Kitchen v. Burge et al
Filing
141
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 4/19/2011:Mailed notice(mpj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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RONALD KITCHEN,
Plaintiff,
v.
JON BURGE, et al.,
Defendants.
No. 10 C 4093
MEMORANDUM OPINION AND ORDER
On August 25, 1988, plaintiff Ronald Kitchen (“Kitchen”) was
arrested and interrogated in connection with the murders of Rose
Marie
Rodriguez,
Sepulveda,
murders”).
and
Daniel
Rebecca
Rodriguez,
Deborah
Sepulveda
(“the
Sepulveda,
Peter
Rodriguez/Sepulveda
After making an incriminating confession, he was
convicted, sentenced to death, and spent twenty-one years in
prison.
Kitchen claims that he was tortured into confessing by
several Chicago Police officers and their supervising Lieutenant,
Jon Burge (“Burge”).
He further claims that his case is only one
of many in which African-American males were tortured by Burge and
other officers into confessing to crimes they did not commit.
According to Kitchen, this was known to a number of City officials,
who conspired with one another to keep the information from
reaching the public.
Kitchen’s twelve-count complaint alleges several causes of
action against the various participants in this alleged conspiracy.
In addition to Burge, Kitchen brings claims against a number of
other now-retired members of the Chicago Police Department: John
Byrne, Michael Kill, Thomas Byron, and John Smith (the “officer
defendants”).
Kitchen has also named several City officials,
including former police superintendents Leroy Martin and Terry
Hillard; Hillard’s assistant, Thomas Needham, and Gayle Shines,
Director of the Chicago Police Department’s Office of Professional
Standards (”OPS”) (together, the “municipal defendants”). Further,
Kitchen has sued former Assistant State’s Attorneys Mark Lukanich
(“Lukanich”) and John Eannace (“Eannace”) (together, the “ASA
defendants”); and former Cook County State’s Attorney and Mayor of
Chicago, Richard M. Daley (“Daley”). Finally, Kitchen has sued the
City of Chicago (“the City”), Cook County (“the County”), and the
Cook County State’s Attorney’s Office (“SAO”).
Each of these groups of defendants has filed a motion to
dismiss claims asserted against them in Kitchen’s complaint.
For
the reasons discussed below, Daley’s and the ASA defendants’
motions to dismiss are granted; the officer defendants’ and the
municipal defendants’ motions to dismiss are granted in part and
denied in part.
I.
According to the allegations in Kitchen’s complaint, which I
must accept as true for purposes of this motion, Kitchen was
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initially implicated in the Rodriguez/Sepulveda murders by an
associate, Willie Williams (“Williams”).
After learning of the
crime, Williams, who was incarcerated at the time, contacted
Officer Smith and claimed that Kitchen had confessed to committing
the murders with an associate named Marvin Reeves (“Reeves”).
Smith
informed
ASA
Lukanich
of
this
information,
and
they
subsequently obtained a court order allowing them to listen in on
Williams’s phone conversations with Kitchen and Reeves. When these
failed to produce any incriminating information, police arrested
Kitchen on unrelated auto theft charges.
He was brought to Area 3
Police Headquarters and handcuffed to the wall of an interrogation
room, where he was questioned for sixteen hours. During that time,
he was deprived of food and sleep, and was subjected to torture and
racial insults by Burge, Byron, and Kill.
Kitchen alleges that Lukanich entered the room on two separate
occasions during his interrogation.
In each instance, he asked
Kitchen whether he was willing to speak with him.
Instead of
confessing, however, Kitchen asked to speak with a lawyer.
Lukanich left the room and the verbal and physical abuse resumed.
When Kitchen could no longer endure the torture, he agreed to make
a statement. Lukanich returned to the interrogation room, and Kill
recited a step-by-step account of the murders.
the
narrative,
accurate.
Lukanich
Kitchen
asked
simply
Kitchen
answered
-3-
if
with
After each step in
Kill’s
a
“yes”
account
was
after
each
question. Lukanich then drafted a statement and Kitchen signed it.
In the statement, Kitchen admitted to being present at the scene of
the crime, but he denied having committed the murders himself.
Kitchen
confession.
later
filed
a
pretrial
motion
to
suppress
his
Kill, Byron, Smith, and Lukanich falsely testified at
the hearing that Kitchen had voluntarily confessed and denied that
Kitchen had been tortured or coerced.
Lukanich and others had additional meetings with Williams in
order to refine his story about Kitchen’s alleged confession.
Although never disclosed to Kitchen’s defense counsel, promises
were made to Williams in exchange for his testimony, including
money and early release from prison.
Additionally, the defendants
suppressed exculpatory evidence suggesting that others, including
Deborah Sepulveda’s husband, had committed the murders.
Based
solely on his false confession, the officers’ perjured testimony,
and Williams’s fabricated statement, Kitchen was tried, convicted,
and sentenced to death.
Kitchen claims that during roughly the same time period, many
other African-American males were tortured by Burge and other Area
2 and Area 3 detectives into confessing to crimes they did not
commit.
He claims that the officers’ use of torture was known to
a number of public officials who actively worked to cover it up.
In particular, Kitchen alleges that Mayor Daley, who served as Cook
County State’s Attorney from 1981 to 1989, was aware of the torture
-4-
from at least as far back as 1982.
Also involved in the conspiracy
were Leroy Martin, Commander of the Area 2 Detective Division, and
who served as Superintendent of Police for the City of Chicago from
1987 to 1992; Gayle Shines, OPS Director from 1990 to 1998; Terry
Hillard, Police Superintendent from 1998-2004; and Hillard’s chief
administrative aid, Thomas Needham.
Among other things, Kitchen’s complaint alleges that these
defendants worked to suppress a 1990 report prepared by Chicago
Police OPS investigator Michael Goldston (“the Goldston Report”),
which “found that there was systemic abuse of suspects held in
custody at Area 2 and that Area 2 command personnel were aware of
the systematic abuse and encouraged it by actively participating or
failing to take action to stop it.”
Compl. ¶ 88.
The report also
found that Burge and Byrne were the “prime movers” behind the
abuse.
Id.
When the report was finally released, the defendants
sought to publicly discredit it.
Similarly, Kitchen alleges that in 1993, the OPS re-opened
investigations into several Area 2 interrogations and concluded
that a number of detectives had engaged in torture.
Between 1993
and 1998, Shines acted in collusion with the other defendants to
suppress the information “by secreting the files that contained
those findings in her personal office.”
Compl. ¶ 100.
Moreover,
after Hillard became Police Superintendent in 1998, he and Needham
worked to overturn the OPS’s findings in the reopened cases.
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Kitchen later filed a Second Amended Post-Conviction Petition.
His conviction was vacated by the Circuit Court of Cook County, and
he was granted a new trial.
On July 7, 2009, an order of nolle
prosequi was entered and he was released from custody.
II.
Rule 12(b)(6) permits a court to dismiss a claim where
plaintiff fails to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6).
The court must accept as true the
allegations of the complaint and draw all reasonable inferences in
favor of plaintiff.
Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629,
633 (7th Cir. 2007) (internal citation omitted). To survive a Rule
12(b)(6) motion, “the complaint need only contain a ‘short and
plain statement of the claim showing that the pleader is entitled
to relief.’”
EEOC v. Concentra Health Servs., Inc., 496 F.3d 773,
776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)).
The facts
must provide the defendant with “fair notice of what the ... claim
is and the grounds upon which it rests.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted).
The
plaintiff need not plead particularized facts, but the factual
allegations in the complaint must be enough to raise a right to
relief above the speculative level.
Id.
Count I
Count I of Kitchen’s complaint alleges that the defendants
violated 42 U.S.C. § 1983 by fabricating inculpatory evidence and
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suppressing exculpatory evidence in connection with his case.
The
various groups of defendants have raised different objections to
Kitchen’s claim.
The Officer Defendants
The officer defendants do not seek outright dismissal of Count
I. Rather, they seek to establish that the claim is not actionable
“beyond the ambit of Brady.”
According to the officer defendants,
regardless of the way in which the claim is characterized by
Kitchen, he is in fact seeking to assert a federal claim for
malicious prosecution -- a cause of action that the Seventh Circuit
has explicitly and repeatedly declined to recognize.
See, e.g.,
Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).
Hence, the
officer
defendants
contend
that
Count
I
should
be
construed
strictly as a Brady claim.
The specific due process claim that Kitchen asserts here has
See, e.g., Fields v. City of
been recognized in many other cases.
Chicago, No. 10 C 1168, 2011 WL 1326231, at *4 (N.D. Ill. Apr. 4,
2011); Howard, 2004 WL 2397281, at *9; Patterson v. Burge, 328 F.
Supp. 2d 878, 889 (N.D. Ill. 2004) (“Patterson I”); Corbett v.
White, No. 00 C 4661, 2001 WL 1098054 (N.D. Ill. Sept. 17, 2001).
Although defendants in the latter cases, like the defendants here,
have often insisted that the claim is a way of asserting a federal
malicious
prosecution
claim
by
other
consistently rejected this argument.
-7-
means,
courts
have
The difference, as Judge
Andersen has put it, is that “[m]alicious prosecution claims
require allegations that the Defendants commenced or continued
criminal proceedings against the plaintiff without probable cause,”
whereas the claim here “arise[s] from allegations that Defendants
concealed exculpatory evidence from prosecutors, thereby denying
him the right to a fair trial.”
Howard, 2004 WL 2397281, at *9.
Although Kitchen contends that he should be allowed to bring a
malicious prosecution claim under § 1983 and he purports to
preserve the claim “pending possible consideration of the issue in
the United States Supreme Court,” Kitchen Resp. to Officer Defs. at
5 n.5; see also Pl.’s Resp. Mun. Defs. at 4 n.1, he disavows any
intention of pressing such a claim in earnest here.
In short, the
defendants’ concerns about Count I’s scope are misplaced.
The officer defendants further argue that Count I -- and
indeed all counts of the complaint -- should be dismissed as to
defendant Byrne.
I agree.
Bryne is not alleged to have directly
participated in Kitchen’s torture.
Rather, the complaint simply
alleges that Byrne was Burge’s “right hand man,” and that, like
Burge, Bryne “engaged in a pattern and practice of torture and
brutality himself, and also supervised, encouraged, sanctioned,
condoned and ratified brutality and torture by other detectives,
including the Police Officer Defendants named herein.” Compl. ¶ 8.
These generic and conclusory allegations are not sufficient to
assert a claim against Byrne.
Accordingly, I grant the officer
-8-
defendants’ motion to dismiss Byrne from the complaint.
The Municipal Defendants
The municipal defendants assert several arguments for Count
I’s dismissal.
because
it
First, they argue that Kitchen’s claim fails
rests
on
an
unsound
doctrinal
underpinning.
In
particular, they maintain that Count I is based on a Fourth
Amendment theory of “continued imprisonment,” which, like the §
1983 malicious prosecution claim, has been expressly rejected by
the Seventh Circuit.
See, e.g., Wiley v. City of Chicago, 361 F.3d
994, 998 (7th Cir. 2004) (noting that the Seventh Circuit has
“repeatedly rejected the ‘continuing seizure’ approach” and stating
that the “scope of a Fourth Amendment claim is limited up until the
point of arraignment”).
Second, the municipal defendants argue
that Kitchen seeks to hold them liable for failing to investigate
the allegations of torture surrounding Areas 2 and 3. They contend
that the claim fails because the Seventh Circuit has held that law
enforcement
officers
have
no
duty
to
investigate
potentially
exculpatory information once they have probable cause to arrest a
suspect.
See, e.g., Garcia v. City of Chicago, Ill., 24 F.3d 966,
970 (7th Cir. 1994) (“[O]nce police officers have discovered
sufficient
facts
to
establish
probable
cause,
they
have
no
constitutional obligation to conduct any further investigation in
the
hopes
of
uncovering
potentially
evidence.”)(quotation marks omitted).
-9-
exculpatory
Further, the municipal
defendants contend that Kitchen’s claims against them fail because
he does not allege that they had any direct involvement in his
torture and other violations of his rights.
Indeed, Shines,
Hillard, and Needham point out that they had not even obtained
their relevant positions as municipal officers at the time of the
alleged torture.
These objections misapprehend the nature of Kitchen’s claim.
As Kitchen explains, for example, Count I does not allege a
continuing violation of his Fourth Amendment rights by suppressing
exculpatory evidence; he asserts that their actions constituted a
continuing violation of his due process right to a fair trial.
Similarly, Kitchen does not claim that the municipal defendants are
liable for failing to search for evidence that might have proved
his innocence; he claims that the defendants worked actively to
suppress evidence indicating his innocence. Nor is Kitchen’s claim
undermined by the fact that certain of the municipal defendants had
not yet been hired or appointed to their respective positions at
the time he alleges that he was tortured, for Count I seeks to hold
them liable for suppressing evidence of his innocence after they
had assumed the positions in which they are sued.
The municipal defendants’ other main argument is that no
causal connection can be established between their alleged conduct
and Kitchen’s injuries.
As they point out, Kitchen’s theory is
that if the municipal defendants had not suppressed information
-10-
about
Burge’s
and
other
officers’
practices
of
coercing
and
torturing suspects into making false confessions, Kitchen himself
would never have been forced to confess and he would never have
been convicted.
inferences
The municipal defendants claim that the “chain of
necessary
to
conclude
plaintiff
would
have
been
exonerated sooner if Hillard, Needham, and Shines would have
investigated and/or disclosed the re-opened OPS investigations
unrelated to plaintiff is too tenuous.” Municipal Defendants’ Mem.
at 9.
This argument has frequently been advanced in other cases
arising out of the of coercive interrogation methods as Areas 2 and
3.
See, e.g., Cannon, 2006 WL 273544, at *12; Orange v. Burge, No.
04 C 0168, 2005 WL 742641, at *13 (N.D. Ill. March 30, 2005)
(“Orange I”); Patterson I, 328 F. Supp. at 888, 890; Howard, 2004
WL 2397281, at *13. Courts have consistently rejected the argument
on the ground that it raises factual questions that cannot be
decided on a motion to dismiss.
persuasive.
The reasoning of these cases is
At the present stage, the municipal defendants are
entitled to dismissal of Count I only if the complaint lacks
“enough facts to state a claim to relief that is plausible on its
face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
I cannot say as a matter of law that no causal relationship can be
demonstrated
between
the
municipal
Kitchen’s coerced confession.
-11-
defendants’
conduct
and
It is true that, despite their initial determinations to the
contrary, the courts in Orange and Patterson later held that the
inferential chain was indeed too weak to support plaintiffs’
claims.
See Orange v. Burge, No. 04 C 0168, 2008 WL 4425427, at *5
(N.D. Ill. Sept. 29, 2008) (“Orange II”); Patterson v. Burge, No.
03 C 4433, 2010 WL 3894433, at *3 (N.D. Ill. Sept. 27, 2010)
(“Patterson II”).
Importantly, however, the later determinations
were made in the context of summary judgment motions -- not, as
here, on a motion to dismiss.1
In sum, given the facts and procedural posture of this case,
I am not persuaded by any of the municipal defendants’ arguments
for Count I’s dismissal.
Accordingly, their motion to dismiss is
denied as to Count I.
1
In rejoinder, the municipal defendants point out that,
although Orange II involved a motion for summary judgment, the
court nevertheless opined that it would have reached the same
conclusion even assuming (as is required under Rule 12(b)(6)) that
the plaintiff’s allegations were true. Orange II, 2008 WL 4425427,
at *5. Orange II‘s holding still does not apply here, however,
because of a key factual difference between the two cases. The
plaintiff in Orange II sought to hold former Cook County State’s
Attorney Richard Devine liable for failing to disclose evidence of
the pattern of torture at Area 2. In the portion of the opinion in
question, however, Orange II was addressing only the period between
1981 and 1983, which was before the plaintiff had even been
arrested. The court unsurprisingly held that Devine could not have
suppressed information favorable to Orange before Orange had even
been prosecuted. Notably, when the court went on to discuss the
plaintiff’s claims relating to the period when Devine had returned
to the SAO -- after which point Orange had been prosecuted --- the
Orange II court did not refer back to its earlier conclusion
regarding the plaintiff’s inability to establish a causal link.
Although the court granted Devine summary judgment, it did so on
other grounds.
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The ASA Defendants
ASA defendants Lukanich and Eannace argue that Count I -- as
well as the other claims against them -- should be dismissed
because, as prosecutors, they are entitled to absolute immunity.
It is well-settled that “[p]rosecutors are absolutely immune from
suits for monetary damages under § 1983 for conduct that is
intimately associated with the judicial phase of the criminal
process.”
Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003)
(quotation marks omitted).
In other words, “[a] prosecutor is
shielded by absolute immunity when he acts as an advocate for the
State but not when his acts are investigative and unrelated to the
preparation
and
initiation
(quotation marks omitted).
of
judicial
proceedings.”
Id.
Whether Lukanich and Eannace are
absolutely immune from suit, therefore, depends on whether their
conduct can be characterized as “prosecutorial” or must be viewed
as
“investigatory.”
And
since
Lukanich
and
Eannace
played
different roles in different phases of Kitchen’s case, it is
necessary
to
ask
at
each
point
whether
they
were
acting
as
prosecutors or as investigators.
The complaint first seeks to hold Lukanich liable for his
participation in Kitchen’s interrogation and confession.
Kitchen
insists that in coming to Area 3 during the interrogation, and in
taking Kitchen’s statement, Lukanich was acting as an investigator,
not a prosecutor.
Courts addressing similar claims in other cases
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have
consistently
found
that
conduct
of
the
kind
alleged
of
Lukanich falls on the prosecutorial rather than the investigative
side of the line.
As Judge Zagel remarked in
Andrews v. Burge,
660 F. Supp. 2d 868 (N.D. Ill. 2009):
Taking a court reported statement from a defendant is an
act within a prosecutor’s (as well as a police officer’s)
duties . . . .
The prosecutor acts within his core
functions when he evaluates the evidence gathered by
police and, in the case of a confession, takes steps to
see that the words of the defendant are properly
preserved.
A prosecutor should not be deprived of
immunity because, in a case of murder, he decides to hear
what the defendant has to say for himself.
Id. at 878; see also Patterson II, 2010 WL 3894438, at *10; Boyd v.
Village of Wheeling, No. 83 C 4768, 1985 WL 2564, at *10 (N.D. Ill.
Sept. 12, 1985).
Kitchen’s reliance on Hill v. Coppleson, 627 F.3d 601 (7th
Cir. 2010), is misplaced.
There, the prosecutor was alleged to
have gone beyond merely taking the plaintiff’s statement.
For
example, the prosecutor was alleged to have “fed” the plaintiff
several details about the murder to which he eventually confessed.
Id. at 603.
The prosecutor also whispered and mouthed answers to
plaintiff when he was being asked key details about the crime.
Id.
at
(no
604;
see
prosecutorial
also
Orange
immunity
II,
where
2008
ASA
was
WL
4443280,
“personally
at
*10
involved
in
[plaintiff’s] ongoing interrogation,” was present during electric
shocking of plaintiff and was part of “ongoing attempts to get ‘the
story’ straight”).
Here, by contrast, Lukanich is alleged only to
-14-
have taken Kitchen’s statement.
Kitchen next argues that Lukanich and Eannace are liable for
suppressing exculpatory information after his trial.
he
maintains
that
the
ASAs
failed
to
respond
For example,
truthfully
to
questions by the prosecutors handling Kitchen’s post-conviction
proceedings about the manner in which Kitchen’s confession had been
obtained.
Kitchen argues that since at that time Lukanich and
Eannace were no longer acting as prosecutors in connection with his
case,
they
are
not
entitled
to
prosecutorial
immunity
for
suppressing any exculpatory information.
Kitchen bases his argument on Houston v. Partee, 978 F.2d 362
(7th Cir. 1992).
murder.
In Partee, the plaintiffs were convicted of
While their appeals were pending, a cooperating witness
identified three others as the murderers.
The three eventually
confessed to the crime.
Although the prosecutors were aware of
this
lied
development,
they
when
the
plaintiffs’
attorney
specifically asked for information that had been obtained from the
cooperating witness.
The prosecutors also testified untruthfully
to this effect during appellate proceedings.
When the plaintiffs
later brought a § 1983 suit, the prosecutors claimed that they were
entitled to absolute immunity.
The court disagreed, holding that
at the time the prosecutors discovered the evidence exculpating the
plaintiffs, they were no longer functioning as prosecutors.
The
court observed that the plaintiff had already been convicted and
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that the appeal had been assigned to other prosecutors.
As a
result, the court held, the “prosecutors’ knowledge of and failure
to disclose [the] original statements and the three subsequent
confessions thus had no connection to their role as advocate for
the State.”
Id. (quotation marks omitted).
As with Hill, Kitchen’s reliance on Partee is misplaced.
For
one thing, the prosecutors in Partee suppressed information they
had obtained after their role as prosecutors had ceased; here, the
exculpatory information in question was obtained by the ASAs while
they were still performing their role as prosecutors.
Prosecutors
remain immune from having to divulge exculpatory information they
obtained
while
prosecutors.
(1st
Cir.
forfeited
prosecutors,
even
after
they
are
no
longer
See, e.g., Reid v. State of N.H., 56 F.3d 332, 338
1995)
because
(holding
the
that
“absolute
prosecutors
immunity
continued
to
[was
withhold
not]
the
exculpatory evidence long after [the defendant’s] conviction”);
Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986); cf. Patterson
II, 2010 WL 3894433, at *5 (finding that former State’s Attorney
Richard Devine was entitled to absolute immunity from liability for
failing to disclose exculpatory evidence of a pattern of police
brutality).
The ASAs’ position is further supported by the Supreme Court’s
decision in Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009).
The
plaintiff in Van de Kamp was released from prison after showing
-16-
that prosecutors had failed to turn over potential impeachment
information about one of its witnesses.
The plaintiff later
brought a § 1983 suit against the former Los Angeles County
district attorney and chief deputy district attorney for failing
properly to train and supervise prosecutors, and for failing to
establish an information system containing potential impeachment
material about informants.
The defendants claimed that they were
protected by prosecutorial immunity.
The Court agreed.
In reaching its decision, the Court observed that if the
plaintiff had sued the trial prosecutor for failing to turn over
exculpatory material instead of suing the prosecutor’s supervisors
for
failure
to
train,
the
prosecutor’s
supervisors
and
his
colleagues would all have been protected by prosecutorial immunity.
As
the
Court
explained,
“Imbler
makes
clear
that
all
these
prosecutors would enjoy absolute immunity from such a suit. The
prosecutors’ behavior, taken individually or separately, would
involve “[p]reparation ... for ... trial,” and would be “intimately
associated with the judicial phase of the criminal process” because
it concerned the evidence presented at trial.”
(citations omitted).
Id. at 862
From this, the Court reasoned that there was
no reason why the prosecutor’s supervisors should not be entitled
to immunity on the facts of the case before it.
The Court
explained:
The only difference we can find between Imbler and our
hypothetical case lies in the fact that, in our
-17-
hypothetical case, a prosecutorial supervisor or
colleague might himself be liable for damages instead of
the trial prosecutor. But we cannot find that difference
(in the pattern of liability among prosecutors within a
single office) to be critical. Decisions about indictment
or trial prosecution will often involve more than one
prosecutor within an office.
We do not see how such
differences in the pattern of liability among a group of
prosecutors in a single office could alleviate Imbler’s
basic fear, namely, that the threat of damages liability
would affect the way in which prosecutors carried out
their basic court-related tasks. Moreover, this Court has
pointed out that it is the interest in protecting the
proper functioning of the office, rather than the
interest in protecting its occupant, that is of primary
importance.
Id. at 862-63 (citations and quotation marks omitted).
Under
Van
de
Kamp
Lukanich
and
Eannace
are
entitled
to
prosecutorial immunity for their alleged post-trial suppression of
exculpatory evidence. Although Lukanich and Eannace were no longer
prosecutors on the case, they were colleagues of the prosecutors
who had been assigned to work on the appellate phase of Kitchen’s
case.
As Van de Kamp’s hypothetical illustrates, immunity extends
to a prosecutor’s colleagues and supervisors, without regard to
“the
pattern
office.”
of
liability
among
prosecutors
within
a
single
Id. at 862.
Lastly, Kitchen argues that the ASAs are liable for the their
alleged role in fabricating the statement of Willie Williams, the
individual who originally brought Kitchen to the attention of the
police.
According to Kitchen, “[k]nowing that they did not have
sufficient credible proof to sustain their case, the police officer
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Defendants, together with Defendants Lukanich and Eannace . . .
continued their ‘investigation’ by further shaping Williams’ story,
by making promises and extending favors that included giving his
girlfriend rent money and obtaining his early release from prison.”
Compl. ¶ 50.
Although Williams’s story was “obviously false,”
Compl. ¶ 27, the defendants continued to reward him with such
favors so long as his story was helpful to them in building a case
against Kitchen.
Kitchen contends that the ASAs are not entitled to absolute
immunity for their conduct during this period because they were
engaged in investigatory, rather than prosecutorial, activities.
He also points out that their alleged fabrication of Williams’s
statement took place early on in the “investigation” -- about two
weeks prior to Kitchen’s arrest and interrogation, see Compl. ¶ 31
-- before they could have had probable cause to arrest Kitchen for
the murders.
As Kitchen points out, “A prosecutor neither is, nor
should consider himself to be, an advocate before he has probable
cause to have anyone arrested.”
Buckley v. Fitzsimmons, 509 U.S.
259, 274 (1993) (“Buckley II”); see also Hill v. Coppleson, 627
F.3d 601, 605 (7th Cir. 2010).
One issue that Kitchen does not sufficiently address, however,
is that insofar as the ASAs were engaged in preparing Williams to
testify, they retain their prosecutorial immunity.
As the Supreme
Court has repeatedly affirmed, an out-of-court effort to control
-19-
the presentation
witness’ testimony was entitled to absolute
immunity because it was fairly within the prosecutor’s function as
an advocate.”
Buckley II, 509 U.S. at 273 (quotation marks and
brackets omitted); see also Imbler v. Pachtman, 424 U.S. 409, 431
n.32 (1976).
Even if Lukanich and Eannace were not entitled to absolute
immunity for their conduct during this period, they would be
entitled to qualified immunity.
The qualified immunity inquiry
asks two questions: whether the plaintiff’s allegations make out a
deprivation of a constitutional right, and whether the right was
clearly established at the time of defendant’s alleged misconduct.
McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010).
Kitchen
fails to explain in what way the ASAs’ conduct violated his
constitutional
rights.
Merely
making
promises
of
favorable
treatment to Williams does not violate the Constitution.
And to
the extent that Williams’s fabricated story could have resulted in
a constitutional violation of Kitchen’s rights, the violation could
have taken place only when the story was used against Kitchen at
trial. Buckley v. Fitzsimmons, 20 F.3d 789, 795-96 (7th Cir. 1994)
(“Buckley III”). At that point, however, they were protected by
prosecutorial immunity.
Id. at 794.
The upshot of the foregoing discussion is that Lukanich and
Eannace are entitled to immunity with respect to Count I.
As just
explained, Lukanich and Eannace committed no violation of Kitchen’s
-20-
rights by virtue of their alleged fabrication Williams’s statement.
Insofar as the rest of the ASAs’ involvement is concerned, they were
acting as prosecutors and are therefore absolutely immune from suit.
As a result, Kitchen’s claims against the ASAs fail and their motion
to dismiss Count I is granted.
Mayor Daley
Count I is alleged against Daley in his role as mayor of
Chicago (1989 to the present).
As with the ASAs, Kitchen contends
that Daley violated his due process right to a fair trial by
suppressing and concealing exculpatory information. In particular,
Kitchen cites four different bases for holding Daley liable after
he became mayor: (1) Daley’s remarks discrediting the OPS Report,
which had found that Burge and his subordinates had systematically
abused African American suspects in their custody”;(2) his promotion
of Burge’s “confederate,” Peter Dignan (“Dignan”), to Lieutenant,
despite an OPS finding that Dignan was guilty of torturing several
still-incarcerated individuals; (3) his directive to City lawyers,
over the objection of his senior staff, to continue defending Burge,
even after Burge’s indictment by federal authorities for crimes
arising out of the torture; and (4) his continued concealment of the
information regarding torture by Burge and others, which he had
personally learned of during his years as State’s Attorney.
See
Pl.’s Resp. at 19.
For reasons already discussed in connection with the ASAs’
-21-
motion, it is clear that the last of these bases (4) does not afford
grounds for holding Daley liable.
Since Daley was acting as a
prosecutor at the time he obtained the information in question, he
is immune from having to disclose the information.
at 338; Shankland, 800 F.2d at 80.
Reid, 56 F.3d
It is true that Daley would not
be immune for suppressing exculpatory information he learned after
leaving the State’s Attorney’s Office.
But Kitchen does not base
his argument on such information. Rather, (4) specifically refers
to “information regarding torture by Burge and others, which he had
personally learned of during his years as State’s Attorney.”
Kitchen’s first three bases also fail to support a claim
against Daley.
This is because no causal connection can be
established between these allegations and the alleged violation of
Kitchen’s due process rights.
It cannot plausibly be argued that
Kitchen would have been exonerated if Daley had not promoted Dignan,
or if he had not ordered Burge’s defense, or if he had not
criticized the OPS Report.
Indeed, it is difficult to discern any
connection between Daley’s decisions to promote Dignan or to defend
Burge and Kitchen’s continued imprisonment.2
2
Kitchen’s theory becomes slightly more complicated, for he
seeks to hold Daley liable not only for Daley’s own actions, but
also for the acts of the municipal defendants, with whom he claims
Daley entered into a conspiracy. In particular, Kitchen seeks to
establish that, as a participant in the conspiracy, Daley is liable
not only for the actions he took as mayor but also for deeds of coconspirators before he joined the conspiracy. Kitchen cites cases
for the proposition that “[e]ach conspirator is liable for overt
acts of every other conspirator done in furtherance of the
-22-
Kitchen insists that this is a factual question that cannot be
decided on a motion to dismiss.
I disagree.
The Supreme Court has
affirmed that “only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009).
“Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience
and common sense.
Id.
But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct,
the
complaint
has
alleged
-
but
it
has
not
‘show[n]’-‘that the pleader is entitled to relief.’” Id.
The fact that I rejected a similar argument in the municipal
defendants’ case is not inconsistent with my acceptance of the
argument in Daley’s case.
the
municipal
possibility
of
defendants
Given the nature of the information that
are
establishing
alleged
a
to
causal
have
suppressed,
link
with
incarceration is at least minimally plausible.
the
Kitchen’s
For example, Martin
is alleged to have hindered OPS investigations into Burge’s and
conspiracy, whether the acts occurred before or after he joined the
conspiracy.” United States v. Read, 658 F.2d 1225, 1230 (7th Cir.
1981).
In making this argument, however, Kitchen attempts to
sidestep the fact that Daley possesses absolute immunity for the
period in question, and the Seventh Circuit has expressly held that
“prosecutors do not lose their absolute immunity by allegations
that they conspired to perform actions that are shielded by
immunity.” Johnson v. City of Joliet, No. 1:04CV06426, 2006 WL
1793574, at *5 (N.D. Ill. June 27, 2006); see French v. Corrigan,
432 F.2d 1211 (7th Cir. 1970).
-23-
others’ use of torture at Area 2 and 3 Headquarters; and when
findings of torture were made, Shines attempted to “secret” or
suppress them.
Although none of the suppressed information had
specifically to do with Kitchen’s case, it is not unreasonable to
infer that awareness of other instances of torture could have drawn
attention to the problem more generally, causing Kitchen’s case to
come to light sooner. In Daley’s case, however, judicial experience
and common sense do not permit such a reasonable inference based on
Daley’s decision to promote Dignan, for example, or to provide
Burge’s legal defense. For these reasons, Daley’s motion to dismiss
Count I is granted.
In sum, the officer defendants’ and the municipal defendants’
motions to dismiss Count I are denied; the ASAs’ and Daley’s motions
are granted.
Counts II & III
In Count II, Kitchen asserts a claim for false arrest/false
imprisonment under § 1983; and in Count III, he asserts a § 1983
claim for torture and physical abuse.
Both claims allege a
violation of Kitchen’s Fourth Amendment rights.
The defendants
argue that since the “scope of a Fourth Amendment claim is limited
up until the point of arraignment,” Wiley, 361 F.3d at 998, both
claims are time-barred. Kitchen does not oppose dismissal of either
claim.
Accordingly, Counts II and III are dismissed.
Count IV
-24-
Kitchen characterizes Count IV of his complaint as a § 1983
coercive interrogation claim.
Specifically, the complaint alleges
that the defendants violated his Fifth Amendment right against
self-incrimination and his Fourteenth Amendment substantive due
process right “not to have been convicted based upon a physically
coercive interrogation that was shocking to the conscience.”
Resp.
to Def Officers’ Mot. to Dismiss at 6.
The defendants first argue that the claim is barred by its twoyear limitations period.
See, e.g., Wallace v. Kato, 549 U.S. 384,
387 (2007). The timeliness of the claim depends on when it accrued.
According to the defendants, the claim could have accrued no later
than 1990 (i.e., when Kitchen challenged his interrogation during
a suppression hearing).
However, Kitchen maintains that the claim
did not accrue until his conviction was set aside.
To determine when the claim accrued, it is necessary to
consider Heck v. Humphrey, 512 U.S. 477 (1994).
framework,
a
claim
conviction
cannot
that
accrue
directly
until
attacks
after
the
“Under the Heck
the
validity
conviction
terminated in a manner favorable to the plaintiff.”
of Elkhart, 614 F.3d 677, 681 (7th Cir. 2010).
whether
Kitchen’s
conviction.
claim
directly
attacks
the
of
has
a
been
Parish v. City
The question is
validity
of
his
If so, the claim will not have accrued until after his
conviction was set aside.
I agree with the other courts to have considered the issue that
-25-
Kitchen’s coercive interrogation claim cannot be challenged without
impugning the validity of his conviction. See, e.g., Walden v. City
of Chicago, No. 04 C 0047, 2010 WL 5168789, at *11 (N.D. Ill. Dec.
21, 2010) (plaintiff’s claim did not accrue until he received the
innocence pardon because he could not have challenged his coerced
interrogation without necessarily demonstrating the invalidity of
his conviction under Heck); see also Cannon, 2006 WL 273544, at *9.
From this, it follows that Kitchen’s claim in Count IV did not
accrue until August 19, 2009, the date on which Kitchen he received
his certificate of innocence.
Since his suit was filed within two
years of that date, Count IV is timely.
Municipal Defendants
Of the municipal defendants, Count IV is alleged only against
Martin.
Kitchen alleges what he refers to as a “supervisory
liability/failure to intervene” claim. See Pl.’s Resp. to Municipal
Defs. at 4.
The parties dispute at length whether “supervisory
liability” is allowed under § 1983.
dispute is merely verbal.
On inspection, however, the
The Seventh Circuit has recognized
liability for faulty supervision.
See, e.g., Trentadue v. Redmon,
619 F.3d 648, 652 (7th Cir. 2010); Nanda v. Moss, 412 F.3d 836, 842
(7th Cir. 2005) (“Under § 1983 . . . supervisory liability can be
established if the conduct causing the constitutional deprivation
occurs at the supervisor’s direction or with the supervisor’s
knowledge and consent.”); Jones v. City of Chicago, 856 F.2d 985,
-26-
992-93 (7th Cir. 1988) (“There is no principle of superiors’
liability,
either
in
tort
constitutional torts.
law
generally
or
in
the
law
of
To be held liable for conduct of their
subordinates, supervisors must have been personally involved in that
conduct . . . .
The supervisors must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye for fear
of what they might see.
They must in other words act either
knowingly or with deliberate, reckless indifference.
This heavy
burden on plaintiffs is easy to understand in a case such as this
case where the ground of the supervisors’ liability is that they
conspired
with
subordinates
to
violate
the
plaintiff’s
constitutional rights.”) (citations omitted).
Here, Kitchen is not seeking to hold Martin vicariously liable
for others’ actions; he claims that Martin is primarily liable for
failing to stop others from violating his constitutional rights.
See Compl. ¶¶ 127, 128.
His liability, if any, is not for the
officers’ actions but for his own action in failing to stop them.
Accordingly, the municipal defendants’ motion to dismiss Count IV
is denied.
The ASA Defendants and Mayor Daley
Lukanich (the only ASA defendant against whom Count IV is
asserted) and Daley are both immune with respect to Count IV for the
same reasons as discussed in connection with Count I.
In addition to the federal claims asserted in Counts I and IV,
-27-
the ASA defendants claim that they are immune with respect to
Kitchen’s state law claims.
The ASAs base their argument on two
distinct grounds: prosecutorial immunity and sovereign immunity.
Kitchen
contends
that
prosecutors
are
immune
from
suit
under
Illinois law only insofar as they have not acted with malice. Since
he has alleged that the defendants did act with malice, Kitchen
maintains that the ASAs are not entitled to prosecutorial immunity
for his state law claims.
Kitchen’s account of prosecutorial immunity under Illinois law
is mistaken.
In particular, as the ASA defendants point out,
Kitchen confuses prosecutorial immunity under Illinois law with
“public official immunity.”
See, e.g., Lanza v. City Of Chicago,
No. 08 C 5103, 2009 WL 3229407, at *4 (N.D. Ill. Oct. 1, 2009);
Hughes v. Krause, No. 06 C 5792, 2008 WL 2788722, at *1 (N.D. Ill.
July 17, 2008).
“Although under Illinois law there is a doctrine
of public official immunity which has a lack of malice requirement
[in order for the immunity to apply], such is not the immunity
afforded prosecutors.”
marks).
Lanza, 2009 WL 3229407, at *4 (quotation
“Rather . . . prosecutors, like judges, must be allowed
to perform the functions of their jobs fearlessly and without fear
of consequence.” Id.
Relying on the Supreme Court’s jurisprudence,
the Illinois Appellate Court held that a “prosecutor is absolutely
immune only for those activities ‘intimately associated with the
judicial phase of the criminal process.’” White v. City of Chicago,
-28-
861 N.E.2d 1083, 1088 (Ill. App. Ct. 2006)(quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)); see also Patterson II, 2010 WL
3894438, at *11; Gordon, 2008 WL 4594354, at *17.
appearing
to
hold
the
contrary
have
either
been
Decisions
changed
on
reconsideration, see, e.g., Hughes v. Krause, No. 06 C 5792, 2008
WL
904898,
at
*6
(N.D.
Ill.
Mar.
31,
2008),
altered
on
reconsideration by Hughes v. Krause, No. 06 C 5792, 2008 WL 2788722,
at *1 (N.D. Ill. July 17, 2008), or have been misunderstood,
Horstman v. County of DuPage, 284 F. Supp. 2d 1125, 1132 (N.D. Ill.
2003).3
Since the Illinois and federal doctrines of prosecutorial
immunity are coterminous, and since I have determined that the ASA
defendants are entitled to prosecutorial immunity under federal law,
it follows that they are also entitled to immunity with respect to
Kitchen’s state law claims.
It is also unnecessary for me to
consider whether the ASAs are protected by sovereign immunity.4
3
Gordon cited my decision in Horstman as refusing to dismiss
a claim based on prosecutorial immunity because the plaintiff had
alleged malice on the defendant’s part. Gordon, 2008 WL 4594354,
at *16. In point of fact, Hortsman discussed malice only in
connection with public official immunity. Horstman, 284 F. Supp.
2d at 1132-33. I declined to dismiss on prosecutorial immunity
grounds because of factual questions as to whether the defendant
had been acting as an investigator or a prosecutor. Id. at 1132.
4
It is also unnecessary for me to entertain the ASAs’
contention that I lack jurisdiction over Kitchen’s state law claims
because of 705 ILCS 505/8, which provides that the Illinois Court
of Claims “shall have exclusive jurisdiction to hear and determine
. . . [a]ll claims against the State for damages in cases sounding
in tort, if a like cause of action would lie against a private
-29-
The parties devote virtually no attention to whether Daley can
be liable for the state law claims brought against him.
Both
parties appear to assume that the same analysis would apply to the
state as well as federal claims.
Since the federal claims against
Daley have been dismissed, the state claims are dismissed against
him as well.
Counts V and X
In Count V, plaintiff alleges three conspiracy claims: (1) a
claim
under
§
1983
for
conspiracy
to
violate
plaintiff’s
constitutional rights; (2) a claim under § 1985 for conspiracy to
deprive
plaintiff
and
other
African
Americans
of
the
equal
protection of the laws and/or of equal privileges and immunities
under the law; and (3) a claim under § 1986 for failure to prevent
the § 1985 conspiracy.
The claim is asserted against all of the
defendants, but since the claims against the ASAs and Daley have
been dismissed, it is necessary to consider Counts V and X only
insofar as they apply to the remaining defendants.
“42 U.S.C. § 1983 creates a federal cause of action for the
deprivation under color of state law, of a citizen’s rights,
privileges, or immunities secured by the Constitution and laws of
the United States.”
Fitzpatrick v. City of Hobart, No. 2:03-CV-359
PS, 2006 WL 2736127, at *6 (N.D. Ind. Sept. 25, 2006) (quotation
person or corporation in a civil suit.” 705 ILCS 505/8(d).
-30-
marks and brackets omitted).
“Thus, the Plaintiffs must show that
the defendants both 1) deprived them of a right secured by the
Constitution or the laws of the United States; and 2) that the
defendants acted under color of state law.”
Id.
As for claims under § 1985(3), “four elements are required: (1)
a conspiracy; (2) a purpose of depriving any person of equal
protection of the laws; (3) an act in furtherance of the conspiracy;
and (4) injury to one’s person or property or a deprivation of a
right or privilege of a citizen of the United States.”
Malone v.
American Friends Service Committee, 213 Fed. App’x. 490, 494-95 (7th
Cir. 2007).
Section 1986 “creates a cause of action against a
person that neglects or refuses to stop a conspiracy to violate the
civil rights of a member of a protected class.”
Id. at 494.
The defendants first argue that the conspiracy allegations lack
sufficient specificity.
The Seventh Circuit has made clear that
conspiracy claims under § 1983 are not subject to a heightened
pleading standard.
See, e.g., Srivastava v. Cottey, 83 Fed. App’x.
807, 810 (7th Cir. 2003).
Rather, a complaint need only provide
“notice of time, scope, and parties involved.”
Id.
Kitchen’s
complaint easily satisfies this requirement.
Defendants argue that Kitchen’s § 1985 and § 1986 conspiracy
claims fail because there must be an underlying predicate violation
of constitutional rights. As already explained, Counts I and IV are
sufficient to state a claim.
Defendants also argue that plaintiff
-31-
has failed to allege an “underlying equal protection claim or any
specific facts tying Defendant Officers to any racially motivated
intent to deprive Plaintiff of his equal protection rights.”
The
complaint alleges that the conspiracy was formed “with the knowledge
and purpose of depriving Plaintiff, who is African-American, and
numerous
other
African
American
torture
victims
of
the
equal
protection of the laws and/or of equal privilege and immunities
under the law, and with racial animus toward the Plaintiff and the
other victims of this racially motivated conspiracy.” Compl. ¶ 131;
see also Compl. ¶ 60.
Accordingly, I deny the defendants’ motions
to dismiss Count V.
In addition to his federal conspiracy claims in Count V,
Kitchen asserts a state law conspiracy claim in Count X. Defendants
do not adduce any further arguments for dismissal of the state law
claim.
Thus, I decline to dismiss Count X of the complaint.5
Count VII
Count VII of Kitchen’s complaint alleges a claim for false
arrest/false imprisonment under Illinois law. The defendants argue
5
In his reply brief, Burge says in passing that Kitchen’s
conspiracy claim is untimely insofar as it is premised on
allegations of torture and coercion. See Burge Reply at 7. This
contention was raised for the first time in his reply brief and is
not developed. As a result, it is forfeited. See, e.g., Wilson v.
Giesen, 956 F.2d 738, 741 (7th Cir. 1992) (argument was waived “as
the plaintiff failed to raise it until his reply brief, leaving the
defendants no chance to respond”); United States v. Berkowitz, 927
F.2d 1376, 1384 (7th Cir. 1991) (perfunctory and undeveloped
arguments are waived).
-32-
that the claim is untimely. The statute of limitations is one year.
Jones v. Navia, No. 09-cv-6968, 2010 WL 4878869, at *4 (N.D. Ill.
Nov. 23, 2010) (citing 745 ILCS 10/8-101).
The Seventh Circuit recently affirmed that under Illinois law,
a false arrest ends, and a claim for false arrest therefore accrues,
when authorities obtain a warrant for a suspect’s arrest.
National
Cas. Co. v. McFatridge, 604 F.3d 335, 344-45 (7th Cir. 2010). Since
Kitchen was arrested in 1988, his false arrest claim is time-barred.
Kitchen also claims false imprisonment.
His argument depends
on the assertion that his false imprisonment claim did not accrue
until he was released from prison in 2009.
“personal
injury
claims
accrue
when
the
Under Illinois law,
plaintiff
suffers
an
injury,” or, under the discovery rule, when the “injured plaintiff
knows or reasonably should know that he has been injured and that
his injury was wrongfully caused.”
Hill v. City of Chicago, No. 06
C 6772, 2007 WL 1424211, at *5 (N.D. Ill. May 10, 2007) (quotation
marks omitted). Based on the allegations in his complaint, Kitchen
knew that he had been falsely imprisoned in 1990, when he was first
imprisoned.
See, e.g., Thompson, 2009 WL 674353, at *5; Jones v.
Navia, No. 09-cv-6968, 2010 WL 4878869, at *4 (N.D. Ill. Nov. 23,
2010); Cote v. Hopp, No. 09-1060, 2010 WL 1416851, at *3 (C.D. Ill.
April 1, 2010); Gora v. Edgar, No. 95 C 4087, 1996 WL 11938, at *2
(N.D. Ill. Jan. 10, 1996); Burge v. Harvey Police Officers, No. 97
C 4569, 1997 WL 610045, at *2 (N.D. Ill. Sept. 25, 1997).
-33-
Against this, Kitchen argues that his false imprisonment claim
did not accrue until he was released from prison.6
His position
appears to be based on his conception of the claim as a continuing
tort or violation.
He claims that his false imprisonment “claim
concerns a course of conduct, continuing over many years, beginning
with Plaintiff’s warrantless arrest without probable cause.” Pl.’s
Resp. to Officer Defs. at 9.
This view is unpersuasive. As the
Illinois Supreme Court has explained, “[a] continuing violation or
tort is occasioned by continuing unlawful acts and conduct, not by
continual ill effects from an initial violation.”
Feltmeier, 798 N.E.2d 75, 85 (Ill. 2003).
Feltmeier v.
“Thus, where there is a
single overt act from which subsequent damages may flow, the statute
begins to run on the date the defendant invaded the plaintiff’s
interest and inflicted injury, and this is so despite the continuing
nature of the injury.”
Id. (citations omitted).
Although Kitchen casts his claim as consisting of continuing
acts rather than continuing effects, the error is essentially the
same.
Courts have indicated that false imprisonment should be
viewed as springing from an unlawful act that results in continual
ill effects, not from continuing unlawful acts.
6
See, e.g., Pierce
Only two cases from this District support this position,
Cooper v. Butler, No. 92 C 5604, 1995 WL 399009, at *5 (N.D. Ill.
June 29, 1995), and Hernandez v. Sheahan, No. 93 C 1668, 1993 WL
257486, at *6 (N.D. Ill. July 8, 1993), and their reasoning has
been rejected by most courts.
See, e.g., Thompson v. City of
Chicago, No. 07 C 1130, 2009 WL 674353, at *5 (N.D. Ill. Mar. 12,
2009).
-34-
v. Pawelski, No. 98 C 3337, 2000 WL 1847778, at *2 (N.D. Ill. Dec.
14, 2000); see also Jones, 2010 WL 4878869, at *4; Ford v. City of
Rockford, No. 88 C 20323, 1990 WL 304240, at *2 (N.D. Ill. May 10,
1990).
Kitchen’s
false
imprisonment
claim
is
untimely.
Accordingly, Count VII is dismissed.
Counts VI & XI
In Count VI, Kitchen asserts a Monell claim against the City.
“The elements of a Monell claim are: (1) the deprivation of a
constitutional right; (2) that action was taken pursuant to a
custom, policy or practice of the local government unit; and (3)
that such action was the cause of the deprivation.”
Anderson, No. 09 C 1915, 2010 WL 5014393, at *4
2010).
Williams v.
(N.D. Ill. Dec. 2,
The City argues that the Monell claim fails because Kitchen
cannot establish an underlying violation of his constitutional
rights.
However, as Counts I and IV sufficiently allege that the
officer defendants deprived Kitchen of his civil rights, the City’s
motion to dismiss Count VI is denied.
The City makes a parallel argument with respect to Kitchen’s
respondeat superior claim in Count XI. The City argues that there
can be no vicarious liability absent a showing of primary liability
on the part of its employees.
As discussed above, Kitchen has
alleged state law claims for conspiracy, malicious prosecution, and
intentional infliction of emotional distress.
These claims form a
basis on which the City can potentially be held vicariously liable.
-35-
As with Count VI, therefore, the City’s motion to dismiss Count XI
is denied.
Count XII
Lastly, Count XII asserts a claim for indemnification pursuant
to 745 ILCS 10/9-102 against the City, Cook County, and the County’s
State’s Attorney’s Office.
The City once again argues that it cannot be held vicariously
liable without any showing of primary liability on the part of its
employees.
As already discussed, this argument depends on the
assumption that there can be no showing of primary liability on the
part of the City’s employees.
Since that assumption is incorrect,
this argument is without merit and the City’s motion to dismiss
Count XII is denied.
The County’s motion to dismiss is granted.
In response to the
County’s motion, Kitchen explains that he does not seek to hold the
County liable for any substantive defense; instead, he states that
he has named the County as a defendant only because it is a
necessary party in the event that judgments are entered against
Mayor Daley, Lukanich, or Eannace. Indemnification is unnecessary,
however, because each of these defendants has been dismissed from
the suit.
I also grant the State’s Attorney’s Office’s motion to dismiss.
The State’s Attorney’s Office is entitled to immunity under the
Eleventh Amendment.
See, e.g., Hernandez v. Joliet Police Dept.,
-36-
197 F.3d 256, 265 (7th Cir. 1999) (dismissing claim against Will
County State’s Attorney’s Office on the ground that “[t]he Eleventh
Amendment prohibits courts from deciding suits brought by private
litigants against states or their agencies.”) (quotation marks
omitted).
III.
For the reasons discussed above, the ASA defendants’ motion to
dismiss [56] and Mayor Daley’s motion to dismiss [45] are granted
in their entirety.
The officer defendants’ motion to dismiss [47]
and the municipal defendants’ motion to dismiss [44] are granted as
to Counts II, III, and IV.
Burge’s partial motion to dismiss [77]
is granted in part and denied in part.
All claims are dismissed as
to Sergeant Byrne.
ENTER ORDER:
____________________________
Elaine E. Bucklo
United States District Judge
Dated: April 19, 2011
-37-
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