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Gully v. Jaco

United States District Court, N.D. Illinois

August 27, 2019

Bernard Gully #N92475, Plaintiff,
Officer Ustad Jaco, et al., Defendants.


          Manish S. Shah U.S. District Judge

         Defendants' motion to dismiss [56] is granted. The complaint is dismissed without prejudice based on Heck v. Humphrey. Enter judgment and terminate case.


         Plaintiff Bernard Gully, an Illinois prisoner, brings this civil rights action under 42 U.S.C. § 1983, claiming that Defendants (three University Park, Illinois police officers) falsely arrested him in violation of the Fourth Amendment. Defendants argue that Plaintiff's amended complaint must be dismissed under Heck v. Humphrey, 512 U.S. 477 (1994).

         Plaintiff alleges that on November 19, 2013, Defendant Jaco stopped him for allegedly speeding in University Park, Illinois; however, Jaco had no evidence to support the alleged speeding violation and used the alleged speeding as a pretext to conduct an illegal stop. Plaintiff was then unlawfully searched and arrested by defendants Jaco, Jones, and Gebert. Dkt. 8, Am. Complt., at 1. Plaintiff further alleges that Jaco told him that the cameras were on and then fabricated an aggravated battery “event for the benefit of the camera.” Id.

         The Court takes judicial notice of the public records of Gully's state-court criminal proceedings. See Milwaukee Police Ass'n v. Flynn, 863 F.3d 636, 640 (7th Cir. 2017), reh'g denied (Aug. 14, 2017) (“the court ‘may . . . take judicial notice of matters of public record.'”) (quoting United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991)).

         After his arrest on November 19, 2013, Plaintiff was initially charged by information with aggravated battery and aggravated driving while under the influence. On November 19, 2013, Plaintiff was also issued citations for and charged with traffic violations. Dkt. 56-1, at 20-23.

         At his first hearing, Plaintiff pled not guilty, but waived his right to a Gerstein (i.e., probable cause) hearing. Dkt. 56-1, at 23; Dkt. 56-4, at 4. Later, a grand jury charged Plaintiff with aggravated battery, aggravated driving under the influence, and aggravated driving while license suspended. Id., Ex. 1 at pp. 20-23; Ex. 2 at ¶ 35-38, 53, 64-69; Ex. 12 at p. 1. Gully pled not guilty. Id., Ex. 1 at p. 22; Ex. 2 at ¶ 60; Ex. 4 at p. 2.

         Gully filed several pre-trial motions during his criminal proceedings, including a motion to dismiss the bill of indictment, motions to quash arrest and suppress evidence, motions for discovery and discovery sanctions, and a motion in limine to bar certain evidence. The circuit court denied each of Gully's pre-trial motions. Id., Ex. 1 at pp. 8- 20; Ex. 2 at ¶ 71-78, 95-96, 101-103, 111-113, 118-119, 130-131, 136-138, 141-142, 144-145, 205-207, 211; Ex. 5; Ex. 6; Ex. 7; Ex. 8; Ex. 9; Ex. 10.

         Gully filed this lawsuit in 2015, and by agreement, the case was stayed while Gully's criminal prosecution was pending. On January 4, 2016, Gully pled guilty to and was convicted of the offenses of aggravated DUI and aggravated battery by the circuit court. In exchange for his guilty plea, the charge of aggravated driving while license suspended/revoked and the traffic violation charges were nolle prosequi'd. Id., Ex. 1 at p. 8; Ex. 11 at p. 2; Ex. 13 at ¶ 266-383. The circuit court sentenced Gully to four years' imprisonment. Id., Ex. 1 at p. 8; Ex. 2 at ¶ 1-3, 236-248; Ex. 11.

         The circuit court found that the following factual basis existed for Gully's guilty plea:

[O]n November 19, 2013, at approximately 2 p.m. an officer with the University Park police department attempted to stop this defendant near 24520 Western avenue in University Park for speeding, going 67 in a 45. After stopping the defendant, the officer noticed him holding an unknown object in his hand. When the defendant exited, the defendant dropped the item inside of his car. The officer noticed a strong odor of alcoholic beverage coming from the defendant. He began arguing with the [officer] about the stop. He would not present his hands to the officer. He eventually, the officer, located a pocket knife on the defendant's person when he started patting him down. The defendant then kicked the officer in the knee and stomped on his foot numerous times. The officers looked, found a taser gun inside of his vehicle that was aggravated (sic) and charged, two bottles of Bacardi rum; one of which was half full. State's evidence would show that the defendant's license was revoked for reckless homicide DUI conviction from 1986. The defendant was required to have a BAIID device installed to drive. He didn't have a device. He refused field sobriety tests, refused all chemical tests, and would periodically fall asleep and wake up during processing. The State's evidence would further identify that police officer as Ustad Jaco.

Id., Ex. 11, pp. 5-7, 13-14.

         On January 19, 2016, Gully filed a post-conviction petition contending that: (1) he was coerced into signing a jury waiver, (2) his attorney was ineffective for failing to present a defense, and (3) the circuit court erred in denying his pre-trial motions. The circuit court denied ...

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