Kitchen v. Burge et al
Filing
314
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 2/1/2012. (et, )
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
This case arises out of the arrest and interrogation of
plaintiff Ronald Kitchen, who claims that his conviction, death
sentence, and twenty-one year incarceration were the product of a
confession that Chicago Police officers obtained from him through
torture.
In his First Amended Complaint (“FAC”), plaintiff
asserts, inter alia, constitutional claims pursuant to 42 U.S.C.
§ 1983 as well as various state law claims against individual
defendants, the City of Chicago, Cook County, and the Cook County
State’s Attorney’s Office.
Currently before me is a motion by
Defendants Cook County Assistant State’s Attorney Mark Lukanich
and Cook County to dismiss all claims against them. For the
following reasons, I deny defendants’ motion in part and grant it
in part.
I.
Background
On April 19, 2011, I dismissed the claims asserted against
these defendants in plaintiffs’ original complaint, concluding
that because the only conduct attributed to ASA Lukanich fell
within the scope of his prosecutorial function, he was entitled
to prosecutorial immunity.
I denied plaintiff’s motion to
reconsider that decision, explaining that the allegations in the
complaint were insufficient to allege ASA Lukanich’s knowledge
and participation in the coercion of plaintiff’s confession.
Because I presume familiarity with my April 19, 2011,
opinion, which set forth the allegations of the original
complaint in significant detail, I now focus, in the context of
analyzing the parties’ competing arguments, on the factual
material alleged for the first time in the FAC.
II.
Analysis
Defendants assert three bases for dismissal.
First,
defendants argue that all of plaintiff’s claims against ASA
Lukanich are barred by prosecutorial immunity.
Second,
defendants contend that ASA Lukanich is entitled to qualified
immunity.
Finally, defendants argue that the Illinois Court of
Claims has exclusive jurisdiction over plaintiff’s state law
claims against ASA Lukanich.
A.
Prosecutorial Immunity
Defendants claim that ASA Lukanich is entitled to
prosecutorial immunity because all of his alleged conduct falls
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within his role as a prosecutor.
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 and
citation omitted).
The Seventh Circuit has stated that the
appropriate inquiry is focused on the function the prosecutor is
performing at the relevant time.
Houston v. Partee, 978 F.2d
362, 366 (7th Cir. 1992) (“We do not decide whether a prosecutor
is entitled to absolute immunity; we decide whether a prosecutor
performing a particular function is entitled to absolute
immunity.”) (emphasis in original).
Therefore, the relevant
question is what function ASA Lukanich was performing when he
engaged in the conduct alleged by plaintiff.
In his FAC, Kitchen makes two significant, new allegations
regarding ASA Lukanich’s involvement in plaintiff’s interrogation
and confession.
First, Kitchen alleges that ASA Lukanich was
called to the station to assist police in coercing Kitchen to
make a statement, before Kitchen had admitted to any involvement
in the crime for which he had been arrested.
(FAC ¶ 42.)
Second, Kitchen alleges facts to support his claim that ASA
Lukanich knew Kitchen was being tortured, that he participated in
the process of coercion that ultimately resulted in Kitchen’s
involuntary statement, and that he later suppressed evidence of
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torture.
Specifically, Kitchen’s FAC adds these factual
allegations: (1) that while ASA Lukanich was at Area Three and in
the vicinity of the interrogation rooms, Kitchen screamed out in
pain multiple times such that ASA Lukanich could hear, and (2)
that when ASA Lukanich twice entered the interrogation room he
could observe Kitchen’s appearance, which showed clear signs of
abuse.
(FAC ¶ 45.)
Defendants argue that these new factual allegations add
nothing to Kitchen’s claims and that ASA Lukanich is still
entitled to absolute prosecutorial immunity.
Defendants insist
that the FAC continues to allege only that ASA Lukanich took
Kitchen’s statement after his arrest.
However, as Kitchen has
argued, the facts alleged in the FAC, if true, plausibly show
that ASA Lukanich was aware of Kitchen’s tortured interrogation
and knowingly obtained a coerced and involuntary confession.
Defendants rely on Hunt v. Jaglowski, 926 F.2d 689 (7th Cir.
1991), for the proposition that taking a suspect’s statement
after the suspect informs the ASA that he has been beaten and
coerced into confessing falls within the ASA’s role as a
prosecutor.
But Hunt does not help defendants’ argument.
Not
only was Hunt decided on appeal from an order granting a directed
verdict after a jury trial, but defendants’ presentation of the
facts in that case is inaccurate.
In Hunt, the Seventh Circuit
found that the plaintiff had testified that he had no contact
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with the ASA defendant until after he had confessed to the
police.
926 F.3d at 693.
In addition, the Seventh Circuit found
that “[t]he police had conducted the investigation of [the] case,
as was their function, before [the ASA] was called.”
Id.
Here,
by contrast, Kitchen alleges that ASA Lukanich was called to the
station during the police investigation and that Kitchen had
denied any involvement with the murders at the time ASA Lukanich
was first brought into the interrogation room.
Defendants also cite Andrews v. Burge, 660 F.Supp.2d 868
(N.D.Ill. 2009).
However, that case does not involve the key
issue here, namely, specific allegations to support a claim that
the ASA knew torture was being used to coerce a confession.
In
fact, in Andrews, Judge Zagel found that the only “crucial
allegation” against the ASA defendant was that the ASA “was at
Area Two and witnessed Andrews refuse to make a confession.”
F.Supp.2d at 877.
660
In Andrews, the plaintiff relied on an
ambiguous statement made by the ASA defendant during an aborted
confession.
Id.
Judge Zagel noted an absence of factual
allegations to support a claim that the ASA defendant knew that
the plaintiff was being physically abused.
Id. at 877-78.
by contrast, Kitchen has alleged facts that, taken as true,
plausibly show that ASA Lukanich knowingly participated in
obtaining a coerced confession.
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Here,
The facts alleged in the FAC are more akin to those
discussed in Tillman v. Burge, No. 10 C 4551, 2011 WL 2975671,
2011 U.S. Dist. LEXIS 79320 (N.D.Ill. July 20, 2011) (Pallmeyer,
J.).
In Tillman, Judge Pallmeyer held that an ASA defendant was
not entitled to prosecutorial immunity where the ASA defendant
was present at the station during the interrogation and was
alleged to have known that plaintiff was being tortured.
2975671, at *13, 2011 U.S. Dist. LEXIS 79320, at *42.
2011 WL
Such
personal involvement in an interrogation, Judge Pallmeyer
concluded, put the ASA defendant’s conduct “outside the scope of
a prosecutorial function, and is therefore enough to survive an
absolute immunity challenge.”
2011 WL 2975671, at *13, 2011 U.S.
Dist. LEXIS 79320, at *44.
Further, as Judge Pallmeyer pointed out in Tillman, whether
prosecutorial immunity attaches depends on whether the defendant
was serving in a prosecutorial or investigative role at the time
the defendant learned of the allegedly exculpatory evidence.
Id.
(citing Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993)).
I agree with the reasoning of
Tillman, and conclude that on defendants’ motion to dismiss, ASA
Lukanich is not entitled to prosecutorial immunity on claims that
ASA Lukanich participated in Kitchen’s allegedly tortured
confession and subsequent suppressed evidence related to that
tortured confession.
ASA Lukanich’s alleged role in Kitchen’s
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interrogation and confession was investigatory rather than
prosecutorial, as was his suppression of evidence of torture.
In addition to arguing that ASA Lukanich’s immunity from
suit does not extend to his station house conduct, plaintiff
asserts that ASA Lukanich’s pre-trial suppression of evidence
that the Willie Williams story was fabricated was likewise
outside the scope of his immunity.
Kitchen concedes that he is
not attempting to revive his claim that Lukanich is subject to
suit for his role in fabricating the Williams evidence.
Resp. to Defs.’ Br. at 3.)
(Pl.’s
Yet, Kitchen’s strained distinction
between fabrication of the evidence and suppression of the
fabrication fails to explain how the failure to disclose
concededly prosecutorial activities can be considered
investigatory conduct.
Accordingly, I conclude that the FAC
alleges some conduct that is outside the scope of prosecutorial
immunity, but I decline to revisit my previous determination that
ASA Lukanich’s involvement in the Williams evidence is covered by
prosecutorial immunity.
As defendants noted, I have previously ruled that the
Illinois and federal doctrines of prosecutorial immunity are
coterminous.
Because I have determined that ASA Lukanich is not
entitled to prosecutorial immunity on Kitchen’s federal claims
based on ASA Lukanich’s involvement in Kitchen’s interrogation
and confession, ASA Lukanich is not entitled to prosecutorial
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immunity on Kitchen’s similar state law claims based on the same
conduct.
Accordingly, ASA Lukanich is not entitled to
prosecutorial immunity on Kitchen’s state law claims for
conspiracy (Count X) and intentional infliction of emotional
distress (Count IX) to the extent that these claims incorporate
ASA Lukanich’s non-prosecutorial conduct.1
However, Kitchen’s
state law claim for malicious prosecution (Count VIII) against
ASA Lukanich is dismissed.
In his state law claim for malicious
prosecution against ASA Lukanich, Kitchen alleges that ASA
Lukanich initiated a malicious prosecution without probable cause
and continued that prosecution without probable cause.
¶ 149.)
(FAC
Initiating a prosecution and presenting the State’s case
are prosecutorial acts and are barred from suit by absolute
prosecutorial immunity.
Imbler v. Pachtman, 424 U.S. 409, 431,
96 S.Ct. 984, 47 L.Ed.2d 128 (1976); see also Tillman, 2011 WL
2975671, at *27, 2011 U.S. Dist. LEXIS 79320, at *84 (dismissing
state law claim for malicious prosecution against ASA defendant
who was otherwise not entitled to prosecutorial immunity).
B.
Qualified Immunity
Defendants contend that ASA Lukanich is entitled to
qualified immunity in connection with plaintiff’s confession.
In
determining whether a public official is protected by qualified
1
Kitchen’s state law claims for false arrest and false
imprisonment were previously dismissed as untimely.
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immunity, courts must consider “whether a constitutional right
has been violated,” and “whether the right was clearly
established at the time the official acted.”
Baird v. Renbarger,
576 F.3d 340, 344 (7th Cir. 2009) (citing Saucier v. Katz, 533
U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
The
Supreme Court has recently reiterated that the second prong of
this two-part test looks at whether, “at the time of the
challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have
understood that what he is doing violates that right.’”
Ashcroft
v. al-Kidd, --- U.S. ----, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149
(2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107
S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
Defendants argue that ASA Lukanich is entitled to qualified
immunity on Kitchen’s Brady claim stemming from the allegedly
coerced confession because Kitchen cannot maintain a Brady claim
related to the circumstances surrounding his own statement.
Because Kitchen was present for his own allegedly coercive
interrogation, defendants argue, Kitchen cannot bring a Brady
claim alleging that defendants failed to disclose exculpatory
information, of which Kitchen was necessarily aware.
However,
Kitchen’s claim goes beyond merely alleging that ASA Lukanich
failed to communicate and testify truthfully about the
circumstances of Kitchen’s interrogation and confession.
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Specifically, Kitchen has alleged that ASA Lukanich, along with
other defendants, are liable for “suppressing, destroying and
preventing the discovery and development of additional
exculpatory torture findings and evidence, including but not
limited to, the instruments of torture, as well as other
exculpatory evidence; ... suppressing and attempting to discredit
findings of individual and systematic torture and abuse.”
¶ 116.)
(FAC
These claims allege more than what Kitchen could have
known from his own presence at his allegedly tortured
interrogation and confession.
Further, defendants ignore the recent case law of this
district in factually similar cases.
The courts of this district
have repeatedly held that Gauger v. Hendle, 349 F.3d 354 (7th
Cir. 2003), does not cut off a plaintiff’s claim where the
defendants are accused of “obstructing justice and violating [the
plaintiff’s] right to a fair trial through actions they took
outside the interrogation room.”
Patterson v. Burge, 328
F.Supp.2d 878, 889 (N.D.Ill. 2004) (Gottschall, J.); see also
Tillman, 2011 WL 2975671, at *9, 2011 U.S. Dist. LEXIS 79320, at
*30 (finding that Gauger did not bar the plaintiff’s Brady claim
where the “allegations relate to circumstances that substantially
exceed what [the plaintiff] was aware of based on his presence at
the interrogation”); Cannon v. Burge, No. 05 C 2192, 2006 WL
273544, *12, 2006 U.S. Dist. LEXIS 4040, *40-41 (N.D.Ill. Feb. 2,
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2006) (St. Eve, J.) (“Plaintiff’s knowledge of what transpired in
the interrogation room does not relieve [the defendants] of their
obligation under Brady to disclose exculpatory evidence regarding
what transpired outside the interrogation room, or preclude the
Court from finding the existence of a Brady violation”); Orange
v. Burge, No. 04 C 0168, 2005 WL 742641, *11, 2005 U.S. Dist.
LEXIS 7234, *35 (N.D.Ill. March 30, 2005) (Holderman, J.)
(recognizing a viable Brady claim where “defendants allegedly
caused [the plaintiff] to experience an unfair trial through
their false testimony and other acts taken to cover up the
torture obtained confession from [the plaintiff]”).
Because
Kitchen has stated a viable Brady claim against ASA Lukanich, and
ASA Lukanich has not cited any other grounds for why he is
entitled to qualified immunity, I find that defendant is not
entitled to qualified immunity on Kitchen’s claim that ASA
Lukanich suppressed evidence of torture.
C.
State Law Sovereign Immunity
Defendants argue that the Illinois Court of Claims has
exclusive jurisdiction over state law claims against ASA
Lukanich.
In Illinois, state law sovereign immunity is
established by the Illinois Court of Claims Act.
705 ILCS 5/1.
Illinois law “provide[s] that the Court of Claims has the
‘exclusive jurisdiction to hear and determine ... [a]ll claims
against the State for damages in cases sounding in tort, if a
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like cause of action would lie against a private person or
corporation in a civil suit.’” Price v. Illinois, 354 Ill. App.
3d 90, 92 (1st Dist. 2004) (quoting 705 ILCS 505/8(d) (West
1994)).
“[A]n action is against the state when there are: (1) no
allegations that an agent or employee of the State acted beyond
the scope of his authority through wrongful acts; (2) the duty
alleged to have been breached was not owed to the public
generally independent of the fact of State employment; and (3)
where the complained-of actions involve matters ordinarily within
the employee’s normal and official functions of the State.”
Jinkins v. Lee, 209 Ill.2d 320, 330 (Ill. 2004) (citations and
internal quotation marks omitted).
Therefore, “[s]overeign
immunity affords no protection ... when it is alleged that the
State’s agent acted in violation of statutory or constitutional
law or in excess of his authority.”
Healy v. Vaupel, 133 Ill.2d
295, 308 (Ill. 1990) (citations omitted).
Defendants rely primarily on White v. City of Chicago, 369
Ill. App. 3d 765 (1st Dist. 2006), which held that attorneys from
the State’s Attorney’s Office, who were found to be acting within
their prosecutorial role, were entitled to state sovereign
immunity.
In this case, by contrast, ASA Lukanich is alleged to
have knowingly condoned Kitchen’s tortured interrogation and
coerced confession and to have suppressed evidence related to
Kitchen’s torture.
These acts, if proven, are unconstitutional
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and in excess of ASA Lukanich’s authority, and remove him from
the ambit of state law sovereign immunity.
See, e.g., Cannon,
2006 WL 273544, *17, 2006 U.S. Dist. LEXIS 4040, *61 (finding
that similar allegations against state’s attorney were
“sufficient to establish that [the defendant] acted in excess of
his authority and in violation of applicable laws such that the
Illinois Court of Claims does not have exclusive jurisdiction
over Plaintiff’s state law tort claims”); Orange,
2005 WL
742641, *18, 2005 U.S. Dist. LEXIS 7234, *53 (finding no state
sovereign immunity where, under similar allegations, the
defendants’ actions were “clearly outside their authority as
state’s attorneys” and “deprived [the plaintiff] of various
constitutional rights”).
For these reasons, the Illinois Court
of Claims does not have exclusive jurisdiction over Kitchen’s
state law claims against ASA Lukanich.
III.
For the foregoing reasons, defendants’ motion to dismiss the
FAC is denied in part and granted in part.
As to Kitchen’s
federal claims against ASA Lukanich, the motion is denied.
The
motion is granted as to Kitchen’s state law claim for malicious
prosecution against ASA Lukanich, but is denied as to Kitchen’s
remaining state law claims against ASA Lukanich.
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ENTER ORDER:
____________________________
Elaine E. Bucklo
United States District Judge
Dated: February 1, 2012
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