Clark et al v. Chicago Police Officers John Doe 1-3

Filing 362

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 1/3/2012:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TROY CLARK and TAMIRA SMYTH,
Plaintiffs,
v.
P.O. ALBERT D. POWE, #18203,
MIGUEL RESTO, MICHAEL ELLIS,
JOHN DOE 2-5, DETECTIVE
RANDALL BACON, Individually, and
the CITY OF CHICAGO,
Defendants.
__________________________________
MARCELO GONZALES,

Case Nos. 07 C 1616 and 07 C 5251
Consolidated.
Judge Sharon Johnson Coleman

Plaintiff,
v.
P.O. ALBERT D. POWE, #18203,
MIGUEL RESTO, MICHAEL ELLIS,
JOHN DOE 2-5, DETECTIVE
RANDALL BACON, Individually, and
the CITY OF CHICAGO,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiffs Troy Clark, Tamira Smyth, and Marcelo Gonzales filed two complaints
alleging various federal and state claims arising from an incident on March 9, 2007, during
which plaintiffs allege they were held captive, beaten, and robbed by several individuals
including at least one Chicago police officer, Albert Powe. Plaintiffs also allege conspiracy to
cover up wrongdoing by police officers against Detective Randall Bacon, the investigating
officer. Defendants have filed four motions for summary judgment, which the Court will
address in the instant order.

Background
The following facts are undisputed unless otherwise noted. In March 2007, Tamira
Smyth lived at 1646 N. Bosworth in Chicago, Illinois. Her boyfriend, Troy Clark lived at 4800
S. Lake Park in Chicago, Illinois. Troy Clark uses the nickname “Silk”. Marcelo Gonzales
worked for Clark as a subcontractor. Gonzales met Clark in February 2007, approximately two
weeks before the incident.
On March 9, 2007, Tamira Smyth returned home around 11 am after running errands.
When she pulled into her garage, a blue Crown Victoria blocked her in and a man1 (“Man #1”)
got out. He was dressed in street clothes and wore a black baseball cap with a police patch on the
front. Man #1 came up to Smyth’s car window and asked her at gun point to get out of the car.
He handcuffed her and told her it was about her friend “Silk.” A second man (“Man #2”) walked
up. Smyth could see a blue and white car, which she believed to be a police car, parked behind
the Crown Victoria. The blue and white car left and Man #1 took Smyth up to her apartment.
Inside Smyth’s apartment, Man #1 asked her where the drugs and money were and
Smyth responded that there were not any in the apartment. Smyth remained handcuffed until she
asked to use the restroom. While Smyth was in the bathroom, Man #2 came in and threatened
her with a gun. She could hear the two men ransacking her apartment. After coming out of the
bathroom, Smyth was bound with duct tape instead of re-handcuffed. Smyth believes Man #2
left her apartment between noon and 1:00 p.m. and that she was alone with Man #1 for one to
one and half hours, but she is not sure.
Clark and Gonzales arrived at Smyth’s apartment around 5:00 pm. Gonzales waited in
the car, while Clark went upstairs. Clark was grabbed, bound with duct tape, and beaten as soon
1

Since the identities of all the perpetrators are not known, this Court has elected to refer to each as “Man” with a
numerical designation (ex. Man #1). The perpetrators are numbered sequentially (1 to 4) in the chronological order
in which each arrived on the scene and thereafter referred to by their number.

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as he entered Smyth’s apartment. Two men (“Man #3” and “Man #4”) approached Gonzales
while he waited in the car. They announced they were police and both had guns. They took
Gonzales up to Smyth’s apartment where he was blindfolded with duct tape. Gonzales heard
Clark being beaten and other noises for over an hour before it went silent.
Smyth overheard Man #2 on his cell phone saying the money might be at another
location. Sometime after dark, around 6:30 or 7:00 p.m. Man #2 had Smyth drive her car to
Clark’s residence at 4800 S. Lake Park. On the way, Smyth overheard Man #2 on the phone
saying something about having a police car at Clark’s when they arrived. Smyth testified that she
thought it was Man #1 on the phone. Smyth saw a police car in front of Clark’s building. The
security guard let them in and Man #2 had Clark’s keys. Man #2 searched Clark’s apartment for
approximately 30 minutes. Smyth left with Man #2 and returned to her apartment. The police car
was still parked in front of Clark’s building when they left.
When Smyth and Man #2 arrived back at Smyth’s apartment, Clark and Gonzales were
still there with Man #3 and Man #4. When Clark heard Smyth and Man #2 return without finding
any money, he told the men about the $5000 in his laptop case. Approximately four or five hours
passed before Gonzales and Clark were taken out of the apartment and put in car. They were
driven for fifteen or twenty minutes. When the car stopped, Clark and Gonzales were taken
down to a basement. Clark was beaten again and Gonzales was hit in the head three times with a
two-by-four. Gonzales remained blindfolded and could not see who hit him or Clark. Somebody
took $800 from Gonzales and then put him in a car trunk for five minutes before letting him go.
When Gonzales got out of the trunk he saw Clark injured nearby. They were in an alley and
walked out to the street where they were able to call the police and an ambulance. They later
learned that they were in Harvey. Gonzales and Clark arrived at the hospital around 1:00 a.m. on

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March 10, 2007. Smyth was left alone at her apartment at 8:24 p.m. She called 911 a little after
midnight.
Ten days after the incident, Clark and Smyth were interviewed by Federal Bureau of
Investigation Special Agents Ashcroft and Samuels. During the interview, Clark told the agents
and Detective Randall Bacon of the Chicago Police Department Internal Affairs division that
three people, Stan Ellis, his brother Michael Ellis, and Gregory Jackson were capable of carrying
out the incident. Clark admitted to the FBI agents and Detective Bacon that he initially thought
Smyth could be involved.
Detective Bacon was assigned to investigate because Gonzales had told police that one of
the perpetrators announced himself as police. Bacon’s investigation was separate and in addition
to the criminal investigation conducted by Area 5 detectives. Bacon obtained tracking reports to
determine whether any Chicago Police vehicles were in the vicinity of either Smyth’s apartment
or Clark’s at the time of the incident. None were reported. Bacon facilitated a photo array
session for Smyth in which she viewed thousands of photos over several hours and viewed two
live lineups with her lawyer present. Smyth identified Officer Powe as one of the assailants.
Bacon investigated Powe based on Smyth’s identification. He determined from dispatch and
radio records that Powe worked on March 9, 2007, from 4:00 p.m. to 12:30 a.m. in the same
district as 4800 S. Lake Park. Bacon obtained various police records but none provided any
information to verify the presence of police personnel. Bacon also obtained sergeant’s logs from
Powe’s district and visited 4800 S. Lake Park to get any surveillance video. Bacon reviewed
Powe’s arrest history and found no connection to plaintiffs. Bacon also requested name search
reports to find any potential links. Bacon subpoenaed Powe’s cell phone and direct connect
(“chirp”) telephone records to identify callers. Bacon had the Illinois State Police Crime lab

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analyze physical evidence from Smyth against Powe’s DNA and fingerprints. No match was
found. The analysis performed by the Illinois State Police did reveal a match to Miguel Resto.
Clark and Gonzales also identified Resto from a lineup facilitated by Bacon. Powe gave a
statement and was interviewed by Detective Bacon. He provided an alibi, stating that he was
working on his mother’s bathroom with help from Leslie Irving prior to his 4:00 p.m. shift on
March 9, 2007. Bacon spoke to Leslie Irving to confirm the alibi. Bacon recommended to his
superiors that the charge not be sustained because there was a lack of evidence tying Powe to the
incident.
In his deposition, Clark claimed that Bacon failed to pursue certain steps that amounted
to abandoning the investigation, including failing to check tower records on Powe’s cell phone,
holing back Powe’s phone records for two years, and failing to interview Stan Ellis, Gregory
Jackson or Mike Ellis. Neither Stan nor Mike Ellis nor Gregory Jackson is Chicago Police
Officers.
Legal Standard
A party is entitled to summary judgment if all of Athe pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law.@ Fed. R. Civ. P. 56(a). When
considering a summary judgment motion, the Court construes the facts and all reasonable
inferences in the light most favorable to the non-moving party. Abdullahi v. City of Madison,
423 F. 3d 763, 773 (7th Cir. 2005). The party who bears the burden of proof on an issue may not
rest on the pleadings or mere speculation, but must affirmatively demonstrate that there is a
genuine issue of material fact that requires a trial to resolve. Celotex v. Catrett, 477 U.S. 317,
324 (1986).

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Discussion
1. The City of Chicago
The City of Chicago moves for summary judgment on the basis that no reasonable jury
could find that any of the alleged actions committed by Powe are within the scope of his
employment as a police officer, thus it is not required to indemnify Powe and any claims based
on respondeat superior must fail. This Court disagrees.
Pursuant to the Local Government Tort Immunity Act, a municipality is required to pay
for compensatory damages awarded for torts committed willfully and wantonly by a municipal
employee acting within the scope of his employment. 745 ILCS 10/9-102. Summary judgment is
generally inappropriate when scope of employment is at issue. Pyne v. Witmer, 129 Ill. 2d 351,
359 (Ill. 1989). A court should grant summary judgment only if no reasonable person could
conclude from the evidence that an employee was acting within the scope of his employment. Id.
The term “scope of employment,” has no precise definition, but generally courts apply the
following broad criteria: “(1) Conduct of a servant is within the scope of employment if, but only
if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized
time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, (2)
Conduct of a servant is not within the scope of employment if it is different in kind from that
authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to
serve the master.” Id. at 360.
Here, although there is considerable evidence in the record that could support an
inference that the defendants were involved in criminal activity that would certainly be beyond
the scope of employment for a police officer, there are also facts that could reasonably be
interpreted by a jury as conduct within the scope of employment. Police officers have a variety

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of duties including, conducting searches, looking for drugs, carrying weapons, and giving orders.
The Seventh Circuit has repeatedly warned against resolving indemnity before liability. See, e.g.,
Doe v. City of Chicago, 360 F.3d 667, 672 (7th Cir. 2004). Finding that in the light most
favorable to plaintiffs fact issues exist appropriate for resolution by a jury, this Court denies
summary judgment to the City of Chicago.
2. Officer Albert D. Powe
Powe filed two motions for summary judgment (one on Clark and Smyth’s complaint and
the other on Gonzales’ complaint) asserting that none of the alleged conduct could reasonably be
construed as “under color of law,” which is a necessary element to sustain a section 1983 civil
rights claim. Traditionally, courts have held that a defendant acts under the color of law when he
exercises power “possessed by virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.” United States v. Classic, 313 U.S. 299, 326 (1941).
The question of whether a police officer acted under color of law is not answered by whether the
officer was on duty. Nor is the presence or absence of a uniform, patrol car, badge or gun,
dispositive of the issue. Here, there are ample facts from which a jury could conclude that Powe
was acting under color of law. Smyth testified that Powe exited a blue Crown Victoria, wore a
baseball hat with a police patch, and carried a gun and handcuffs. Smyth also testified that she
saw a blue and white car parked behind the Crown Victoria that she believed was a police car.
Powe ordered her to exit her vehicle, handcuffed her, and searched her residence. Accordingly,
Powe’s motions are denied.
3. Detective Randall Bacon
Bacon moves for summary judgment on the basis that there is no evidence of a
conspiracy, there is no constitutionally protected right to an investigation of a certain quality,

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and Bacon has qualified immunity from suit. Count X of Clark and Smyth’s Ninth Amended
Complaint and Count IX of Gonzales’ Fourth Amended Complaint allege conspiracy to violate
due process against Detective Randall Bacon.
The right of individuals to seek legal redress for claims that have a basis in law and fact
is protected by the First and Fourteenth Amendments to the U.S. Constitution. See Bill Johnson’s
Restaurants v. NLRB, 461 U.S. 731, 741 (1983). The conduct of state actors to impede an
individual’s access to courts may give rise to a civil rights claim pursuant to section 1983 of the
Civil Rights Act of 1964. See Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir. 1995). “Judicial
access must be ‘adequate, effective, and meaningful,’ and therefore, when police officers
conceal or obscure important facts about a crime from its victims rendering hollow the right to
seek redress, constitutional rights are undoubtedly abridged.” Id. (quoting Bounds v. Smith, 430
U.S. 817, 822 (1977)).
Here, to the extent that plaintiffs’ conspiracy claim rests on allegations that Detective
Bacon failed to fully investigate the incident, that claim must fail because the Seventh Circuit
does not recognize a claim for “inadequate police investigatory work” in the absence of some
other recognized constitutional violation. See Lyons v. Adams, 257 F.Supp.2d 1125, 1135 (N.D.
Ill. 2003)(collecting cases). Moreover, there is no evidence to show that Bacon’s conduct caused
plaintiffs to be denied access to the courts or in any way prevented from suing. Additionally,
there is no evidence in the record to show that Bacon was engaged in a conspiracy. It is
undisputed that Detective Bacon was conducting an internal affairs investigation and that it was
separate and distinct from the criminal investigation into the incident conducted by other
officers. Thus, any allegations that Bacon failed to interview or follow up with civilians
identified by plaintiffs as potentially being involved does not support an inference that he

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actively concealed information by agreement with some unknown other officers. To find
otherwise would be pure speculation.
Even assuming arguendo that Bacon did not conduct a thorough investigation, he would
be immune from suit under the qualified immunity of a public employee carrying out his law
enforcement duties. “A public employee is not liable for his act or omission in the execution or
enforcement of any law unless such act or omission constitutes willful and wanton conduct.” 745
ILCS 10/2-202. There is no evidence in the record to support even an inference that Bacon’s
failure to interview individuals named by plaintiffs as potentially involved or failing to request
the cell phone tower records for Powe’s phone constituted willful and wanton conduct.
Accordingly, Bacon’s motion is granted.
Conclusion
For the reasons stated above, the Court denies the City of Chicago’s motion for summary
judgment [318]. The Court also denies Powe’s motions for summary judgment against Clark
[322] and Gonzales [87]. Detective Bacon’s motion for summary judgment [314] is granted.
Status hearing set for Monday, January 9, 2012, at 9:00 a.m.

IT IS SO ORDERED.
Date: January 3, 2012

Entered:______________________________
Sharon Johnson Coleman

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