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Smith v. Burge

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

November 28, 2016

ALONZO SMITH, Plaintiff,
JON BURGE, et al., Defendants.


          AMY J. ST. EVE, District Court Judge

         On March 17, 2016, Plaintiff Alonzo Smith brought the present nine-count Complaint against former Chicago Police Officers, former Cook County State's Attorneys, former City of Chicago officials, the City of Chicago, and the County of Cook[1] alleging violations of his constitutional rights, along with supplemental state law claims. See 28 U.S.C. §§ 1331, 1367(a). Before the Court are the Chicago Defendants' motion to dismiss, Defendants Paul Kelly's and Cook County's motion to dismiss, and Defendant Richard M. Daley's motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court denies the Chicago Defendants' motion to dismiss, denies Defendants Kelly's and Cook County's motion to dismiss, and grants in part and denies in part Defendant Daley's motion to dismiss.


         “A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under the federal pleading standards, a plaintiff's “factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Put differently, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570).

         When determining the sufficiency of a complaint under the plausibility standard, courts must “accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs' favor.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). Also, it is well-settled that “a plaintiff ordinarily need not anticipate and attempt to plead around affirmative defenses.” Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016). Nevertheless, a “statute of limitations defense is properly considered in determining a Rule 12(b)(6) motion when the factual allegations in the complaint establish such a defense.” Bonnstetter v. City of Chicago, 811 F.3d 969, 974 (7th Cir. 2016).


         I. Introduction

         Plaintiff alleges that he spent approximately twenty years incarcerated in the Illinois Department of Corrections due to his wrongful conviction of home invasion, armed robbery, and murder of James Fullilove in 1984. (R. 1, Compl. ¶¶ 1, 68.) Plaintiff brings the present civil rights lawsuit after a Circuit Court of Cook County judge vacated his convictions pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, after which the State dismissed all charges against him on October 19, 2015. (Id. ¶¶ 92, 116, 117.)

         Plaintiff alleges that Defendant Sergeant John Byrne and Defendant Detective Peter Dignan - at the direction of Defendant Chicago Police Commander Jon Burge - falsely arrested and charged him with Fullilove's murder after Defendants Byrne and Dignan tortured him to coerce his confession. (Id. ¶ 1.) Plaintiff asserts that his case was not an isolated occurrence, but rather the interrogation and torture at the Area 2 Police Headquarters (“Area 2”) was part of a long-standing pattern and practice of racially motivated torture, including electric shock, baggings, mock executions, Russian roulette, and beatings dating back to the early 1970s when Defendant Burge was a detective at Area 2 on the midnight shift. (Id. ¶¶ 71, 72.) Also, Plaintiff alleges that personnel in the Chicago Police Department (“CPD”), several Chicago mayors, successive Superintendents of the Chicago Police, and certain Cook County State's Attorneys concealed their knowledge of this ongoing, systemic torture and abuse. (Id. ¶ 2.)

         II. Parties

         Defendants in this lawsuit include John Byrne, who was a duly appointed and sworn Chicago Police Sergeant in Area 2 from 1982 to August 1986, and supervisor of Area 2's midnight shift under Defendant Burge's command. (Id. ¶ 8.) From 1988 to 1991, Defendant Byrne was a Sergeant in the Violent Crimes Unit of Area 3 (“Area 3”), which was also under Defendant Burge's command. (Id.) Defendant Peter Dignan was a duly appointed and sworn Chicago Police Detective assigned to Area 2 under Defendant Burge's command. (Id. ¶ 9.) From 1987 to 1992, Defendant Leroy Martin was Chicago's Superintendent of Police and was Defendant Burge's direct supervisor at Area 2 in 1983 and early 1984. (Id. ¶ 10.) Defendant Terry Hillard was Chicago's Superintendent of Police from 1998 until 2004. (Id. ¶ 11.) From 1998 to 2002, Defendant Thomas Needham was counsel to and chief administrator for Defendant Hillard. (Id. ¶ 12.) From 1981 to 1989, Defendant Daley was the State's Attorney of Cook County, and from 1989 until 2011, Defendant Daley was Chicago's Mayor. (Id. ¶ 13.) Defendant Gayle Shines was the Director of the now defunct Office of Professional Standards (“OPS”)[2] from 1990 to 1998. (Id. ¶ 14.) Defendant Paul Kelly was an Assistant Cook County State's Attorney assigned to the Felony Review Unit during the relevant time period. (Id. ¶ 15.)

         III. Plaintiff's Arrest and Interrogation

         On January 18 or 19, 1983, Fullilove was found dead in his apartment in Chicago. (Id. ¶ 19.) Detectives from Area 2, including Defendants Byrne and Dignan, were responsible for investigating Fullilove's death, and Defendant Burge was the CPD Lieutenant leading the Fullilove investigation. (Id. ¶¶ 20, 21.) On January 21, 1983, around noon, Plaintiff voluntarily went to Area 2 Police Headquarters with a friend after he learned that CPD officers visited his house asking to speak with him about the Fullilove murder. (Id. ¶ 22.) Area 2 detectives interrogated Plaintiff for two hours, after which the officers contacted Defendants Byrne and Dignan and informed them of the status of the investigation. (Id. ¶ 23.) Defendants Byrne and Dignan then arrived at Area 2. (Id.) Also, Defendant Burge talked to Plaintiff on two separate occasions at Area 2 on January 21, 1983, and after Plaintiff denied involvement in the crime, Defendant Burge told Plaintiff that he would talk one way or another before the night was over because they had ways of making him talk. (Id. ¶ 24.)

         Plaintiff alleges that Defendant Dignan then confronted him in an interrogation room on the second floor of Area 2, told him to get up, and said “we're going to have a real conversation now.” (Id. ¶ 25.) Defendants Dignan and Byrne proceeded to take Plaintiff downstairs to the basement of Area 2. (Id. ¶ 26.) Plaintiff asserts that Defendant Byrne asked Defendant Dignan if he had “the stuff, ” and Defendant Dignan replied that he did, but that some of it was in the car. (Id. ¶ 27.) Next, Defendant Dignan left the Area 2 police station and returned with a plastic bag that looked like a garbage bag. (Id.) Upon return, Defendant Dignan unlocked the door to the basement and both he and Defendant Byrne took Plaintiff there. (Id. ¶ 28.)

         Once in the basement, Defendants Byrne and Dignan forced Plaintiff to sit in a metal swivel chair and handcuffed his hands behind his back. (Id. ¶ 29.) According to Plaintiff, Defendant Dignan then opened the plastic bag and brandished a black rubber nightstick that was about 16-18 inches in length. (Id. ¶ 30.) Subsequently, Defendant Dignan asked Plaintiff if he knew CPD officer Allen Davis - who was also in custody and later became Plaintiff's co-defendant in the Fullilove crimes - and Plaintiff responded “no.” (Id.) Defendant Dignan then told Plaintiff that he was lying, that he had been lying all day, and that he wanted Plaintiff to tell the truth. (Id. ¶ 31.) Plaintiff reiterated to Defendant Officers that he was telling the truth. (Id.) Plaintiff asserts that Defendant Dignan responded by saying that “he had all night” and that before Plaintiff “left the basement” he would “tell them what they wanted to hear.” (Id. ¶ 32.) Defendant Dignan then told Plaintiff that he would give him one more chance to tell “the truth, ” and Plaintiff responded that he had been doing so. (Id. ¶ 33.) In response, Defendant Dignan hit Plaintiff several times between the legs with the rubber nightstick while Plaintiff was seated and handcuffed, and Defendant Byrne kicked Plaintiff in the stomach. (Id. ¶ 34.) In addition, both Defendants Dignan and Byrne hit Plaintiff with their nightsticks on the palms of Plaintiff's hands and the back of his legs. (Id.)

         Thereafter, Defendants Byrne and Dignan pulled the plastic bag over Plaintiff's head, put a thick brown rubber band around the bag, and told Plaintiff that they were going to show him how to suffocate a dope dealer. (Id. ¶ 35.) While Plaintiff had the bag over his head, Defendant Byrne kicked him in the stomach, and Defendant Dignan hit him in the stomach with his nightstick. (Id. ¶ 36.) The next thing Plaintiff remembered was getting up off the floor with the bag removed from his head. (Id. ¶ 37.) Plaintiff alleges that Defendants Dignan and Byrne then picked him up, put him back on the chair, told him that was “round one, ” and reminded him that they had all night. (Id. ¶ 38.) Defendant Detectives also told Plaintiff to go ahead and scream because no one could hear him. (Id.) Further, Plaintiff states that Defendants Dignan and Byrne asked him about Officer Davis and whether they committed the Fullilove murder together. (Id. ¶ 39.) When Plaintiff responded that he did not kill Fullilove, Defendant Officers Dignan and Byrne bagged and beat him again. (Id.) After that, Plaintiff can only remember getting off the floor with his lip bleeding and blood on his clothes. (Id. ¶ 40.)

         Again, Defendants Dignan and Byrne put Plaintiff in the chair and resumed interrogating him. (Id. ¶ 41.) At that point, Plaintiff saw Defendants Dignan and Byrne preparing to bag and beat him again, after which he told them he had had enough of the beatings. (Id. ¶ 42.) Plaintiff alleges that Defendants Byrne and Dignan told him to “tell the truth, ” instructed him on exactly what to say, and then made Plaintiff repeat the story back to them. (Id. ¶¶ 43, 44.) Plaintiff explains that he did this because he thought that if he told Defendants Dignan and Byrne what they wanted to hear, they would stop torturing him. (Id.) According to Plaintiff, Defendant Officers told him that if anyone asked, Plaintiff was to say that the officers treated him fairly, and if he failed to do so, Defendant Officers would take him back to the Area 2 basement. (Id. ¶ 46.) Defendant Dignan then turned on a hose, washed the blood off of Plaintiff's shirt, jacket, and mouth, and took him upstairs to an Area 2 interrogation room. (Id. ¶ 47.)

         Shortly thereafter, Plaintiff met with the felony review ASA Defendant Paul Kelly in the presence of Defendants Dignan and Byrne and recited the fabricated story that Defendant Officers told him in the Area 2 basement. (Id. ¶¶ 44, 45, 49.) When Plaintiff was repeating the story in front of a court reporter, he forgot some of the details, after which Defendant Dignan handed note cards to Defendant Kelly that prompted Defendant Kelly to go over various parts of the story again. (Id. ¶ 50.) Defendant Kelly obtained a signed court-reported statement from Plaintiff at that time. (Id. ¶ 51.)

         IV. Plaintiffs' Pre-Trial Suppression Motion and Trial

         Plaintiff alleges that Defendants Dignan and Byrne memorialized his false, fabricated, and coerced confession in official reports and that these fabricated reports omitted any mention that the confession was the product of the torture. (Id. ¶ 52.) The attorneys who prosecuted Plaintiff relied upon these false official reports to secure Plaintiff's wrongful charging, prosecution, conviction, and imprisonment. (Id.) In the interim, on January 24, 1983, officials brought Plaintiff to court for a bond hearing. (Id. ¶ 53.) Prior to the hearing, Plaintiff informed Defendant Dignan that he was going to tell the bond court that the officers had beat him. (Id.) Defendant Dignan responded by stating that no judge or jury would believe the word of a “nigger” over a word of a white police officer. (Id. ¶ 54.) At his bond hearing, Plaintiff testified that two white police officers beat him in the basement of Area 2 Police Headquarters. (Id. ¶ 55.) He also identified Detective Dignan, who was present in courtroom, as one of the detectives who beat him. (Id.)

         On June 1, 1983, Plaintiff's defense counsel filed a pre-trial motion to suppress Plaintiff's inculpatory statements asserting that they were involuntary and the result of Defendant Officers' “grueling” interrogation, involving “severe” and “excessive police brutality.” (Id. ¶ 56.) The State called Defendants Kelly, Byrne, and Dignan at the suppression hearing. (Id. ¶ 57.) Prior to testifying at the suppression hearing, Defendants Byrne and Dignan told the prosecuting attorneys that they did not physically or psychologically coerce Plaintiff into giving a false and fabricated confession. (Id. ¶ 58.) During the suppression hearing, Defendants Byrne and Dignan denied that they had physically abused Plaintiff and Defendant Kelly denied that he was aware of any such abuse. (Id. ¶¶ 59, 60.) According to Plaintiff, Defendants Byrne, Dignan, and Kelly offered false and perjured testimony at his motion to suppress (and trial) in order to suppress and cover-up evidence of police torture and abuse at Area 2. (Id. ¶¶ 63, 69, 70.) Plaintiff also asserts that, in June 1983, evidence of the systemic Area 2 torture and abuse was not available to him, and thus he could not offer any such evidence at his suppression hearing. (Id. ¶¶ 61, 62.) At the conclusion of the evidence, the Circuit Court of Cook County judge denied Plaintiff's motion to suppress his coerced confession. (Id. ¶ 63.)

         At Plaintiff's 1984 criminal trial, the prosecuting attorneys called Defendants Byrne, Dignan, and Kelly to testify on the State's behalf. (Id. ¶ 64.) The Cook County State's Attorneys used Plaintiff's coerced and fabricated confession as the chief piece of incriminating evidence against him at trial. (Id. ¶ 67.) Following his July 1984 trial, the jury convicted Plaintiff of murder, home invasion, and armed robbery. (Id. ¶ 68.) The Cook County judge sentenced Plaintiff to 40 years for the murder conviction and 20 years each for the home invasion and armed robbery - to be served concurrently. (Id.) Plaintiff asserts that without Defendant Officers' physically coercive interrogation, fabrication of his confession, and the suppression of exculpatory evidence, the Cook County State's Attorney would not have prosecuted him and convicted him of the murder, home invasion, and robbery. (Id. ¶ 67.)

         ANALYSIS I. Due Process Right to a Fair Trial - Count I

         In Count I of his Complaint, Plaintiff alleges that Defendants violated his Fifth and Fourteenth Amendment due process rights to a fair trial by deliberately withholding exculpatory evidence and fabricating evidence.[3]

         A. Brady Claim

         Plaintiff first asserts that all of the individual Defendants violated his due process rights to a fair trial by deliberately withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Saunders-El v. Rohde, 778 F.3d 556, 561 (7th Cir. 2015) (“A criminal defendant's Brady right is one that ‘the Constitution provides as part of its basic ‘fair trial' guarantee.'”) (quoting United States v. Ruiz, 536 U.S. 622, 626, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002)). The duty to disclose under Brady applies to police officers. See Youngblood v. W. Virginia, 547 U.S. 867, 869-70, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (per curiam); Newsome v. McCabe, 256 F.3d 747, 752-53 (7th Cir. 2001). “A plaintiff must show three elements in order to prove a Brady violation: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) the evidence must have been material, meaning there is a reasonable probability that the result of the proceeding would have been different.” Beaman v. Freesmeyer, 776 F.3d 500, 506 (7th Cir. 2015). Under the last element, a plaintiff “need only show that the new evidence undermines the confidence of the verdict.” Id. (citation omitted); see also Wearry v. Cain, 136 S.Ct. 1002, 1006 (2016) (per curiam) (petitioner “must show only that the new evidence is sufficient to ‘undermine confidence' in the verdict.”).

         Here, Defendants argue that Plaintiff's Brady claim is foreclosed by the Seventh Circuit's decision in Saunders-El because Plaintiff bases his Brady claim solely on Defendant Officers' failure to disclose the fact that they allegedly fabricated Plaintiff's confession. In the context of police officers remaining silent following the coerced confession and fabrication of evidence, the Saunders-El court reasoned:

In the end, Saunders-El seeks to charge the officers with a Brady violation for keeping quiet about their wrongdoing, not for failing to disclose any existing piece of evidence to the prosecution. But our case law makes clear that Brady does not require the creation of exculpatory evidence, nor does it compel police officers to accurately disclose the circumstances of their investigations to the prosecution. Accordingly, Saunders-El's Brady claim is more appropriately characterized as a claim for malicious prosecution - that is, a claim that the officers commenced his prosecution without probable cause - which cannot form the basis of a constitutional tort.

Id. at 562 (emphasis in original). The Saunders-El decision is premised on earlier Seventh Circuit cases, including Sornberger v. City of Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006), in which the Seventh Circuit concluded that Brady cannot be a basis for a claim against police officers who fail to disclose the circumstances of a plaintiff's interrogation. The Saunders-El decision also relied on Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003), where the Seventh Circuit rejected “the plaintiff's argument that Brady requires police to disclose truthful versions of statements made during interrogations.” Saunders-El, 778 F.3d at 562. The Gauger court reasoned that the obligation under Brady “falls out, because Gauger knew what he had said at the interrogation.” Id. at 360.

         Reviewing Plaintiff's well-pleaded allegations and all reasonable inferences in his favor - as the Court is required to do at this procedural posture - Plaintiff bases his Brady violation on more than just Defendant Officers' failure to disclose their unlawful interrogation tactics in relation to his coerced confession. Specifically, Plaintiff alleges that Defendant Officers suppressed the implements of their torture, including the plastic bag, the rubber nightstick, and Plaintiff's bloody clothes. (Compl. ΒΆΒΆ 61, 67, 70.) More importantly, Plaintiff alleges that Defendants suppressed and destroyed evidence of systemic ...

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