Worthem v. Nolan et al
Filing
126
MEMORANDUM Opinion and Order; Defendants Bennett's and Wilson's motion to dismiss 102 is granted. Defendants Oswald's and Saladino's motion to dismiss 107 is denied. Count IX of the Second Amended Complaint is dismissed a nd defendants Bennett and Wilson are dismissed from this action. References to the Illinois Appellate Defender contained in paragraphs 54 and 55 of the Second Amended Complaint are stricken. Within two weeks, defendants Oswald and Saladino shall answer the Second Amended Complaint. A status hearing is set for August 13, 2015 at 2:00 p.m. Signed by the Honorable William T. Hart on 7/16/2015:Mailed notice(clw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES WORTHEM,
Plaintiff,
v.
MICHAEL NOLAN, ET AL.
Defendants.
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No. 08 C 2444
OPINION AND ORDER
Plaintiff James Worthem brings this action to recover for deprivation of
constitutional and state law rights against defendant Chicago police officers
Michael Nolan, M. R. Scott, J. Ferraro, Ralph Benavides, Matthew Ripley,
J.J. Murphy, Detective Y. Badge #20871, Detective R. H. Badge #17921,
E. Oswald, and C. Saladino, the City of Chicago, and Assistant Appellate
Defenders Michael Bennett and Michael Wilson. The court has jurisdiction of the
subject matter and the parties pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.
Before the court are two motions pursuant to Fed. R. Civ. P. 12(b)(6).
Defendants Oswald and Saladino contend that this action is time-barred as to
them. Defendants Bennet and Wilson contend that Counts VIII and IX fail to state
a cause of action for willful and wanton misconduct within the meaning of the
Public and Appellate Defender Immunity Act, 745 ILCS 19/5.
Criminal Proceedings1
Following a bench trial in the Circuit Court of Cook County, Illinois,
Worthem was found guilty of robbery and sentenced as a Class X offender to
20 years' imprisonment. The trial court denied a motion to quash his arrest and
suppress evidence and found that the officers had probable cause to arrest
Worthem based on the evidence known to the officers at the time.
The facts, as stated in state court opinions as they pertain to Worthem's
arrest, relate a robbery of Concepcion2 Solis on April 22, 2007. Solis was walking
on the 3900 block of West Grand Avenue in Chicago when she noticed that she
was being followed by a man and a woman. When she reached the intersection of
LeMoyne Street and Pulaski Road, the man pushed her to the ground and snatched
her purse. Solis chased the offender. She saw the woman who had previously
1
The court may take notice of the public record of the criminal
proceedings leading to this case without converting a motion to dismiss into a
motion for summary judgment. Henson v. CSC Credit Serv., 29 F.3d 280, 284
(7th Cir. 1994).
2
The Second Amended Complaint alleges her name is "Conception," but
state court records support the correct spelling is "Concepcion."
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been following her assist the man into the rear gate of the building at 3958 Grand
Avenue. The woman came out of the building and asked Solis if they could "settle
in a good way." Solis fled and called the police.
When the police arrived, Solis told them what had happened--as best she
could, since she spoke little English and the officers spoke no Spanish--and took
them to the apartment building at 3958 Grand Avenue. The female offender was
still on the street. Officer Nolan detained her and called for a Spanish-speaking
officer. Solis described the man who robbed her as a 40-year-old white male,
between 5'9" and 5'10" inches tall weighing 198 pounds. The female offender,
identified as Anita Garcia, told Nolan that she lived in an apartment at 3958 West
Grand Avenue with her boyfriend, James Worthem. Officer Nolan obtained a
photograph of James Worthem on his squad car computer. Garcia identified
James Worthem as her boyfriend. Solis did not make a photo identification at that
time. Officer Nolan wrote a police report, in which he stated that a "possible
offender" was a "white male in his forties" who "matches description, Worthem
James." He turned his report over to detectives for further investigation.
On the following day, Officer Scott was assigned to investigate the
robbery. After reading the police reports and speaking with detectives, he went to
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the area to search for the offender. He saw Worthem and placed him under arrest.
At the police station, Solis identified Worthem in a police lineup. After being
given Miranda warnings, Worthem made an inculpatory statement.
Later, the police discovered Solis's purse on the roof of the building at
3958 West Grand Avenue.
An indictment was returned on May 4, 2007. Plaintiff was found guilty
on February 4, 2008.
On direct appeal, defendant contented that the State violated Brady v.
Md., 373 U.S. 83 (1963), and Illinois Supreme Court Rule 412 when it failed to
produce a photo array viewed by the victim. A panel of the Illinois Appellate
Court affirmed, holding that the State could not be found at fault for failing to
produce what it did not possess. The opinion also states that the trial court found
that the police had probable cause for the arrest of plaintiff. The conviction was
affirmed. People v. Worthem, 398 Ill. App. 3d 1106, 988 N.E.2d 1125 (1st Dist.)
(unpublished), appeal denied, 237 Ill.2d 588, 938 N.E.2d 530 (2010), cert. denied,
131 S. Ct. 1004 (2011).
After his direct appeal, Worthem filed a post-conviction petition under
the Post-Conviction Hearing Act ("the Act"), 725 ILCS 5/122, in which he
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asserted that he was arrested without probable cause and that his appellate counsel
was ineffective for failing to raise the issue on direct appeal. The Act provides a
means by which a defendant may challenge his conviction for substantial
deprivation of federal or state constitutional rights. It is a collateral attack on a
prior conviction. The Act creates a three-stage procedure. At the second stage of
proceedings, which was the point at which the trial court ruled, the Circuit Court
must determine whether the petition and any accompanying documentation is
sufficient to make a substantial showing of a violation of rights. In order to move
to the third-stage evidentiary hearing, the petition must be supported by the record.
After hearing arguments by both parties, the Circuit Court dismissed the petition.
Worthem appealed the dismissal of his post-conviction petition to the
Illinois Appellate Court. A different panel of the Appellate Court resolved a claim
of ineffective assistance of counsel under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). The Court held Worthem made a sufficient
showing that there was not probable cause to permit his warrantless arrest and that
he was prejudiced by appellate counsel's failure to raise the issue on direct appeal.
The Appellate Court remanded the case to the Circuit Court to hold a third-stage
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evidentiary hearing on Worthem's post-conviction petition. People v. Worthem,
2013 IL App (1st) 121474-U, 2013 WL 6576047 (1st Dist. Dec. 12, 2013).
On remand to the Circuit Court, after a third-stage hearing, the Circuit
Court found ineffective assistance of counsel because counsel failed to raise on
direct appeal the absence of probable cause to permit a warrantless arrest. The
court granted the post-conviction petition for a new trial. People v. Worthem, No.
07-CR-09711 (Cir. Ct. Cook Cty., Ill. Oct. 31, 2014).
When the criminal case against Worthem was called for a new trial, the
Assistant State's Attorney made the following statement to the court:
MS. SHERIDAN: Your Honor, when this case was
remanded, the State assigned an investigator to find our
complaining witness, Concepcion, C O N C E P I O N [sic],
Solis, S O L I S. Ms. Solis testified at trial against
Mr. Worthem. Your Honor, the investigator reports that he
was not able to find the victim after conducting an extensive
search, that, based upon his investigation, he believes that the
victim, Ms. Solis, has moved back to Central America.
Because the State can no longer secure our victim, we cannot
meet our burden in this case. It would be motion State nolle.
For the record, your Honor, the People's motion is not
based on any undisclosed benefit to the defendant or any other
consideration. It is based on the fact that we cannot meet our
burden.
Jan. 22, 2015 Tr. at 2-3 [ECF 124].
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Based on the State's motion nolle prosequi, the case against Worthem
was dismissed on January 22, 2015.
Civil Proceedings
On April 29, 2008, plaintiff filed a pro se action in this court. On
July 9, 2008, defendants' motion to stay this action until Worthem's criminal
proceedings were concluded was granted. ECF 21. Although the federal case was
stayed, to avoid statute of limitations problems, on October 30, 2008, plaintiff was
permitted to amend to add additional defendants. ECF 27. Subsequently, plaintiff
was directed to refrain from filing further motions during the pendency of the stay.
Order dated Nov. 24, 2008 [ECF 36]. On October 30, 2009, plaintiff was
informed that if he sought to add additional defendants, he must submit an
amended complaint. ECF 124. On December 4, 2009, leave to amend was denied
for failure to comply with Fed. R. Civ. P. 8(a)(2). ECF 51. On February 16, 2011,
the case was dismissed without prejudice and with leave to move to reinstate
within 30 days after completion of post-conviction proceedings and any timely
habeas corpus proceeding. ECF 68.
On February 12, 2015, the stay was lifted and the federal case was
reopened. Plaintiff was now represented by counsel and was given leave to file an
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amended complaint. ECF 80. Thereafter, on March 12, 2015, the Second
Amended Complaint was filed adding defendants Saladino, Oswald, Bennett, and
Wilson.
Saladino's and Oswald's Motion
Defendants Saladino and Oswald state they were joined as defendants in
this action in Counts III, IV, and V on March 12, 2015, over eight years after
plaintiff was arrested and long after the expiration of the applicable statue of
limitations. These three counts are pursuant to 42 U.S.C. §1983 and are for false
arrest, failure to intervene, and conspiracy in violation of the federal Constitution.
Saladino and Oswald contend that the action is time-barred as to them.
The appropriate statute of limitations for § 1983 actions is the limitation
for personal injury actions in the forum state where the alleged constitutional
violation occurred. Wallace v. Kato, 549 U.S. 384, 387 (2007). In Illinois, the
period is two years. 735 ILCS § 5/13-202; Bryant v. City of Chicago, 746 F.3d
239, 241 (7th Cir. 2014) (per curiam).
When federal courts borrow the state statutes of limitations, as they do
for Section 1983 claims, they also borrow any applicable state tolling provisions.
Bryant, 746 F.3d at 843; Smith v. City of Chicago Heights, 951 F.2d 834, 839-40
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(7th Cir. 1992). In Illinois, the stay-of-action statute applies to toll the statue of
limitations when a court order stays the proceedings or discovery. 735 ILCS
5/13-216; Blanchard v. Weis, 2013 WL 3287115 *1 (N.D. Ill. June 24, 2013);
Ruffin v. Kane Cty. Sheriff Dep't, 2006 WL 2088186 *19 (N.D. Ill. July 21,
2006); Pettiford v. Sheahan, 2002 WL 1433503 *2 (N.D. Ill. July 2, 2002).
Plaintiff brought this action pro se while in custody. Although
amendments to add additional defendants were initially allowed, plaintiff was not
able to pursue discovery. This is not a case in which the tolling statue should be
given a narrow construction because plaintiff may have been aware of conduct on
the part of either of the moving defendants. The motion to dismiss the action as
time-barred will be denied.
Bennett's and Wilson's Motion to Dismiss
Count IX of the Second Amended Complaint alleges a legal malpractice
claim against appellate defenders Bennett and Wilson for ineffective assistance in
failing to argue on direct appeal that there was an absence of probable cause to
effect a warrantless arrest of Worthem. In his response to defendants' motion to
dismiss, plaintiff agrees to dismiss defendant Bennett, stating he does not have
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sufficient information to characterize Bennett's conduct as willful or wanton.
ECF 112 at 1, n.1.3
Defendants state that, except for willful and wanton misconduct, they
have immunity from suit under the Public and Appellate Defender Immunity Act,
745 ILCS 19/5. State rules of immunity are applicable to state law claims brought
in a federal court. Benning v. Bd. of Regents of Regency Univs., 928 F.2d 775,
779 (7th Cir. 1991). The Immunity Act provides that appellate defenders shall not
be liable "by reason of legal or professional malpractice, except for willful and
wanton misconduct."
The issue presented is whether plaintiff has alleged facts sufficient to
state a cause of action that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). Facial
plausibility is sufficient only if there is sufficient factual content to "allow[] the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602
(7th Cir. 2009) (quoting Iqbal, 556 U.S. at 663).
3
In Count VIII of the Second Amended Complaint, plaintiff alleges that
the Office of the Illinois Appellate Defender is liable for the acts of the
defendants, but does not otherwise name that entity as a defendant. Based on the
ruling made with respect to Count IX, that aspect of Count VIII will be stricken.
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The facts relating to the malpractice claim are fully stated in the state
court opinions. There was a disagreement among counsel as to what arguments
should be raised on direct appeal. Attorney Wilson informed Worthem of the
disagreement and wrote to him as follows:
I'm sorry that we could not come to an agreement as to your
issue regarding the trial court's denial of the motion to quash
arrest and suppress statements. As I told you on the phone,
my supervisor has instructed me to leave this issue out of the
brief because he feels that it does not have sufficient merit and
because its presence in the brief will detract from your
stronger discovery issue. However, as we discussed on
July 31st, you have the option of attempting to file a
supplemental brief, addressing any issues that you feel
strongly about.
Worthem, 2013 WL 6576047 at *9.
Plaintiff filed a motion to file a supplemental brief which was denied.
Thereafter, Wilson wrote the plaintiff as follows:
Please find enclosed [the] appellate court order.
Unfortunately, the appellate court denied your motion for
leave to file a supplemental brief. As you can see, the
appellate court's decision is not based on the fact that you
failed to provide nine copies required under [the] Supreme
Court Rule[s]. They just simply denied it. You still have
options. As I explained to you during our phone
conversations, even though your direct appeal has not yet
been decided, you may immediately file a postconviction
petition alleging all of the errors that occurred on or off the
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record during the entire prosecution, including pretrial, trial
and direct appeal errors. One of the errors that I believe you
will want to allege is my ineffectiveness for failing to raise the
issues that you attempted to raise in your supplemental brief.
Id.
Wilful and wanton conduct has been defined as a course of action which
shows actual or deliberate intent to harm or which, if the course of action is not
intentional, shows an utter indifference to or conscious disregard for a person's
own safety or the safety, property, or rights of others. Pfister v. Shusata, 167
Ill. 2d 417, 657 N.E.2d 1013, 1016 (1995); Holland v. Schwan's Home Serv.,
Inc., 2013 IL App (5th) 110,560, 992 N.E.2d 43, 81 (5th Dist. 2013); Gomez v.
The Finishing Co., 369 Ill. App. 3d 711, 861 N.E.2d 189, 196 (1st Dist. 2006).
The facts with respect to ineffective assistance of counsel do not
disclose intent to harm or utter indifference. Rather, there was a disagreement as
to what points were best to be argued on appeal. The disagreement was disclosed
to Worthem. He was told how to raise the issue of probable cause on his own in a
separate filing which he did. He was also told how to raise the same issue, along
with an ineffective assistance claim, in post-conviction proceedings. Plaintiff's
post-conviction petition prevailed on appeal and on remand. There is no basis to
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argue that the ineffective assistance of counsel found by the state courts
constitutes willful and wanton conduct.
IT IS THEREFORE ORDERED that defendants Bennett's and Wilson's
motion to dismiss [102] is granted. Defendants Oswald's and Saladino's motion to
dismiss [107] is denied. Count IX of the Second Amended Complaint is dismissed
and defendants Bennett and Wilson are dismissed from this action. References to
the Illinois Appellate Defender contained in paragraphs 54 and 55 of the Second
Amended Complaint are stricken. Within two weeks, defendants Oswald and
Saladino shall answer the Second Amended Complaint. A status hearing is set for
August 13, 2015 at 2:00 p.m.
ENTER:
UNITED STATES DISTRICT JUDGE
DATED: JULY 16, 2015
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