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Casciaro v. Allmen

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

November 22, 2017

Mario Casciaro, Plaintiff,
v.
Keith Von Allmen, et al., Defendants.

          ORDER

          Philip G. Reinhard Judge.

         For the reasons stated below, defendants' motion [41] 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.

         STATEMENT-OPINION

         Plaintiff, 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).

         Plaintiff 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 [41] to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

         The 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.

         To 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.

         The 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.

         The 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.

         Von 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.

         Von 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.

         On 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 criminal defense.

         Throughout 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.

         Plaintiff 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 ...


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