United States District Court, N.D. Illinois, Western Division
G. Reinhard Judge.
reasons stated below, defendants' motion  to dismiss
is denied. The parties are directed to contact Magistrate
Judge Johnston within 30 days to discuss whether a settlement
conference or mediation would be beneficial at this time.
Mario Casciaro, brings this action against defendants, Keith
Von Allmen, in his individual capacity (“Von
Allmen”), Unknown City of Johnsburg Police Officers, in
their individual capacities, and the City of Johnsburg
(“Johnsburg”). This case arises from the
disappearance and presumed murder of Brian Carrick
(“Carrick”). During the investigation of
Carrick's disappearance, plaintiff was charged with
perjury and acquitted at trial. He was later charged with
murder and, after his first murder trial ended in a hung
jury, he was tried again, convicted and sentenced to 26 years
in prison. His conviction was reversed by the Illinois
appellate court. People v. Casciaro, 49 N.E.3d 39 (
Ill. App. 2015).
filed his first amended complaint in this case on June 20,
2017 alleging, pursuant to 42 U.S.C. § 1983, a violation
of his 14th Amendment Due Process rights (Count I)
and conspiracy to violate his constitutional rights (Count
II). He also brings state law claims for malicious
prosecution (Count III), intentional infliction of emotional
distress (Count IV), conspiracy (Count V), respondeat
superior (Count VI) and indemnification (Count VII).
Jurisdiction is proper under 28 U.S.C. § 1331 and 1367.
Defendants Von Allmen and Johnsburg move  to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a
claim upon which relief can be granted.
information in this paragraph, gleaned from People v.
Casciaro, 49 N.E.3d 39 ( Ill. App. 2015), provides some
context for reviewing plaintiff's complaint. Carrick was
last seen on December 20, 2002 at Val's Foods
(“Val's”), a store in Johnsburg, Illinois.
Over seven years later, in February 2010, plaintiff was
indicted for Carrick's murder. After his first trial, in
2012, ended in a hung jury, he was tried again, in 2013, and
convicted of felony murder predicated on intimidation. One of
the state's theories for the predicate offense of
intimidation was that an individual, Shane Lamb, was the
instrument of defendant's intimidation of Carrick.
Id., at 56. During plaintiff's second trial,
Lamb testified for the state. Lamb had been granted full
immunity by the state for Carrick's death. Id.,
at 48. Lamb testified that on the date Carrick was last seen,
plaintiff had called Lamb and asked him to come to Val's
to talk to Carrick about money Carrick owed plaintiff.
Id. He testified that when he got to Val's, he
found plaintiff and Carrick arguing about the money Carrick
owed plaintiff. Id., at 48-49. Lamb testified that
he (Lamb) then started arguing with Carrick, lost his temper
and hit Carrick and thought he had knocked Carrick out.
Id., at 49. At that point, Lamb testified plaintiff
told Lamb to leave the store. Id.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
“the complaint must state a claim to relief that is
plausible on its face.” Bancorpsouth, Inc. v.
Federal Ins. Co., 873 F.3d 582, 586. (7th
Cir. 2017) (internal quotation marks and citations omitted).
All well-pleaded factual allegations are accepted as true and
all reasonable inferences are drawn if favor of plaintiff.
Id., at 585.
gist of plaintiff's complaint is that defendants ignored
overwhelming evidence that Carrick was killed by Robert
Render, Jr. (“Render”) and, despite the lack of
evidence against plaintiff, diverted the investigation from
Render to pursue plaintiff because Von Allmen was a friend of
Render's father. Defendants withheld from plaintiff
evidence implicating Render (and exculpating plaintiff) which
led to plaintiff's wrongful conviction denying him his
constitutional right to a fair trial.
following facts are taken from plaintiff's complaint.
Carrick was employed at Val's at the time of his
disappearance. Render also worked at Val's. Von Allmen, a
Johnsburg police officer, was assigned to investigate
Carrick's disappearance. Von Allmen reported to Val's
on December 22, 2002 and interviewed witnesses including
Anthony Gebauer (“Gebauer”). Gebauer provided
information inculpating Render. Gebauer told Von Allmen that
Render had told him there had been a fight in the produce
cooler on the night of December 20, 2002. No other witness
reported anything about a fight. Gebauer told Von Allmen that
Render had told him a week earlier that Render was going to
jump Carrick and Render had a weapon. Render told Gebauer
that he “was pissed off at Carrick about owing him
money.” Gebauer told Von Allmen that Render had a
vendetta against Carrick and that Render had weapons. Von
Allmen did not prepare a report reflecting any of these
statements and did not take proper steps to disclose them to
plaintiff. These statements were exculpatory for plaintiff
but Von Allmen did not disclose them to plaintiff.
Allmen, some time prior to plaintiff's criminal trial,
interviewed Jacob Kepple. Kepple told the police that Carrick
had told him shortly before he went missing that Render owed
him money and he was going to charge Render interest if he
did not pay the money owed. Von Allmen did not prepare a
report reflecting any of these statements and did not take
proper steps to disclose them to plaintiff.
Allmen also interviewed Lorenzo Vallone, on or about December
22, 2002. Vallone was Gebauer's supervisor at Val's.
Vallone told Von Allmen that before 7:00 p.m. on the night
Carrick went missing, he gave the key that opened the padlock
on the southeast exit door of Val's to Render. Vallone
further told Von Allmen that later that same evening, Vallone
discovered the key to the southeast exit door in the padlock.
He removed the keys and took possession of them. Von Allmen
did not prepare a report reflecting any of these statements
and did not take proper steps to disclose them to plaintiff.
April 4, 2003, Gebauer was working on the plumbing at
Val's. He removed some ceiling tiles in the women's
restroom and blood-soaked underwear fell out. Gebauer, along
with his father, took the underwear to the Johnsburg police
department that day. The underwear was a boy's size that
could have fit Render but not plaintiff or Shane Lamb. The
police departments evidence logs turned over in discovery to
plaintiff's lawyer in the criminal case do not reflect
that the underwear had been preserved or retained. Von Allmen
inspected the underwear and threw it away. Von Allmen did not
take proper steps to disclose anything about his observations
of the bloody underwear to plaintiff. Because plaintiff never
received any information about Von Allmen's observations
about the underwear and because Von Allmen threw the
underwear away, plaintiff was unable to use it in his
the investigation Von Allmen had numerous conversations with
Render's father. He did not prepare any reports on any of
these discussions and did not ensure that information and
evidence of the discussions was properly disclosed to
plaintiff. Von Allmen did not disclose his personal
relationship with Render's father.
argues defendants' actions described above state a claim
for a constitutional violation under Brady v.
Maryland, 373 U.S. 83 (1963). “The Brady rule
holds that ‘suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment.' 373 U.S. at 87, 83 S.Ct. 1194.
‘Suppression' occurs when the prosecution
‘fail[s] to disclose evidence not otherwise available
to a reasonably diligent defendant.' Jardine v.
Dittmann, 658 F.3d 772, 776 (7th Cir. 2011). And
evidence is deemed ‘material' only when ‘a
reasonable probability [exists] that, had the evidence been
disclosed to the defense, the ...