say.

         While the case law of the circuit was not always clear, it is by now settled that “[a] criminal defendant's due process rights may be violated - actionable by way of 42 U.S.C. § 1983 - when the evidence against him is fabricated.” Saunders-El, 778 F.3d at 558. The Saunders-El court clarified that none of the earlier cases from the Seventh Circuit, including Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010), Brooks v. City of Chicago, 564 F.3d 830 (7th Cir. 2009) and Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), “stands for the proposition that fabricating evidence does not violate a defendant's due process.” Id. at 560. Insofar as the Defendants in this case rely on those earlier cases to argue to the contrary, that argument is rejected.

         The Individual Defendants are correct, however, that their testimonies at Ruiz-Cortez's criminal trial cannot form the basis for Plaintiff's Complaint. This is because the officers are protected by absolute immunity in their roles as witnesses. See, Manning v. Miller, 355 F.3d 1028, 1031-32 (7th Cir. 2004) (explaining that when police officers testify as witnesses, they are “granted absolute immunity from civil liability”). Plaintiff concedes as much, stating: “Plaintiff's due process claim is not predicated on Defendant's testimony as a witness at Plaintiff's criminal trial, but rather on Defendant's role in fabricating evidence prior to testifying at trial.” (ECF No. 262 at 10.)

         The Court now reviews what evidence the Individual Defendants allegedly fabricated outside of their trial testimonies.

         1. Fabrication Claim against Sanchez

         Plaintiff has not produced any statement directly authored by Sanchez that Plaintiff can say is false. A false piece of evidence is an essential element of a fabrication claim, and Plaintiff must make a showing “sufficient to establish the existence” of this element to survive summary judgment. See, Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014) (“Fabricated testimony is testimony that is made up; it is invariably false.”) and Celotex Corp., 477 U.S. at 322-23. Instead of any direct statements of Sanchez, Plaintiff relies on the statements of Branum, the DEA agent who talked to Lewellen and Sanchez after Plaintiff's arrest, to adduce that Sanchez fabricated evidence. In particular, Plaintiff relies on Branum's DEA report, affidavit, and testimony at a preliminary hearing.

         All of these statements are hearsay insofar as they are introduced to establish that Sanchez actually told Branum the events that she memorialized or testified to. Plaintiff believes otherwise, arguing that Branum's statements “would not be offered for the truth of the matter” and so would not be hearsay. (ECF No. 262 at 12.) This is incorrect. In Eisenstadt, the plaintiffs had to point to a material misrepresentation that the defendant Centel allegedly made and their best candidate was a Chicago Tribune article based on an interview Centel gave. Eisenstadt v. Centel Corp., 113 F.3d 738 at 742. The Eisenstadt court held: “The article, however, is hearsay: an out-of-court statement offered to prove the truth of its contents - to prove, that is, that Centel or its investment bankers made the comments attributed to them.” Id. Branum's statements here are hearsay in the same way that the article was hearsay in Eisenstadt.

         While hearsay can still be admitted into evidence if the Rules of Evidence so provide, and Plaintiff may have several venues opened to him to make an argument for admissibility here, Plaintiff has not made any such argument. On this ground alone, the Court can exclude the statements since as the proponent of hearsay, Plaintiff bears the burden of showing that it is admissible. Hartford Fire Ins., 903 F.Supp.2d at 640.

         Nonetheless, for the sake of completeness, the Court rules that Branum's various statements - even if admitted and viewed in the most favorable light of Plaintiff - do not make a sufficient showing that Sanchez, not Lewellen, reported falsely to Branum.

         First, Branum's DEA report contained multiple instances of “CPD Officer Lewellen said” but did not once mention Sanchez's name in the narrative. (ECF No. 266, Ex. I.) When shown the DEA report during her deposition in this case, Branum volunteered that, “It was clear that Officer Lewellen was doing all the information for me that - I was probably directing things more through him. He was telling me what happened when I arrived at the scene.” (Branum's Dep. at 91:11-17.) Second, Branum's affidavit did not indicate which of the two officers, Lewellen or Sanchez, supplied the details that Branum laid out in her report. (See, ECF No. 266, Ex. J.)

         Third, during the preliminary hearing, Branum recounted the events leading up to Plaintiff's arrest from Lewellen's point of view. (See, Branum's Prelim. Test. at 7:11-9:6.) Branum also offered the following testimony, the underlined answer being what Plaintiff emphasized over ...

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