Cairel et al v. Alderden et al

Filing 136

MEMORANDUM OPINION Signed by the Honorable John F. Grady on March 6, 2014. Mailed notice(cdh, )

09-1878.141-RSK

Mar. 5, 2014

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEREMY D. CAIREL and MARVIN
JOHNSON,
Plaintiffs,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

v.
CHICAGO POLICE DETECTIVES JACOB
ALDERDEN, STAR NO. 20431, PATRICK
JOHNSON, STAR NO. 20637, and
LUIS OTERO, STAR NO. 21016, and
the CITY OF CHICAGO,
Defendants.

No. 09 C 1878

MEMORANDUM OPINION
Before the court are the defendants’ joint motions for summary
judgment.1

For

the

reasons

explained

below,

we

grant

the

defendants’ motions.
BACKGROUND
Plaintiffs Jeremy Cairel and Marvin Johnson have sued the
defendants

for

alleged

constitutional

violations,

malicious

prosecution, and intentional infliction of emotional distress
(“IIED”) stemming from their arrest and prosecution for robbery and
impersonating police officers.

Before discussing the facts, we

1/
We gave the defendants leave to file a “supplemental motion” for
summary judgment to assert their argument that the plaintiffs’ claims are timebarred. (See Dkt. #126.) For the sake of convenience, we will address the
defendants’ arguments as if they had raised them in a single motion.

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must

address

the

plaintiffs’

evidentiary

objections

to

the

defendants’ Rule 56.1 statement.2
A.

The Defendants’ Reliance on Police Reports
The plaintiffs have asked us to strike paragraphs of the

defendants’ Rule 56.1 statement as improperly based on hearsay
contained in police reports.

(See Pls.’ Resp. to Defs.’ Stmt. ¶¶

1, 2, 16, 18, 21, 24-27, 29-31, 40-42, and 52-53); see also Fed. R.
Civ. P. 56(c)(2) (“A party may object that the material cited to
support or dispute a fact cannot be presented in a form that would
be admissible in evidence.”).

The defendants respond that the

police reports are admissible as public records.

In a civil case,

a record describing a matter that a police officer observed while
under a duty to report is admissible.

See Fed. R. Evid. 803(8).

One of the challenged statements, paragraph 27, falls within this
exception.

(See Defs.’ Stmt. ¶ 27 (“Detective Alderden contacted

the Felony Review Unit of the Cook County State’s Attorney’s
Office.

Assistant

responded.”).)

State’s

Attorney

Elizabeth

Ciaccia

But a statement “is not admissible merely because

2/
After the plaintiffs filed their response to the defendants’ Rule 56.1
statement, the defendants filed a “Response” to the plaintiffs’ response. (See
Dkt. # 112.) The plaintiffs moved to strike this document because Local Rule
56.1 does not contemplate a further response from the moving party. We denied
the motion to strike, but said that we would allow the plaintiffs to file a
another brief if we felt that the defendants had unfairly raised new issues. We
now conclude that a further brief is unnecessary. The plaintiffs’ response to
the defendants’ Rule 56.1 statement asks us to strike several responses on
evidentiary grounds. If the plaintiffs had raised their objections in a separate
motion to strike, we would have given the defendants an opportunity to respond.
So, we conclude that the defendants’ response is appropriate insofar as it
addresses the plaintiffs’ evidentiary objections. We will not consider any nonevidentiary arguments raised in that filing.

- 3 -

[it is] contained in a police report.” Parsons v. Honeywell, Inc.,
929 F.2d 901, 907 (2d Cir. 1991).

Statements to law-enforcement

officials described in the report, and offered for their truth, are
not admissible unless they fall within another hearsay exception.
See id. (“It is well established that entries in a police report
which result from the officer’s own observations and knowledge may
be admitted but that statements made by third persons under no
business duty to report may not.”) (citation, internal quotation
marks, and emphasis removed).

But in this case, the defendants

have offered most of the challenged statements for their effect on
the defendants — whether they created probable cause to charge the
defendants for robbery and impersonating a police officer — not for
their truth.

See Woods v. City of Chicago, 234 F.3d 979, 986-87

(7th Cir. 2000) (“[T]he defendants offered the statements in the
arrest report and the verified criminal complaint describing the
details of the alleged altercation between Woods and Flores not for
their truth, but to show the effect that the statements had on the
officers.”); (see Defs.’ Stmt. ¶¶ 16, 18, 21, 24-25, 26, 29, 3031).

The plaintiffs have expressly or implicitly admitted the

other challenged statements.

(See Defs.’ Stmt. ¶¶ 1 (describing a

robbery that the plaintiffs effectively admit occurred in their
statement of additional facts at paragraph 23); 41-42 (stating the
charges against the plaintiffs); see also Pls.’ Resp. to Defs.’
Stmt. ¶¶ 52-53 (raising hearsay objections, but admitting the

- 4 -

substance of the statements).)

The plaintiffs’ request to strike

certain paragraphs of the defendants’ Rule 56.1 statement is
denied.
B.

The Plaintiffs’ Arrest and Prosecution
On December 21, 2006, Elias Arias reported to the Eighth

District Police that he had been pulled over, searched, and robbed
by three individuals claiming to be police officers.
Stmt. ¶ 1.)

(See Defs.’

Joseph Micetich contacted police officers on January

23, 2007 to report a similar crime: two people claiming to be
police officers pulled him over and robbed him at approximately
11:00 p.m.

(Id. at ¶ 2.)

Micetich followed the culprits’ car to

a nearby house and notified the police of their location.
Stmt. of Add’l Facts ¶ 26.)

(Pls.’

Police officers, including James

Blaszczyk, entered the house and arrested an individual named
Gumaro Delamora for drug and gun possession.

(Id.; see also Dep.

of James Blaszczyk, attached as Ex. 11 to Pls.’ Stmt. of Add’l
Facts, at 62, 65; Alderden Dep., attached as Ex. 4 to Defs.’ Stmt.,
at 41 (stating that the he believed Delamora was arrested for drug
and gun possession).)

Police officers did not show Delamora to

Micetich even though he matched the description that Micetich had
provided for one of the robbers.
26.)

(Pls.’ Stmt. of Add’l Facts ¶

During roll call the following day — January 24, 2007 — the

Eighth District watch commander announced that three or four males
had recently committed a string of robberies in the area by pulling

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cars over on the pretense that they were police officers.

(Id. at

¶ 3.)
That evening Cairel, Johnson, and Eric Moore — employees of a
repo company named F3 Solutions — were attempting to repossess a
white Ford Ranger on Chicago’s south side.
Pls.’ Stmt. of Add’l Facts ¶¶ 12, 17-18.)

(See Defs.’ Stmt. ¶ 4;
Moore and Cairel were in

one car, Johnson was alone in a second car.

(Defs.’ Stmt. ¶ 4.)

At approximately 11:00 p.m., Officers Blaszczyk and Guillermo Cerna
saw the plaintiffs’ vehicles: (1) fail to stop at a stop sign at
47th or 48th Street and Kedvale, and (2) use an alley as a
throughway.

(Id. at ¶ 7.)

They stopped both cars and obtained

identification and proof of insurance from the drivers.

(Id.)

Moore was wearing a bulletproof vest, a Maglite flashlight, a “duty
belt,” and a badge around his neck that said “loss prevention and
recovery.”
10.)

(Id. at ¶ 10; see also Pls.’ Resp. to Defs.’ Stmt. ¶

The plaintiffs had F3 Solutions identification badges and

repossession orders with them when they were arrested.
Stmt. of Add’l Facts ¶ 12.)

(See Pls.’

Johnson told Officer Blaszczyk that

they were in the area to repossess a car for F3 Solutions.

(See

Defs.’ Stmt. ¶ 8.)
Micetich — the victim of the robbery the night before —
“showed up” at the scene.

(Id. at ¶ 10.)

The parties dispute

whether, at the scene of the traffic stop, Micetich positively
identified the plaintiffs as the individuals who had robbed him.

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Two officers at the scene say that Micetich did identify the
plaintiffs.

(Id.; see also Lepkowski Decl., attached as Ex. 23 to

Defs.’ Stmt., ¶ 4; Cairel Arrest Report, attached as Ex. 10 to
Defs.’ Stmt., at FCRL000008.)

Micetich states that he “recognized

Jeremy Cairel and Marvin Johnson right away.

Seeing them made me

angry, and I stated loudly enough for everyone present to hear that
[they] were the men who had robbed me the previous evening.”
(Micetich Decl., attached as Ex. 30 to Defs.’ Stmt., ¶ 13.)

On the

other hand, Moore contends that he overheard Micetich expressing
doubts about whether Cairel and Johnson had robbed him. (See Moore
Aff., attached as Ex. 1 to Pls.’ Stmt. of Add’l Facts, ¶¶ 13-14;
see also id. at ¶ 15 (“At no time did Mr. Micetich identify Jeremy
Cairel or Marvin Johnson as the individuals who robbed him the
night before.”).)

Moore’s affidavit creates a factual dispute

about whether Micetich made a confident, unambiguous identification
at the scene of the traffic stop.
Micetich

ever

perpetrators.

stated

that

But there is no evidence that

Johnson

and

Moore

were

not

the

(Cf. id. at ¶¶ 13-14 (Quoting Micetich: “I’m not so

sure about the black guy [Johnson];” “I’m not sure about the tall
guy [Cairel], he didn’t have a hat on;” “I’m not sure about his
[Cairel’s]

glasses”).)

At

approximately

11:15

p.m.,

Cairel,

Johnson, and Moore were arrested and transported to the Eighth
District police station.

(Defs.’ Stmt. ¶ 12.)

- 7 -

Defendant detectives Alderden and Johnson were assigned to the
case that evening.

(Id. at ¶ 16.)

They first briefly interviewed

Blaszczyk and Cerna, who told Alderden that Micetich had identified
the plaintiffs as the individuals who had robbed him the night
before.

(Id. at ¶ 16.)

The plaintiffs purport to dispute this

fact, again citing Moore’s affidavit.
Stmt. ¶ 16.)

(See Pls.’ Resp. to Defs.’

But Moore has not testified — and could not testify

— about what Blaszczyk and Cerna told Alderden.

When Alderden

interviewed Micetich later that same evening, Micetich identified
Cairel and Johnson as the robbers.

(See id. at ¶ 18.)

Again,

Moore’s affidavit does not contradict evidence that Micetich told
Alderden that Cairel and Johnson robbed him.

(See id. (“Micetich

added that he is absolutely sure that the two offenders who he
identified, Cairel and Johnson[,] are the same who robbed him.”);
cf. Pls.’ Resp. to Defs.’ Stmt. ¶ 18.)
Alderden then interviewed Cairel.

It is undisputed that

Cairel was “scared, nervous and crying” while Alderden and Johnson
interrogated him.

(See Pls.’ Stmt. of Add’l Facts ¶ 9.)

initially (and repeatedly) denied having robbed anyone.
10.)

He

(Id. at ¶

But he later told the detectives that he, Moore, and Johnson

had robbed an individual fitting Micetich’s description the night
before, and confessed to other robberies as well.
Stmt. ¶ 21.)

(See Defs.’

- 8 -

Cairel has been diagnosed with a learning disability, cerebral
palsy,3 attention deficit disorder (“ADD”), and attention deficit
(See Pls.’ Stmt. of Add’l

and hyperactivity disorder (“ADHD”).
Facts ¶ 1.)

During this litigation, Cairel was evaluated by the

defendants’ experts and received a verbal IQ score of 75, within
the “Borderline-Low Average” range.

(See id. at ¶ 7; see also

Halaris Dep. at 28 (explaining that “75 is the average.

It can be

as high as 90 or as low as 60.”); Report on Jeremy Cairel, dated
May 21, 2013, attached as Ex. 10 to Pls.’ Stmt. of Add’l Facts, at
2.)

Cairel scored a 70 on a subtest of verbal “comprehension,”

which measures an “individual’s ability to deal with abstract
social conventions, rules and expressions (e.g., Why should people
pay taxes?, Name some reasons why food needs to be cooked?).”
(Report on Jeremy Cairel at 2.)
Cairel’s

“comprehension”

score

Dr. Halaris’s report describes
as

“significant[ly]

lower

and

reflective of the Mentally Impaired range relative to his other
scores.”

(Id.)

Dr. Halaris concluded that Cairel’s mental

impairment could have caused him to confess falsely (without
opining on his actual guilt or innocence).

(Pls.’ Stmt. of Add’l

Facts ¶ 6; see also Report on Jeremy Cairel at 3-4.)

The main

point of contention between the parties is whether Cairel appeared
mentally impaired to the defendants.
3/

The plaintiffs rely on

The defendants’ expert, Dr. Angelo Halaris, testified that “cerebral
palsy” is a “vague” term denoting a “brain dysfunction.” (See Halaris Dep.,
attached as Ex. 4 to Pls.’ Stmt. of Add’l Facts, at 24-25.) According to Dr.
Halaris, Cairel’s condition manifests as a “learning disability” and does did not
affect his motor skills. (Id.)

- 9 -

testimony from Cairel’s criminal defense attorney, Andrew Weisberg,
for the proposition that Cairel “has a hard time expressing himself
and can appear very slow.”

(See Pls.’ Stmt. of Add’l Facts ¶ 3.)

The defendants deny that he appeared “slow” to them.

(See Defs.’

Stmt. ¶ 43; see also id. at ¶ 33 (the Assistant State’s Attorney
(“ASA”) who interviewed Cairel testified that he did not “appear to
be slow”).) Dr. Halaris and Dr. Susan Hill, who performed Cairel’s
neuropsychological examination, both concluded that his mental
impairment would not have been apparent to the defendants:
A reliable assessment of Jeremy’s cognitive processes,
emotional responsiveness and behavioral reactions could
only be achieved after extensive evaluations by trained
and
experienced
specialists
in
psychiatry
and
neuropsychology.
Consequently, neither the State’s
Attorney nor Chicago Police Detectives Jacob Alderden or
Patrick Johnson could have been able to assess Jeremy’s
ability to comprehend the content, significance and
serious consequences his statements would cause.
(Report on Jeremy Cairel at 4.)
Jeremy Cairel’s test results are consistent with AD/ADHD
and a learning disability however, his cognitive
deficiencies are not at a level that would make them
obvious to a lay person. Mr. Cairel’s symptoms related
to these diagnoses would be most apparent within an
academic and/or vocational setting. It would not be
reasonable to expect that detectives or prosecutors
interacting with Mr. Cairel would have been able to
detect his cognitive limitations nor be able to
differentiate that his intellectual capacities could be
significantly below that of other arrestees.
(Neuropsychological Eval., attached as Ex. 36 to Defs.’ Stmt., at
5.)
The

defendants

contend

that

after

obtaining

Cairel’s

confession, Alderden told Johnson about what Cairel had said and

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invited him to speak to Cairel.
Alderden,

Johnson

then

(Defs.’ Stmt. ¶ 25.)

corroborated

Cairel’s

According to

confession

and

admitted his own role in Micetich’s robbery. (Id.) Johnson denies
that he ever confessed to any robberies while he was in police
custody, (see Pls.’ Resp. to Defs.’ Stmt. ¶ 25), although he later
pled guilty in exchange for probation.

(See id. at ¶ 38.)

Finally, Alderden interrogated Moore in the very early hours of
January 25, 2007.

(See Case Supp. Report, dated Feb. 23, 2007,

attached as Ex. 12 to Defs.’ Stmt., at FCRL000147.)

Moore denied

committing any robberies and gave Alderden an alibi for all three
suspects:

they

were

delivering

repossessed

Illinois when Micetich was robbed.

cars

to

Matteson,

(See id. (Alderden’s report

stating that Moore told him that he and the plaintiffs were in
Matteson at 10:30-11:00 p.m. on January 23, 2007).)
While

the

plaintiffs

and

Moore

were

still

in

custody,

detectives — including defendant Detective Luis Otero — went to F3
Solutions
employment.

and

recovered

paperwork

related

to

the

(See Pls.’ Stmt. of Add’l Facts ¶ 19.)

suspects’

Employees at

F3 Solutions corroborated Moore’s statement that he, Cairel, and
Johnson had transported repossessed cars to Matteson on January 23,
2007.

(See id.)

But as far as we can tell, there was no evidence

— other than Moore’s statement to Alderden — establishing that the
plaintiffs were in Matteson at the particular point in time when
Micetich was robbed.

The plaintiffs have not given us any of the

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records that Otero obtained from F3 Solutions, and the records that
the defendants have provided are not time-stamped.

(See

F3

Solutions Documents, attached as Group Ex. 4 to Defs.’ Resp. to
Pls.’ Stmt. of Add’l Facts., at Bates No. 000017.).)4

Moore states

that two individuals affiliated with F3 Solutions told him that
Otero attempted to intimidate them.

(See Moore Aff. ¶ 23 (“After

I was released from custody, Heather Johnson told me that Detective
Otero ‘threatened to arrest her and place her children in D.C.F.S.
custody if she did not cooperate with the investigation.’”); see
also id. (“Detective Otero also told Mike Harazin, the owner of F3
Solutions, that I had confessed to impersonating a police officer
in order to rob individuals and that I have Mr. Harazin a cut of
the money.”).)

Even assuming that these statements would be

admissible at trial, they are immaterial.

There is no evidence

that the plaintiffs were prejudiced in any way by Otero’s alleged
tactics — the witnesses all tended to corroborate Moore’s alibi.5
Later on January 25, 2007, Elias Arias identified Cairel out
of a six-man lineup — the other participants were Moore and four
white, male police officers — as one of the individuals who had

4/
Many of the documents included in the defendants’ group exhibit are
immaterial (e.g., W-9 forms). There are three “Orders of Repossession” assigned
to “EricM,” (see F3 Solutions Documents at 000009-000016), and a report that
appears to indicate that “EricM” recovered four vehicles on January 23, 2007.
(See id. at 000017.)
5/

The same goes for Moore’s statement that Otero attempted to conduct a
warrantless search of his room at his father's house. (See Moore Aff. ¶ 22.)
The plaintiffs were not prejudiced because there was no search: Moore states that
his father turned Otero away. (See id.)

- 12 -

robbed him approximately a month earlier. (See Defs.’ Stmt. ¶ 26.)
The plaintiffs “deny Cairel was identified.”
Defs.’ Stmt. ¶ 26.)

(See Pls.’ Resp. to

But they cite only Cairel’s general testimony

about participating in the lineup, and the physical descriptions of
the suspects that appear in the police report describing the
robbery.

(Id.)

The fact that Arias identified Cairel, who is

significantly taller than the person he originally described to
police, tends to undercut his credibility.

But it does not

contradict evidence that he positively identified Cairel in the
lineup. Alderden then contacted the Felony Review Unit of the Cook
County

State’s

Attorney’s

Office

and

ASA

Elizabeth

Ciaccia

responded. (See Defs.’ Stmt. ¶ 27.) Ciaccia interviewed Micetich,
Arias, Cairel, and Johnson in Alderden’s presence.
31, 40.)

(Id. at ¶¶ 29-

Micetich confirmed his identification of Cairel and

Johnson, and Arias confirmed his identification of Cairel. (Id. at
¶¶ 29-30.)

Ciaccia wrote out Cairel’s confessions to the two

robberies, which Cairel signed.

(Id. at ¶¶ 36-37.)

It is

undisputed that the police gave Cairel and Johnson food and
beverages, and allowed them to use the washroom.

(Id.)

Cairel

testified that Alderden told him that if “you help us out with
this, we’ll help you out and you could go home right after this.”
(Dep. of Jeremy Cairel (“Cairel Dep.”), attached as Ex. 2 to Pls.’
Stmt. of Add’l Facts, at 64; see also id. at 67, 68-69, 83, 85;
Pls.’ Resp. to Defs.’ Stmt. ¶ 32.)

The plaintiffs repeatedly cite

- 13 -

this testimony, and Cairel’s learning disability, as grounds for
denying that he confessed to the robberies.

(See Pls.’ Resp. to

Defs.’ Stmt. ¶¶ 32-36.) Cairel signed two written confessions, and
during his deposition he explicitly testified that he told Ciaccia
that he had robbed Arias.

(See Cairel Dep. at 69.)

At one point

during his deposition, he appears to deny having told Ciaccia,
Alderden, and Detective Johnson that he robbed Micetich, contrary
to his signed confession.

But the real thrust of his testimony

seems to be that he did not understand what was happening and
simply wanted to go home:
Q. Okay.
My specific question is did you tell the
State’s Attorney and Detective Alderden and the other
officer that you had robbed Joseph Micetich?
A. No. I don’t remember everything that was going on
with this. I just knew that they said one thing to me,
saying if I helped them I would — they would help me, and
I would be home, and that’s all I was thinking about. I
wasn’t really paying attention to what they were saying,
but she was writing down whatever Alderden — she was
asking Alderden the same questions, too, and that’s why
his signature was on there, too.
(Cairel Dep. at 68-69.)

This testimony does not contradict the

defendants’ claim that Cairel confessed to the robberies; it merely
attempts explains why he did so when he believed that he was
innocent.

For his part, Johnson denies providing any verbal

confession to the defendants, (see supra), and refused to sign a
written statement implicating himself in the robberies. (See Pls.’
Resp. to Defs.’ Stmt. ¶ 40; Dep. of Marvin Johnson (“Johnson

- 14 -

Dep.”), attached as Ex. 3 to Pls.’ Stmt. of Add’l Facts, at 11718.)
According to the defendants, neither Cairel nor Johnson ever
told them, or Ciaccia, that they had an alibi.

(See Defs.’ Stmt.

¶ 38; see also Alderden Decl., attached as Ex. 22 to Defs.’ Stmt.,
¶ 4; Johnson Decl., attached as Ex. 26 to Defs.’ Stmt., ¶ 11.)

The

plaintiffs dispute this statement, citing Johnson’s testimony that
he told the police officers at the scene of his arrest on January
24, 2007 that he was in the neighborhood to repossess a car.

(See

Pls.’ Resp. to Defs.’ Stmt. ¶ 38 (citing Johnson Dep. at 43).)
Johnson’s statement about his activities on January 24, 2007 does
not constitute an alibi for a robbery that occurred the night
before.

They also cite Johnson’s testimony that he repossessed

cars and delivered them to Matteson on January 23, 2007.
(citing

Johnson

contradict

the

Dep.

at

22-24).)

defendants’

This

contention

statement

that

plaintiffs told them that they had an alibi.

(See id.
does

neither

not

of

the

As for Cairel, the

testimony that the plaintiffs rely on is vague.

(See Cairel Dep.

at 126 (“Q. Did you explain to [Detective Alderden] the repo
activities that you and Marvin and Eric were involved with?
Yes.

A.

There was paperwork for every night that we were out

repo’ing.”).)

On the other hand, as we discussed before, Moore

told Alderden that he, Cairel, and Johnson were in Matteson when
Micetich

was

robbed.

(See

Moore

Aff.

¶¶

17-19,

24.)

The

- 15 -

plaintiffs contend that neither Alderden nor any other officer
reported this information to Ciaccia.
Facts ¶¶ 29-30.)

(See Pls.’ Stmt. of Add’l

The defendants quibble with this statement,

pointing out that Ciaccia testified that she “could not remember
interviewing Eric Moore or if [she] was told that he was in
custody.”

(See Ciaccia Dep., attached as Ex. 4 to Pls.’ Stmt. of

Add’l Facts, at 83.)
speak with Moore.

First, there is no evidence that she did

Second, she stated in her deposition that she

would have wanted to speak with him if she had known that he had
provided an alibi for the plaintiffs.

(See Ciaccia Dep. at 84 (“I

would have wanted to talk to Eric Moore if I knew he existed as an
alibi witness, that is correct.”).) The plaintiffs’ attorney posed
the question as a hypothetical, but it was consistent with the
facts: Alderden knew that Moore had said that he, Cairel, and
Johnson were in Matteson when Micetich was robbed.

The plaintiffs

are entitled to the inference that the defendants did not tell
Ciaccia that Moore had provided an alibi for the plaintiffs. See
Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999)
(On summary judgment, we construe the evidence in the light most
favorable to the non-moving party.). Based on the information that
was available to her, Ciaccia made the decision to charge Cairel
with one count of armed robbery, one count of aggravated robbery,
and

two

counts

of

aggravated

“false

personation

of

a

peace

officer;” she charged Johnson with one count of aggravated robbery

- 16 -

and one count of aggravated “false personation of a peace officer.”
(Defs.’ Stmt. ¶¶ 41-42.)
on January 26, 2007.

Cairel and Johnson were released on bond

(See Cairel Dep. at 94; Johnson Dep. at 90;

Cairel Arrest Report, attached as Ex. 10 to Defs.’ Stmt. of Facts,
at 4; Johnson Arrest Report, attached as Ex. 32 to Defs.’ Stmt., at
4).)

Moore, who was not identified by either victim, was released

that same day without charges.

(See Case Supp. Report, dated Feb.

23, 2007, at FCRL000149.)
Alderden began to doubt Cairel’s confession after further
investigation.

He obtained records from F3 Solutions indicating

that some individuals whom Cairel claimed to have robbed6 were
actually
vehicles.

debtors

from

whom

Cairel

(See Defs.’ Stmt. ¶ 51.)

and

Moore

had

repossessed

Alderden testified that he

made this discovery at some point before February 23, 2007.

(See

Alderden Dep. at 124.) On April 12, 2007, Alderden arrested Joseph
Hatzell, a 5'8" male, for a robbery committed on December 20, 2006
in the same area where Micetich and Arias were robbed. (See Defs.’
Stmt. ¶ 52.)

Hatzell impersonated a police officer, pulled over

the victim’s car, and stole money from him. (Id.) Alderden showed
Hatzell photographs of Micetich and Arias. (Id. at ¶ 53.)

Hatzell

said that he had never seen Micetich, but that he was “75% sure”
that he had robbed Arias.

6/

(Id.)

Alderden contends that he shared

The plaintiffs deny that Cairel confessed to any robbery, but the
evidence they cite does not support their denial. There is no dispute that
Cairel initially denied committing any crime, (see, e.g., Cairel Dep. at 126-27),
but he later signed written confessions admitting multiple robberies.

- 17 -

his

misgivings

about

prosecutor, Dan Groth.

Cairel’s

guilt

(Id. at ¶ 54.)7

with

the

plaintiffs’

He later shared the same

information with ASA Geraldine D’Souza, who took over the case from
Groth, and with D’Souza’s supervisors.

(Id. at ¶¶ 55.)8

After

conducting its own independent investigation, the Cook County
State’s Attorney dismissed the charges against Cairel in March
2008.

(See Pls.’ Stmt. of Add’l Facts ¶ 37.)

Johnson was

permitted to withdraw his guilty plea and all charges against him
were dismissed.

(Id.)

Micetich is “still absolutely sure that

Jeremy Cairel and Marvin Johnson are the men who robbed me on
January 23, 2007.”

(Micetich Aff. ¶ 16.)
DISCUSSION

Cairel and Johnson have filed a five-count complaint alleging
violation of their due process rights (Count I), conspiracy (Count
II), malicious prosecution (Count III), IIED (Count IV), and
indemnification (Count V).

The defendants have moved for summary

judgment on all of plaintiffs’ claims.
A. Legal Standard

7/
The plaintiffs deny that Alderden contacted Groth, but the evidence
they cite does not contradict his testimony. Groth’s case notes do not record
any conversation with Alderden. (See Pls.’ Resp. to Defs.’ Stmt. ¶ 54.) But we
have no reason to believe that Groth’s notes are exhaustive. The plaintiffs also
cite testimony from Weisberg, Cairel’s criminal defense attorney. (Id.; see also
Weisberg Dep., attached as Ex. 6 to Pls.’ Stmt. of Add’l Facts, at 22-29.) The
fact that Weisberg spoke with Groth and others at the State’s Attorneys’ Office
about defects in the case against his client does not mean that Alderden did not
speak to Groth and others about the same subject.
8/
The plaintiffs deny this statement as well. For the reasons explained
in the preceding footnote, the plaintiffs’ evidence is insufficient to create a
material factual dispute about what Alderden told prosecutors.

- 18 -

“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In considering such a motion, the court construes the

evidence and all inferences that reasonably can be drawn therefrom
in the light most favorable to the nonmoving party.
184

F.3d

at

714.

“The

court

need

consider

only

See Pitasi,
the

cited

materials, but it may consider other materials in the record.”
Fed. R. Civ. P. 56(c)(3).
the dispute is ‘genuine’:

“Summary judgment should be denied if
‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”
Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The court will enter summary judgment against a party who
does not “come forward with evidence that would reasonably permit
the finder of fact to find in [its] favor on a material question.”
McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).
B.

Due Process (Count I)
A plaintiff may not bring a § 1983 claim for malicious

prosecution because Illinois tort law provides an adequate remedy.
See Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2001).9

The

9/
The exact parameters of this rule are unsettled after Whitlock v.
Brueggemann, 682 F.3d 567 (7th Cir. 2012) and Fields v. Wharrie, 740 F.3d 1107
(7th Cir. 2014). These cases open the door to a due-process claim based upon
the defendant’s use of fabricated evidence to secure the plaintiff’s conviction
and incarceration. See Bianchi v. McQueen, No. 12–cv–00364, 2014 WL 700628, *1012
(N.D. Ill. Feb. 24, 2014).
In this case, the plaintiffs were never

- 19 -

defendants argue that the only other possible claim based upon the
conduct alleged in Count I is false arrest, making the plaintiffs’
claim untimely: they filed their complaint more than two years
after their arrests.

See Ray v. Maher, 662 F.3d 770, 772-73 (7th

Cir. 2011) (In Illinois, § 1983 claims are governed by the two-year
statute of limitations applicable to personal-injury suits).

The

plaintiffs counter that they have alleged timely, “free standing”
due process claims based upon the defendants’: (1) failure to
disclose Moore’s alibi to Ciaccia; (2) coercive interrogation of a
mentally-impaired

suspect;

and

(3)

tampering

statements and identification procedures.

with

witness

We will address each of

these theories in turn.
1.

Defendants’ Failure to Disclose an Alibi Witness to the
Prosecutor

Our Court of Appeals has recognized an “exception” to the rule
barring § 1983 malicious-prosecution claims for claims based on
Brady v. Maryland, 373 U.S. 83 (1963).

See Ray v. City of Chicago,

629 F.3d 660, 664 (7th Cir. 2011) (The Court has “permitted
individuals to file Section 1983 suits alleging that they have been
denied a fair trial because the state has failed to provide them
with access to material exculpatory evidence.”).

The problem with

the plaintiffs’ Brady claim is that the state dropped the charges
convicted. So, they will have to find some other legal basis to establish a
constitutional claim. See id. at 12 (holding that a claim based upon prosecution
without probable cause still does not support a constitutional claim after
Whitlock and Fields).

- 20 -

against them before trial.10 As the plaintiffs point out, our Court
of Appeals has suggested in some cases that it might recognize a
Brady claim brought by a plaintiff who was acquitted of the charges
against him.

See Mosley v. City of Chicago, 614 F.3d 391, 397 (7th

Cir. 2010); Bielanski v. County of Kane, 550 F.3d 632, 644-45 (7th
Cir. 2008).

But those cases expressly reserved ruling on that

question. See Mosley, 614 F.3d at 397; Bielanski, 550 F.3d at 64445.

More recently, the Court held that a plaintiff could not

pursue a Brady claim because the state dropped the charges against
her before trial.

See Ray, 629 F.3d at 664 (“Ray has failed to

identify a single instance, however, where we have allowed [a Brady
claim] when the individual is merely charged with a crime, but
never fully prosecuted.”).

The Court suggested in Alexander v.

McKinney, 692 F.3d 553, 556 (7th Cir. 2012) that this may still be
an open question in this Circuit.

See id. (“[W]e have entertained

the possibility that prejudice could be established if an acquitted
defendant showed that disclosure of the suppressed evidence would
have altered the decision to go to trial.”).11

But this dicta,

10/
The defendants argue that the plaintiffs’ Brady claim is an improper
“hybrid” false arrest/malicious prosecution claim.
Cf. Brooks v. City of
Chicago, 564 F.3d 830, 833 (7th Cir. 2009) ("A plaintiff cannot state a due
process claim ‘by combining what are essentially claims for false arrest under
the Fourth Amendment and state law malicious prosecution into a sort of hybrid
substantive due process claim under the Fourteenth Amendment.’”) (quoting McCann
v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003)). It is unnecessary to reach
this argument for the reasons we are about to explain.
11/

The Alexander Court did not cite Ray.

- 21 -

which is itself a gloss on dicta from earlier cases, is not grounds
to depart from Ray’s express holding.
We respectfully disagree with the court’s decision in Quiroz
v. Hall, No. 2:12–CV–212, 2012 WL 6019283, (N.D.Ind. Dec. 3, 2012).
The Quiroz court concluded that it is still an open question in
this Circuit whether an acquitted plaintiff can pursue a Brady
claim under § 1983.
97).

Id. at *7-8 (citing Mosley, 614 F.3d at 396-

Ray was distinguishable, the court reasoned, because in that

case the state dismissed the charges against the plaintiff at her
first post-arrest hearing.

Id. at *8.

By contrast, the plaintiff

in Quiroz was “prosecuted for 18 months before the charges were
dismissed.”

Id.

We do not see any basis in Ray for recognizing a

Brady claim in some instances, but not others, depending on the
length of the plaintiff’s prosecution before dismissal.

Ray’s

holding is based upon the Court’s recognition that Brady protects
a trial right.

See, e.g., Chagolla v. City of Chicago, No. 07 C

4557, 2012 WL 403920, *6 (N.D. Ill. Feb. 8, 2012)

(“[T]he Seventh

Circuit has consistently considered the right to exculpatory and
impeachment evidence protected by Brady to focus on the criminal
trial.”).

Neither Cairel nor Johnson went to trial — Cairel,

because the state dropped the charges against him; Johnson, because
he pled guilty.

The Chagolla court, citing Ray, held that the

defendants were entitled to summary judgment on the plaintiff’s
Brady claim because he never went to trial.

See id.

We agree with

- 22 -

the Chagolla court’s analysis, and respectfully disagree with
Quiroz.

Applying Ray, the defendants are entitled to summary

judgment on Count I insofar as it is based on Brady.
2.

Cairel’s Interrogation

The plaintiffs argue that Count I can also be construed to
assert a substantive due process claim based upon the defendants’
coercive interrogation of a mentally-impaired suspect. See Wallace
v.

City

of

Chicago,

440

F.3d

421,

429

(7th

Cir.

2006)

(Interrogation tactics that “shock the conscience” may support a
substantive

due

process

claim.).

There

are

two

fundamental

problems with Cairel’s claim. First, any claim based upon Cairel’s
interrogation accrued at that time.

In Gonzalez v. Entress, 133

F.3d 551, 555 (7th Cir. 1998), the plaintiff claimed that the
defendants used excessive force to extract a false confession. The
Court

held

actionable.”
police

that

plaintiff’s

injury

was

“immediately

Id. at 555 (“Application of excessive force at a

station

actionable,

the

violates

even

if

the

the

Constitution

prosecutor

never

and

is

tries

immediately
to

use

the

confession at trial . . . .”). It entertained the possibility that
a plaintiff might be able to state a separate constitutional claim
if the state introduced the plaintiff’s false confession at trial.
See id. (“[T]he use of a coerced confession could be a violation
separate from the coercion, and efforts by the police to conceal
vital facts from the prosecutor and court in order to frame an

- 23 -

innocent person could be still another violation.”).

But the

plaintiff in Gonzalez had successfully moved to suppress his
confession,

so

his

one

and

only

injury

occurred

interrogation took place.

Id.

Here, the state did not introduce

Cairel’s confession at trial because there was no trial.
reasoning,

Gonzalez’s

Cairel’s

claim

accrued

when

when

the

Applying
he

was

interrogated, more than two years before he filed his complaint.
So, his substantive due process claim is time-barred.
We hold in the alternative that the record does not support a
finding that the defendants’ conduct shocks the conscience. “There
is

no

clear-cut

analysis

to

determine

what

constitutes

‘conscience-shocking’ conduct; the question is whether the conduct
is ‘too close to the rack and the screw.’”

Fox v. Hayes, 600 F.3d

819, 841 (7th Cir. 2010) (quoting Rochin v. California, 342 U.S.
165, 172

(1952)).

“For example, on the one hand, forcing an

emetic down a person’s throat to forcibly extract evidence from a
suspect’s stomach shocks the conscience, see [Rochin, 342 U.S. at
172], but on the other hand, lying to, threatening, or insulting a
suspect does not, see Tinker v. Beasley, 429 F.3d 1324, 1329 (11th
Cir. 2005).”

Id.

Cairel accuses the defendants of lying to him,

asking him the same questions “over and over again,” and falsely
promising that he could go home if he confessed.
of Add’l Facts ¶ 14.)
objectively speaking.

(See Pls.’ Stmt.

This is not “conscience-shocking” behavior,
See Fox, 600 F.3d at 841.

Cairel’s mental

- 24 -

impairment

is

certainly

relevant,

but

the

defendants’

expert

witnesses both state that his condition would not have been
apparent to the defendants.
medical opinion.

Cairel has not cited any contrary

Instead, he relies on (1) his criminal defense

attorney’s lay opinion that Cairel appears “slow,” and (2) Moore’s
statement that he told defendants that Cairel “was in special
education classes and had learning disabilities.”

(See Moore Aff.

¶ 21; see also Pls.’ Stmt. of Add’l Facts ¶ 1 (stating that Cairel
“took

five

(5)

school”).)

years

of

special

education

classes

in

high

This testimony is insufficient to create a material

factual dispute about whether Cairel, a gainfully employed 30-yearold man, appeared to the defendants capable of making a truthful
confession in response to ordinary interrogation tactics.

Even if

Cairel’s substantive due process claim was timely, the defendants
would be entitled to summary judgment.
3.

Tampering With Witness Statements and Identification
Procedures

Finally, the plaintiffs contend that their due-process claim
is supported by evidence that the defendants tampered with witness
statements
legally

and

and

identification

factually

procedures.

deficient.

This

Suggestive

argument
or

is

coercive

identification procedures are not unconstitutional in themselves.
See Alexander v. City of South Bend, 433 F.3d 550, 555 (7th Cir.
2006) (“The Constitution does not require that police lineups,
photo arrays, and witness interviews meet a particular standard of

- 25 -

quality.”).

They are only unconstitutional if they prevent the

defendant from receiving a fair trial. Id.

(“South Bend cannot be

liable under § 1983 unless Alexander shows how the flaws in South
Bend’s identification techniques made his trial unfair.”). Because
Cairel and Johnson never went to trial, the circumstances of their
identification cannot support a constitutional claim.

See Hensley

v. Carey, 818 F.2d 646, 650 (7th Cir. 1987) (The plaintiff “could
not possibly have been deprived of his right to a fair trial since
he was never tried.”).

Even if the plaintiffs had gone to trial,

there is no evidence that the defendants manipulated identification
procedures or tampered with witnesses.

The plaintiffs’ physical

characteristics differed — sometimes substantially — from the
descriptions of the suspects that Arias and Micetich originally
gave police. (See Pls.’ Stmt. of Add’l Facts ¶¶ 23-24.)

The cars

the plaintiffs were driving did not match the car that Micetich had
described the night before.

(Id. at ¶ 25.)

And it appears that

the police missed an opportunity to investigate a promising lead
when they failed to show Delamora to Micetich.

(Id. at ¶ 26.)

The

plaintiffs’ theory appears to be that, given these circumstances,
the defendants must have improperly influenced Micetich and Arias
to identify Cairel and Johnson.

This is pure speculation.

Cf.

Wooden-Ousley v. City of Chicago, 393 Fed.Appx. 378, 380-81 (7th
Cir. 2010) (“It is true that Wooden-Ousley was 10 inches taller and
55 pounds heavier than the description of the carjacker that

- 26 -

Palomino and Salgado gave at the crime scene. But at most the
discrepancy suggests that, during a brief encounter at gunpoint,
the

victims

of

a

violent

crime

may

have

trouble

accurately

estimating their assailant’s height and weight; it does not suggest
that Detective Mendez manipulated the identification procedures.”).
In sum, all of the plaintiffs’ due-process theories are
deficient and the defendants are entitled to summary judgment on
Count I.
C.

Conspiracy (Count II)
Count II alleges that the defendants conspired to violate the

plaintiffs’ rights under the Fourth and Fourteenth Amendments.

In

light of our ruling on Count I, the defendants are also entitled to
summary judgment on Count II.

See Smith v. Gomez, 550 F.3d 613,

617 (7th Cir. 2008) (“[C]onspiracy is not an independent basis of
liability in § 1983 actions.”).
D.

Malicious Prosecution (Count III)
“The elements of malicious prosecution in Illinois are (1)

commencement

of

criminal

proceedings

by

the

defendants;

(2)

termination of that matter in favor of the plaintiff; (3) the
absence of probable cause for the proceedings; (4) the presence of
malice; and (5) resulting damages.”

Williams v. City of Chicago,

733 F.3d 749, 759 (7th Cir. 2013).

The defendants rely on the

Illinois Tort Immunity Act for the proposition that their actions
must also be “willful and wanton” to support liability.

See 745

- 27 -

ILCS 10/2-202 (“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.”).12
“In a malicious prosecution case, probable cause is defined as
a state of facts that would lead a person of ordinary care and
prudence to believe or to entertain an honest and sound suspicion
that the accused committed the offense charged.”

Williams, 733

F.3d at 759. Arias identified Cairel as one of the individuals who
robbed

him.

The

suspects

Arias

originally

described

were

substantially shorter than the 6'5" Cairel (5'2" and 5'8" to 5'10",
respectively).
that

this

(See Pls.’ Stmt. of Add’l Facts ¶ 23.)

discrepancy

investigation,

the

was

defendants

sufficient
satisfied

to

require

this

Assuming
further

obligation

by

interrogating Cairel and obtaining his written confession to the
robbery.

As we discussed before, there is no evidence that the

defendants knew, or should have known, that Cairel’s disabilities
caused him to confess falsely.
record is to the contrary.

The only relevant evidence in the

Finally, the plaintiffs have not cited

any evidence indicating that defendants knew that Cairel had an
alibi for Arias’s robbery — Moore’s statement to Alderden, and the

12/

“Arguably, there is a more specific immunity provision that applies to
law enforcement, which essentially mirrors and codifies the malicious prosecution
standard.” Holland v. City of Chicago, 643 F.3d 248, 255 (7th Cir. 2011); see
745 ILCS 10/2–208 ("A public employee is not liable for injury caused by his
instituting or prosecuting any judicial or administrative proceeding within the
scope of his employment, unless he acts maliciously and without probable
cause."). In this case, the analysis and outcome is the same under either § 2202 or § 2-208.

- 28 -

documents police obtained from F3 Solutions, do not indicate
Cairel’s whereabouts on December 20, 2006.

We conclude that the

defendants

Cairel

had

probable

cause

to

charge

with

Arias’s

robbery.
There are fewer discrepancies in Micetich’s identification of
the plaintiffs as the men who robbed him.

He originally described

two male assailants: (1) a 5'6", 150 pound African American male;
and (2) a 6'0”, 190 pound “White-Hispanic” male with a light
complexion. (See Pls.’ Stmt. of Add’l Facts ¶ 24.) The plaintiffs
argue that Johnson did not match Micetich’s description, but the
differences were minor.

(See Pls.’ Stmt. of Add’l Facts ¶ 24

(describing Johnson as a 5'9," 150 pound African American male));
see also Pasiewicz v. Lake County Forest Preserve Dist., 270 F.3d
520, 525 (7th Cir. 2001) (“Although Pasiewicz’s appearance did not
match exactly the characteristics provided by the two women, he
bore

a

fair

resemblance.”).

We

accept

for

purposes

of

the

defendant’s motion that Micetich waffled at the scene of the
traffic stop, but it is undisputed that Micetich told Alderden that
he was “absolutely sure” that Cairel and Johnson had robbed him.
(Id. at ¶ 18.)

He is still “absolutely sure.”

(See Micetich Decl.

¶ 16.) Cairel is 5 inches taller than the individual that Micetich
originally described, but his complexion (white versus “WhiteHispanic”/light complexion) and weight (190 pounds versus 180
pounds) were similar.

And again, Cairel confessed to robbing

- 29 -

Micetich, and in doing so implicated Johnson.

The fact that Moore

gave the plaintiffs an alibi for their whereabouts on January 23,
2007 does not negate probable cause.

The defendants were not

required to credit his statement over Cairel’s confession and
Micetich’s identification.

And the evidence that the police

officers obtained from F3 Solutions did not conclusively establish
that the plaintiffs were in Matteson when Micetich was robbed.

We

conclude that the defendants are entitled to summary judgment on
the plaintiffs’ claim for malicious prosecution.
E.

IIED (Count IV)
The defendants argue that the plaintiffs’ IIED claims are

barred by the statute of limitations and, in the alternative,
substantively deficient.

The parties agree that the Illinois

Immunity

statute

Act’s

one-year

of

limitations

governs

the

plaintiffs’ IIED claims, See 745 ILCS 10/8-101, but disagree about
when the plaintiffs’ claims accrued.

Prior to Evans v. City of

Chicago, 434 F.3d 916, 934-35 (7th Cir. 2006) (overruled on other
grounds by Hill v. Tangherlini, 724 F.3d 965, 967-68 (7th Cir.
2013)), courts in this district “consistently held” that IIED
claims based on malicious prosecution accrue when the underlying
criminal case is terminated.

Carrocia v. Anderson, 249 F.Supp.2d

1016, 1028 (N.D. Ill. 2003).

In Evans, the Court held that the

plaintiff’s IIED claim accrued when the defendants last interacted
with him:

- 30 -

It is undisputed that the last, confirmed interaction
between Evans and the police officers named in the
complaint took place sometime in December of 1997. Thus,
the last injury Evans suffered, and indeed the last
possible date of a tortious act against Evans, was in
December of 1997, well beyond both the two-year statute
of limitations for § 1983 claims and the one-year statute
of limitations for tort claims against governmental
entities or employees.
See id. at 935 (footnote omitted).

For a time, there was a split

of authority about whether Evans overturned what had been the
majority rule in this district. Compare Bridewell v. City of
Chicago, No. 08 C 4947, 2012 WL 2458548, *2 (N.D.Ill. Jun 27, 2012)
(construing Evans to reject the line of authority described in
Carrocia); with Hobbs v. Cappelluti, 899 F.Supp.2d 738, 762-63, n.
16 (N.D. Ill. 2012) (holding that Evans did not repudiate the
majority rule in this district).

Our Court of Appeals resolved

this conflict in Bridewell v. Eberle, 730 F.3d 672, 678 (7th Cir.
2013), a case that neither side has cited.

The Bridewell Court

held that an IIED claim based on malicious prosecution “accrues on
the date of the arrest.”

Id. (citing Evans, 434 F.3d at 934).

The

mere continuation of the prosecution is insufficient to “restart”
the statute of limitations.

See id. (“The idea that failing to

reverse the ongoing effects of a tort restarts the period of
limitations has no support in Illinois law — or in federal law
either.”) (collecting cases).

The Court appears to at least

entertain the possibility that a new IIED claim might arise later.
See id. (“Even if we were to suppose that a new claim could in

- 31 -

principle be based on events after the initial injury, Bridewell’s
claim would fail because she does not contend that the detectives’
ongoing

failure

to

alert

the

prosecutor

to

the

potential

shortcomings in the evidence was motivated by a freshly formed
intention

to

cause

emotional

distress.”).

But

here,

as

in

Bridewell, there is no evidence that the defendants did anything
after January 26, 2007 that might support a “new” IIED claim.

See

id. at 678-79 (“Bridewell wants to treat the (allegedly) bad intent
with

which

the

prosecution

began

as

extending

to

all

later

inaction. Yet if the initial intent carries forward, so does the
initial date of the claim's accrual.”).

Applying Eberle, the

plaintiffs’ IIED claim is time-barred.
In the alternative, we conclude that the defendants’ conduct
was not “extreme and outrageous” as the tort requires.

Duffy v.

Orlan Brook Condominium Owners' Ass'n, 981 N.E.2d 1069, 1079 (Ill.
Ct. App. 2012) (“[E]xtreme and outrageous behavior requires conduct
that goes beyond all possible bounds of decency, such that a
reasonable person would hear the facts and be compelled to feelings
of resentment and outrage.”).

For purposes of the defendants’

motion, we will assume that the defendants did not tell Ciaccia
that Moore had said that the plaintiffs were with him in Matteson
when Micetich was robbed. Moore’s statement was certainly relevant
to the probable cause inquiry, but it must be evaluated in context.
Cairel confessed to robbing Micetich with Johnson, and Micetich

- 32 -

independently identified Cairel and Johnson as the perpetrators.
This evidence was sufficient to establish probable cause to charge
the plaintiffs with robbery and impersonating a police officer.
(See

supra.)

The

defendants

investigated

Moore’s

alibi,

and

reasonably concluded that it was not sufficient to defeat probable
cause: the only repossession documents in the record are not timestamped.

Under

the

circumstances,

failing

to

share

Moore’s

statement with Ciaccia does not amount to “extreme and outrageous
behavior . . . beyond all possible bounds of decency.”

Duffy, 981

N.E.2d at 1079.
F.

Indemnification
The City of Chicago is entitled to summary judgment on the

plaintiffs’ claim for indemnification because we have concluded
that the individual defendants are entitled to summary judgment on
all of the plaintiffs’ claims.
CONCLUSION
The defendants’ motions for summary judgment [109, 126] are
granted.

DATE:

March 6, 2014

ENTER:

___________________________________________

- 33 -

John

F.

Grady,

United

States

District

Judge