Tillman v. Burge et al
Filing
156
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 7/20/2011. (ber, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL TILLMAN,
Plaintiff,
v.
JON BURGE, former Chicago Police
Department Commander; RICHARD M. DALEY,
former Mayor and former State’s Attorney;
JOHN BYRNE, former CPD Sergeant;
PETER DIGNAN, former CPD detective;
RONALD BOFFO, former CPD detective;
JACK HINES, former CPD detective;
GEORGE PATTON, former CPD detective;
Estate of JOHN YUCAITIS, former CPD detective;
TIMOTHY FRENZER, former Cook County ASA;
LeROY MARTIN, former CPD Superintendent;
TERRY HILLARD, former CPD Superintendent;
GAYLE SHINES, former OPS Director;
THOMAS NEEDHAM, former aide to
the CPD Superintendent; CITY OF CHICAGO;
COOK COUNTY, ILLINOIS; and
COOK COUNTY STATE’S ATTORNEY’S OFFICE,
Defendants.
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No. 10 C 4551
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Tillman served nearly 24 years in prison for a July 1986 rape and murder
before his conviction was vacated and the charges dismissed by a Cook County Special Prosecutor
in January 2010. He received a certificate of innocence from the Circuit Court of Cook County in
February 2010. Tillman brings a host of claims against the police officers, police supervisors, and
prosecutors involved in his arrest, conviction, and prolonged confinement.
Plaintiff alleges that shortly after his arrest, he was coerced to make inculpatory statements
by former Chicago Police Detectives Peter Dignan, Ronald Boffo, Jack Hines, George Patton, and
John Yucaitis, and by former Cook County State’s Attorney Timothy Frenzer. He alleges that
former Chicago Police Commander Jon Burge and former Sergeant John Byrne encouraged and
countenanced this conduct, and that Frenzer, Burge, and Burge’s subordinates suppressed
evidence of Plaintiff’s treatment. Plaintiff further alleges that former Mayor and State’s Attorney
Richard M. Daley and former Chicago Police Superintendent LeRoy Martin refused and failed to
investigate a pattern of torture carried out at Area 2 prior to Plaintiff’s arrest, proximately causing
Plaintiff’s torture and wrongful conviction. Plaintiff claims that Daley, Martin, former Chicago Police
Superintendent Terry Hillard, former aide to the Chicago Police Superintendent, Thomas Needham,
and former Office of Professional Standards Director Gayle Shines all conspired to suppress
evidence of police torture that Plaintiff claims would have been exculpatory.
Plaintiff asserts the following claims under 42 U.S.C. § 1983: deprivation of fair trial and
wrongful conviction, against all individual Defendants (Count I); coercive interrogation against
Daley, Burge, Byrne, Dignan, Yucaitis, Boffo, Hines, Frenzer, Patton, and Martin (Count IV); and
a Monell claim against the City of Chicago (Count VI). Plaintiff asserts a claim for conspiracy under
42 U.S.C. §§ 1985 and 1986 against all individual Defendants (Count V). In addition, Plaintiff
asserts six state law claims: false arrest and false imprisonment against the individual Defendants
(Count VII), malicious prosecution against the individual Defendants (Count VIII), intentional
infliction of emotional distress against the individual Defendants (Count IX), conspiracy against the
individual Defendants (Count X), respondeat superior against the City of Chicago (Count XI), and
an indemnification claim pursuant to 745 ILCS 10/9-102 against the City of Chicago, Cook County,
and the Cook County State’s Attorney’s Office (Count XII). Plaintiff has voluntarily withdrawn Count
II, alleging false arrest and imprisonment against all individual Defendants, and Count III, alleging
torture and physical abuse against Boffo, Burge, Byrne, Daley, Dignan, Frenzer, Hines, Martin,
Patton, and Yucaitis.
Defendants have filed five separate motions to dismiss. For the reasons set forth below,
the motions are granted in part and denied in part.
BACKGROUND
2
I.
The Parties
Plaintiff Michael Tillman brings his claims against thirteen individual Defendants, all in their
individual capacities, as well as the City of Chicago, Cook County, and the Cook County State’s
Attorney’s Office. Before examining the background and substance of Plaintiff’s claims, the court
briefly identifies the Defendants and describes their Motions to Dismiss.
A.
Municipal Defendants
Defendants Terry Hillard, Thomas Needham, Gayle Shines, and LeRoy Martin, all former
City of Chicago officials (the “Municipal Defendants”), have filed a joint motion to dismiss. (Dkt. 64.)
Defendant Martin served as Chicago Police Superintendent from 1987 to 1992, and before that,
held positions including Commander of the Area 2 Detective Division, where he was the command
supervisor for the remaining Defendant Officers, and direct supervisor to Defendant Burge. (Compl.
¶ 11.) Defendant Hillard served as Chicago Police Superintendent from 1998 to 2004. (Id. ¶ 12.)
Defendant Needham was counsel to, and administrative assistant for, Superintendent Hillard from
1998 to 2002. (Id. ¶ 13.) Defendant Shines was the Director of the Chicago Police Department’s
Office of Professional Standards from 1990 to 1998. (Id. ¶ 15.)
B.
The Defendant Officers and Burge
Defendants John Byrne, Peter Dignan, Jack Hines, Ronald Boffo, George Patton, and the
Estate of John Yucaitis (the “Defendant Officers”)1, have filed a motion to dismiss jointly with the
City of Chicago. (Dkt. 67.) Defendant Jon Burge has filed an individual motion to dismiss, which
also adopts some arguments made by the Defendant Officers and the City of Chicago. (Dkt. 78.)
Defendant Jon Burge was the commanding officer of Area 2 Detective Violent Crimes Unit
from 1982 until August of 1986. (Compl. ¶ 7.) In this capacity, Burge was the supervising
1
Former Chicago Police Detective George Patton has not formally joined in this
Motion to Dismiss, but the court will consider him one of the Defendant Officers for purposes of this
opinion because of the similarity of the claims against him to those of the other Defendant Officers.
3
Lieutenant of Defendants Byrne, Dignan, Boffo, Yucaitis, Hines, and Patton. (Id.) Defendant John
Byrne served as a Sergeant in the Area 2 Detective Violent Crimes Unit from 1982 to August of
1986. (Id. ¶ 8.) Defendants Dignan, Boffo, Yucaitis, Hines, and Patton were Chicago Police
Detectives in the Area 2 Violent Crimes Unit. (Id. ¶ 10.) Byrne directly supervised Defendants
Dignan, Boffo, and Yucaitis. (Id ¶ 8.)
In 1988, Burge was appointed Commander of Area 3 Detective Division by Defendant
Martin. (Id. ¶ 7.) Burge held this assignment until 1991, when the Chicago Police Department fired
him for the torture and abuse of Andrew Wilson. (Id.) On June 28, 2010, Burge was convicted of
perjury and obstruction of justice for lying about police torture. (Id.; United States v. Burge, No. 08
CR 846, 2011 WL 167230 (N.D. Ill. Jan. 19, 2011); United States v. Burge, No. 08 CR 846, 2011
WL 13471 (N.D. Ill. Jan. 3, 2011).) On January 21, 2011, Judge Lefkow sentenced Burge to 54
months in prison. (United States v. Burge, No. 08 CR 846 [362].) He is currently in federal custody
at the Butner Federal Correctional Complex in Butner, North Carolina. (Bureau of Prisons Inmate
Locator.)
C.
Cook County and Frenzer
Defendants Timothy Frenzer, Cook County, and the Cook County State’s Attorney’s Office
have filed a joint motion to dismiss. (Dkt. 61.) Defendant Frenzer is a former Assistant Cook
County State’s Attorney who was assigned to the Felony Review Unit. (Compl. ¶ 17.)
D.
Defendant Daley
Defendant Richard Daley filed an individual motion to dismiss. (Dkt. 65.) From 1981 to
1989, Daley served as the State’s Attorney of Cook County. (Compl. ¶ 14.) From 1989 through
the filing of this suit, Daley was the Mayor of the City of Chicago. (Id.) Cook County does not join
Daley’s motion to dismiss, and Plaintiff explains in his response brief that the majority of his claims
against Daley do not relate to Daley’s actions while State’s Attorney. (Pl.’s Resp. to Daley Br. at
19 n.10.)
4
II.
Factual Background
Plaintiff’s 46-page complaint sets forth an account of the murder of Betty Howard and
Plaintiff’s arrest and prosecution for that murder, including the torture he alleges he endured at the
hands of Area 2 police officers. The complaint also details the history of torture at Area 2 and the
alleged involvement of the various Defendants in that torture and in subsequent efforts to cover it
up. The allegations are summarized below, and are presumed true for purposes of this motion.
A.
Plaintiff’s Arrest, Interrogation, and Prosecution
Police found Betty Howard’s body in the early morning hours of July 21, 1986, in a vacant
apartment in the building in which Howard and Plaintiff both resided. (Compl. ¶ 20.) Howard had
been beaten, stabbed and shot, and was found gagged, naked from the waist down, and tied by
her wrists to a radiator. People v. Tillman, 226 Ill. App. 3d 1, 4, 589 N.E.2d 587, 589 (1st Dist.
1991).2 Later that morning, at approximately 6:30 a.m., Plaintiff voluntarily went to the Area 2 police
headquarters, where he was taken into an interview room for questioning by Defendants Boffo and
Dignan. (Id. ¶ 22.) Later that day, Defendants Hines and Patton joined the investigation. (Id. ¶ 23.)
Plaintiff alleges that over the course of the next four days, Defendants Boffo, Dignan, Hines, Patton,
and Yucaitis held Plaintiff incommunicado and tortured him, and that Plaintiff eventually made false
inculpatory statements to Yucaitis. (Id. ¶¶ 24, 29, 31.) Plaintiff’s co-defendant, Steven Bell, was
similarly tortured and, Plaintiff alleges, forced to make false statements implicating himself and
Plaintiff in the murder.3 (Id. ¶ 29.) Plaintiff alleges that Burge supervised the interrogation and that
2
The court takes judicial notice of the Illinois Appellate Court’s opinion reversing and
remanding Tillman’s initial 1986 conviction.
3
Bell was acquitted of all charges. (Compl. ¶ 45.) The Appellate Court explained that
Bell’s trial was severed from but simultaneous with Plaintiff’s. Tillman, 226 Ill. App. 3d at 3, 589
N.E.2d at 588. Bell testified at trial that he had been working at a fast-food restaurant at the time
of the murder, an account the judge reportedly described as a “solid alibi”; the judge determined
that the other evidence against Bell was “not conclusive.” Linnet Myers, “1 Convicted, 1 Freed in
Bizarre Death Case But More Are Involved, Judge Says,” Chicago Tribune (Dec. 19, 1986).
5
Burge was at Area 2 during most of these four days and received reports concerning the
interrogation. (Id. ¶ 31.)
Plaintiff does not offer a specific timeline of the following events, but describes numerous
instances of abuse: Defendants Boffo and Dignan questioned Plaintiff while he was handcuffed
to a wall, and Boffo struck Plaintiff on the head. (Id. ¶ 24.) At another point, Defendant Hines
struck Plaintiff in the head and the stomach, causing him to vomit, and drove Plaintiff to a secluded
location, forced Plaintiff to his knees, held a gun to his head, and threatened to kill him “like you
killed that woman.” (Id.) Hines struck Plaintiff on his back and head with a telephone book, causing
his nose to bleed on his clothing and in the interrogation room, then forced Plaintiff to clean up the
blood with paper towels. (Id. ¶¶ 24, 25.) Defendant Boffo kicked Plaintiff in the leg, and
Defendants Boffo, Dignan, Hines, and Yucaitis used their thumbs to push against Plaintiff’s ears,
pushed his head back, and poured 7-Up into his nose. (Id. ¶ 24.) Plaintiff also alleges that
Defendants Yucaitis and Dignan repeatedly subjected him to near-suffocation by placing a plastic
bag over his head, and that Defendant Dignan hit Plaintiff on the leg with his flashlight and waved
the flame from a cigarette lighter under his arm. (Id.) During the course of this interrogation,
Plaintiff was not allowed to speak with a family member or an attorney. (Id. ¶ 30.) Plaintiff
ultimately agreed to cooperate, and Defendant Yucaitis later testified that Plaintiff made oral
admissions concerning his involvement in the crime.4 (Id. ¶ 29.)
Meanwhile, at 4:00 p.m. on July 21, 1986, Steven Bell also voluntarily went to Area 2 to
4
Plaintiff does not detail these alleged admissions in his Complaint, but according to
the Illinois Appellate Court opinion, Yucaitis testified that Plaintiff explained that he and Bell entered
Howard’s apartment, where Bell raped Howard while Plaintiff held her on the ground. Yucaitis
stated that Plaintiff admitted he and Bell then brought Howard to the vacant apartment on the
seventh floor, tied her to the radiator, and stabbed her. Plaintiff reportedly acknowledged having
staged the scene to make it appear that someone had broken into the apartment. According to
Yucaitis, Plaintiff reported that he and Bell left the victim, returned to her apartment, and stole some
of her belongings. 226 Ill. App.3d at 12, 589 N.E.2d at 594. Yucaitis testified that Plaintiff recanted
his statement several hours after giving it, and claimed that his brother Kenneth and Bell had
actually committed the crime. Id. at 11-12, 589 N.E.2d at 593-94.
6
answer questions about the murder. (Id. ¶ 26.) Bell had helped Plaintiff paint an apartment in the
building where the murder occurred during the days prior to the murder. (Id.) Plaintiff alleges that
Defendants Dignan, Yucaitis, and Byrne assaulted Bell, as well, hitting him with a telephone book,
kicking him in the ribs, and striking him in his face, in Defendant Boffo’s presence. (Id. ¶ 27.) Bell
eventually agreed to make a statement implicating himself and Plaintiff in the murder. (Id. ¶ 28.)
Plaintiff alleges that Defendant ASA Frenzer was “present” at Area 2 during most of these
interrogations, was aware that Plaintiff and Bell were being tortured, and, rather than intervening
to stop the abuse, took a false written statement from Bell and attempted to take a false written
statement from Plaintiff. (Id. ¶ 32.)
Formal charges for the murder of Betty Howard were filed against Plaintiff on July 25, 1986.
(Id. ¶ 33.) In November of 1986, Defendants Boffo, Yucaitis, Dignan, Hines, Patton, Byrne, and
Frenzer all testified at a hearing on a motion to suppress statements filed by Plaintiff.
(Id. ¶¶ 41, 42.) Plaintiff alleges that each of the Defendants falsely denied having abused Plaintiff.
(Id.) Plaintiff’s motion to suppress was denied, and in December 1986, Plaintiff was convicted after
a bench trial, at which several of the Defendants testified, of murder, rape, and kidnaping, primarily
upon the basis of Plaintiff’s alleged “false, manufactured, and coerced oral admissions.” (Id. ¶ 45.)
He was sentenced to natural life imprisonment plus 45 years. (Id.) Bell was acquitted of all
charges. (Id.) Plaintiff also alleges that his false admissions were recorded in reports relied upon
by the prosecuting attorneys, and that Defendants collectively suppressed the nature of these
admissions, as well as evidence of the interrogation methods used against Plaintiff and others at
Area 2. (Id. ¶¶ 46, 47.)5
5
A third man, Clarence Trotter, was also convicted of Betty Howard’s murder in 1988
after police stopped Howard’s missing vehicle and two men in that vehicle led them to Trotter.
(Compl. ¶¶ 35-40.) Fingerprints on Coca-Cola cans found in the same apartment as Howard’s body
were matched to Trotter. (Id. ¶ 39.) Trotter also gave an allegedly coerced statement to police
admitting to the murder and theft of the car and other items, but refusing to link Plaintiff or Bell to
(continued...)
7
Plaintiff’s complaint does not discuss his second trial, which took place in 1996, after the
Illinois Appellate Court reversed his original conviction based in part on a claim of ineffective
assistance of trial counsel. People v. Tillman, 92 CR 27711, No. 1-96-1892, at *1-2 (1st Dist.
June 23, 1999) (Ex. A to Municipal Br.). The court takes notice that on February 14, 1996, Plaintiff
was again convicted, this time by a jury, and on May 14, 1996, was sentenced to natural life without
parole for felony murder predicated on aggravated criminal sexual assault and 15 years
concurrently for aggravated kidnaping. Id. At the second trial, Plaintiff told the jury that he was
beaten and threatened by detectives, and threatened by Frenzer. Id. at *18. Plaintiff called Darrell
Cannon, a convicted murderer, to testify regarding similar abuse at the hands of Area 2 detectives
in 1983. Id. at *19. Flint Taylor, Plaintiff’s attorney in this case, also testified, describing several
conversations he had with other individuals regarding Yucaitis and Dignan’s reputations for
untruthfulness in dealing with suspects. Id.
B.
Pattern and Practice of Torture at Area 2
Plaintiff’s Complaint includes allegations regarding the torture of other individuals in Area 2,
including the high-profile case of Andrew Wilson. (Compl. ¶¶ 48-52.) Plaintiff alleges that the
named Defendants in this case, along with others, engaged in this practice, failed to intervene to
end it, and suppressed information regarding this extensive pattern of abuse.6 (Id. ¶¶ 48-54.)
5
(...continued)
the crime. (Id. ¶ 38.) Trotter’s conviction was initially reversed after his statement was found to be
involuntary, but he was re-tried and re-convicted. (Id. ¶ 40.) No link between Trotter and Plaintiff
was ever established. (Id. ¶ 39.)
6
Plaintiff alleges that between 1973 and 1982, Burge, as an Area 2 detective, and
other Area 2 detectives tortured numerous African-American suspects, including Lawrence Poree,
George Powell, Tony Thompson, Willie Porch, Ollie Hammonds, Derrick King, Michael Coleman,
Sylvester Green and Melvin Jones. (Compl. ¶ 50.) Plaintiff alleges that between February 1982
and July 1986 Burge, Byrne, and other Area 2 detectives used electric shocks, baggings, mock
executions, and beatings on suspects including Shadeed Mumin, Michael Johnson, Lee Holmes,
Rodney Benson, Stanley Wrice, Eric Smith, Alonzo Smith, James Andrews, Reginald Mahaffey,
Jerry Mahaffey, Gregory Banks, David Bates, Darrell Cannon, Leonard Hinton, Eric Smith, Leroy
(continued...)
8
Plaintiff alleges that as Mayor and State’s Attorney, Defendant Richard Daley had personal
knowledge of the alleged abuses perpetrated by Burge and other Defendants at Area 2, but
declined to investigate the abuses and failed to disclose these exculpatory allegations. (Id. ¶ 66.)
Plaintiff asserts that, had Daley and Martin investigated the allegations of abuse at Area 2 prior to
his arrest, he would not have been tortured and would not have been wrongfully convicted. (Id.
¶¶ 67, 70.) Plaintiff further alleges that as a result of a conspiracy between Daley, Martin, Hillard,
Needham, Shines and others to suppress information about torture at Area 2, “Plaintiff’s wrongful
prosecution was continued, his exoneration was delayed and his imprisonment lasted far longer
than it otherwise would have.” (Id. ¶¶ 72, 97.) According to Plaintiff, between 1989 and 1992,
Daley and Martin were given “additional actual notice that Burge was the leader of a group of
Chicago detectives that systematically tortured and abused African American suspects” through an
Amnesty International report and public hearings. (Id. ¶ 85.) Plaintiff alleges that in 1996, despite
his knowledge that findings of torture and abuse had been made against Defendant Dignan, Daley
promoted Dignan to lieutenant. (Id. ¶ 91.) Plaintiff also alleges that Daley, against the advice of
his senior advisers, “personally insisted” throughout his tenure that the City of Chicago “continue
to finance the defense of Burge, Byrne, Dignan, and other Area 2 detectives, despite his personal
knowledge that Burge committed acts of torture.” (Id. ¶ 93.)
C.
Plaintiff’s Release and Exoneration
On January 14, 2010, Plaintiff’s conviction was vacated based on a post-conviction petition,
and he was granted a new trial. (Id. ¶ 95.) In the post-conviction petition, Tillman argued that his
6
(...continued)
Orange, Leonard Kidd, Philip Adkins, Robert Billingsley, Stanley Howard, Alphonso Pinex, Thomas
Craft, Lavert Jones, Lonza Holmes, and Aaron Patterson. (Id. ¶ 53.) Physical implements used
during the course of this torture, and the torture of Plaintiff and Bell, included plastic bags,
telephone books, typewriter covers, blackjacks, an “electric shock box,” plug-in electrical devices,
shotguns, and handguns. (Id. ¶ 54.) Plaintiff does not describe the details of these alleged
instances of torture aside from his own, Bell’s, and that of Andrew Wilson.
9
conviction was the “direct and proximate result of the beating, bagging, mock execution and
improvised waterboarding that Burge-commanded officers inflicted on [Plaintiff] in 1986.” People
v. Tillman, No. 92 CR 27711, Post-Conviction Petition, at *1. The petition noted that Burge had
recently been indicted in connection with allegations of torture. Id. The petition went on to describe
Plaintiff’s allegations and the evidence of torture committed by Burge, Byrne, and others at Area 2.
Id. The Cook County Special Prosecutor assigned to Plaintiff’s case dropped all charges, and he
was released from custody.7 On February 19, 2010, the Circuit Court of Cook County found that
Plaintiff had established that he was innocent of the charges for which he was convicted, and
granted him a certificate of innocence pursuant to 735 ILCS 5/2-702. (Compl. ¶ 96.) Soon
thereafter, Plaintiff brought this suit. The court now considers Defendants’ motions to dismiss.
DISCUSSION
I.
Legal Standard
Defendants ask the court to dismiss Plaintiff’s claims for failure to “state[] a claim upon
which relief can be granted.” FED. R. CIV. P. 12(b)(6). In deciding a motion to dismiss, the court
views “the complaint in the light most favorable to the plaintiff, taking as true all well-pleaded factual
allegations and making all possible inferences from those allegations in his or her favor.” Lee v.
City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003). While the court must accept factual allegations
in the complaint as true, it is “not bound to accept as true a legal conclusion couched as a factual
allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986), nor is it obligated “to accept as true . . .
unsupported conclusions of fact.” Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
II.
Count I: § 1983 Claim for Deprivation of Fair Trial and Wrongful Conviction
7
Details of these events do not appear in the Complaint. According to
contemporaneous press accounts, at a January 14, 2010 hearing, a Cook County Assistant State’s
Attorney asked that the charges be dropped “because [Plaintiff] was convicted with ‘coerced
statements’ and the state couldn’t prove his guilt based on the remaining ‘unreliable evidence,’”
leading Judge Vincent Gaughan to dismiss the case. Matthew Walberg, “Freed in Burge Torture
Scandal,” Chicago Tribune (Jan. 15, 2010).
10
Plaintiff alleges that all of the individual Defendants deprived him of a fair trial, conspired
to wrongfully convict him, and suppressed the truth about his wrongful conviction in order to keep
him incarcerated. Plaintiff’s Complaint is vague as to the specific actions alleged to have been
carried out by each Defendant and the corresponding claims against each one, but Plaintiff does
offer some clarification in his Responses to the Motions to Dismiss.8
Plaintiff contends that Officers Dignan, Yucaitis, Boffo, Hines, and Patton (“Defendant
Officers”), who directly participated in his interrogation, tortured him and fabricated false
statements, lied about these activities, and suppressed the truth concerning their conduct and a
pattern of torture at Area 2. (Compl. ¶ 101.) Plaintiff alleges that Lieutenant Burge and Sergeant
Byrne personally supervised this torture and interrogation, and also suppressed the truth about
these events. (Id. ¶¶ 21-22, 101.) Plaintiff alleges that Daley, while he served as Mayor, knew
about the pattern and practice of torture at Area 2 and worked actively to suppress the truth. (Id.
¶¶ 73-75.) Plaintiff alleges that Assistant State’s Attorney Frenzer personally participated in his
interrogation and attempted to take a coerced written statement from him. (Id. ¶ 32.) Martin
supervised Burge at the time of Plaintiff’s arrest, and served as police superintendent from 1987
to 1992; Plaintiff alleges that in those capacities, Martin supervised and was aware of the torture
at Area 2 but suppressed the truth about it.
(Id. ¶¶ 11, 101.)
Hillard served as police
superintendent from 1998 to 2004 and allegedly learned about and suppressed the truth concerning
torture at Area 2, as well, as did his administrative assistant from 1998 to 2002, Thomas Needham.
(Id. ¶¶ 12-13, 101.) Gayle Shines served as director of the Office of Professional Standards from
1990 to 1998, in which capacity she also allegedly learned about the torture at Area 2 and
8
Plaintiff has also preserved a Fourth Amendment malicious prosecution claim,
although he acknowledges that Seventh Circuit authority forecloses this theory. (Pl.’s Resp. to
Officers’ Br. at 13 n.7.) Plaintiff notes that several other circuits do recognize a federal malicious
prosecution claim. See Novitsky v. City of Aurora, 491 F.3d 1244 (10th Cir. 2007); Fox v. DeSoto,
489 F.3d 227, 237 (6th Cir. 2007); Wood v. Kessler, 323 F.3d 872, 881 (11th Cir. 2003); Britton v.
Maloney, 196 F.3d 24, 28-30 (1st Cir. 1999).
11
suppressed that information. (Id. ¶¶ 15, 101.)
Plaintiff proceeds on this count based on two legal theories. First, Plaintiff argues that
Defendants have suppressed exculpatory information in violation of Brady v. Maryland, 373 U.S.
83 (1963).
Brady held that the failure to disclose favorable, material evidence violates a
defendant’s procedural due process rights. Id. at 87. There are three components to a Brady
violation: “(1) the evidence at issue is favorable to the accused, either because it was exculpatory
or impeaching; (2) the evidence must have been suppressed by the government, either willfully or
inadvertently; and (3) there is a reasonable probability that prejudice ensued.” Parish v. City of
Chicago, 594 F.3d 551, 554 (7th Cir. 2009) (citation and quotation omitted).
Plaintiff also alleges that Defendants have violated his “right not to be convicted on the basis
of false, fabricated, or unconstitutionally coerced evidence.” (Pl.’s Resp. to Officers’ Br. at 10.)
Plaintiff invites this court to look beyond the ambit of Brady and allow him to pursue a claim that he
was deprived of a substantive due process right to not be tried and convicted on the basis of
fabricated evidence. The court is unwilling to accept this invitation. The Seventh Circuit has
repeatedly rejected attempts to combine “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.” Brooks v. City of Chicago, 564 F.3d 830, 833
(7th Cir. 2009) (citation and quotation omitted). The claim that “criminal proceedings were instituted
against [Plaintiff] based on false evidence or testimony . . . is, in essence, one for malicious
prosecution, rather than a due process violation.” Id. (citation and quotation omitted). The Seventh
Circuit has concluded that Albright v. Oliver, 510 U.S. 266 (1994) “scotches any constitutional tort
of malicious prosecution when state courts are open.” Newsome v. McCabe, 256 F.3d 747, 751
(7th Cir. 2001). Though Plaintiff cites numerous cases in support of his due process theory, the
vast majority of them either predate Brady, are contemporaneous with Brady, or conclude that
allegations similar to those here actually support a Brady claim rather than any substantive due
12
process claim. (Pl.’s Resp. to Officers’ Br. at 9-10.) Absent clear authority supporting the cause
of action Plaintiff proposes, this court declines to entertain such a legal theory. The court also notes
that Plaintiff has ample theories available through which to pursue his claims, including a state law
malicious prosecution claim. As such, if Plaintiff has any claim on this count, it must proceed under
Brady.
A.
Defendant Officers
Plaintiff’s first claim against Defendant Officers is that they suppressed evidence of the
“systematic practice of torture under Burge” and “never informed the prosecuting attorneys that they
had committed [ ] torture during Plaintiff’s interrogation in order to obtain false inculpatory
statements” in violation of Brady. (Pl.’s Resp. to Officers’ Br. at 5-6.)
Defendants contend that Tillman’s Brady claim must be dismissed because Tillman was in
fact aware of everything that he now claims was “withheld.” According to Defendants, a due
process claim cannot extend to situations where the plaintiff was aware of the alleged misconduct
at the time of trial, regardless of whether the misconduct was “withheld” from prosecutors.
Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003). The plaintiff in Gauger brought a Brady claim
following his arrest and subsequent conviction for allegedly killing his parents, a conviction based
primarily upon statements Gauger had made during an extended period of interrogation. Id. at 35657, 360. When members of a motorcycle gang later admitted to the murder, Gauger’s conviction
was overturned, and the charges against him were dropped. Id. at 357-58. Gauger claimed that
the statements during his interrogation were hypothetical and taken out of context, and that Brady
required the detectives to give truthful accounts of the interrogation to the prosecutors and to his
defense attorney. Id. at 360. The court rejected this argument. Gauger knew what was said at the
interrogation, the court observed, and the state therefore had no duty to disclose that information.
Id. “The problem was not that evidence useful to him was being concealed; the problem was that
the detectives were giving false evidence.” Id. To have allowed a Brady claim to proceed under
13
those circumstances would effectively create a duty “not merely to disclose but also to create
truthful exculpatory evidence.” Id. In short, the court rejected Gauger’s attempt to “make every
false statement by a prosecution witness the basis for a civil rights suit.” Id.
Withholding evidence does, in some circumstances, constitute a Brady violation. Plaintiff
argues that the evidence withheld in this case falls into that category. In particular, Plaintiff cites
Manning v. Miller, 355 F.3d 1028 (7th Cir. 2004), where a Chicago police officer who had been
working as an FBI informant was allegedly framed for murder and kidnaping in retaliation for his
refusal to continue working as an informant. Id. at 1030. Manning alleged that the FBI agents
induced a witness to identify him in a photo lineup, and that the agents arranged his placement in
a cell with a jailhouse informant, who allegedly fabricated a confession from Manning to the crimes
at their direction. Id. Defendant FBI agents argued that the claim that Plaintiff had been “framed”
was really a claim that Defendants had committed perjury or conspiracy to commit perjury, not a
claim of a Brady violation. Id. at 1031. The court concluded, however, that Manning had alleged
more than perjured testimony:
Manning points to actions taken over the course of years that set the stage for his
trial; the timing of some of these claimed actions well before trial lends some
credence to Manning's theory that this behavior goes beyond perjury. Such actions
included inducing a witness to falsely identify Manning in a line-up, selecting Dye to
be the jailhouse informant, and inducing Dye to create a false story. Manning
argues that the agents failed to tell prosecutors that they had done these things.
Further, Manning believes the agents created and submitted false written reports
stating that Manning had confessed when they knew he had not, and destroyed or
tampered with the physical evidence, namely the tapes of the purported
confessions.
Id. at 1033 (footnotes omitted).
Several courts in this district have grappled with the question of whether claims similar to
Plaintiff’s more closely resemble Gauger or Manning. For example, in Patterson v. Burge, 328 F.
Supp. 2d 878 (N.D. Ill. 2004) (Gottschall, J.), the court noted that Patterson’s claim that police hid
the coercion and fabrication of a confession might not itself state a Brady claim, but allegations that
14
police hid their knowledge of his actual innocence, gave perjured testimony, brought false charges
against him, and “acted in concert to effectuate a pattern and practice of torture and frame-ups at
Area 2,” were adequate to state a valid Brady claim. Id. at 889. The Orange v. Burge, No. 04
C 0168, 2005 WL 742641 (N.D. Ill. March 30, 2005) (Holderman, J.) court agreed with that
reasoning; Judge Holderman concluded that Orange stated a Brady violation because defendants
(including individual officers, Burge, Hillard, Needham, Shines, Martin, an Assistant State’s
Attorney, and former State’s Attorney Richard Devine) “caused Orange to experience an unfair trial
through their false testimony and other acts taken to cover up the torture[-]obtained confession from
Orange.” Id. at *11. The court noted that “[t]he fact that Orange was present for the alleged torture
has no impact on the defendants[’] duty to disclose other exculpatory evidence.” Id. See also
Cannon v. Burge, No. 05 C 2192, 2006 WL 273544, *12 (N.D. Ill. Feb. 2, 2006) (St. Eve, J.)
(“Plaintiff’s knowledge of what transpired in the interrogation room does not relieve the City
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.”).
Tillman has alleged that the Defendant Officers engaged in “suppressing, destroying, and
preventing the discovery” of exculpatory evidence, including that of “the instruments of torture,” and
have done so “by obstructing and improperly influencing investigations . . . [and] by suppressing
and attempting to discredit findings of individual and systematic torture and abuse.” (Compl. ¶ 101.)
Because these allegations relate to circumstances that substantially exceed what Tillman was
aware of based on his presence at the interrogation, the rationale of Gauger does not bar Tillman’s
Brady claim regarding the failure to disclose systemic abuse of criminal suspects.
Defendants next argue that Tillman’s Brady claim must fail because the evidence of a
pattern and practice of abuse and torture is not material. Evidence is material “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
15
proceeding would have been different.” Strickler v. Greene, 527 U.S. 263, 280 (1999). Defendants
advance two arguments in support of this claim: first, they argue that Tillman’s conviction at a
second trial, which included testimony describing torture at Area 2,9 demonstrates the immateriality
of the withheld evidence. Second, they urge that further information regarding systemic abuses at
Area 2 would have been merely cumulative.
Defendants’ first argument–that Tillman’s 1996 conviction proves that the torture evidence
is immaterial–is belied by consideration of the evidence introduced at Tillman’s second trial.
Plaintiff points out that the evidence he proffered concerning his allegedly coerced confession
consisted of the testimony of Darrell Cannon, another alleged torture victim, and Flint Taylor, who
represents Plaintiff in this lawsuit and is a longtime civil rights attorney. Neither of those witnesses
was able “to provide direct, official evidence” of the systemic torture that occurred under Burge.
(Pl.’s Resp. to Officers’ Br. at 6 n.3.) The court agrees that the testimony of another criminal
defendant, and that of a civil rights attorney, might well be viewed by a jury with suspicion. The fact
that Tillman’s conviction was eventually overturned, and that he was issued a certificate of
innocence highlights this point: it was only after the pattern and practice of police torture at Area
2 came to light through official channels that Tillman’s post-conviction petition was granted.
Further, the Complaint explicitly cites several instances of suppression that occurred or
continued well after Tillman’s 1996 retrial.10 The complaint alleges that Defendants suppressed
instruments used in the torture of suspects in Area 2. Plaintiff does not offer precise dates or
9
Plaintiff’s second trial took place after the 1992 release of the Goldston Report, but
that report does not appear to have been introduced at the second trial, for reasons that are not
clear from the record. The report, prepared by Office of Professional Standards Investigator
Michael Goldston, “found that there was systemic abuse of suspects held in custody at Area 2 and
that Area 2 command personnel were aware of the systemic abuse and encouraged it.” (Compl.
¶ 76.)
10
Some of these examples involve Defendants who will be discussed further below,
but are illustrative of the type of evidence that allegedly remained suppressed.
16
circumstances of this suppression, but he does allege that the information was withheld from “the
prosecutors and judges who prosecuted and heard Plaintiff’s appeals and motions to suppress”;
the court understands this allegation to mean that the information was not turned over during the
pendency of Tillman’s appeal from his 1996 conviction or thereafter, when it could have provided
grounds for a post-conviction petition. (Compl. ¶ 47.) Plaintiff also alleges that Defendant Shines
suppressed OPS determinations regarding abuse up until 1998, and that Defendants Hillard and
Needham improperly overturned OPS findings in 1998. (Id. ¶¶ 90, 92.) Plaintiff also alleges that
various Defendants otherwise engaged in a series of activities in an attempt to suppress details of
the full extent of the systemic abuse of suspects in Area 2, including offering false statements
during numerous civil lawsuits conducted between 2003 and 2009, in July 2006 in response to a
special prosecutor’s report, in October 2008 in response to Burge’s indictment, and in June and
July 2010 in response to Burge’s conviction. (Details concerning these statements are not in the
record as its exists at this stage in the litigation, but the court notes that Burge’s conviction rested
on his giving a false statement in a deposition during a civil lawsuit.) (Id. ¶ 97.) The imagination
need not stretch far to conclude that, had the indicated findings of torture at Area 2 been in
evidence, not to mention the Defendant Officers’ testimony confirming the alleged torture of Tillman
himself, there might have been a different result at the initial or subsequent trial. Again, it was
evidence of coercion at Area 2 that led the Cook County State’s Attorney’s office ultimately to drop
charges against Plaintiff.
Defendants’ second argument, that additional evidence would have been merely cumulative,
requires closer examination. To establish a Brady violation, a plaintiff must show that the evidence
in question “is material and not merely impeaching or cumulative,” and that it “probably would lead
to an acquittal in the event of a new trial.” United States v. Hodges, 315 F.3d 794, 801 (7th Cir.
2003). As such, the allegedly withheld information must be compelling enough to raise the
likelihood of acquittal in a new trial above mere speculation. United States v. Navarro, 737 F.2d
17
625, 631 (7th Cir. 1984) (“A due process standard which is satisfied by mere speculation would
convert Brady into a discovery device and impose an undue burden upon the district court.”).
Plaintiff’s allegations here are sufficient to support the inference that disclosure of the
withheld information could have resulted in acquittal at a new trial. Plaintiff has alleged that his
conviction and continued imprisonment sprang from a pattern or practice of abuse that was kept
hidden for many years. Had the factfinder been aware of the scope of the abuse in Area 2, or had
that abuse been confirmed through official channels, the trier of fact may have found the
evidence–chiefly Plaintiff’s confession–insufficient to support a conviction. As such, the evidence
of abuse is more than “[e]vidence that impeaches an already thoroughly impeached witness.” See
United States v. Kozinski, 16 F.3d 795, 819 (7th Cir. 1994). Defendant Officers’ motion to dismiss
Count I of the Complaint is denied.
B.
Municipal Defendants Needham, Shines, Hillard, and Martin
In Count I, Plaintiff also alleges that the Municipal Defendants “acted in collusion with Daley
and high-ranking police officials to deflect public scrutiny of the actions of Burge and his men, as
well as to deprive Plaintiff of information regarding the scope and nature of the torture,” and that
these actions prolonged his wrongful incarceration. (Pl.’s Resp. to Municipal Br. at 10.) Indeed,
the protections of Brady “extend[] throughout the legal proceedings that may affect either guilt or
punishment, including post-conviction proceedings. Put differently, the taint on the trial that took
place continues throughout the proceedings, and thus the duty to disclose and allow correction of
that taint continues.” Steidl v. Fermon, 494 F.3d 623, 630 (7th Cir. 2007). Plaintiff alleges here that
Needham, Shines, Martin, and Hillard suppressed exculpatory material relating to the pattern or
practice of abuse at Area 2 that would have been relevant in his post-conviction proceedings.
Specifically, Plaintiff alleges that Martin “undermined investigations and findings of official
misconduct,” and, after becoming police superintendent, obstructed the dissemination of
information about police torture at Area 2. (Pl.’s Resp. to Municipal Br. at 11.) After the Goldston
18
Report detailing torture was released, Plaintiff alleges, Martin and Daley publicly discredited its
findings. (Id.) When additional allegations of torture surfaced, Martin and Shines declined to
investigate those claims, and, after OPS found allegations of torture against Byrne and Dignan to
be credible, Shines suppressed those findings for at least five years. (Compl. ¶¶ 84, 90.) In 1998,
Hillard and Needham “essentially took over where Martin had left off” in concealing the reports and
in reversing OPS’s findings of torture. (Pl.’s Resp. to Municipal Br. at 12.)
As Plaintiff notes, several courts in this district have found similar allegations sufficient to
state claims against these same Defendants. See Orange, 2005 WL 742641, at *13 (§ 1983 claim
“assert[ing] that Martin, Shines, Hillard and Needham participated in covering up alleged torture,
failing to investigate and suppressing of information” survives a motion to dismiss); Howard v. City
of Chicago, No. 03 C 8481, 2004 WL 2397281, at *13 (N.D. Ill. Oct. 25, 2004) (rejecting motion to
dismiss because plaintiff claimed “Martin, Shines, Hillard, and Needham suppressed material
exculpatory evidence in the form of the Goldston report that documented ‘systematic’ and
‘methodical’ abuse and ‘planned torture’”).11
Orange and Howard concerned the suppression of evidence akin to what Plaintiff alleges
the Municipal Defendants suppressed. Defendants argue that those cases were decided before
the Twombly and Iqbal decisions, and therefore today, similar accusations should be dismissed for
failure to clear the “plausibility” bar those decisions require. As the court sees it, plausibility is not
11
Plaintiff cites two additional cases from this district as well, but those cases are less
helpful to him; they highlight the difference between the due process violation Plaintiff alleges the
Municipal Defendants to have committed, and those he alleges the Defendant Officers involved with
his interrogation committed: Plaintiff alleges the Defendant Officers were personally involved in the
suppression of the truth about his torture and his alleged statements, but as to these supervisory
Defendants, Plaintiff alleges suppression of information related to the torture of other individuals.
In Cannon, 2006 WL 273544, the court allowed a Brady violation claim to proceed when plaintiff
alleged defendants had suppressed information concerning conduct that occurred “outside the
interrogation room” but was related to plaintiff’s torture itself. Id. at *12. Similarly, in Patterson, the
court found that the alleged suppression of evidence of Patterson’s abuse supported a due process
violation. 328 F. Supp. 2d at 890. In neither of these cases did the allegations of suppression
relate to the type of systemic abuse Plaintiff alleges the Municipal Defendants covered up.
19
at issue here. Plaintiff offers specifics describing the type of evidence suppressed and who
suppressed it. Plaintiff’s later exoneration and the public airing of much of this evidence supports
the plausibility of Plaintiff’s claims–the issue is not so much whether the allegations that this
evidence was suppressed are plausible, but whether such suppression was material. The question
that the court must answer in determining whether the alleged withheld evidence supports a claim
of due process violation is whether “the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley,
514 U.S. 419, 435 (1995). At the pleading stage, this question can be answered in the affirmative.
Plaintiff alleged torture from the get-go, and the impeachment of the officers involved in his
interrogation, or those overseeing it (such as Burge) could reasonably have been expected to cast
the charges against Plaintiff in a very different light. The Municipal Defendants’ motion to dismiss
Count I of the Complaint is denied.
C.
Frenzer
As discussed previously, the evidence of Plaintiff’s torture that Frenzer and the Defendant
Officers allegedly suppressed is material within the meaning of Brady. Frenzer, however, argues
that he enjoys immunity from individual liability for any suppression.
The Supreme Court has held that a prosecutor enjoys absolute immunity both for the use
of perjured testimony and the suppression of exculpatory evidence. Imbler v. Pachtman, 424 U.S.
409, 431 n.34 (1976). See also Houston v. Partee, 978 F.2d 362, 365 (7th Cir. 1992) (noting that
Imbler granted prosecutors absolute immunity “for the knowing use of false testimony and the
deliberate suppression of exculpatory evidence at trial”). In Houston, the Seventh Circuit concluded
that two prosecutors did not enjoy absolute immunity for the suppression of exculpatory evidence
they uncovered after their involvement in the plaintiff’s case had ended because their actions “had
no connection to their role as advocate for the state.” Id. at 366-67 (citation and quotation omitted).
“The prosecutors are thus not entitled to any more immunity than the defendant police officers.”
20
Id. One court to address similar allegations distinguished Houston in circumstances where “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, even after they are no longer prosecutors.” Kitchen v. Burge, No.
10 C 4093, ___ F. Supp. 2d ___, 2011 WL 1485301, at *7 (N.D. Ill. April 19, 2011) (Bucklo, J.).
Plaintiff contends, however, that reliance on Kitchen is misplaced and that Frenzer is not
entitled to immunity because he participated in the interrogation himself, helped to coerce Plaintiff
to giving false testimony, and therefore was not “performing [his] role as [a] prosecutor[]” within the
meaning of Kitchen. Whether absolute prosecutorial immunity attaches is determined based on the
function that the defendant was performing at the time the allegedly exculpatory information was
acquired. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). If the prosecutor was acting more
in an investigatory capacity rather than a prosecutorial capacity, the prosecutor would only be
entitled to the qualified immunity afforded to law enforcement officials.12 Id. at 270. Plaintiff asserts
that Frenzer was at Area 2 during most of the time he and Bell were being tortured, and that
Frenzer knew they “were being subjected to torture and abuse, yet instead of intervening to prevent
said torture and abuse, took a false and manufactured written statement from Bell, and
unsuccessfully attempted to take a false written statement from Plaintiff.” (Compl. ¶ 32.) These
facts, Plaintiff urges, present a case similar to that examined in Orange v. Burge, No. 04 C 0168,
2008 WL 4443280, at *10 (N.D. Ill. Sept. 29, 2008), where Judge Holderman concluded in ruling
on a motion for summary judgment that absolute immunity was not available where the prosecutor
12
The court does not address claims of qualified immunity in this opinion because the
parties have not made them; that torture is unlawful has been clearly established for decades, thus
rendering futile any argument that an individual who engaged in torture should enjoy qualified
immunity. Wilkerson v. State of Utah, 99 U.S. 130, 136 (1878) (“[I]t is safe to affirm that
punishments of torture . . . are forbidden by . . . the Constitution.”). See also Vance v. Rumsfeld,
694 F. Supp. 2d 957, 966 (N.D. Ill. 2010) (quoting Wilkerson). Similarly, the suppression of material
exculpatory evidence has also long been recognized as the type of right whose violation is not
subject to qualified immunity. Carvajal v. Dominguez, 542 F.3d 561, 566-67 (7th Cir. 2008).
21
was “personally involved” in Orange’s interrogation and “coached Orange regarding the false
confession Orange was to deliver in exchange for the cessation of the alleged torture sessions.”
Id. at *10. Because the prosecutor “actively assisted in gathering the evidence that would later form
the basis of the charges against Orange,” he acted more as an investigator than a prosecutor. Id.
(denying summary judgment on this count). Similarly, in Williams v. Valtierra, No. 00 C 5734, 2001
WL 686782, at *2 (N.D. Ill. June 18, 2001) (Kennelly, J.), the court denied prosecutors’ motion to
dismiss where the plaintiff alleged that “when the prosecutors arrived, they did not evaluate
information but rather forced Williams to produce inculpatory information by denying her medical
care.” Id.
Judge St. Eve explained in Hill v. City of Chicago, No. 06 C 6772, 2009 WL 174994 (N.D.
Ill. Jan. 26, 2009), that “a prosecutor involved in a conspiracy to target a criminal suspect is not
protected by absolute immunity . . . nor is a prosecutor who fabricates evidence.” Id. at *11. In Hill,
the court rejected summary judgment for the defendant prosecutor because there was a dispute
as to whether he had participated in coercing plaintiff’s confession. Id.
Plaintiff alleges that Frenzer personally participated in his interrogation and that of Bell, and
then suppressed the truth concerning those events. This allegation puts Frenzer’s conduct outside
the scope of a prosecutorial function, and is therefore enough to survive an absolute immunity
challenge. Defendant Frenzer’s motion to dismiss Count I is denied.
D.
Daley
Plaintiff alleges that as Mayor of Chicago, Daley concealed exculpatory information
regarding police torture that could have led to Plaintiff’s exoneration.13 Daley argues that “the
13
Plaintiff clarifies in his response brief that he does not bring this claim against Daley
as State’s Attorney, and concedes that Daley may be entitled to absolute immunity from a Brady
claim for concealment of this information while he was a prosecutor. (Pl.’s Resp. to Daley Br. at
19 n.10.) Instead, Plaintiff alleges only that during his tenure as Mayor until Plaintiff’s release,
Daley concealed evidence of police torture that would have exculpated Plaintiff. (Compl. ¶ 93.)
(continued...)
22
alleged misconduct still lacks a plausible causal connection to plaintiff’s ongoing imprisonment.”
(Daley Reply at 10.) Daley continues, “[t]hese allegations have nothing to do with plaintiff, this
lawsuit, his alleged coercive interrogation, his criminal prosecution and convictions, or his ongoing
incarceration.” (Id.)
Much of Daley’s argument rests on assertions that his involvement with the suppression of
this information was at a supervisory level, or that he was not personally involved in its suppression,
or that its suppression sprang from his role as a prosecutor, rendering him immune from any
liability. The allegation Plaintiff makes, however, is that Daley, as Mayor, personally acted to
suppress evidence of torture at Area 2, and to undermine the value of any such information that did
become public.
That said, the court observes that the evidence allegedly suppressed by Daley does not
appear to be the type of material exculpatory evidence that Brady addresses. Plaintiff alleges that
Daley was on notice of torture at Area 2 by virtue of public hearings and in an Amnesty International
report. But that information was not “suppressed”—the hearings and the report were public.
(Compl. ¶ 85.) Daley’s alleged public statements discrediting the Goldston Report does not
constitute suppression, nor is there any allegation that he personally withheld the report between
the time of its creation and 1992 release. (Id. ¶¶ 76-83.) Refusing to launch investigations, and,
indeed, promoting Dignan, are also not fairly characterized as suppression.
(Id.) Statements
Daley made in response to the Special Prosecutor’s report released in 2006, or the Burge
13
(...continued)
Daley would be immune from this claim based on information he learned as a prosecutor and
continued to suppress, see Kitchen, 2011 WL 1485301, at *7. Several cases in which claims
against Daley were dismissed involve allegations directed solely at his activities as a prosecutor.
Fields v. City of Chicago, No. 10 C 1168, 2011 WL 1326231, at *12-13 (N.D. Ill. April 4, 2011)
(Kennelly, J.) (dismissing claim against Daley as prosecutor under a “failure to intervene” theory);
Andrews v. Burge, 660 F. Supp. 2d 868, 877 (N.D. Ill. 2009) (Zagel, J.) (rejecting Brady claim
against Daley as a prosecutor for, among other reasons, failure to allege Daley “knew of evidence
of widespread torture at Area Two while [plaintiff’s] case was being prosecuted”).
23
indictment in 2008 and conviction in 2010, also do not fit the bill–after all, these events were all
public. And Plaintiff does not allege that Daley himself knew something about them that he
suppressed, but instead says only that Daley expressed opinions contrary to the facts suggested
by these events. (Id. ¶ 97.) Similarly, Daley’s alleged decision to defend Burge in civil suits, rather
than heed the advice of his senior staff and sue Burge, does not support the conclusion that
exculpatory information was suppressed. (Id. ¶ 93.) While there is a blanket allegation that
“Defendant Daley did not disclose exculpatory information in his possession,” (id. ¶ 74), Plaintiff
fails to allege with any specificity what that information might have been, whether it differed from
information that had already trickled out into the public, or whether Daley took specific steps to
conceal that information.
The court is unwilling to adopt Defendant Daley’s conclusion that no Brady violation could
have occurred because “[n]one of these allegations relate to the constitutional deprivations
underlying plaintiff’s action or suggest Mr. Daley concealed any evidence relative to plaintiff.”
(Daley Reply at 10.) Had Daley been in possession of undisclosed information that Burge and his
subordinates had engaged in other instances of torture at Area 2, such information could be
material and exculpatory even if it did not relate directly to Plaintiff. The conduct of Mayor Daley
that Plaintiff challenges in this case does not relate to such undisclosed information, however, and
did not otherwise influence Plaintiff’s conviction and sentence. In Kitchen, 2011 WL 1485301,
Judge Bucklo examined allegations similar to those made here and concluded that “[i]t 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.” Id. at *9.
While Judge Bucklo acknowledged the tension inherent in allowing similar claims to proceed
against Martin and Shines, she distinguished those allegations because “[a]lthough none of the
suppressed information had specifically to do with Kitchen’s case, it is not unreasonable to infer that
other instances of torture could have drawn attention to the problem more generally, causing
24
Kitchen’s case to come to light much sooner.” Id. at *10. With regard to Daley, Judge Bucklo
explained, “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.”
Id. This court agrees. Daley’s motion to dismiss Count I is therefore granted.
III.
Count II: § 1983 Claim for False Arrest/False Imprisonment
Defendants argue that Plaintiff’s § 1983 claims for false arrest and imprisonment (Count II),
torture and physical abuse (Count III), and coercive interrogation (Count IV), are time-barred. While
state law determines the limitations period for § 1983 actions, the accrual date for a § 1983 action
is a matter of federal law. Sellars v. Perry, 80 F.3d 243, 245 (7th Cir. 1996). Under federal law, a
§ 1983 claim accrues “when the plaintiff has a complete and present cause of action, that is, when
the plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (citation and
quotation omitted).
The applicable statute of limitations for false arrest claims arising in Illinois is two years.
Brooks v. City of Chicago, 564 F.3d 830, 832 (7th Cir. 2009), citing 735 ILCS 5/13-202 (2009). A
§ 1983 false imprisonment claim seeks damages for injury caused by detention without probable
cause. Nat’l Cas. Co. v. McFatridge, 604 F.3d 335, 344 (7th Cir. 2010). As such, the claim accrues
when the plaintiff is held pursuant to a warrant or other judicially issued process. Id.
Plaintiff was formally charged on July 25, 1986 and the statute of limitations for this claim
expired on July 25, 1988. (Compl. ¶ 33.) Plaintiff filed this Complaint on July 22, 2010. (Dkt. 1.)
Plaintiff concedes that these claims are untimely, and agrees to dismissal of Count II. (Pl.’s Resp.
to Municipal Br. at 4 n.1.)
IV.
Count III: § 1983 Claim for Torture and Physical Abuse
Plaintiff’s § 1983 claim for torture and physical abuse in violation of the Fourth Amendment
is similarly time-barred.
Because Plaintiff had a “complete and present” cause of action
immediately following his 1986 interrogation, Wallace bars this claim, as well. See 549 U.S. at 388.
25
Plaintiff has conceded this in his brief, but wishes to preserve the claim should a change in the
governing law occur. (Pl.’s Resp. to Municipal Br. at 4 n.1.) Defendants’ motion to dismiss Count
III is granted.
V.
Count IV: § 1983 Claim for Coercive Interrogation
Plaintiff alleges that the Defendant Officers violated the Fifth and Fourteenth Amendments
through torture that “resulted in false, coerced, and fabricated admissions that were subsequently
used against him in his criminal proceeding[].” (Compl. ¶ 114.) Plaintiff also alleges that Burge and
Byrne, though supervisors, personally participated in these actions, as did Frenzer. (Id. ¶ 114-15.)
Further, Plaintiff alleges that Daley, as State’s Attorney, and Martin, as Area 2 Commander,
“repeatedly failed to intervene to stop and prevent” torture at Area 2, despite learning about this
conduct in 1982, which “proximately caused Plaintiff’s coercive interrogation by torture and his
resultant injuries and damages.” (Id. ¶¶ 116-117.)
The Fifth Amendment prohibits compelling any person “in any criminal case to be a witness
against himself.” U.S. CONST, AM. V. Use of a compelled statement against an individual at trial
constitutes an actionable violation of the Fifth Amendment. Chavez v. Martinez, 538 U.S. 760, 767
(2003). In addition, a plaintiff may assert a Fourteenth Amendment substantive due process claim
based on “police torture or other abuse that results in a confession.” Id. at 773. “Convictions based
on evidence obtained by methods that are so brutal and offensive to human dignity that they shock
the conscience violate the Due Process Clause.” Id. at 774 (citation and quotation omitted).
Before addressing the merits of these allegations, the court addresses Defendants’
contention that this claim, too, is time-barred.
A.
Statute of Limitations
Like claims for false arrest and imprisonment, a § 1983 claim under the Fifth Amendment
accrues when a plaintiff has a “complete and present” cause of action. Wallace, 549 U.S. at 388.
Ordinarily, the period of limitation for Fifth Amendment claims begins to run upon the use of the
26
improperly obtained admissions at trial. See, e.g., Sornberger v. City of Knoxville, 434 F.3d 1006,
1023-27 (7th Cir. 2006) (“[T]he Self-Incrimination Clause, requires, at the very least, the initiation
of a legal proceeding . . . before a suspect’s self-incrimination rights are implicated.”); see also
Chavez, 538 U.S. at 767.
Plaintiff argues that the statute of limitations on his Fifth Amendment claim is tolled under
Heck v. Humphrey, 512 U.S. 477 (1994). The plaintiff in Heck was convicted of killing his wife and
sentenced to fifteen years in prison. Id. at 478. While his case was still on appeal, Heck filed a suit
pursuant to 42 U.S.C. § 1983, alleging that police, investigators, and prosecutors had violated his
constitutional rights by engaging in an “unlawful, unreasonable, and arbitrary investigation,”
“knowingly destroy[ing]” evidence, and causing “an illegal and unlawful voice identification
procedure” to be used at his trial. Id. at 479. The Seventh Circuit had affirmed the district court’s
dismissal of the complaint because “if [plaintiff] won his case the state would be obliged to release
him even if he hadn’t sought that relief, [therefore] the suit is classified as an application for habeas
corpus and the plaintiff must exhaust his state remedies, on pain of dismissal if he fails to do so.”
Heck v. Humphrey, 997 F.2d 355, 357 (7th Cir. 1993). The Supreme Court agreed that dismissal
was appropriate:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983.
Heck, 512 U.S. at 486-87.
Defendants argue that Heck does not apply here in light of Wallace, where the Supreme
Court held that “a claim that accrues before a criminal conviction may and usually must be filed
without regard to the conviction’s validity.” Evans v. Poskon, 603 F.3d 362, 363 (7th Cir. 2010),
27
citing Wallace, 549 U.S. at 393-94. In Wallace, the plaintiff sued the City of Chicago and several
Chicago police officers challenging his arrest for a 1984 murder. 549 U.S. at 386-87. Prior to his
criminal trial, plaintiff moved to suppress statements he had made to police in an unlawful arrest.
The suppression motion was denied, however, and the plaintiff was convicted of first degree murder
and sentenced to twenty-six years in prison. Id. In 2001, his sentence was overturned, and a new
trial was ordered, because “the effect of [his] illegal arrest had not been sufficiently attenuated to
render his statements admissible.” Id. at 387.
In holding that the plaintiff’s Fourth Amendment claim was not subject to the delayed accrual
rule under Heck, the Court relied upon the fact that at the time Wallace’s cause of action accrued,
there was no “outstanding criminal judgment” such as a conviction or sentence. Id. at 393. As
discussed previously, because a § 1983 false imprisonment claim seeks damages for injury caused
by detention without probable cause, false imprisonment necessarily ends when the plaintiff is held
pursuant to a warrant or other judicially issued process. Nat’l Cas. Co., 604 F.3d at 344. The Court
concluded that Wallace’s claim accrued in 1994 when formal legal process was initiated against
him. 549 U.S. at 390.
Several courts in this district have considered whether Wallace’s accrual rule trumps the
Heck bar in the coercive interrogation context. In almost every case, the courts have concluded
that where (as in this case) the plaintiff’s conviction rested largely upon the allegedly coerced
confession, a coercive interrogation claim necessarily impugns the validity of the conviction. The
Heck bar therefore applies, and the claim accrues once the prisoner’s conviction is formally
impugned. Thus, in examining whether plaintiff Oscar Walden could bring a coercive interrogation
claim after he was pardoned for the rape of which he was convicted, Judge Castillo explained that
“the central evidence used against Walden was his confession” and that a claim that his confession
was coerced “necessarily call[s] into question Walden’s conviction.” Walden v. City of Chicago, 755
F. Supp. 2d 942, 956 (N.D. Ill. 2010). Because “challenging the Fifth Amendment violation would
28
have necessarily impugned the validity of Walden’s conviction,” Heck would have barred Walden
from bringing suit until he had obtained a pardon, so the statute of limitations did not begin to run
until that occurred. Id.
Other judges in this district have reached similar conclusions. See Hill v. City of Chicago,
No. 06 C 6772, 2007 WL 1424211, at *3 (N.D. Ill. May 10, 2007) (St. Eve, J.) (motion to dismiss);
Hill v. City of Chicago, No. 06 C 6772, 2009 WL 174994, at *5-6 (N.D. Ill. Jan. 26, 2009) (St.
Eve, J.) (summary judgment); Orange, No. 04 C 168, 2005 WL 742641, at *7 (N.D. Ill. March 30,
2005) (Holderman, J.) (“An evaluation of Orange’s § 1983 claim [for coercive interrogation] in the
1980s would have forced the evaluating court to directly determine whether his conviction was
invalid.”); Howard v. City of Chicago, No. 03 C 8481, 2004 WL 2397281, at *7 (N.D. Ill. Oct. 25,
2004) (Andersen, J.) (“Since Howard’s conviction rested almost entirely on his involuntary
confession . . . we conclude that Howard could not have challenged the Defendants’ acts of
torturing him and fabricating his confession without necessarily implying the invalidity of his
conviction.”); Patterson, 328 F. Supp. 2d at 897 (Gottschall, J.) (same).
In one other case, the court found that plaintiff’s cause of action accrued when an allegedly
coerced confession was used against him in a probable cause hearing and was the subject of a
suppression hearing (the details and outcome of that hearing are not presented in the district court’s
opinion on the accrual issue). Lanza v. City of Chicago, No. 08 C 5103, 2009 WL 1543680, at *3
(N.D. Ill. June 2, 2009) (Andersen, J.). At that point, the court concluded, the plaintiff “knew or
reasonably should have known of the use of the confession against him.” Id. But the Walden court
distinguished Lanza, noting that “the plaintiff in Lanza was never tried or convicted; the implications
of Heck were never at issue.” Walden, 755 F. Supp. 2d at 956.
This court sides with the weight of authority and concludes that, had Plaintiff brought this
claim earlier, it would have impugned the validity of his conviction within the meaning of Heck, and
would therefore have been premature.
Plaintiff’s coercive interrogation claim survives the
29
timeliness challenge.
B.
Defendant Officers, Byrne and Burge
Defendant Officers also seek dismissal of this claim on substantive grounds. They note that
“Plaintiff fails to allege he made or signed any inculpatory statements that were used against him
at trial,” and argue that this means no Fifth Amendment violation occurred. (Officers’ Br. at 5.)
Plaintiff responds that “[D]efendants both coerced from him and fabricated oral admissions that
formed the basis of his wrongful conviction.” (Pl.’s Resp. to Officers’ Br. at 16.) Indeed, numerous
allegations in the complaint refer to coerced oral admissions, false admissions, and false
statements. (Compl. ¶¶ 45, 46, 101, 114, 135.)
Defendant Officers urge that the alleged conduct nevertheless does not constitute a Fifth
Amendment claim because Plaintiff did not actually “confess” to the alleged crime. Instead, they
contend, Plaintiff has alleged that Defendant Yucaitis fabricated testimony concerning oral
admissions that Plaintiff made. (Officers’ Reply at 9-10.) Defendants cite Sornberger for the
proposition that “[a] critical component to a coerced confession claim is a confession.” (Officers’
Reply at 9.) Sornberger involved both a written and verbal confession, which the plaintiff claimed
had been coerced and was in fact false. 434 F.3d at 1011, 1020. But Sornberger does not suggest
that a Fifth Amendment claim is limited to a particular type of confession, and does not hold that
such a claim must be dismissed if it is alleged that statements are cut from whole cloth rather than
coerced from the suspect’s own mouth. This court need not decide whether any such distinction
is meaningful; Plaintiff here does allege that oral admissions were coerced from him. (Pl.’s Resp.
to Officers’ Br. at 16; Compl. ¶¶ 45, 46, 101, 114, 135.) That these admissions did not take the
form of a signed statement, and that, at trial, they were introduced along with statements that
Plaintiff alleges were completely fabricated, does not extinguish this claim.
Second, Defendants argue that Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), requires
the conclusion that “any allegation that plaintiff’s confession was fabricated, in that the defendants
30
testified that plaintiff confessed when in fact he did not, falls within the purview of plaintiff’s state
law malicious prosecution claim.” (Officers’ Reply at 9-10.) Newsome, however, explains only that
“when state courts are open,” no federal malicious prosecution claim may proceed: “[I]f a plaintiff
can establish a violation of the fourth (or any other) amendment there is nothing but confusion to
be gained by calling the legal theory ‘malicious prosecution.’” Id. at 751. Plaintiff here appears to
be adhering to that guidance–he asserts Fifth and Fourteenth Amendment claims rather than a
federal malicious prosecution claim.
Defendant Officers’ challenge to Plaintiff’s Fifth Amendment claim fails, and, beyond the
timeliness defense discussed earlier, they have not addressed the Fourteenth Amendment claim.
Their motion to dismiss these claims is denied.
C.
Burge
Defendant Burge argues that this claim (along with all other constitutional claims) fails
because Plaintiff does not allege that Burge was personally involved in his interrogation, and § 1983
does not allow for supervisory liability. (Burge Br. at 3-5.) Plaintiff cites cases, including Steidl, for
the proposition that “supervisors may be liable for their subordinates’ violation of others’
constitutional rights when they 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.” 494 F.3d at 631 (citation and quotation omitted).
Plaintiff has alleged that Burge was present at Area 2 during his interrogation, that the
physical evidence of his torture was apparent to those at Area 2, and that Burge “encourag[ed],
condon[ed] and permitt[ed]” his torture. (Compl. ¶¶ 24-25, 31, 115.) Though more details
concerning Burge’s involvement would be useful, the court concludes these allegations are
sufficient to support the inference that Burge was indeed personally involved in the deprivation of
31
Plaintiff’s constitutional rights.14
In his reply brief, Burge also argues that Plaintiff’s substantive due process claim is more
properly styled as a Fifth Amendment claim and should be dismissed for that reason. (Burge Reply
at 5.) Burge cites Albright, which explains that “[w]here a particular Amendment provides an explicit
textual source of constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process, must be the guide for
analyzing these claims.” 510 U.S. at 273. At this stage, it is not clear to the court based on the
sparse factual record that the Fifth Amendment claim is preferable to Plaintiff’s due process theory.
Notably, as discussed earlier, Defendant Officers have argued that Plaintiff’s “confession” is not of
the type that supports a Fifth Amendment claim at all (see, e.g., Officers’ Reply at 9). The court
declines to dismiss the substantive due process claim.
D.
Frenzer
Plaintiff alleges that ASA Frenzer “encourag[ed], condon[ed] and permitt[ed] the use of
[torture and other coercive techniques].” (Compl. ¶ 115.) In support of this contention, Tillman
alleges that Frenzer was “present” at Area 2 during most of Tillman’s interrogation, that Frenzer
was aware that Tillman was bleeding from the nose during the interrogation, and that Frenzer
unsuccessfully attempted to take a written statement from Tillman. (Id. ¶ 32.)
From these
allegations, Plaintiff urges, “[i]t is plausible to infer . . . that Frenzer was well aware that Plaintiff was
being coerced into giving the statement, and in fact participated in the planned use of torture to
14
In Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), the Supreme Court made clear
that the bar on respondeat superior liability applies in the Bivens context just as it does in the
§ 1983 context. In this court’s view, that case plows no new ground as to the allegations alleged
here–it merely confirms what the existing §1983 case law, including Steidl, has long held–“a plaintiff
must plead that each Government-official defendant, through the official's own individual actions,
has violated the Constitution.” Iqbal, 129 S.Ct. at 1948. Plaintiff does also allege that Burge
“supervised, encouraged, sanctioned, condoned and ratified brutality and torture by other detectives
and supervisors” (Compl. ¶ 7), but those allegations are in addition to allegations that Burge was
personally involved in the conduct underlying Plaintiff’s claims.
32
extract Plaintiff’s false admissions.” (Pl.’s Resp. to Cook County Br. at 7.) These allegations are
obviously similar to those in support of Plaintiff’s Brady claim in Count I, discussed above; here,
Plaintiff urges that Frenzer’s conduct violated his Fifth Amendment right to be free from selfincrimination and a Fourteenth Amendment substantive due process right.
Frenzer contends he is shielded from liability for this conduct based on prosecutorial
immunity. Again, though it is undisputed that Frenzer was acting as an Assistant State’s Attorney
at the time of these events, it is “[t]he nature of the function performed, not the identity of the actor
who performed it” that controls whether and what type of immunity may be available. Buckley, 509
U.S. at 269. Prosecutors are, for example, absolutely immune from liability under § 1983 for core
prosecutorial actions, including “initiating a prosecution and . . . presenting the State’s case.”
Imbler, 424 U.S. at 431. Where a prosecutor steps beyond the prosecutorial function, and acts as
an investigator or administrator, only qualified immunity may apply. Buckley, 509 U.S. at 270.
Plaintiff has alleged that Frenzer encouraged, condoned, and permitted the use of torture
against him in order to secure a confession. Those allegations, presumed true for purposes of this
motion, are sufficient to support the inference that Frenzer participated in an investigatory rather
than prosecutorial role. The court notes that at this stage the allegations against Frenzer do lack
specifics; if Frenzer did not actually participate in the alleged torture, but instead was present at
Area 2 only to take Plaintiff’s statement, he may well be entitled to summary judgment on grounds
of immunity. See, e.g., Hunt v. Jaglowski, 926 F.2d 689, 693 (7th Cir. 1991) (affirming grant of
directed verdict for prosecutor asserting prosecutorial immunity against plaintiff’s allegations of
police coercion because plaintiff testified he had no contact with prosecutor “until after he had
confessed and agreed to give a statement”).
The allegations do survive a pleadings challenge,
however, and Frenzer’s motion to dismiss this claim is denied.
E.
Daley and Martin
Finally, Plaintiff makes claims against Daley and Martin for their alleged involvement in his
33
coercive interrogation. Plaintiff alleges that the repeated failures of Martin and Daley to intervene
and prevent torture at Area 2, despite their knowledge that it was occurring, proximately caused
Plaintiff’s torture. (Pl.’s Resp. to Daley Br. at 8-9; Compl. ¶¶ 116-17.) Again, these allegations are
similar to those discussed with respect to Plaintiff’s Brady claims in Count I. With respect to his due
process claims, Plaintiff has not alleged that Daley or Martin were personally involved in his torture,
an allegation necessary to establish their liability under § 1983. Wolf-Lillie v. Sonquist, 699 F.2d
864, 869 (7th Cir. 1983) (“Without a showing of direct responsibility for the improper action, liability
will not lie against a supervisory official. A causal connection, or an affirmative link, between the
misconduct complained of and the official sued is necessary.”) While a defendant’s “direct
participation in the deprivation is not required,” the defendant may only be liable “if she acts or fails
to act with a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct
causing the constitutional deprivation occurs at her direction or with her knowledge and consent.”
Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985). As explained earlier, for a supervisor to be
liable for a constitutional deprivation, he “must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what [he] might see.” Jones v. City of Chicago, 856 F.2d
985, 992 (7th Cir. 1988). Cf. Kernats v. O’Sullivan, 35 F.3d 1171, 1182 (7th Cir. 1994) (police chief
is not liable for subordinate’s wrongdoing absent an allegation that the chief “observed, directed,
ignored, approved, participated in any way, or even knew about the incidents” alleged to be
constitutional violations).
Plaintiff asserts that the Tenth Circuit has held that § 1983 liability can attach where “[a]
defendant supervisor’s promulgation, creation, implementation, or utilization of a policy . . . caused
a deprivation of plaintiff’s rights.” Notably, the case he cites, Dodds v. Richardson, 614 F.3d 1185,
1195 (10th Cir. 2010) itself recognizes that Iqbal has called this holding into question, and that only
“defendants whose own individual actions cause a constitutional deprivation” face § 1983 liability.
In any event, authority in this Circuit requires a showing that a supervisor’s actions be tied to the
34
specific constitutional violation at issue in order for the supervisor to be liable. Thus, in Orange,
Judge Holderman examined plaintiff’s claim, almost identical to the one here, that “Orange would
not have been tortured in 1984 if [then-First Assistant State’s Attorney Richard Devine] had only
investigated and prosecuted Area 2 police officers for the torture of Andrew Wilson in 1982.” 2008
WL 4425427, at *5. Holderman concluded that, even accepting Orange’s allegations as true, “[t]he
chain of inferences . . . is too tenuous” to support a claim against Devine. Id. See also Patterson
v. Burge, No. 03 C 4433, 2010 WL 3894433, at *3 (N.D. Ill. Sept. 27, 2010). This court, too,
concludes that too many variables stand in the way of a determination that there is a causal
connection between Daley and Martin’s failure to investigate and the deprivation of Plaintiff’s rights.
The many years it has taken for the allegations of torture at Area 2 to come to light bear this out–the
notion that the wrongdoing would have stopped once an inquiry was launched is simply too
tenuous. Iqbal has reaffirmed the Supreme Court’s unwillingness to extend supervisory liability for
constitutional violations in the civil context. Absent any controlling authority for a finding of liability
under a “failure to investigate” theory, the court sustains these Defendants’ objections, and grants
Daley and Martin’s motions to dismiss Count IV.
VI.
Count VII: State Law Claims for False Arrest and False Imprisonment
Like Plaintiff’s claims in Count II, Plaintiff’s Count VII state law claims for false arrest and
false imprisonment are time-barred. Plaintiff argues that his false imprisonment claim is not
predicated on his 1986 arrest, but rather upon Tillman’s subsequent years of imprisonment, and
as such his claim did not accrue until his release; but this court is no more persuaded by this
argument than was Judge Bucklo in Kitchen. She observed that false imprisonment does not
constitute a continuing tort or violation that accrues upon release, but is rather a tort that accrues
upon imprisonment regardless of the continuing effects of that tort. “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.” Kitchen, 2011 WL 1485301, at *14.
35
Plaintiff cites Cooper v. Butler, No. 92 C 5604, 1995 WL 399009, at *5 (N.D. Ill. June 29,
1995) (Andersen, J.) and Hernandez v. Sheahan, No. 93 C 1668, 1993 WL 257486 (N.D. Ill. July 8,
1993) (Kocoras, J.), for the proposition that the limitations period for state false imprisonment claims
does not start to run until the imprisonment ends, but, as explained by the Kitchen court, these are
the only two cases in this district supporting such a theory, and their reasoning has been rejected
elsewhere. In Thompson v. City of Chicago, No. 07 C 1130, 2009 WL 674353 (N.D. Ill. March 12,
2009), Judge Guzman noted that no Illinois state court decisions have agreed with the two district
court opinions that adopted the continuing violation theory of Cooper and Hernandez. Id. at *5.
The Thompson court concluded that the majority view “reflect[s] the general principles of tort claim
accrual set forth by the Illinois Supreme Court.” Id. at *5 (citing Feltmeier v. Feltmeier, 207 Ill.2d
263, 798 N.E.2d 75, 85-88 (2003)).
Count VII is dismissed as untimely.
VII.
Counts V & X: § 1985 & § 1986 and State Law Claims for Conspiracy
Plaintiff contends that all of the individual Defendants were involved in a wide-ranging
conspiracy beginning in 1973 and lasting until the filing of the lawsuit. (Compl. ¶¶ 48-54; 119.) He
alleges a § 1983 conspiracy, a § 1985 conspiracy, and a conspiracy as defined by Illinois state law.
The conspiracy to torture and abuse suspects, in particular African-American men, allegedly began
with the May 1973 torture of Anthony Holmes at Area 2 and continued under the direction of Burge
and Byrne. Because Daley and Martin failed to intervene, a team of detectives and officers
continued the misconduct, engaging in numerous instances of abuse from February 1982 through
July 1986. (Compl. ¶ 53.) Plaintiff also alleges that Frenzer and the Officers suppressed the truth
about this torture and abuse, as well as the physical evidence of it, from Plaintiff and all those
involved in his criminal proceedings. (Id. ¶ 54.)
The Defendant Officers assert that to the extent that Plaintiff’s other constitutional claims
fail, those same allegations cannot support the derivative conspiracy claims. (Officers’ Br. at 11.)
36
Because the substantive claims in Counts I and IV have survived Defendants’ motion, however, the
conspiracy allegations will not be dismissed on that basis.
Defendants also argue that Plaintiff has not pleaded his § 1983 conspiracy claim with
sufficient particularity. A complaint must at least identify (1) the parties to the conspiracy, (2) the
general purpose of the conspiracy, and (3) the approximate date of the conspiracy. Loubser v.
Thacker, 440 F.3d 439, 443 (7th Cir. 2006). Even then (and especially after Twombly and Iqbal),
“the plaintiff must meet a high standard of plausibility” when alleging “a vast, encompassing
conspiracy.” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009). “Even before the Supreme
Court’s new pleading rule . . . conspiracy allegations were often held to a higher standard than other
allegations; mere suspicion that persons adverse to the plaintiff had joined a conspiracy against him
or her was not enough.” Id. A complaint consisting of nothing more than “‘naked assertion[s]’
devoid of ‘further factual enhancement,’” must be dismissed under Rule 8. Iqbal, 129 S. Ct. at
1949. In Andrews, confronted with allegations of police torture, Judge Zagel of this court noted that
“[i]ndiscriminately incorporating every paragraph of every count in other counts . . . can result, as
it does here, in a complaint that does not tell some of the defendants why they are liable. . . . In a
simpler case, a general conspiracy claim is adequate but not here.” 660 F. Supp. 2d at 879-80.
While plaintiff had made “very specific allegations about what certain named police officers and a
prosecutor did with respect to Andrews,” Judge Zagel noted that “[t]he further up the chain of
command the complaint goes, the more vague are the grounds for individual liability.” Id. at 880.
In this case, Plaintiff has explained the role that each of the individual Defendants played
in greater detail. His allegations suggest that Plaintiff’s torture was more than just an isolated
incident, and suggest, further, that the suppression of the truth about what occurred at Area 2 was
the result of coordinated efforts that continued for some time. (Compl. ¶¶ 119, 121.) As discussed
above, the Defendant Officers are alleged to have participated directly in the torture, as did Burge;
Frenzer allegedly did so as well, by attempting to take a statement when he knew the torture was
37
ongoing; Martin and Daley are said to have undermined and obstructed findings of torture; Shines
allegedly suppressed findings of torture; and Plaintiff claims that Needham and Hillard continued
to suppress findings and undermine investigations into torture at Area 2 after they took office.
Plaintiff has listed a litany of actions at Area 2 furthering and concealing the abuse that took place
there (Compl. ¶¶ 48-50, 52, 56, 63, 65, 88, 89), and has also provided specific allegations regarding
acts of torture performed on this Plaintiff and on others. (Id. ¶¶ 21-34.) These allegations are
sufficient to allege a § 1983 conspiracy.
More specific allegations against the individual
Defendants–a showing that their decisions to join in the general purpose of the conspiracy were
deliberate and coordinated, for example–would indeed be helpful. The nature of conspiracy itself
often prohibits such detail at the pleading stage, however. The court concludes Plaintiff has
presented more than “naked assertions,” and his conspiracy claim survives.
Second, the Defendant Officers argue that Plaintiff fails to plead a proper § 1985 conspiracy
claim sufficient to support liability for additional Defendants under § 1986. A § 1985 conspiracy
claim may be brought when “two or more persons . . . conspire . . . for the purpose of depriving,
either directly or indirectly, any person or class of persons of the equal protection of the laws.” 42
U.S.C. § 1985(3). To state such a claim, plaintiff must allege a conspiracy, a purpose of depriving
a class of persons of equal protection of the laws, an act in furtherance of the conspiracy, and an
injury to plaintiff or a deprivation of his civil rights or privileges. Indianapolis Minority Contractors
Ass’n Inc. v. Wiley, 187 F.3d 743, 754 (7th Cir.1999). Section 1986 provides for liability for an
individual who knows that actions prohibited by Section 1985 are about to occur, and with
“reasonable diligence could have prevented” them, but either neglected or refused to do so. 42
U.S.C. § 1986.
To make the showing required by § 1985 that Defendants had the purpose of denying equal
protection, Plaintiff must allege “some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ actions.” Griffin v. Breckenridge, 403 U.S. 88, 102
38
(1971). Plaintiff here urges that there was a racial motivation behind the actions of the alleged
conspirators; he has alleged that the conspiracy was engaged in “with racial animus toward the
Plaintiff and the other victims of this racially motivated conspiracy.” (Compl. ¶ 120.) Plaintiff also
identified more than thirty alleged victims of police torture who are African-American. (Pl.’s Resp.
to Officers’ Br. at 20.) Plaintiff asserts that this conspiracy “is, without doubt, fundamentally
premised on and permeated by powerful racial animus.” (Id.)
The Seventh Circuit has recently rejected a claim under § 1985, albeit in a different context,
because plaintiff failed to offer any “‘factual allegation to plausibly suggest [that defendants had]
discriminatory state of mind.’” Brown v. JP Morgan Chase Bank, 334 Fed.Appx. 758, 759-60 (7th
Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1952). Courts in this district have rejected similar claims
where plaintiff has done no more than plead that the plaintiff was a member of the protected class.
See Green v. Lichtcsien, No. 00 C 0563, 2001 WL 78915, at *4 (N.D. Ill. Jan. 26, 2001).
Substantially more detail may not be necessary, however. In a recent non-§ 1985 case, Swanson
v. Citibank, 614 F.3d 400, 406-07 (7th Cir. 2010), the Seventh Circuit reversed dismissal of a race
discrimination claim where few details were offered at the pleading stage. Plaintiff Swanson, who
had applied for a home equity loan, alleged that while entering information into the computer, the
loan officer had asked her a question about her race and commented that his own “wife and son
were part African-American.” Id. at 402-03. The plaintiff was conditionally approved for the loan
based on her own estimate of the loan’s value, but after an appraiser assigned a more modest
value to the property, the bank rejected her application. Id. at 403. The court concluded that the
wide variation between plaintiff’s valuation and the later appraisal, and the mention of her race by
the loan officer, were sufficient to allow this allegation to proceed past the pleading stage. The
Seventh Circuit noted that even after Twombly and Iqbal, “the court will ask itself could these things
have happened, not did they happen.” Id. at 404.
39
The court concludes that Plaintiff does sufficiently plead a § 1985 conspiracy claim, though
barely. He has alleged that all or nearly all of the victims of the alleged conspiracy were members
of the same class, and that racial epithets were commonly used during the course of this torture.
Those allegations lend sufficient credence to Plaintiff’s claims at the pleading stage. As in
Swanson, the question before this court is whether the conspiracy alleged here could have been
motivated by racial animus. Plaintiff’s allegations appear to meet that test.
Finally, for purposes of his state law conspiracy claim (Count X), Plaintiff must allege that
each Defendant “knowingly and voluntarily participate[d] in a common scheme to commit an
unlawful act or a lawful act in an unlawful manner.” McClure v. Owens Corning Fiberglas Corp.,
188 Ill.2d 102, 133, 720 N.E.2d 242, 258 (1999). The allegations discussed earlier also meet these
criteria; Plaintiff has alleged that each of the individual Defendants participated in this common
scheme to engage in torture, an unlawful act. Though he does not again outline the specifics of
these actions in Count X, the allegations are the same–that Defendant Officers, Burge, and Frenzer
participated in the torture itself and that Daley, Hillard, Martin, Needham, and Shines covered up
and suppressed evidence of that pattern and practice of torture of which Plaintiff was a victim.
Defendants’ motion to dismiss the conspiracy claim is denied.
VIII.
Count VI: § 1983 Monell Claim
Although styled as an independent claim, Count VI, the Monell policy allegations, are
instead a basis to impose liability on the City for acts by the individual Defendants. The City
challenges this theory of liability on two grounds: first, that Plaintiff’s Monell claim cannot survive
if his constitutional claims do not; and second, that Plaintiff has not alleged with sufficient specificity
that a specific custom, policy, or practice of the city caused his constitutional injury. (Officers’ Br.
at 12.) Because Counts I and IV have survived this motion, the court need not address the first of
the City’s arguments.
40
The substantive argument bears more discussion. To establish the City’s liability for a
§ 1983 claim under the Monell doctrine, Plaintiff must show: (1) a violation of his constitutional
rights; (2) an injury; and (3) that the injury and violation of rights was directly caused by the City’s
own action or inaction. Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520
U.S. 397, 404 (1997). The Supreme Court has explained that plaintiff must establish that “through
its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is,
a plaintiff must show that the municipal action was taken with the requisite degree of culpability and
must demonstrate a direct causal link between the municipal action and the deprivation of federal
rights.” Id. at 404. Plaintiff can establish such a causal link in one of three ways, by showing
(1) the City had an express policy that, when enforced, causes a constitutional
deprivation; (2) the City had a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage within the force of law; or (3) plaintiff's constitutional
injury was caused by a person with final policymaking authority.
McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000). In establishing the existence of
such a policy or practice, it is insufficient to “splatter-paint a picture of scattered violations” through
“collateral accusations of marginally related incidents.” Carter v. Morris,164 F.3d 215, 218-19 (4th
Cir. 1999).
Plaintiff’s allegations in this case are more than splatter-paint. He has alleged that there
was a widespread, well-settled practice within Area 2 of systematic abuse of suspects. (Compl. ¶
76.) Plaintiff notes that this practice was confirmed through OPS findings and other determinations
that confirmed the abuse was “systemic.” (Id. ¶¶ 76, 87-89.) As explained supra n.6, Plaintiff
alleges that the same instruments and methods were used at Area 2 on more than two dozen
suspects in similar circumstances. Such accusations establish the type of “widespread practice
that, although not authorized by written law or express municipal policy, is so permanent and well
settled as to constitute a custom or usage within the force of law” that McCormick held sufficient
to establish Monell liability. Numerous courts in this district that have examined Monell claims in
41
similar circumstances have allowed them to proceed. See, e.g., Kitchen, 2011 WL 1485301, at *15;
Andrews, 660 F. Supp. 2d at 882; Cannon, 2006 WL 273544, at *15. The City’s motion to dismiss
Count V of the Complaint is denied.
IX.
Counts VIII & IX: State Law Claims for Malicious Prosecution and Intentional Infliction
of Emotional Distress
Plaintiff alleges state law claims for malicious prosecution and intentional infliction of
emotional distress (“IIED”). He alleges that Burge, Byrne, Dignan, Yucaitis, Boffo, Hines, Patton,
and Frenzer “initiated a malicious prosecution without probable cause,” and that those Defendants
were joined by Daley, Martin, Shines, Hillard, and Needham, in continuing that prosecution without
probable cause. (Compl. ¶ 133.) Plaintiff also alleges intentional infliction of emotional distress
against all the same Defendants based on his torture and wrongful conviction. (Compl. ¶¶ 135-37.)
The Defendants have moved to dismiss this claim on numerous grounds, as well.
A.
Defendant Officers
Defendant Officers argue that the court lacks subject matter jurisdiction over pendant state
law claims where all federal claims have been dismissed. (Officers’ Br. at 15.) Because Counts
I and IV have been allowed to proceed, Defendants’ motion to dismiss Counts VIII and IX are
denied.
B.
Burge
Defendant Burge argues that because he did not take a direct role in Plaintiff’s abuse, his
actions were not so “extreme and outrageous” as to state a claim for intentional infliction of
emotional distress. (Burge Br. at 8, citing Public Finance Corp. v. Davis, 66 Ill.2d 85, 360 N.E.2d
765 (1976)). Plaintiff contends, however, that Burge encouraged, condoned, and permitted the use
of torture on Plaintiff, and that Burge took charge of the investigation and monitored its progress.
(Compl. ¶¶ 21,115.) Actions are sufficient to support an IIED claim if they are so “extreme and
outrageous” as to go “beyond all bounds of decency and [are] considered intolerable in a civilized
42
community.” Lopez v. City of Chicago, 464 F.3d 711, 720 (7th Cir. 2006) (allegations plaintiff was
deprived of food and water for several days while in police custody could state a claim for IIED).
The court has little difficulty in concluding that the torture allegations leveled in this case constitute
“extreme and outrageous” conduct sufficient to state an IIED claim. Burge himself does not argue
otherwise; he merely asserts that Plaintiff is attempting to hold him liable in a supervisory capacity
for the actions of others. Because, as explained previously, the court concludes Plaintiff has
alleged Burge’s personal involvement, his motion to dismiss Count IX is denied.
C.
Frenzer
Frenzer argues that he is entitled to absolute prosecutorial immunity from these state law
allegations. (Cook County Br. at 12-14.) Illinois law affords prosecutors acting within the scope of
their prosecutorial duties the same immunity as it does judges–absolute immunity. Aboufariss v.
City of DeKalb, 305 Ill. App.3d 1054, 1064, 713 N.E.2d 804, 812 (2d Dist. 1999). See also Hughes
v. Krause, No. 06 C 5792, 2008 WL 2788722, at *1-2 (N.D. Ill. July 17, 2008) (dismissing Illinois
state law claims on the same basis that federal claims had already been dismissed: absolute
prosecutorial immunity).
In his malicious prosecution claim against Frenzer, Plaintiff alleges that Frenzer initiated a
prosecution without probable cause (Compl. ¶ 133)–precisely the type of action barred by absolute
prosecutorial immunity: “[I]n initiating a prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages under § 1983.” Imbler, 424 U.S. at 431.
“[A]bsolute immunity shields prosecutors even if they act maliciously, unreasonably, without
probable cause, or even on the basis of false testimony or evidence.” Smith v. Power, 346 F.3d
740, 742 (7th Cir. 2003) (citation and quotation omitted). The state malicious prosecution claim
against Frenzer is dismissed.
The intentional infliction of emotional distress claim might fairly be construed as brought
against Frenzer acting not in the scope of his duties as a prosecutor, but rather as an investigator
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based on his participation in Plaintiff’s torture. As explained infra Section I.C., the absolute
immunity inquiry is a functional one, and where a prosecutor acts as an investigator, he loses
absolute immunity. In Orange, for example, where the prosecutor “coached Orange regarding the
false confession Orange was to deliver in exchange for the cessation of the alleged torture
sessions” and “actively assisted in gathering the evidence that would later form the basis of the
charges against Orange,” he relinquished absolute immunity in the Buckley analysis. Orange, 2008
WL 4443280, at *10.
As discussed previously at some length, the allegations against
Frenzer–though not nearly as developed at the motion to dismiss stage as were the allegations in
Orange at the summary judgment stage–are that he personally participated in the torture and that
his role in doing so more closely resembled that of an investigator than a prosecutor. The court
denies Frenzer’s motion to dismiss the IIED claim without prejudice to renewal of his immunity
argument at a later stage.
D.
Municipal Defendants Hillard, Needham, and Shines
The Municipal Defendants argue for dismissal of the state malicious prosecution claim on
the ground that Plaintiff has not offered allegations sufficient to raise the possibility of relief above
a speculative level, as required by Twombly.
In Illinois, a malicious prosecution claim “requires proof that the defendant commenced or
continued a criminal proceeding without probable cause.” Brown v. Village of Romeoville, 407 Fed.
Appx. 56, 58 (7th Cir. 2011). See also Ross v. Mauro Chevrolet, 369 Ill. App. 3d 794, 801, 861
N.E.2d 313, 319 (1st Dist. 2006) (listing all elements of a malicious prosecution charge). As
discussed in the court’s consideration of Count I, Plaintiff has adequately alleged that the Municipal
Defendants continued his prosecution after becoming aware of facts regarding torture at Area 2 that
would have seriously undermined, and potentially eviscerated, the probable cause for Plaintiff’s
arrest and prosecution. These malicious prosecution claims survive the Municipal Defendants’
motion to dismiss. Martin offers no argument with respect to the state law claims other than his
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adoption of the Defendant Officers’ contention that dismissal of all federal claims requires dismissal
of the state law claims as beyond the court’s jurisdiction. That objection is overruled as well.
The Municipal Defendants offer no specific argument regarding the IIED claim (Municipal
Reply at 11 n.5), but the court is uncertain of its sufficiency as against these Defendants and would
invite further briefing on this subject.
E.
Daley
Daley argues in passing that he is immune from the state law malicious prosecution claim
based on prosecutorial immunity. (Daley Br. at 7.) To the extent such a claim is premised on
Daley’s decision as State’s Attorney to initiate Plaintiff’s prosecution or is otherwise tied to his
activities while State’s Attorney, Daley is correct; any such claim must be dismissed for the same
reasons that the court dismissed the malicious prosecution claim against Defendant Frenzer. To
the extent the malicious prosecution claim is based on Daley’s continued prosecution of Plaintiff’s
case after Daley became Mayor, that claim fails, as well. There is no basis for the conclusion that,
in his role as Mayor, Daley was involved in any decisions regarding Plaintiff’s prosecution. As
explained earlier in Section II.D, Plaintiff does not allege that Daley was personally aware of facts
regarding torture at Area 2 that would have been exculpatory to Plaintiff.
Daley has not made any arguments concerning the IIED claim, but the court is uncertain that
Plaintiff has alleged any extreme or outrageous conduct on the part of Mr. Daley as Mayor. The
court will invite further briefing on that claim, as well.
X.
Count XI: State Law Respondeat Superior
Count XI adequately alleges a claim for respondeat superior liability against the City of
Chicago. In its motion to dismiss, the City argues only that Plaintiff’s respondeat superior claim
should be dismissed because it cannot exist unless the claims against individual City of Chicago
Defendants proceed. (Officers’ Br. at 14-15.) Because the court has not dismissed all of the state
law claims, the City’s objection to any respondeat superior theory is overruled, to the extent that
45
Defendants were acting within the scope of their employment when they committed those state law
torts. Doe v. City of Chicago, 360 F.3d 667, 670 (7th Cir. 2004); Rico v. City of Chicago, No. 08 C
2763, 2010 WL 5391185, at *2 (N.D. Ill. Dec. 22, 2010) (Kocoras, J.). Defendants’ motion to
dismiss Count XI is denied.
XI.
Count XII: 745 ILCS 10/9-102 and Common Law Claims against the State’s Attorney’s
Office and Cook County
Count XII adequately alleges a claim for indemnification under 745 ILCS 10/9-102 against
the City of Chicago and against Cook County, contingent upon success of the claims against
brought against state and local employees acting within the scope of their employment. See Askew
v. Sheriff of Cook County, 568 F.3d 632, 636-37 (7th Cir. 2009).
Defendants appear to believe that Plaintiff has asserted a respondeat superior claim against
Cook County (Cook County Br. at 24-25); Plaintiff denies he has asserted such a claim, and the
court construes any such claim as withdrawn voluntarily. The State’s Attorney’s office is also
dismissed as it is a state office that is immune from suit. Hernandez v. Joliet Police Department,
197 F.3d 256, 265 (7th Cir. 1999).
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss [61, 64, 65, 67, 78] are granted
in part and denied in part. Count I survives this motion to dismiss against all named Defendants
except Defendant Daley; Counts II and III are dismissed in their entirety; Count IV survives as to
all named Defendants other than Daley and Martin; Count VII is dismissed in its entirety; Counts
V, VI, IX, and X survive in their entirety; Count VIII survives against all named Defendants other
than Daley; and Count XII survives, except that the Cook County State’s Attorney’s office is
dismissed as a Defendant.
ENTER:
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Dated: July 20, 2011
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
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