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Kluppelberg v. Burge

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

July 25, 2017

JON BURGE, et al., Defendants.

          Maria Valdez Magistrate Judge.


          Joan H. Lefkow Judge

         After his multiple murder convictions were vacated and he was released, having served almost 23 years of a life sentence, James Kluppelberg filed this civil rights action against the City of Chicago and a number of individual defendants, including Jon Burge and William Alletto.[1] He alleges that Burge and Alletto, who were high-ranking officials in the police and fire departments, respectively, are liable as participants in his wrongful conviction.[2] The two move for summary judgment on all claims. (Dkt. 545.) For the reasons stated below, the motion is denied in part and granted in part.


         Kluppelberg's lawsuit alleges misconduct leading to his arrest, prosecution, and conviction for a 1984 arson that killed six people. He was granted a certificate of innocence in 2012, in part due to the alleged misconduct at issue in this case. When the undisputed facts, including those that Burge and Alletto have admitted only for the purposes of summary judgment, are considered, the following narrative emerges.

         The morning of March 24, 1984, a house fire at 4448 Hermitage Avenue killed a mother and her five children (referred to herein interchangeably as the fire or the Hermitage fire). That same day Alletto, the Director of the Chicago Fire Department's not-yet-operational Office of Fire Investigations (OFI), [4] went to the scene of the fire with OFI's Assistant Director, Pat Burns, [5] and a group of fire investigators to conduct a training exercise. Alletto did not conduct a field examination, take photographs or notes, or make a cause and origin determination, and neither Alletto nor Burns filed a report commemorating findings they made at the time or participated in the investigation that followed. The official investigation was conducted by investigators from the Bomb & Arson Unit (B&A) of the Chicago Police Department (CPD) but, due to extensive damage to the structure, B&A was unable to determine its cause and origin. In 1984, Burge was a lieutenant in CPD's Area Two Violent Crimes Unit (Area 2) and did not participate in the original investigation of the fire. The case was closed as “apparent accidental fire deaths” in April 1984. In August 1986, Burge was promoted to Commander of B&A, where he supervised defendant detectives Leonard Rolston and John Schmitz.[6]

         In late 1987, Duane Glassco, who was in custody at Cook County Jail, approached the police with an offer to inculpate Kluppelberg in the fire in exchange for a deal on pending burglary charges against him. Rolston and Schmitz spoke with Glassco, but they did not file a report of the conversation. In January 1988, Rolston and Schmitz brought Kluppelberg to Eleventh and State (police headquarters) under the pretense of asking him questions about two incidents he had reported while working as a security guard. Instead, Rolston and Schmitz beat Kluppelberg until he confessed to setting the fire. Rolston and Schmitz took Kluppelberg's confession to Assistant State's Attorney (ASA) Larry Axelrood, who interviewed Kluppelberg and instructed the officers to continue investigating because corroborating evidence was necessary before charges could be brought. Rolston and Schmitz advised defendant detective William Kelly and his partner, William Foley, [7] who were detectives in CPD's Area Three Violent Crimes Unit (Area 3), of the confession and they joined the investigation.

         As part of this investigation the detectives spoke with Glassco on multiple occasions, and Kelly and Foley prepared a report of his statements inculpating Kluppelberg. Glassco testified in accordance with that report both before the grand jury in January 1988 and at Kluppelberg's trial in July 1989. Glassco later admitted his testimony was false and that he only testified in order to receive favorable treatment in his own pending case.

         Rolston, Schmitz, Kelly, and Foley met with ASAs Jeffrey Warnick and Bruce Rather to discuss bringing murder charges against Kluppelberg. But they were told that, in addition to needing corroborating evidence, a determination that the fire was arson was necessary because the original investigators had been unable to determine the cause and origin and the case was closed as “apparent accidental fire deaths.” Despite the fact that B&A had sole authority to investigate the fire, [8] the detectives approached Alletto and Burns regarding the cause and origin of the fire. Alletto and Burns told the detectives that they believed the fire had been incendiary, which is how OFI labeled fires started by people. This opinion directly contradicted B&A's 1984 opinion that the cause of the fire could not be determined. Nonetheless, Alletto and Burns shared their opinion at a meeting with ASAs Warnick and Rather. When the grand jury was empaneled, Foley testified that Burns had investigated the fire and determined it was arson. Burns then testified as to this opinion for the prosecution at Kluppelberg's trial.

         Kelly and Foley also brought in Dawn Gramont, at whose apartment Kluppelberg had been staying the night of the fire, for questioning. Kelly and Foley made threats against her and her children in order to force her to testify against Kluppelberg before the grand jury. Gramont did so, but called CPD's Office of Professional Standards (OPS) that same day to report the detectives' threats and state that her grand jury testimony had been false. Burge later received a copy of Gramont's OPS report and was one of five commanding officers who concurred in finding it “not sustained”[9] and declining to discipline Kelly or Foley.

         Kluppelberg was indicted in January 1988, and Burge, who had been promoted to Commander of Area 3 the same day the grand jury returned the indictment, announced the indictment at a press conference where he answered questions and repeated portions of Kluppelberg's confession and Gramont's statement. Kluppelberg's case went to a bench trial in July 1989. The court granted the defense's motion to suppress Kluppelberg's confession but heard testimony by Glassco and Gramont inculpating Kluppelberg and gave great weight to Burns's finding that the fire was arson. Kluppelberg was convicted of murder, attempted murder, and arson, and sentenced to life in prison. In May 2012, these convictions and the sentence were vacated after the prosecution moved to nolle prosequi them, and Kluppelberg was released from prison after serving almost 23 years.

         In August 2014, a file stamped “Area Three Violent Crime Unit” was found in a CPD warehouse in a box marked “Cleared Cases 1984 F-000001.” This file, created in 1984 and referred to in this lawsuit as the “New File, ” contained several reports from B&A regarding the fire. The New File contained exculpatory evidence, including notes identifying two alternate suspects who had admitted setting other fires near the Hermitage fire the same night, notes identifying other alternate suspects who had argued with the victims of the fire, and notes that a witness had told detectives of dangerous wiring in the building's basement that regularly got wet when it rained, suggesting a possible non-human cause of the fire. The New File was not produced to the State's Attorney or to the defense before or during Kluppelberg's trial, despite the fact that in 1988-89 it was stored in a filing cabinet in Area 3, easily accessible to Burge. In fact, Kelly and Foley, after being assigned to the case in 1988, retrieved all the files and reports related to the 1984 investigation, including the New File.

         After his conviction was vacated, Kluppelberg filed suit against the City of Chicago and a number of individual defendants alleging violations of 42 U.S.C. § 1983 and malicious prosecution. Kluppelberg's claims against Burge include that Burge (1) deprived him of due process by participating in the fabrication and suppression of evidence (count I); (2) is liable under a theory of supervisory liability for the actions of Rolston, Schmitz, Kelly, and Foley in fabricating evidence and coercing witnesses (count IV); (3) failed to intervene in the constitutional violations against him by other defendants (count II); (4) conspired with other defendants to deprive him of due process (count III); and (5) participated in the malicious prosecution of him for the fire (count VI). Kluppelberg's claims against Alletto include that Alletto (1) deprived him of due process by participating in the fabrication of evidence (count I); (2) failed to intervene in the constitutional violations committed by Burns (count II); (3) conspired with other defendants to fabricate evidence (count III); and (4) participated in the malicious prosecution of him for the fire (count VI). Burge and Alletto move now for summary judgment arguing that the record does not contain sufficient evidence to support Kluppelberg's claims against them or, in the alternative, that they are entitled to qualified immunity.


         Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To determine whether any genuine fact issue exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56(c). In doing so, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

         The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial.” Day v. N. Ind. Pub. Serv. Co., 987 F.Supp. 1105, 1109 (N.D. Ind. 1997); see also Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). If a claim or defense is factually unsupported, it should be disposed of on summary judgment. Celotex, 477 U.S. at 323-24.

         When a defendant has invoked his Fifth Amendment right against self-incrimination, as Burge has consistently done during this case, adverse factual inferences may be drawn from the choice to remain silent. La-Salle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995). At the same time, a plaintiff may not rest solely on the defendant's assertion of privilege to establish liability based on refusal to answer a complaint or to testify at a disciplinary hearing if there is no other evidence supporting liability. Id. at 391 (quoting National Acceptance Co. of America v. Bathalter, 705 F.2d 924, 932 (7th Cir. 1983)); see also Baxter v. Palmigiano, 425 U.S. 308, 316, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Burge relies on this doctrine, not to establish liability, but to be exonerated from it, contending that there is no other evidence in the record from which a reasonable jury could infer liability.

         To prevent the case from going to the jury undermines the jury's ability to draw adverse inferences that could establish the elements of the claim. Nonetheless, the courts that have addressed the issue in the context of a defendant's seeking summary judgment have held that the non-movant must point to some evidence in addition to defendant's silence to avoid summary judgment. See, e.g., Logan v. City of Chi., 891 F.Supp.2d 897, 901 (N.D. Ill. 2012) (“[A] party's refusal to answer questions during discovery is not enough to create an issue of fact to avoid summary judgment.”) (internal quotation marks omitted); Thompson v. City of Chi., 2009 WL 674353, *3 (N.D. Ill. March 12, 2009) (reciting that other evidence is necessary for plaintiff to show an issue of fact). This court accepts that view on the assumption that the Seventh Circuit would agree, and that the same rule would justify judgment as a matter of law at the close of the plaintiff's case.


         I. Count I (deprivation of due process by suppressing material evidence, fabricating evidence, and coercing witnesses)[10]

         A. ...

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