Ruiz-Cortez v. Chicago et al
Filing
290
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/26/2016:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHER DISTRICT OF ILLINOIS
EASTERN DIVISION
REFUGIO RUIZ-CORTEZ,
Plaintiff,
v.
Case No. 11 C 1420
CITY OF CHICAGO, CHICAGO
POLICE OFFICERS GLENN
LEWELLEN, NOEL SANCHEZ, and
UNKNOWN CHICAGO POLICE
OFFICERS,
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are the parties’ Cross Motions for Summary
Judgment.
For
the
reasons
stated
herein,
Defendant
Noel
Sanchez’s and Defendant City of Chicago’s Motions for Summary
Judgment
[ECF
Defendant
Nos.
Glenn
239
and
Lewellen’s
247,
Motion
respectively]
for
Summary
are
granted;
Judgment
[ECF
No. 232] is granted in part and denied in part; and Plaintiff
Refugio Ruiz-Cortez’s Motion for Summary Judgment [ECF No. 235]
is denied.
I.
LEGAL STANDARD
A party moving for summary judgment must show that “there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine dispute of material fact exists “if the evidence is
such
that
a
reasonable
nonmoving party.”
242, 248 (1986).
jury
could
return
a
verdict
for
the
Anderson v. Liberty Lobby, Inc., 477 U.S.
In making this determination, all facts and
reasonable inferences are construed in favor of the nonmovant.
Id. at 248-49.
“against
a
Nonetheless, summary judgment must be entered
party
who
fails
to
make
a
showing
sufficient
to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Litigants
may
cite
to
“depositions,
documents,
electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials” to
support
their
P. 56(c).
positions
However,
“[a]
in
summary
party
may
hearsay to avoid summary judgment.”
judgment.
not
rely
FED.
on
R.
CIV.
inadmissible
MMG Fin. Corp. v. Midwest
Amusements Park, LLC, 630 F.3d 651, 656 (7th Cir. 2011).
With
some exceptions, “hearsay is inadmissible in summary judgment
proceedings to the same extent that it is inadmissible in a
trial.”
1997).
Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.
Finally, “the proponent of hearsay bears the burden of
establishing that the statement is admissible.”
Hartford Fire
Ins. Co. v. Taylor, 903 F.Supp.2d 623, 640 (N.D. Ill. 2012).
- 2 -
II.
Because
all
four
BACKGROUND
parties
in
this
case
have
moved
for
summary judgment, the Court must do a Janus-like recitation of
the facts so that “[a]s to each motion the nonmovant’s version
of any disputed fact [is] credited.”
932
F.Supp.2d
907,
914
(N.D.
Padilla v. City of Chi.,
Ill.
2013).
Despite
the
contentious exchanges of statements of facts, the parties here
agree on substantial portions of the record.
Where there are
disagreements, the Court will note whose version of the events
is
being
argument
recounted.
as
to
a
Facts
that
particular
are
claim
specific
will
be
to
a
discussed
party’s
in
the
analysis as they become relevant.
In
1999,
Plaintiff
Ruiz-Cortez
(“Ruiz-Cortez”)
was
convicted of possession with intent to distribute 10 kilograms
of cocaine and sentenced to 17.5 years in prison.
v. Ruiz, 99-CR-493, ECF No. 35.
his
sentence,
Ruiz-Cortez’s
United States
In 2010, ten years into serving
conviction
was
vacated
on
the
request of the United States Attorney’s Office (the “USAO”) and
he was immediately released.
for
the
arrest
dismissal
of
(“Lewellen”).
was
an
Defendant
As
a
Id., ECF Nos. 50, 52.
investigation
Chicago
result
of
leading
Police
to
Officer
Lewellen’s
arrest,
The cause
eventual
Lewellen
the
USAO
concluded that “no reasonable fact-finder would have found the
defendant
guilty”
and
on
this
ground,
- 3 -
moved
to
vacate
Ruiz-
Cortez’s conviction.
Id., ECF. No. 50.
Importantly, one of the
people whom Lewellen was charged of having conspired with was a
police
informant
named
Saul
Rodriguez
(“Rodriguez”).
(See,
United States v. Rodriguez, 09-CR-332.)
Lewellen was one of two Chicago police officers who had
arrested Plaintiff back in 1999 and who testified at Plaintiff’s
trial.
(See, ECF No. 234, Ex. D (Lewellen’s Test. against Ruiz-
Cortez).)
During this time, Lewellen worked in the narcotics
section of the Chicago Police Department (“CPD”) as part of a
10-man team.
(See, ECF No. 241, Ex. C (Sanchez’s Dep.) 33-1:7.)
Lewellen
had
recruited
informant
(“CI”)
for
Rodriguez
the
CPD
in
as
a
1996.
paid
(See,
(Lewellen’s Statement of Facts (“SOF”)) ¶ 3.)
confidential
ECF
No.
233
In accordance
with CPD’s policy, Lewellen had Rodriguez sign a form obligating
the latter not to engage in any illegal activity while serving
as a CI.
(ECF No. 237, Ex. J.)
Shortly
after
Rodriguez
signed
this
agreement,
the
Drug
Enforcement Agency (“DEA”) seized over 150 pounds of marijuana
from his car.
(ECF No. 244 (City’s SOF) ¶ 40.)
A DEA agent by
the name of Alan Doescher (“Doescher”) testified in a deposition
taken
for
this
case
that
Lewellen around this time.
Dep.) 7:12-15.)
he
received
two
phone
calls
from
(ECF No. 234, Ex. X (Doescher’s
According to Doescher, Lewellen informed him
that Rodriguez was a CI and asked him to cease the investigation
- 4 -
because it could compromise other matters on which Rodriguez was
providing
information.
(Doescher’s
Dep.,
7:22-10:15,
48:22-
50:18.)
Doescher replied that he would need to speak to his
superior
at
Doescher
the
then
USAO.
relayed
Assistant
US
(Doescher’s
Dep.,
letter
from
request,”
the
Attorney
Haywood
had
him
10:15,
with
McDuffie
Sometime
informing
USAO
Dep.,
conversation
21:9-19.)
McDuffie
the
(Doescher’s
later,
that
terminated
the
50:20-24.)
Lewellen
to
(“McDuffie”).
he
received
“pursuant
to
investigation
a
[his]
into
Rodriguez.
(ECF No. 237, Ex. L (McDuffie’s Letter).)
It does
not
from
another
appear
the
factual
record
that
Doescher
or
attorney from the USAO communicated with other CPD or City of
Chicago personnel about Rodriguez.
In 1997, Rodriguez was arrested by Chicago police officers
with a handgun in his back pocket.
(ECF No. 244, Ex. 22 (arrest
report).)
with
Rodriguez
was
charged
failure
firearm, but the case against him was nonsuited.
to
register
a
(ECF No. 244,
Ex. 23 (quasi-criminal complaint) and Ex. 24 (disposition in
People v. Saul Rodriguez, No. 97125928701).)
Rodriguez proved to be a fruitful informant for the CPD.
During
the
period
from
1996
to
2000,
Rodriguez
provided
information on 65 occasions, leading to the seizure of thousands
of kilograms of cocaine and marijuana.
Resp.
to
City’s
SOF,
¶¶
52-53
(admitting
- 5 -
(ECF No. 263, Pl.’s
the
above).)
CPD
records
show
information.
occasions
that
Rodriguez
Id. ¶ 54.
for
which
was
paid
$803,359.00
for
this
As the records also show, one of the
Rodriguez
provided
leading up to Ruiz-Cortez’s arrest.
information
is
that
(ECF No. 244, Ex. 25.)
Several weeks before Ruiz-Cortez’s arrest, the DEA and the
CPD’s narcotics section had engaged in a joint investigation and
surveillance of his residence based on information provided by
Rodriguez
that
location.
drug
activity
was
being
conducted
at
the
(ECF No. 264 (Pl.’s Resp. to Lewellen’s SOF) ¶ 16
(admitting
the
above).)
During
this
surveillance,
law
enforcement observed two individuals removing a large package
from Plaintiff’s residence after meeting with a resident there.
Id. at ¶ 17.
The teams followed the individuals and searched
their vehicle, finding 56 kilograms of cocaine in the package.
The police arrested both men.
Id. at ¶ 18.
On July 8, 1999, Defendant Lewellen and Defendant Sanchez
(“Sanchez”), another member of the narcotics section, went to
perform
additional
surveillance
on
(Pl.’s Resp. to Lewellen’s SOF, ¶ 19.)
Plaintiff’s
residence.
According to Sanchez’s
testimony at Ruiz-Cortez’s trial, his testimony at Lewellen’s
trial, as well as his deposition in this case, he and Lewellen
arrived at the house sometime around 3:00 p.m., at which point
Lewellen set up his surveillance at the back of the residence
while Sanchez set up at the front and watched the residence from
- 6 -
his vehicle.
(See, ECF No. 241, Ex. G (Sanchez’s Test. against
Ruiz-Cortez) 4-5; Ex. F (Sanchez’s Test. against Lewellen) 1011; and Ex. C (Sanchez’s Dep.) 122:18-23.)
Sanchez
position
and
stated
that
surveillance.
that
he
he
did
could
not
not
see
see
Lewellen
Ruiz-Cortez
from
his
during
the
(See, Sanchez’s Test. against Lewellen at 13-16
and ECF No. 265 (Pl.’s Resp. to Sanchez’s SOF) ¶ 10 (admitting
that at no point when Sanchez was conducting surveillance in the
front of the residence could he view Lewellen or the back of the
residence).)
Sanchez testified that he and Lewellen maintained
contact during the stake-out, with Lewellen “calling out” to
Sanchez periodic updates over the police radio and cell phones.
(See, Sanchez’s Test. against Ruiz-Cortez at 7 and Sanchez’s
Test. against Lewellen at 14.)
out
to
Sanchez
that
a
At some point, Lewellen called
Hispanic
man,
entered the back of the residence.
dressed
in
all
white,
Lewellen further reported
that this man would periodically poke his head outside as if
looking
for
something.
(See,
Sanchez’s
Test.
against
Ruiz-
Cortez at 11-12 and Sanchez’s Test. against Lewellen at 15-16.)
Plaintiff, however, contends that Lewellen could not have seen
him at his apartment before 6:00 p.m. since he did not get home
until after that time.
(See, ECF No. 262 (Pl.’s Resp. Sanchez’s
Mot. Summ. J.) 4-5.)
Plaintiff argues that either Sanchez’s
testimony is false or Lewellen was lying to Sanchez about what
- 7 -
Lewellen saw, “hardly what . . . long time partners would do to
each other.”
Id. at 6.
Sanchez testified that around 7:30 p.m. Lewellen called out
that a silver car had approached the back of the residence and
that the driver gave a head signal to the man in white who came
outside when the car approached.
(See, Sanchez’s Test. against
Ruiz-Cortez at 12-13 and Sanchez’s Test. against Lewellen at
857-859.)
Lewellen told Sanchez that the man went back to the
residence after receiving the signal and then came out again, at
which
point
Lewellen
to
said,
mean
“this
that
a
is
it.”
narcotics
Id.
Sanchez
understood
this
transaction
was
happening.
He called for backup, waited the few minutes for the
first responding officer to arrive, and then sprinted to join
Lewellen in the back.
Id.
Sanchez further testified that when he reached the back of
the residence, he saw that Lewellen was carrying a bag believed
to contain narcotics.
(See, Sanchez’s Test. against Ruiz-Cortez
at 15 and Sanchez’s Test. against Lewellen at 859.)
Lewellen
motioned to Sanchez that the man in white had run back inside
the residence.
and Sanchez’s
(See, Sanchez’s Test. against Ruiz-Cortez at 15
Test.
against
Lewellen
at
859,
863.)
Sanchez
waited for Lewellen to secure the narcotics in the trunk of his
car before following him to the apartment where Lewellen had
seen
the
man
disappear
into.
(See,
- 8 -
Sanchez’s
Test.
against
Ruiz-Cortez at 15 and Sanchez’s Test. against Lewellen at 863864.)
white,
The
officers
answered
under arrest.
the
knocked
door.
and
Ruiz-Cortez,
Lewellen
then
dressed
placed
all
in
Ruiz-Cortez
(See, Sanchez’s Test. against Ruiz-Cortez at 15
and Sanchez’s Test. against Lewellen at 865.)
After the arrest, Lewellen and Sanchez spoke to DEA agents
who had also arrived on the scene.
One of the DEA agents,
Rebecca
a
Branum
affidavit
and
Cortez’s trial.
(“Branum”),
testified
authored
at
a
DEA
preliminary
report
hearing
and
to
an
Ruiz-
As Branum was not at the scene until after the
arrest, her account of what happened was not based on personal
knowledge but rather her understanding and recall of what the
police officers told her.
(See, ECF No. 241, Ex. H (Branum’s
Prelim. Test.) 7 and ECF No. 241, Ex. I (Branum’s Dep.) 13:2116:21.)
At
Ruiz-Cortez’s
trial,
Lewellen
testified
to
personally
observing the events relayed above. (See, ECF No. 234, Ex. D,
25-59.)
Ruiz-Cortez took the stand at his trial.
He denied ever
having seen the yellow bag in which the drugs were recovered
during the evening of July 8, 1999.
(See, ECF No. 234, Ex. A.
210:9-10 and Pl.’s Resp. to Lewellen’s SOF ¶ 39.)
As Ruiz-
Cortez stated to the judge during his sentencing hearing, “I
never had those drugs in my house.”
- 9 -
(ECF No. 234, Ex. B 7:15-17
and Pl.’s Resp. to Lewellen’s SOF ¶ 47.)
duress as a defense.
He did not present
(Pl.’s Resp. to Lewellen’s SOF ¶ 40.)
In 2012, a jury convicted Lewellen of conspiracy to possess
with intent to distribute cocaine.
No. 802.)
(Rodriguez, 09-CR-332, ECF
Rodriguez, a co-defendant in the case, cooperated
with the Government and testified against Lewellen.
Rodriguez
testified that Lewellen told him to keep selling drugs after
signing him up at as a CI; that “if I got arrested he would keep
me out of it”; that Lewellen “was able to talk to them” when
Rodriguez was arrested in 1997 with a gun; and that when the CPD
stopped paying Rodriguez a thousand dollars for each kilogram of
cocaine seized, Lewellen “ma[d]e it right” by giving Rodriguez
two kilograms of cocaine.
(ECF No. 237, Ex. G (Rodriguez’s
Test.), 2892:21-2911.)
As is relevant to Ruiz-Cortez’s arrest, Rodriguez testified
that he told Lewellen that he was sending one of his couriers, a
woman by the name of Lisette Venegas (“Venegas”), to pick up 20
kilograms of cocaine “from one of Changa’s supplier’s worker.”
(Rodriguez’s Test. at 2922-2924.)
Rodriguez expected that if
Lewellen or other officers seized money or drugs as a result of
the information he provided, he would get paid as a CI and
Venegas, a woman that Lewellen knew from before, would be let
go.
(Id. at 2923-2924.)
This transaction turned out to be the
event leading up to Ruiz-Cortez’s arrest.
- 10 -
Venegas stated in her deposition that on July 8, 1999 she
went to Ruiz-Cortez’s address to pick up drugs per Rodriguez’s
instructions.
32:23.)
(ECF
No.
241,
Ex.
R
(Venegas’s
Dep.),
27:15-
Rodriguez told her that “[a] guy is going to come out,
he’s going to give you something, just grab it and take it.”
(Id.
at
34:2-8.)
Venegas
stated
that
she
arrived
at
the
apartment “sometime in the morning,” possibly before noon, and
grabbed a bag from a Hispanic guy.
(Id. at 34:16-35:5.)
She
pulled up to the back of the house, “walked up a couple of steps
and kind of went halfway in and halfway out, and he was already
there.
And I grabbed the bag and turned around and left.”
at 34:9-15.)
(Id.
After she got the bag, Venegas walked to her car
and put it in the trunk.
(Id. at 39:18-21.)
She did not get in
her car, however, as “there was another car blocking my way.”
(Id. 43:4-45:17.)
The driver of the car, a white male, opened
her trunk, grabbed the bag, and told her to get out of there.
(Id. 46:1-48:5.)
Venegas drove away and saw the other vehicle
take off in the opposite direction.
(Id. 48:7-49:5.)
Plaintiff brings this suit against Chicago police officers
and the City of Chicago.
(ECF No. 131, Third Am. Compl.)
In
his Complaint, Plaintiff admitted that he indeed stored cocaine
at his apartment but alleged that he did so under the coercion
of Carlos Rodriguez (“Carlos”), a.k.a. Changa, who was, as later
discovered, a criminal associate of Saul Rodriguez.
- 11 -
(Id. ¶¶ 23,
30.)
Plaintiff said that Carlos approached him several times,
offering
him
an
opportunity
to
make
more
money
than
he
was
currently earning, but that Plaintiff refused him each time.
(See, ECF No. 241, Ex. D (Ruiz-Cortez’s Dep.) 66-68.)
then
insinuated
that
Plaintiff’s
family
would
meet
“accident” if he did not accede to his demands.
¶¶ 25-26
refused.
and
Ruiz-Cortez’s
(See,
Compl.
¶
Dep.
28
80-85.)
and
with
an
(See, Compl.
Still,
Ruiz-Cortez’s
Carlos
Plaintiff
Dep.
86-87.)
Carlos and another man then showed up at Plaintiff’s apartment
one
week
later
with
bags
containing
narcotics.
Carlos
Plaintiff, “You have to do it. Think about your family.”
Compl.
¶¶
28-30
and
Ruiz-Cortez’s
Dep.
98-103.)
told
(See,
Plaintiff
understood that he was to store the drugs until people came to
pick them up.
(See, Ruiz-Cortez’s Dep. 110-113.)
Plaintiff admitted that he kept the cocaine picked up by
the two individuals that the DEA and CPD arrested.
(Pl.’s Resp. to Lewellen’s SOF) ¶¶ 16-17.)
(ECF No. 264
He also admitted
that moments before his arrest, Venegas met him at his apartment
and took the cocaine stored there.
174.)
(Ruiz-Cortez’s Dep. 163-
He disputes, however, that Lewellen saw him do so in the
manner Lewellen testified to at Plaintiff’s trial.
Ruiz-Cortez,
Venegas
came
to
his
apartment
to
According to
retrieve
the
drugs, got into the apartment, took the cocaine, and then walked
off to her car alone.
(Ruiz-Cortez’s Dep. 168-173.)
- 12 -
Lewellen
intercepted the woman, took the drugs, and let her go because he
knew she was a part of his co-conspirator’s criminal enterprise.
(ECF No. 237 (Pl.’s SOF) ¶¶ 46, 53 (relying on Rodriguez’s Test.
against Lewellen and Venegas’s Dep.).)
Lewellen also kept half
of the drugs to himself and only inventoried 10 kilograms to the
system instead of the 20 kilograms that the woman took from
Plaintiff’s apartment.
(Pl.’s SOF ¶¶ 44 (relying on Rodriguez’s
Test. against Lewellen).)
Lewellen then came to Plaintiff’s
door with Sanchez to arrest him.
In sum, Plaintiff alleges that Lewellen and Sanchez framed
him for the crime and the City of Chicago is also responsible.
He brings a Motion for Partial Summary Judgment against Lewellen
and the City of Chicago.
In turn, Lewellen, Sanchez, and the
City seek summary judgment against Plaintiff.
III.
ANALYSIS
Ruiz-Cortez names as Defendants in this lawsuit Lewellen
and Sanchez, other unknown Chicago police officers, and the City
of Chicago.
Against the named individual Defendants, Plaintiff
asserts the following causes of action:
based
on
fabrication
materials
of
(Count
I);
Due
Process
Plaintiff’s
a
evidence
claim
rights
and
for
(Count
a Due Process claim
withholding
conspiracy
II);
and
to
a
prosecution claim based on Illinois law (Count III).
the
City
of
Chicago,
Plaintiff
brings
- 13 -
a
single
of
Brady
violate
malicious
Against
municipality
liability or Monell claim (Count IV).
After discussing some
preliminary matters, the Court addresses each of these causes of
action in turn.
A.
The
City
of
Unknown Chicago Police Officers
Chicago
moves
to
have
police officers dismissed from the case.
the
unknown
Chicago
The Court grants this
request.
Plaintiff has not attempted to name or serve with process
any Chicago police officers other than Sanchez and Lewellen.
Discovery appears to have closed, and the trial date is now less
than two months away.
In line with Seventh Circuit precedent,
the unnamed defendants should be dismissed.
Rodriguez,
509
F.3d
392,
402
(7th
Cir.
See, Williams v.
2007)
(dismissing
an
unnamed defendant from the case due to the plaintiff’s “failure
to identify this defendant and the lack of any record that this
individual was served with process”).
In addition, because more than two years have passed since
Plaintiff’s criminal case was dismissed, any new defendants will
have a statute of limitations defense.
See, 745 Ill. Comp.
Stat. Ann. 10/8-101 (setting the statute of limitations for an
Illinois malicious prosecution claim at one year) and Dominguez
v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008) (explaining that
in Illinois, the statute of limitations for § 1983 claims is two
years).
Therefore, the unknown officers are dismissed from this
- 14 -
case.
LEXIS
See, Baker v. Ghidotti, No. 11 C 4197, 2014 U.S. Dist.
41750,
at
*36
(N.D.
Ill.
Mar.
28,
2014)
(dismissing
unnamed defendants for the same reasons).
B.
Ruiz-Cortez’s Perjury
Defendant Lewellen argues that Ruiz-Cortez should not be
allowed to bring this lawsuit since he perjured himself at his
criminal trial.
Lewellen acknowledges that the power to dismiss
the claims of a party who perjured himself is at the discretion
of a district court.
See, Secrease v. W. & S. Life Ins. Co.,
800 F.3d 397, 401 (7th Cir. 2015) (reviewing “for an abuse of
discretion the court’s selection of dismissal or default as a
sanction
for
serious
misconduct”).
This
Court
declines
to
dismiss Plaintiff’s lawsuit.
As
the
Seventh
Circuit
has
said,
“while
perjury
is
a
serious offense, one can imagine cases in which a sanction of
dismissal would be excessive.”
F.3d
696,
703
(7th
Cir.
Allen v. Chi. Transit Auth., 317
2003).
In
particular,
where
“the
opposing litigant had perjured himself as well,” dismissal may
be
inappropriate
conduct . . . in
process.”
given
relation
the
to
“the
all
egregiousness
aspects
of
the
of
the
judicial
See, id. and Dotson v. Bravo, 321 F.3d 663, 667 (7th
Cir. 2003) (internal quotation marks omitted).
In
this
case,
Plaintiff
and
Lewellen
accusations of perjury against one another.
- 15 -
both
have
leveled
Even assuming for
the sake of the argument that Lewellen is correct and Plaintiff
is an admitted perjurer who is guilty of the underlying crime,
it was Lewellen’s criminal misconduct that allowed Plaintiff to
be released from prison when he still had seven more years to
serve.
light
Whether true or not, the USAO was of the belief that “in
of
the
newly-discovered
evidence
[of
Lewellen
and
associates’ illicit activities] there is virtually no admissible
evidence of defendant’s guilt” and so moved to have Ruiz-Cortez
immediately released from prison.
493, ECF No. 50.
United States v. Ruiz, 99-CR-
See also, FED. R. EVID. 803(3) (allowing for the
use of the USAO’s filing as evidencing its motive or intent when
it moved to dismiss Plaintiff’s indictment).
If Lewellen is
right, then a guilty man was let free, and this injustice was
due to the effect Lewellen’s conduct had on the USAO’s ability
to prosecute.
hands,”
and
Lewellen thus comes to this Court with “unclean
the
Court
will
not
preemptively
civil penalties by dismissing Plaintiff’s suit.
shield
him
from
See, Precision
Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806,
815(1945) (stating that the doctrine of unclean hands “gives
wide range to the equity court’s use of discretion in refusing
to aid the unclean litigant”).
C.
Lewellen’s Fifth Amendment Invocations
Ruiz-Cortez and Lewellen argue over how this Court should
treat Lewellen’s Fifth Amendment invocations at his deposition.
- 16 -
In this circuit, courts considering summary judgment motions may
draw adverse inferences against civil litigants who invoke their
Fifth Amendment right.
(7th
Cir.
2008)
See, SEC v. Lyttle, 538 F.3d 601, 604
(reviewing
a
grant
of
summary
judgment
and
explaining that evidence of wrongdoing could be “enforced by the
inference .
.
. of
testify”).
See
guilt
also,
from
Padilla,
[a
defendant’s]
932
F.Supp.2d
at
refusal
919.
adverse inferences are permissive and not required.
to
Such
Evans v.
City of Chi., 513 F.3d 735, 741 (7th Cir. 2008).
For several reasons, this Court will not use the invocation
of the Fifth Amendment against Lewellen.
First, the questions
that Plaintiff asked Lewellen during his deposition for which he
asserted his Fifth Amendment privilege are questions that form
the crux of Plaintiff’s case against Lewellen – to-wit, that
Lewellen testified falsely regarding what he saw in the hours
leading up to Plaintiff’s arrest.
If the Court were to deem
Lewellen’s silence as admissions to the questions, this would
come
perilously
close
to
entering
judgment
against
Lewellen.
But silence, and adverse inferences drawn from it, cannot be the
sole basis for finding liability.
Seguban,
54
relevant
factor
evidence,
but
F.3d
to
the
387,
be
390
(7th
LaSalle Bank Lake View v.
Cir.
considered
direct
inference
forbidden.”).
- 17 -
in
of
1995)
light
guilt
(“Silence
of
the
from
is
a
proffered
silence
is
Second,
the
questions
that
Plaintiff
asked
Lewellen
on
which Lewellen invoked his Fifth Amendment are on matters that
implicate other Defendants in this case.
For example, Plaintiff
asked, “And when Sanchez testified at the Ruiz-Cortez trial that
you radioed him that Ruiz-Cortez was carrying the plastic bag,
that testimony of Sanchez was false, wasn’t it?” and “Did you
falsely testify against Ruiz-Cortez at his trial as part of the
CPD’s
plan
to
protect
Saul
Rodriguez
as
an
informant
by
diverting the attention of the federal authorities from your and
Saul Rodriguez’s drug-dealing activities and onto Ruiz-Cortez?”.
Drawing
unfairly
an
adverse
prejudice
inference
on
Co-Defendants
questions
Sanchez
like
and
this
the
would
City
of
Chicago.
Finally, the Court also finds it relevant that one of the
allegations the government brought in Lewellen’s criminal case
was obstruction of justice “including but not limited to, the
December 21, 1999 false testimony of GLENN LEWELLEN in United
States v. Refugio Ruiz-Cortez” but that the jury did not convict
Lewellen
on
this
count
of
racketeering
conspiracy.
See,
Rodriguez, 09-CR-332, ECF No. 271 (Third Superseding Ind.) 8-9.
Therefore, the Court will not infer, as Plaintiff would have it,
that “Lewellen’s answers would, if truthful, tend to subject him
to criminal liability.”
- 18 -
D.
The
including
parties
have
numerous
Evidentiary Issues
raised
a
requests
host
that
of
the
evidentiary
Court
strike
issues,
opposing
parties’ assertions and responses for violating Local Rule 56.1.
Requiring
strict
compliance
with
local
rules
is
within
the
discretion of the district courts and is done (at least partly)
so that the courts do not have to “wade through improper denials
and
legal
argument
in
search
of
a
genuinely
disputed
fact.”
Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 527-29
(7th Cir. 2000).
The Court, having waded, forgoes wholesale
striking of responses.
It will consider the content of the
parties’
Facts
Statements
of
as
well
as
their
evidentiary
foundation in reviewing the parties’ Motions.
E.
Fabrication of Evidence Claim
Finally, we arrive at Plaintiff’s first cause of action
whereby Plaintiff asserts that Sanchez and Lewellen violated his
Due Process by fabricating evidence used against him.
It should
be emphasized that this fabrication claim is distinct from a Due
Process claim stemming from a failure to disclose under Brady.
See,
Gauger
v.
Hendle,
349
F.3d
354,
360
(7th
Cir.
2003)
(explaining that the problem for the defendant “was not that
evidence useful to him was being concealed; the problem was that
the
detectives
grounds,
440
were
F.3d
giving
421,
false
4223
(7th
- 19 -
evidence”)
Cir.
rev’d
2006).
on
other
See
also,
Saunders-El
v.
Rohde,
778
F.3d
556,
561-62
(7th
Cir.
2015).
Simply put, a Brady claim focuses on what the officers should
have said (but did not), whereas a fabrication claim rests what
the police officers did say.
While the case law of the circuit was not always clear, it
is by now settled that “[a] criminal defendant’s due process
rights may be violated — actionable by way of 42 U.S.C. § 1983 —
when the evidence against him is fabricated.”
F.3d at 558.
Saunders-El, 778
The Saunders-El court clarified that none of the
earlier cases from the Seventh Circuit, including Fox v. Hayes,
600 F.3d 819 (7th Cir. 2010), Brooks v. City of Chicago, 564
F.3d 830 (7th Cir. 2009) and Newsome v. McCabe, 256 F.3d 747
(7th Cir. 2001), “stands for the proposition that fabricating
evidence does not violate a defendant’s due process.”
560.
Id. at
Insofar as the Defendants in this case rely on those
earlier
cases
to
argue
to
the
contrary,
that
argument
is
rejected.
The Individual Defendants are correct, however, that their
testimonies
at
Ruiz-Cortez’s
criminal
basis for Plaintiff’s Complaint.
trial
cannot
form
the
This is because the officers
are protected by absolute immunity in their roles as witnesses.
See, Manning v. Miller, 355 F.3d 1028, 1031-32 (7th Cir. 2004)
(explaining that when police officers testify as witnesses, they
are
“granted
absolute
immunity
- 20 -
from
civil
liability”).
Plaintiff concedes as much, stating:
“Plaintiff’s due process
claim is not predicated on Defendant’s testimony as a witness at
Plaintiff’s criminal trial, but rather on Defendant’s role in
fabricating
evidence
prior
to
testifying
at
trial.”
(ECF
No. 262 at 10.)
The
Court
Defendants
now
reviews
allegedly
what
fabricated
evidence
outside
the
of
Individual
their
trial
testimonies.
1.
Fabrication Claim against Sanchez
Plaintiff has not produced any statement directly authored
by Sanchez that Plaintiff can say is false.
A false piece of
evidence is an essential element of a fabrication claim, and
Plaintiff
must
make
a
showing
“sufficient
to
establish
existence” of this element to survive summary judgment.
Fields
v.
Wharrie,
(“Fabricated
invariably
740
testimony
false.”)
F.3d
is
and
1107,
testimony
Celotex
1110
that
Corp.,
is
477
(7th
Cir.
made
up;
U.S.
at
the
See,
2014)
it
is
322-23.
Instead of any direct statements of Sanchez, Plaintiff relies on
the statements of Branum, the DEA agent who talked to Lewellen
and Sanchez after Plaintiff’s arrest, to adduce that Sanchez
fabricated
evidence.
In
particular,
Plaintiff
relies
on
Branum’s DEA report, affidavit, and testimony at a preliminary
hearing.
- 21 -
All of these statements are hearsay insofar as they are
introduced to establish that Sanchez actually told Branum the
events
that
she
memorialized
or
testified
to.
Plaintiff
believes otherwise, arguing that Branum’s statements “would not
be offered for the truth of the matter” and so would not be
hearsay.
(ECF
Eisenstadt,
No.
the
262
at
12.)
plaintiffs
had
This
to
is
point
incorrect.
to
a
In
material
misrepresentation that the defendant Centel allegedly made and
their best candidate was a Chicago Tribune article based on an
interview Centel gave.
at 742.
hearsay:
of
its
Eisenstadt v. Centel Corp., 113 F.3d 738
The Eisenstadt court held:
“The article, however, is
an out-of-court statement offered to prove the truth
contents
–
to
prove,
that
is,
that
Centel
or
investment bankers made the comments attributed to them.”
its
Id.
Branum’s statements here are hearsay in the same way that the
article was hearsay in Eisenstadt.
While hearsay can still be admitted into evidence if the
Rules of Evidence so provide, and Plaintiff may have several
venues opened to him to make an argument for admissibility here,
Plaintiff has not made any such argument.
On this ground alone,
the Court can exclude the statements since as the proponent of
hearsay,
Plaintiff
admissible.
bears
the
burden
of
showing
that
Hartford Fire Ins., 903 F. Supp. 2d at 640.
- 22 -
it
is
Nonetheless, for the sake of completeness, the Court rules
that Branum’s various statements – even if admitted and viewed
in
the
most
favorable
light
of
Plaintiff
–
do
not
make
a
sufficient showing that Sanchez, not Lewellen, reported falsely
to Branum.
First, Branum’s DEA report contained multiple instances of
“CPD Officer Lewellen said” but did not once mention Sanchez’s
name in the narrative.
DEA
report
during
(ECF No. 266, Ex. I.)
her
deposition
in
When shown the
this
case,
Branum
volunteered that, “It was clear that Officer Lewellen was doing
all
the
information
for
me
that
–
I
was
probably
directing
things more through him.
He was telling me what happened when I
arrived at the scene.”
(Branum’s Dep. at 91:11-17.)
Second,
Branum’s affidavit did not indicate which of the two officers,
Lewellen or Sanchez, supplied the details that Branum laid out
in her report.
(See, ECF No. 266, Ex. J.)
Third, during the preliminary hearing, Branum recounted the
events leading up to Plaintiff’s arrest from Lewellen’s point of
view.
offered
(See, Branum’s Prelim. Test. at 7:11-9:6.)
the
following
testimony,
the
underlined
Branum also
answer
being
what Plaintiff emphasized over and over (but somewhat misquoted
each time) in building his case against Sanchez:
A.
He [Ruiz-Cortez] walked toward the silver vehicle
with the bag.
- 23 -
Q.
What happened at that time?
A.
And at this point Police Officer Glenn Lewellen
pulled into the south parking lot from his fixed
surveillance point and when he pulled into the south
parking lot, Ruiz dropped the bag in the parking lot
and fled back into the south door first floor east
apartment and the silver vehicle simultaneously pulled
out and went southbound, I believe down Locust.
Q.
Did law enforcement personnel
that Mr. Ruiz had dropped?
recover
the
bag
A. Yes. Sanchez was there with Officer Glenn Lewellyn
[sic]. Officer Sanchez pulled around right behind him
and they recovered the yellow plastic bag from the
parking lot.
(Id.
at
10.)
Probed
by
Plaintiff’s
counsel
during
her
deposition in this case, Branum testified that she based this
particular answer on “what I was told by one of the two officers
that
were
on
the
scene,
and
I
don’t
recall
which
ones.”
(Branum’s Dep. 20:13-18.)
Plaintiff would have the Court draw the inference that this
answer by Branum is based on something that Sanchez (and not
Lewellen) told her.
There is no indication of that in the
answer itself or in Branum’s deposition.
Plaintiff also would
have the Court interpret the phrases “there with Officer Glenn
Lewellen”
and
“pulled
around
right
behind
him”
to
mean
that
Sanchez saw Ruiz-Cortez drop the bag and “recovered the yellow
plastic bag” to mean that Sanchez picked up the bag from where
Ruiz-Cortez dropped it (or at least saw Lewellen pick up the bag
- 24 -
from the ground of the parking lot), as these are the only parts
of the narrative Plaintiff can claim to be false.
This is stretching the bounds of reasonable inference, the
only kind of inferences the Court is obligated to make in favor
of Plaintiff as the nonmovant.
DeValk Lincoln Mercury, Inc. v.
Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987).
Plaintiff
can make a showing of falsehood only if Branum’s two-sentence
answer is interpreted as conveying such temporal immediacy from
when Ruiz-Cortez dropped the bag and when Sanchez arrived on the
scene that Sanchez must have seen Ruiz-Cortez drop the bag and
must have at least observed Lewellen pick up the bag from the
ground.
This would require inference upon inference, all piled
on a slender reed of an answer that is hearsay and cannot with
any comfortable certainty be attributed to Defendant Sanchez.
Furthermore,
even
if
the
underlined
statement
reasonably
can be construed to mean that Sanchez said he saw Ruiz-Cortez
drop the bag, this evidence is still not enough make out a Due
Process violation against Sanchez.
This is because Plaintiff
must still show causation between this allegedly false statement
and
his
conviction
injury,
and
which
is
in
incarceration.
this
case
See,
his
e.g.,
prosecution,
Whitlock
v.
Brueggemann, 682 F.3d 567, 582-83 (7th Cir. 2012).
In particular, Plaintiff must show that his “injury would
not have occurred absent the conduct.”
- 25 -
Id. (internal quotation
marks
omitted).
Given
that
Lewellen
reported
all
he
had
(allegedly) seen before making the arrest, including that he saw
Ruiz-Cortez drop the bag of drugs, Plaintiff cannot plausibly
argue
that
Branum
that
he
would
he
also
have
gone
free
saw
Plaintiff
but
for
Sanchez
drop
the
bag.
telling
This
is
especially true in light of the fact that both Lewellen and
Sanchez testified at Ruiz-Cortez’s trial that only Lewellen saw
Ruiz-Cortez drop the bag.
(See, Sanchez’s Test. against Ruiz-
Cortez, 100:22-101:13 and Lewellen’s Test. against Ruiz-Cortez,
47:14-52:5.)
In
short,
Plaintiff
cannot
officer’s act (fabrication) caused any injury.”
show
that
“the
Id. at 582.
In addition to Branum’s statements, Ruiz-Cortez brings some
circumstantial
evidence
lied.
Plaintiff
First,
to
raise
makes
the
much
of
inference
the
fact
that
Sanchez
Sanchez
and
Lewellen had worked together for about a year in the ten-man
narcotics section by the time Plaintiff was arrested.
As such,
Sanchez must have been privy to the effort to frame Ruiz-Cortez
because that Lewellen would lie to Sanchez is “hardly what the
jury would conclude that long time partners would do to each
other.”
(ECF No. 262 at 6.)
But this is pure speculation and
must be disregarded.
Ruiz-Cortez
further
contends
that
Sanchez’s
statement
to
the effect that he and Lewellen began surveilling Plaintiff’s
apartment around 3:00 p.m. is inconsistent with what others have
- 26 -
said.
However, the evidentiary support that Ruiz-Cortez cites
shows
no
inconsistencies.
characterizes the record.
Ruiz-Cortez
regrettably
mis-
For example, he contends that Sanchez
could not have “conducted a significant period of surveillance
on Plaintiff’s residence [because] Saul Rodriguez testified that
he
directed
Lewellen
to
Plaintiff’s
before the cocaine was seized.”
record
that
Plaintiff
apartment
only
minutes
(ECF No. 262 at 12-13.)
cites,
Rodriguez’s
The
testimony
at
pages 2922-2924, however, does not contain any reference as to
when Rodriguez directed Lewellen to Plaintiff’s apartment.
also,
ECF
No.
(correctly
278
noting
preliminary
(City’s
that
hearing
Resp.
to
Plaintiff
testimony
Plaintiff’s
SOAF)
misrepresented
regarding
the
time
(See
¶
95)
Branum’s
of
the
surveillance).
Finally, Plaintiff points to aspects of the surveillance
that he considers odd and that purportedly support the inference
that
Sanchez
lied.
These
consist
of
Sanchez
and
Lewellen
beginning surveillance without “the aid of immediate backup,”
Sanchez not knowing that Rodriguez was the particular informant
who supplied the information regarding this address before the
stake-out
began,
and
Sanchez
agreeing
with
Lewellen
not
to
pursue the silver vehicle allegedly because conditions were not
ideal.
But Plaintiff has put on no evidence that officers who
were not fabricating evidence likely would not do these things.
- 27 -
Do
police
officers
on
surveillance
in
similar
circumstances
normally have immediate back-up, know the name of the source of
the information, or give chase after a vehicle?
Plaintiff has
not said, and the Court cannot make a reasonable inference of
suspicious behavior out of thin air.
In sum, because Plaintiff has not produced any evidence
that Sanchez fabricated evidence nor tied any of the alleged
fabrication
to
Plaintiff’s
injury,
the
Court
grants
Sanchez
Summary Judgment on this count.
2. Fabrication Claim against Lewellen
To
support
his
fabrication
claim
against
Lewellen,
Plaintiff relies on Rodriguez’s testimony, Venegas’s deposition,
and his own account of what happened.
All three sources, claims
Plaintiff, make it “uncontested” that Lewellen lied to federal
law enforcement and authored false police reports.
Plaintiff
argues that this evidence against Lewellen will be “unrebutted
here because of Lewellen’s exercise of the Fifth Amendment” and
therefore Plaintiff is deserving of summary judgment.
Plaintiff
overstates his case.
As long as “a reasonable jury could return a verdict for”
Lewellen,
denied.
Plaintiff’s
motion
for
Anderson, 477 U.S. at 248.
summary
judgment
must
be
And a reasonable jury may
return a verdict for Lewellen even if he does not bring any
affirmative proof to support a finding of no liability.
- 28 -
As a
Defendant in the case, Lewellen may prevail at trial by casting
doubt
on
the
witnesses’
credibility
and
by
drawing
out
inconsistencies in their testimonies.
Issues concerning the witnesses’ credibility are certainly
present in the case.
Rodriguez is a convicted murderer and drug
dealer; Venegas is his confessed drug courier; and Ruiz-Cortez
admits to lying at his criminal trial.
Rodriguez
called
Plaintiff
Plaintiff
insists
that
he
(Carlos’s) machinations.
“Changa’s
was
an
As for inconsistencies:
supplier’s
unwilling
worker”
pawn
in
when
Changa’s
Venegas testified that she arrived at
Plaintiff’s apartment and saw him on the day in question “in the
morning,”
possibly
before
noon,
when
Plaintiff
in
his
own
account stresses that he was working construction all day and
did not arrive home until after 6:00 p.m.
Plaintiff’s story on
how he came to store drugs in his house has also changed, as
reflected
in
the
various
(Compare,
ECF
No.
56
complaints
(First
Am.
filed
Compl.)
¶¶
in
this
25-26
case.
with
ECF
No. 131 (Third Am. Compl.) ¶¶ 28-30.)
With all facts and reasonable inferences construed in favor
of Lewellen, the Court must conclude that a reasonable jury may
find for the Defendant at trial.
Plaintiff’s summary judgment
is thus denied.
Lewellen presses for summary judgment in his own favor.
Lewellen
first
argues
that
Plaintiff
- 29 -
improperly
added
the
fabrication of evidence Due Process claim in his briefing and
that this claim was not in his Complaint.
Lewellen is correct
that
and
“a
brief
claims.”
cannot
amend
a
complaint
add
new
legal
Savage v. Finney, No. 12 CV 2398, 2012 U.S. Dist.
LEXIS 86425, at *9 (N.D. Ill. June 20, 2012) (citing Seventh
Circuit
cases).
However,
in
looking
at
Plaintiff’s
Third
Amended Complaint (the latest and operative Complaint in this
case), the Court finds that Plaintiff pled sufficient facts to
put Lewellen on notice that Plaintiff was bringing a fabrication
claim.
The
Complaint
alleged
that
Lewellen
committed
affirmative falsehoods and not just that he withheld evidence.
(See, ECF No. 131, ¶¶ 49-50, 79.)
While Plaintiff’s pleading
could
his
have
been
more
transparent,
Complaint
contains
a
fabrication claim.
Lewellen
next
argues
that
Plaintiff’s
evidence claim must fail as a matter of law.
fabrication
of
This is because
the pre-trial statements and reports authored by Lewellen that
Plaintiff claims are false contain the “exact same information”
as Lewellen’s testimony at Plaintiff’s criminal trial.
Since
absolute immunity protects Lewellen’s trial testimony, Lewellen
believes that the pre-trial materials do not provide a basis for
a fabrication claim.
Lewellen’s argument is unconvincing.
Insofar as Lewellen’s
argument is that his testimony at trial somehow immunizes his
- 30 -
pre-trial activities, this argument has been rejected.
As an
investigator who allegedly fabricated evidence, Lewellen’s own
subsequent conduct “cannot be an intervening cause sufficient to
defeat
a
finding
of
causation”
and
ultimate
liability.
Whitlock, 682 F.3d at 584.
If
Lewellen’s
argument
instead
is
that
his
pre-trial
statements cannot have caused Plaintiff’s injury because they
were not introduced at Plaintiff’s trial, this argument proves
too
much.
protected
If
by
fabricated
absolute
testimony
immunity,
and
introduced
at
trial
fabricated
evidence
is
not
introduced at trial cannot be used to make out a Due Process
claim against a defendant – even if its content is identical to
what was testified to at trial – then fabrication of evidence
can never violate Due Process.
This is contrary to case law.
See, e.g., id. at 585 (“[T]he deliberate manufacture of false
evidence contravenes the Due Process Clause.”).
Indeed
the
prosecutor
defendant
failed on a similar argument.
the
only
wrong
in
the
case
in
Whitlock
tried
and
The defendant there argued that
–
the
introduction
of
perjured
testimony leading to a criminal conviction – “is the one that
occurred at trial.”
Since the defendant was acting within his
immunized prosecutorial capacity at trial, any fabrication he
participated in prior to trial “is beyond the reach of the law.”
- 31 -
Id.
at
583.
The
Seventh
Circuit
rejected
the
defendant’s
argument and affirmed the denial of his summary judgment motion.
Cases
that
inapposite.
Lewellen
cites
to
support
his
position
are
In Bianchi v. McQueen, Bianchi could not sustain
his claim that the defendants fabricated evidence, not because
the
fabricated
evidence
was
put
away
“in
a
drawer”
and
“no
further use [was made] of it,” but because Bianchi was acquitted
at his criminal trial.
Bianchi v. McQueen, 818 F.3d 309, 313,
319 (7th Cir. 2016).
As such, there was no deprivation of
liberty, and the claim fails on this essential element.
Id.
The same applies to Buckley v. Fitzsimmons, 509 U.S. 259, 261
(1993), where the prosecution dropped charges before Buckley’s
second trial began, and Lofton v. Eberle, No. 14 C 898, 2015
U.S. Dist. LEXIS 13574 at *6 (N.D. Ill. Feb. 5, 2015), where the
case was dismissed via a nolle prosequi.
The
only
deprivations
matter.
not
of
cases
liberty
Plaintiff
are
cites
where
distinguishable
from
there
the
were
present
In Starks v. City of Waukegan, the fabricated evidence
introduced
at
trial
did
not
mirror
what
was
introduced.
See, Starks v. City of Waukegan, 123 F.Supp.3d 1036, 1046-47
(N.D. Ill. 2015).
This is unlike this case, where Plaintiff
actually emphasizes that the content of his pre-trial statements
are “the same” or contain the “exact same information” as what
he testified to at trial.
- 32 -
This leaves only Munoz v. Rivera, a case dealing with a
motion to dismiss.
Ill. 2015).
Munoz v. Rivera, 169 F.Supp.3d 815 (N.D.
There, the plaintiff failed to state a claim due to
inadequate pleading of facts.
The alleged fabricated evidence
in Munoz were vague allegations that the defendants “falsely
reported” what they had seen or heard.
Id. at 818.
As the
court noted, “the complaint does not identify or describe the
particulars
of
any
‘false
reports’”
nor
“does
received those reports or how they were used.”
it
allege
who
Id. at 810.
In
contrast, Plaintiff in this case has pointed to the specific
police reports that Lewellen made.
Since the reports contained
the same information that Lewellen testified to at his trial,
and the information is what Lewellen “called out” to Sanchez and
reported to Branum, we know who received the information and how
it was used in this case.
In sum, the authorities Lewellen relies on do not support
the proposition he makes.
The Court therefore denies Lewellen
summary judgment on this claim.
F.
Brady Claim
A duty to disclose information under Brady v. Maryland, 373
U.S. 83 (1963) extends to police officers.
See, Carvajal v.
Dominguez, 542 F.3d 561, 566 (7th Cir. 2008).
As the Seventh
Circuit has explained, “[a] Brady violation can be broken down
into
three
basic
elements:
(1)
- 33 -
the
evidence
at
issue
is
favorable
to
the
accused,
either
being
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 – in other words,
‘materiality’.”
Id.
at
566-67.
Further,
evidence
is
“suppressed” only when “(1) the prosecution failed to disclose
the evidence in time for the defendant to make use of it, and
(2) the evidence was not otherwise available to the defendant
through the exercise of reasonable diligence.”
Id.
Finally,
“[e]vidence is ‘material’ if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.”
Id.
1. Brady Claim against Sanchez
Against Sanchez, Plaintiff first advances the argument that
Sanchez’s “fabrication of knowingly false evidence regarding the
circumstances of Plaintiff’s arrest is a violation of Brady.”
(ECF No. 262, 15.)
This is incorrect as a matter of law.
In
Saunders-El, the plaintiff had argued “both that the fabrication
of evidence violated his constitutional rights and, separately,
that the police officers’ failure to admit their misdeeds to the
prosecution amounts to a withholding of exculpatory evidence in
violation of Brady.”
Id. at 561.
The court rejected this
argument, finding that it contravenes case law to allow such a
- 34 -
recast of an evidence fabrication claim as a so-called Brady
claim.
Id. at 562.
Manning v. Miller, a case cited by Plaintiff, does not hold
otherwise.
Manning is an older case in which the plaintiff
brought a Brady claim but not a fabrication claim.
v. Miller, 355 F.3d at 1030-31.
See, Manning
The court found the facts of
the case to be “unique” and made the narrow ruling that “based
on the specific facts of this case, we believe that Manning has
presented a Brady claim.”
Id. at 1033.
The court did not hold
that simultaneous fabrication and Brady claims are viable where
the latter rests on police officers withholding the fact that
they fabricated evidence.
Moreover,
insofar
as
Plaintiff
is
aware
of
the
circumstances surrounding his arrest – that he did not drop the
bag of cocaine in the parking lot, that instead the drug courier
“Venegas
was
present
and
in
possession
of
narcotics
in
the
parking lot immediately prior to Plaintiff’s arrest” and that
Venegas was not arrested – the information was not suppressed.
See, Gauger, 349 F.3d at 360 (stating that “the duty to disclose
falls
out”
when
the
suspect
“knew
what
he
had
said
issue
of
at
the
interrogation”).
Plaintiff
next
argues
that
a
genuine
material
facts exists “regarding whether Defendant knowingly failed to
disclose material information regarding Lewellen’s relationship
- 35 -
with Rodriguez.”
(ECF No. 262, 16.)
Plaintiff then lists nine
pieces of evidence whose nondisclosures he claims violated his
Brady rights.
Id. at 16-17.
But under Brady, “the evidence
suppressed must be exculpatory or impeaching,” and some of the
facts Plaintiff lists do not meet this standard.
Carvajal, 542
F.3d at 568.
Evidence that falls into this category includes any failure
to disclose that an informant by the name of Saul Rodriguez
provided
information
Plaintiff
admits,
leading
“the
to
breadth
Plaintiff’s
and
depth
arrest.
of
the
As
criminal
activities of Rodriguez . . . could not have even been imagined”
from
the
identity
of
the
informant.
Lewellen’s Mot. Summ. J. at 16.)
(See,
Pl.’s
Resp.
to
To be a favorable fact to
Plaintiff, any information not disclosed would at least need to
have been reasonably probable to alert Plaintiff that something
was amiss with Rodriguez’s use as an informant.
plausible
that
Plaintiff
would
have
Only then is it
investigated
Rodriguez
further and perhaps discovered facts about the informant that
would
have
exculpated
Plaintiff
or
(more
likely)
allowed
Plaintiff to impeach “star police officer witness” Lewellen and
thus secured a favorable outcome to himself.
F.3d
at
568-70
(explaining
considered “favorable”).
have
done
that,
and
the
standard
See, Carvajal, 542
for
evidence
to
be
Rodriguez’s identity alone would not
neither
would
- 36 -
the
fact
that
“Rodriguez
earned $10,000 as a paid informant in Plaintiff’s case,” since
CPD policy authorized the payment of such fees.
See, Harris v.
Kuba, 486 F.3d 1010, 1016 (7th Cir. 2007) (stating that when
“evidence is arguably favorable only after several inferences
are
made
.
.
.
[t]his
stretches
the
meaning
of
‘favorable’
beyond that of Brady”).
So
much
for
several
of
Plaintiff’s
pieces
of
“material
evidence relating to Rodriguez . . . never disclosed.”
Those
that remain relate to Rodriguez’s and Lewellen’s joint criminal
activities.
Plaintiff
brings
circumstantial
evidence
that
Sanchez knew about Rodriguez’s involvement in crimes and knew of
Lewellen’s pattern of misconduct (by using and paying Rodriguez)
and
obstruction
prosecution).
of
justice
(in
protecting
Rodriguez
from
The Court finds, however, that even viewed in the
light most favorable to Plaintiff, the evidence does not create
a genuine issue of disputed fact.
Take
the
evidence
that
criminal activities first.
Sanchez
knew
about
Rodriguez’s
This includes the fact that Sanchez
had “babysat” Rodriguez a handful of times when Rodriguez came
to the police station to collect his payment as an informant.
(Pl.’s SOAF ¶ 33.)
Sanchez had contact.
This evidence establishes that Rodriguez and
However, the Court cannot infer from this
that Sanchez knew of Rodriguez’s criminal activities.
It is
unreasonable to think that while sitting in the middle of a
- 37 -
police station, presumably in presence of many police officers,
waiting to get paid under an agreement obligating him not to
commit
crimes,
Rodriguez
would
have
started
telling
Police
Officer Sanchez of his large-scale drug dealings, kidnappings,
or murders.
Plaintiff also stresses the facts that Sanchez worked on
“numerous” investigations – in Plaintiff’s view, perhaps as many
as 30 – on which Rodriguez was the informant.
¶ 30.)
(Pl.’s SOAF
Viewed in the light most favorable to Plaintiff, this
may support the inference that Sanchez knew that Rodriguez was a
prolific
informant.
however,
Plaintiff
For
would
this
need
to
to
have
bring
kindled
evidence
suspicion,
having
some
tendency to show that Sanchez should have known that a lawabiding informant would not be able to supply information for
this many investigations.
The closest Plaintiff comes to this
is via the expert opinion he submitted.
Joseph Stine (“Stine”),
Plaintiff’s expert, opined in his report that:
Professional law enforcement officers know that the
useful “life” of a cooperating individual (C/I) who
follows the rules is limited.
The lengthy duration of the flow of information from
Saul Rodriguez regarding high level illegal drug
shipments and stash houses for drugs and drug money
should have been a red flag for any supervisor who was
not blinded by the bright lights of high profile
seizures . . . This information was readily available
to supervisory personnel whose job it was to make sure
the C/I was in conformity with the policies and
procedures designed to prevent the abuses and criminal
- 38 -
activity that were occurring on a regular basis by
these agents of the CPD.
(ECF No. 244, Ex. 27 (Stine’s Rep.) 11-12 (emphasis added).)
Taking Plaintiff’s expert opinion at face value, the evidence
supports an inference that CPD supervisory personnel should have
been alerted that Rodriguez was not “follow[ing] the rules.”
It
is undisputed, however, that Sanchez was not a supervisor at the
CPD.
Stine thus does not suggest that Sanchez should have known
about Rodriguez’s criminal activities.
Indeed the expert said
nothing about how long the “useful life” of a lawful CI should be
and so leaves the Court with no basis for inferring that the
“numerous”
investigations
on
which
Sanchez
participated
where
Rodriguez was an informant extend beyond this proper longevity.
As for the allegation that Sanchez should have known about
Lewellen’s illicit activities, Plaintiff brings nothing more than
the circumstantial evidence he brought under his fabrication of
evidence claim.
That evidence was that Sanchez and Lewellen
worked
and
together
Plaintiff
considers
suspicious
aspects of the surveillance leading up to his arrest.
certain
The Court
found the evidence insufficient to create a genuine dispute of
material fact there, and it is also insufficient here.
Plaintiff has provided the Court with no basis to conclude
that the officers’ conduct on the surveillance is indicative of
wrongdoing.
For example, why is two officers going to surveil a
- 39 -
residence
alone
suspicious?
(as
opposed
to
in
groups
of
three?
four?)
Of course, if one assumes that the officers were
engaging in misconduct, then anything they did looks suspicious.
But this is putting the cart before the horse.
The standard is
not
shade
whether
an
unobjectionable
accusation
conduct
of
in
wrongdoing
a
nefarious
can
light.
generally
Rather,
the
evidence itself must raise the inference of wrongdoing.
Likewise, unless it is reasonable to infer that everybody
who worked with Lewellen in the narcotics section for as long as
Sanchez
did
Plaintiff’s
(two
years
arrest)
in
knew
total
or
and
should
a
have
year
by
known
the
of
time
of
Lewellen’s
criminality, the fact that the two men worked together raises no
genuine dispute of material fact.
For these reasons, the Court grants Sanchez’s Motion for
Summary Judgment on this Count.
2. Brady Claim against Lewellen
In
his
Motion
for
Summary
Judgment
against
Lewellen,
Plaintiff makes the bold claim that Lewellen’s withholding of
“material and impeachment evidence” is “undisputed.”
disagrees.
What
may
be
treated
as
a
matter
of
Lewellen
no
genuine
dispute is Lewellen’s criminal conviction for conspiring with
Rodriguez.
there
to
But the one case that Plaintiff cites to go from
this
Court
granting
him
summary
judgment
actually
features a denial of both the plaintiff’s and the defendants’
- 40 -
motions for summary judgment.
See, Thompson v. City of Chi.,
No. 07 C 1130, 2009 U.S. Dist. LEXIS 20348, at *7 (N.D. Ill.
Mar. 12, 2009).
Given the disposition of the opinion, the Court
is frankly puzzled as to why Plaintiff cited it in his own
Motion for Summary Judgment.
Plaintiff’s Motion is denied.
In the Cross-Motion for Summary Judgment, Lewellen argues
that Plaintiff’s Brady claim fails as a matter of law.
particular,
he
contests
that
(1)
any
Brady
materials
In
were
suppressed, (2) any suppressed evidence was material, and (3)
any damages resulted from a Brady violation.
a.
Plaintiff’s
Suppression of Materials
first
argument
that
no
Brady
materials
were
withheld includes both an evidentiary and a substantive prong.
The evidentiary attack is that Plaintiff had not produced the
file of his criminal defense attorney and so the defendants do
not know what, if anything, was withheld.
cannot
plausibly
contend
that
he
Lewellen, however,
disclosed
to
Ruiz-Cortez
information on his and Rodriguez’s criminal activities.
This is
especially true since he is still disputing (via his criminal
conviction appeal and his briefing in case) that he engaged in
criminal activities.
attorney’s
file,
it
So whatever may have been in Ruiz-Cortez’s
was
at
least
information.
- 41 -
missing
this
piece
of
On
substantive
obligation
under
Brady
with Rodriguez.
El’s
language
grounds,
to
Lewellen
disclose
argues
his
that
criminal
he
has
no
relationship
For this proposition, he relies on Saundersthat
“Brady
exculpatory evidence.”
does
not
require
the
creation
Saunders-El, 778 F.3d at 562.
of
But the
undisclosed evidence in Saunders-El and the cases cited therein
all
involved
facts
themselves.
See,
information
was
that
the
plaintiffs
Saunders-El,
that
police
778
must
F.3d
officers
had
have
558
known
(suppressed
“bludgeoned”
the
plaintiff and “collected his blood in order to smear it at the
crime
scene”);
evidence
was
Gauger,
Gauger’s
349
own
F.3d
at
statements
356-57,
at
360
the
(suppressed
interrogation);
Sornberger v. City of Knoxville, 434 F.3d 1006, 1029 (7th Cir.
2006) (suppressed evidence was coercive circumstances leading to
the plaintiff’s confession); and Harris, 486 F.3d at 1013, 101617 (suppressed statement was a lie by the police officers to the
prosecutor
about
person
confessed
who
the
plaintiff’s
to
the
relationship
crime)
(“Harris
relationship, or lack thereof, with Davis.
with
knew
another
about
his
He was fully capable
of challenging the officers’ and prosecutors’ contention to the
contrary.”).
Such facts do not need to be disclosed because
their nondisclosure would not be considered suppression under
Brady anyway.
Carvajal, 542 F.3d at 567 (7th Cir. 2008).
- 42 -
In contrast, the Brady materials that Plaintiff claims had
been withheld in this case relate to things that ranged far
outside
Plaintiff’s
knowledge.
They
include
Rodriguez’s
involvement in crimes and Lewellen’s pattern of misconduct and
obstruction of justice – things that Plaintiff at the time of
his arrest and criminal trial knew nothing about.
No. 233 (Lewellen’s SOF) ¶¶ 98-106.)
(See, ECF
Saunders-El and its line
of cases do not compel the conclusion that Lewellen did not
violate Brady by keeping mum about his criminal activities.
b.
Materiality of suppressed information
Lewellen further challenges that any evidence he did not
turn over is material.
Lewellen claims that this is because
evidence regarding his criminal activities would not have been
admissible
and
even
if
admissible,
the
evidence
could
not
“reasonably have changed the outcome of the trial.”
It
is
true
that
to
be
deemed
“material”
under
Brady,
evidence must be admissible.
United States v. Silva, 71 F.3d
667,
Further,
670
(7th
Cir.
1995).
the
Rules
of
Evidence
provide that “[e]xcept for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances
of
a
witness’s
conduct
witness’s
character
Lewellen
argues
for
that
in
order
to
truthfulness.”
given
this
attack
or
support
FED. R. EVID.
prohibition
on
the
608(b).
extrinsic
evidence, Ruiz-Cortez’s defense counsel would not have been able
- 43 -
to elicit any admissible evidence to impeach when faced with
Lewellen’s
denials
of
wrongdoing.
As
such,
any
evidence
of
Lewellen’s wrongdoing “would not have made a difference in the
result of the trial.”
See, United States v. Veras, 51 F.3d
1365, 1375 (7th Cir. 1995).
Lewellen, however, failed to say that under Rule 608(b), a
district court has discretion to allow such extrinsic evidence
“if
they
are
probative
of
the
untruthfulness of the witness.”
character
for
truthfulness
FED. R. EVID. 608(b)(1).
or
Given
that Lewellen provided crucial testimony to convict Ruiz-Cortez
– thus distinguishing his case from the other cases he cited –
it is reasonable to suppose that the presiding judge at RuizCortez’s trial may have allowed extrinsic attacks on Lewellen’s
credibility.
Such
probability,
impeachment
changed
the
result
may
of
have,
the
with
reasonable
proceeding.
In
any
event, Lewellen cannot establish as a matter of the law that the
evidence would have been ruled inadmissible.
Lewellen
activities
also
could
argues
not
have
that
had
evidence
a
of
plausible
his
illicit
probability
of
changing the outcome of Ruiz-Cortez’s trial when the evidence is
considered within the context of “the trial themes and theories
presented
by”
Ruiz-Cortez.
Ruiz-Cortez’s
theory
at
his
own
trial was that his prosecution was based on a case of “mistaken
identity”; his theory in this case is that while coerced into
- 44 -
holding drugs, he could not have been seen in public with the
drugs. Under either theory, the credibility of the lone witness
who testified that he saw Ruiz-Cortez drop a bag of drugs is
likely
crucial.
Put
differently,
Ruiz-Cortez
may
not
have
needed to put on any defense at all had Lewellen’s “character
for untruthfulness” been known.
Construing all facts in favor
of Ruiz-Cortez, he had a reasonable probability of walking free
had he had the opportunity to impeach Lewellen with the withheld
information.
c.
Damages
Lastly, Lewellen asserts that Ruiz-Cortez can recover no
damages
because
undisputedly
he
“was
in
committed.”
prison
Plaintiff
for
is
an
offense
that
“undisputedly”
he
guilty
because even had he presented an affirmative defense of duress
at his criminal trial, he would still have been convicted since
Carlos’s threat of harm to Plaintiff’s family was not imminent
and did not deprive Plaintiff of an opportunity to flee or seek
the help of law enforcement.
Even allowing that Lewellen is correct, however, Plaintiff
has raised a triable issue that he was deprived of a fair trial.
See, Brady, 373 U.S. at 87 (“The principle of [our holding] is
. . . avoidance of an unfair trial to the accused.
Society wins
not only when the guilty are convicted but when criminal trials
- 45 -
are fair; our system of the administration of justice suffers
when any accused is treated unfairly.”).
It is true that without an injury, there can be no tort.
Fields, 740 F.3d at 1114.
But this rule only means that had
Ruiz-Cortez been acquitted at his criminal trial, he may not be
able bring a Brady claim at all.
(expressing
establish
doubts
the
that
requisite
“an
Carvajal, 542 F.3d at 570
acquitted
prejudice
for
defendant
a
Brady
can
ever
violation.”).
Here, Ruiz-Cortez was convicted and spent ten years in prison.
It may be that in a fair trial, he would have received the same
sentence, but he arguably did not receive a fair trial.
Viewed
in
the
light
most
favorable
to
Plaintiff
as
the
nonmovant, Rodriguez’s, Venegas’s, and his own account of what
happened may convince a jury that Lewellen lied.
A reasonable
jury may therefore agree with Plaintiff that “whatever evidence
the government presented through Defendant [Lewellen] would have
been
thoroughly
discredited
had
the
true
nature
relationship with Rodriguez not been suppressed.”
at 18.)
of
his
(ECF No. 261
If this is so, then the government would not have
carried its burden and Ruiz-Cortez would have not served the 10year sentence even if, in fact, he was guilty of the underlying
crime.
The three out-of-circuit cases Lewellen cites on this point
are unpersuasive.
In Olsen v. Correiro, 189 F.3d 52, 55 (1st
- 46 -
Cir.
1999),
the
criminal
defendant
pled
charge of manslaughter for time served.
guilty
to
a
lesser
Here, Ruiz-Cortez has
not pled guilty to anything for his ten years in prison.
In
Townes v. City of N.Y., 176 F.3d 138 (2d Cir. 1999), the Second
Circuit was primarily concerned with setting the right level of
deterrence
on
police
misconduct
where
the
police
did
personally benefit from their illegal search and seizure.
Townes, 176 F.3d at 141.
not
See,
In such a case, the court found that
to award the plaintiff monetary damages would “vastly overdeter
police officers and would result in a wealth transfer that ‘is
peculiar, if not perverse.’”
Id. at 147-48.
In this case,
Lewellen has been found guilty of conspiring to possess with
intent to distribute cocaine and ordered to pay over $6 million
in
forfeiture
for
his
crime.
Rodriguez,
09-CR-332,
ECF
No. 1344.
More proximately, Lewellen is accused of pocketing 10
kilograms
of
cocaine
in
the
events
leading
to
Ruiz-Cortez’s
arrest.
Faced with such facts, it is not clear that the Second
Circuit
would
have
found
the
transfer
of
wealth
away
from
Lewellen to be “perverse” or that monetary damages would “vastly
overdeter” the lucrative police misconduct.
Finally, Padilla v.
Miller, 143 F.Supp.2d 453, 459-60 (M.D. Pa. 1999) is a case
factually
similar
to
Townes
where
the
judge
allowed
the
plaintiffs to proceed to trial and only there awarded them with
nominal damages.
- 47 -
For these reasons, the Court denies Lewellen’s Motion for
Summary Judgment on Plaintiff’s Brady claim.
G.
Conspiracy Claim
“To establish conspiracy liability in a § 1983 claim, the
plaintiff
must
show
that
(1)
the
individuals
reached
an
agreement to deprive him of his constitutional rights, and (2)
overt
acts
rights.”
in
furtherance
actually
deprived
him
of
those
Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir.
2015).
1.
Sanchez,
the
only
Overt Act
party
to
have
been
granted
summary
judgment on the underlying Due Process violation, argues that he
cannot
be
liable
for
conspiracy
to
violate
Plaintiff’s
constitutional rights when he is not liable for the underlying
violation.
The Court finds it more helpful to frame Sanchez’s
argument as an argument that he has not committed any “overt
acts in furtherance” of the conspiracy that actually deprived
Plaintiff of his Due Process rights.
Indeed, because the Court
granted Sanchez summary judgment on Count I, Sanchez cannot be
said to have “fabricated or suppressed evidence” and thereby
deprived Plaintiff of his Due Process rights.
Plaintiff
conspiracy
argues
because
he
that
Sanchez
“condoned,
is
nonetheless
facilitated,
turned a blind eye to Lewellen’s misconduct.”
- 48 -
or
liable
for
knowingly
(ECF No. 262 at
20.)
This “condoned, facilitated, or knowingly turned a blind
eye” language comes from Jones v. Chicago, 856 F.2d 985, 992
(7th Cir. 1988), which Plaintiff cites, but there the court was
talking about supervisory liability.
The court in Jones said,
“To
of
be
held
liable
for
conduct
their
subordinates,
supervisors must have been personally involved in that conduct
. . . The supervisors must know about the conduct and facilitate
it, approve it, condone it, or turn a blind eye for fear of what
they
might
see.”
Id.
Plaintiff
blithely
replaced
“The
supervisors” with “A police officer” and goes on to state that
the law is that “A police officer who knows about misconduct and
facilitates it, approves it, condones it, or turns a blind eye
for fear of what he might see is liable for conspiracy.”
No. 262 at 20.)
(ECF
(See also, ECF No. 261 at 21.)
Even under this formulation, however, Plaintiff has to make
a
sufficient
misconduct.
showing
that
Sanchez
knew
about
Lewellen’s
Plaintiff fails to do so, as explained previously.
See, Section III, Part F.1.
2.
Agreement between Co-Conspirators
Agreement is an essential element of conspiracy.
Fields v.
City of Chi., No. 10 C 1168, 2014 U.S. Dist. LEXIS 14621, at *33
(N.D. Ill. Feb. 6, 2014) (citing Reynolds v. Jamison, 488 F.3d
756, 764 (7th Cir. 2007)).
“A conspiratorial agreement may be
established by circumstantial evidence, but only if a reasonable
- 49 -
jury could conclude that the conspirators had, in fact, reached
an
understanding
that
they
sought
to
injure”
Plaintiff.
Alexander v. City of S. Bend, 433 F.3d 550, 557 (7th Cir. 2006).
The Court notes that Sanchez and Lewellen are alleged to
have conspired with each other but neither Individual Defendant
has been accused of conspiring with a third-party.
Thus, the
only party with whom the Individual Defendants could have come
to
a
mutual
understanding
to
deprive
Plaintiff
of
his
constitutional rights is each other.
The evidence Plaintiff brings to raise the inference that
Sanchez and Lewellen came to an agreement is the same evidence
he brought to support his Due Process claim.
This included
Branum’s
import”),
statements
Defendants’
work
(labeled
together
as
on
“of
the
greatest
same
team,
the
the
work
with
Rodriguez, their travel to Plaintiff’s residence by themselves
without
immediate
backup,
their
false
statements
to
federal
authorities, their identical story of surveillance, and their
testimonies at Plaintiff’s criminal trial.
21-24
and
ECF
No.
261
at
22-23.)
For
(See, ECF No. 262 at
the
reasons
given
previously, none of this evidence, individually or together, is
sufficient to raise a genuine dispute of material fact.
See,
Section III, Part E.1 and Part F.1.
To the extent that Plaintiff shades any evidence in a new
light,
he
now
highlights
the
fact
- 50 -
that
on
the
night
of
Plaintiff’s
arrest,
contact
all
at
Sanchez
points
(ECF No. 261, 21-22.)
and
Lewellen
throughout
the
“were
alleged
in
regular
surveillance.”
According to Plaintiff, this raises an
inference of conspiracy because it shows that the “defendants
had an opportunity to confer at [the] relevant time.”
the
Seventh
cannot
by
agreement.
Cir.
Circuit
has
themselves
ruled
raise
that
an
phone
calls
inference
of
Id.
and
But
contact
conspiratorial
See, Goetzke v. Ferro Corp., 280 F.3d 766, 778 (7th
2002)
conspirators]
(“To
assert
are
that
evidence
the
of
a
calls
[between
conspiracy
is
alleged
simply
speculation.”) and Alexander, 433 F.3d at 557 (“The phone calls
among officers are nothing more than evidence that the officers
remained in contact as they investigated the crimes; without
more, to conclude that such phone calls establish a conspiracy
is the purest of conjecture.”).
See also, Johnson v. Dossey,
878 F. Supp. 2d 905, 922 (N.D. Ill. 2012) (stating that the
plaintiff “fails to provide any evidence that these calls and
communications were anything other than routine law enforcement
communications”).
Plaintiff’s
remaining
level of speculation.
contentions
do
not
rise
above
the
For instance, Plaintiff says that “It is
impossible to reconcile a coordinated series of events involving
information provided by a confidential informant, the alleged
surveillance of a residence, the apprehension of a drug courier,
- 51 -
the recovery of narcotics, the release of a drug courier, and
the
substitution
of
Plaintiff
into
the
role
of
the
person
possessing the narcotics with the acts of a single cop acting
independently.”
(ECF No. 261 at 23.)
Plaintiff does not say
why he finds it impossible that Rodriguez provided Lewellen with
information (as Rodriguez said he did), that Lewellen surveilled
the part of the residence where he could see Plaintiff, that the
officer alone intercepted Venegas, took the narcotics from her,
and let her go (as she described in her deposition), and that
Lewellen then told other law enforcement that Plaintiff was the
person who possessed the drugs.
The Court declines Plaintiff’s
invitation to speculate that more than one officer must have
been involved, especially when witnesses on whose testimonies
Plaintiff is relying contradict his conjecture.
For
the
above
reasons,
the
Court
grants
Sanchez’s
and
Lewellen’s Motions for Summary on Count II of the Complaint.
H.
The
elements
Illinois law are:
Malicious Prosecution Claim
of
a
malicious
prosecution
claim
under
“(1) the commencement or continuance of an
original criminal or civil judicial proceeding by the defendant;
(2) the termination of the proceeding in favor of the plaintiff;
(3) the absence of probable cause for such proceeding; (4) the
presence of malice; and (5) damages resulting to the plaintiff.”
Swick
v.
Liautaud,
169
Ill.
2D
- 52 -
504,
512
(1996)
(internal
quotation marks omitted).
“The absence of any one of these
elements bars a plaintiff from pursuing the claim.” Id.
1.
Malicious Prosecution Claim against Sanchez
Sanchez argues that he had probable cause to arrest RuizCortez. Under Illinois law, “[b]arring any intervening events, a
finding
that
plaintiff
a
is
defendant
also
had
sufficient
instituting
reasonable
to
grounds
satisfy
criminal
the
to
arrest
probable
proceedings
a
cause
requirement
for
against
the
plaintiff.
Accordingly, in such circumstances, that finding of
the equivalent of ‘probable cause’ should serve to bar an action
for malicious prosecution.”
Johnson v. Target Stores, Inc., 341
Ill. App. 3d 56, 80 (2003).
Because the Court has found that
Sanchez did not act improperly after the arrest by giving false
testimony
or
withholding
Brady
“intervening event” as to Sanchez.
materials,
there
is
no
It is therefore proper to
focus on whether he had probable cause to arrest Ruiz-Cortez in
reviewing the malicious prosecution claim against him.
Police officers have probable cause to make an arrest when
“in light of the facts and circumstances within their knowledge
at
the
time
of
the
arrest,”
the
officers
reasonably
believe
“that the suspect had committed or was committing an offense.”
United States v. Parra, 402 F.3d 752, 763-64 (7th Cir. 2005).
Moreover, “courts evaluate probable cause not on the facts as an
omniscient observer would perceive them but on the facts as they
- 53 -
would have appeared to a reasonable person in the position of
the arresting officer – seeing what he saw, hearing what he
heard.”
Id. (internal quotation marks omitted).
Sanchez argues he had probable cause to arrest Plaintiff
because a reasonable person in his position hearing the “call
outs”
from
a
fellow
police
Cortez possessed narcotics.
officer
would
believe
that
Ruiz-
According to Sanchez, Lewellen told
him that a man dressed in all white was in the back parking lot
with
narcotics.
When
he
joined
Lewellen
the
back,
he
saw
Lewellen with a bag of what was believed to be cocaine and which
he believed Lewellen had recovered from where the man dropped
it.
Sanchez and Lewellen went to where Lewellen indicated the
man had fled; a man in all white came to the door and Lewellen
put him under arrest.
favorable
to
narrative,
then
If the evidence, viewed in the light most
Plaintiff,
Sanchez
does
had
not
reasonably
probable
cause
to
dispute
this
arrest.
See,
e.g., Reynolds v. Jamison, 488 F.3d 756, 768 (7th Cir. 2007)
(allowing
“law
enforcement
officer
to
effect
an
arrest
in
reliance on information supporting probable cause supplied by
other officers”) (citing United States v. Hensley, 469 U.S. 221,
232-33 (1985)); Parra, 402 F.3d at 764 (adopting the doctrine
that
“the
police
who
actually
make
the
arrest
need
not
personally know all the facts that constitute probable cause if
they reasonably are acting at the direction of another officer
- 54 -
. . .”); and Duran v. Sirgedas, 240 F. App’x 104 (7th Cir. 2007)
(“An
officer
may
reasonably
rely
on
information
provided
by
other officers.”), vacated on other grounds by an opinion in the
same case.
The question then is whether a genuine dispute of material
fact exists as to this version of events.
Plaintiff says yes,
but he has brought no actual evidence to support his claim.
Plaintiff
has
evidence
–
in
the
form
of
his
own
testimony,
Rodriguez’s testimony, and Venegas’s deposition – that things
did not happen as Lewellen described them to Sanchez, but he has
not produced any evidence that Sanchez did not hear Lewellen
describe these things.
Plaintiff again cites to Branum’s testimony, characterizing
it as Barnum having said that both Lewellen and Sanchez “pulled
up into the parking lot behind the Plaintiff’s residence, saw
Plaintiff heading into the apartment after dropping narcotics,
and identified Plaintiff as the person who was in the parking
lot.”
(ECF No. 262 at 26.)
said no such things.
As discussed previously, Branum
See, Section III, Part E.1.
Not wishing to concede that Sanchez had probable cause to
arrest
if
his
version
of
events
is
not
disputed,
Plaintiff
hypothesizes that, “Even were Defendant’s story of surveillance
true,
his
experience
as
narcotics
officer,
his
role
as
Lewellen’s partner, and the precise coordination needed to run a
- 55 -
two-man
surveillance
operation
call
into
question
purported ignorance of the actual events.”
Defendant’s
The Court does not
know what it is in Sanchez’s experience as a police officer, his
role
in
the
narcotics
section,
or
the
coordination
behind
a
surveillance operation that would cast doubt on his testimony.
If it is anything more than what the Court has already rejected
(i.e., Sanchez and Lewellen’s time together in the narcotics
section), Plaintiff did not say, much less support with evidence
from the record.
The Court thus finds that Sanchez had probable
cause to arrest Plaintiff.
See, Potts v. City of Lafayette, 121
F.3d 1106, 1112 (7th Cir. 1997)( stating that “if the underlying
facts supporting the probable cause determination are not in
dispute, the court can decide whether probable cause exists”)
(internal quotation marks omitted) and Fabiano v. City of Palos
Hills, 336 Ill. App. 3d 635, 642 (2002) (same).
Redundantly, the Court also finds that because the evidence
in the record, even when viewed in the light most favorable to
Ruiz-Cortez, does not create a sufficient showing that Sanchez
gave false testimony, provided false reports, or withheld Brady
materials,
Sanchez
did
not
act
with
malice
in
prosecuting
Plaintiff.
See, Holland v. City of Chi., 643 F.3d 248, 255 (7th
Cir. 2011) (noting that “because the police had probable cause
in
this
case
and
because
there
is
no
alternative
basis
for
establishing malice, [the plaintiff] can establish neither” a
- 56 -
lack
of
good
faith
nor
malice).
The
Court
grants
Sanchez
summary judgment.
2.
For
Malicious Prosecution Claim against Lewellen
the
same
reasons
that
the
Court
denied
Plaintiff’s
summary judgment on Count I, the Court denies Plaintiff’s Motion
for Summary Judgment against Lewellen on Count III as well.
A
reasonable jury is not required to believe Plaintiff’s evidence,
consisting of his, Rodriguez’s, and Venegas’s testimonies, that
events unfolded as Plaintiff claims.
dispute
of
material
fact
as
to
There is thus a genuine
whether
Lewellen
maliciously
prosecuted Plaintiff.
Lewellen brings his own Motion for Summary Judgment.
He
argues that several elements of a malicious prosecution claim
are
lacking,
including
termination
of
Plaintiff’s
criminal
proceeding in a manner indicative of innocence, probable cause,
and damages.
and
the
Lewellen adopts his damages argument from earlier,
Court
likewise
repeats
that
for
the
same
reasons,
Lewellen’s argument is rejected.
The Court further rejects Lewellen’s contention that RuizCortez’s
criminal
indicative
(Second)
of
of
proceeding
did
innocence.
Torts
in
not
Illinois
defining
when
terminate
adopts
an
the
in
a
manner
Restatement
abandonment
of
proceedings is indicative of the innocence of the accused.
Swick, 169 Ill. 2d at 512-13.
the
See,
The Restatement, in turn, states
- 57 -
that “The abandonment of the proceedings because the accuser
believes that . . . a conviction has, in the natural course of
events,
become
termination
§ 660,
in
cmt.
terminates
impossible
favor
d
in
of
(2nd
a
or
the
accused.”
1979).
manner
improbable,
Thus,
indicative
is
Restat
a
of
a
sufficient
2d
of
criminal
Torts,
proceeding
innocence
when
it
is
“impossible or improbable” that a court of law will find the
accused guilty.
This is what happened in this case.
Whether or
not
possessed
proceeding
Ruiz-Cortez
narcotics,
his
criminal
ended in a manner indicative of his legal innocence because “no
reasonable fact-finder would have found the defendant guilty.”
Ruiz, 99-CR-493, ECF No. 50.
Lewellen’s strongest argument may be that he had probable
cause to arrest Ruiz-Cortez.
defeat
a
Sanchez,
malicious
there
is
a
However, this is not sufficient to
prosecution
genuine
claim
dispute
because,
of
material
unlike
fact
with
as
to
whether Lewellen fabricated evidence or withheld Brady materials
after the arrest.
See, Gauger v. Hendle, 352 Ill. Dec. 447, 469
(App.
(“The
Ct.
2011)
existence
of
probable
cause
in
a
malicious-prosecution action is determined by looking to what
the
defendants
knew
at
the
time
of
subscribing
a
criminal
complaint [or continued prosecution] and not at the (earlier)
time of arrest.”).
Plaintiff,
Lewellen
Viewed in the light most favorable to the
“engineered
plaintiff’s
- 58 -
prosecution”
and
prevented the prosecuting attorney from exercising “independent
discretion to proceed with charges and the prosecution.”
See,
Kim v. City of Chi., 368 Ill. App. 3d 648, 660 (2006) (affirming
summary judgment where the defendants did not do those things).
Moreover,
Lewellen
may
be
liable
for
maliciously
prosecuting
Plaintiff even if Plaintiff had, in fact, possessed cocaine.
This is because in the context of a malicious prosecution case,
“[i]t
is
the
state
of
mind
of
the
person
commencing
the
prosecution that is at issue – not the actual facts of the case
or the guilt or innocence of the accused.”
Id. at 574.
In sum,
Lewellen cannot make out that as a matter of law he had probable
cause
to
prosecute
Plaintiff.
The
Court
therefore
denies
Lewellen summary judgment on Count III.
I.
Monell Claim against the City of Chicago
A municipality like the City cannot be held liable under
§ 1983 unless a plaintiff establishes that his constitutional
injury was caused by a municipal “policy”.
Soc.
Servs.,
436
U.S.
658,
690-91
(1978).
requirements thus underlie a Monell claim:
a
municipal
“policy”
and
(2)
a
Monell v. Dep’t of
direct
Two
distinct
(1) the existence of
causal
link
from
policy to a plaintiff’s particular constitutional injury.
the
See,
Bd. of the Cty. Comm’Rs of Bryant County v. Brown, 520 U.S. 397,
403-04 (1997) and Okla. City v. Tuttle, 471 U.S. 808, 829 n.3
(1985) (Brennan, J., concurring).
- 59 -
A municipal “policy” under Monell may come in one of three
forms:
“(1) an express policy that, when enforced, causes a
constitutional
although
not
deprivation;
authorized
(2)
by
a
widespread
written
law
or
practice
express
that,
municipal
policy, is so permanent and well settled as to constitute a
‘custom or usage’ with the force of law; or (3) an allegation
that
the
constitutional
injury
was
‘final policymaking authority.’”
caused
by
a
person
with
McTigue v. City of Chi., 60
F.3d 381, 382 (7th Cir. 1995).
Plaintiff argues that there are
two
that
“policies”
in
this
liability on the City:
case
justify
imposing
Monell
the CPD’s practice of paying informants
who continue to commit crimes and the CPD’s failure to properly
discipline its police officers.
1.
Paying Informants who Engage in Illicit Activities
Plaintiff
and
the
City
tussle
over
whether
the
CPD’s
payments to Rodriguez constitute a municipal “policy” of paying
informants even while they commit crimes.
The Court is of the
view
out
that
even
if
Plaintiff
could
make
a
colorable
a
municipal “policy,” his Monell claim would still fail for lack
of causation linking the policy to his injury.
A plaintiff bringing a § 1983 action must establish both
but-for and proximate causation in linking the challenged action
to his constitutional deprivation.
See, e.g., Jones, 856 F.2d
at 993 (“[P]rinciples of legal causation [] are as applicable to
- 60 -
constitutional
torts
as
to
common
law
torts.”).
The
constitutional injury Plaintiff complains of in this case is
that Lewellen framed him.
The identity of the tortfeasor is
important because although Plaintiff spends pages of his briefs
detailing
Rodriguez’s
wide-ranging
criminal
activities,
Plaintiff is not bringing this lawsuit against Rodriguez but
against
Lewellen,
and
through
Lewellen
by
means
of
policy having operation of law, against the City.
a
City’s
See, Monell,
436 U.S. at 694 (1978) (“[A] local government may not be sued
under § 1983 for an injury inflicted solely by its employees or
agents.
or
Instead, it is when execution of a government’s policy
custom,
whether
made
by
its
lawmakers
or
by
those
whose
edicts or acts may fairly be said to represent official policy,
inflicts
the
injury
that
responsible under § 1983.”).
the
government
as
an
entity
is
Plaintiff must thus establish the
requisite nexus between the CPD’s policy of paying Rodriguez to
Plaintiff being framed by Lewellen.
This means that Plaintiff must show that the CPD’s payments
to
Rodriguez,
“direct
cause”
Plaintiff.
in
spite
or
of
“moving
his
criminal
force”
activities,
behind
Lewellen
were
the
framing
See, e.g., Woodward v. Corr. Med. Servs. of Ill.,
Inc., 368 F.3d 917, 927 (7th Cir. 2004).
At the least, this
means that Plaintiff must show that but for the CPD’s payments
to Rodriguez, Lewellen would not have framed Plaintiff.
- 61 -
This
requires making a showing along the lines that had the City not
paid Rodriguez as an informant, Rodriguez would not have engaged
in
criminal
activities.
In
particular,
he
would
not
have
engaged in criminal activities with a police officer, thereby
giving that officer a reason to frame somebody so as to divert
attention away from the pair’s criminal activities.
Plaintiff
has not brought any evidence to support this chain of causation.
To
the
contrary,
the
record
shows
that
Lewellen
and
Rodriguez had opportunity and motive to engage in criminal acts
that had little to do with the CPD’s informant policy.
Lewellen
registered Rodriguez as a CI, indicating that he interacted with
Rodriguez before Rodriguez ever became an informant or collected
a
single
payment
Rodriguez’s
suggested
from
criminal
by
Lewellen
the
CPD.
enterprise
having
Further,
Lewellen
and
rather
lucrative,
as
was
to
pay
over
$6
forfeiture as a result of his criminal conviction.
million
in
That the duo
would not have engaged in illicit money-making activities but
for the CPD’s payments to Rodriguez is both implausible and not
supported by any evidence.
Put
differently,
Plaintiff
has
to
show
that
a
police
officer engaging in criminal activities and framing somebody to
hide those crimes must have been a consequence so “known” or
“obvious” at the moment when CPD policymakers chose to institute
its policy regarding informants that the CPD can be said to have
- 62 -
been
“deliberately
indifferent”
to
those
consequences.
e.g., Bryant County, 520 U.S. 397 at 407 (1997).
See,
That the
underlying “policy” here is one governing the use of informants,
and not anything to do with police officers directly, makes the
consequences of police officers’ wrongdoing less than obvious.
Insofar as Plaintiff addresses the issue of causation, he
takes the stand that any “reference to Defendant Lewellen in
this particular argument is a red herring.”
Reply to City) at 2.)
(ECF No. 273 (Pl.’s
According to Plaintiff, “[t]he corruption
of Lewellen was another consequence of the City’s practice and
custom” but irrelevant to Plaintiff’s claim against the City.
This is puzzling given that the underlying constitutional harm
Plaintiff complains of was inflicted by Lewellen.
In short, the Court agrees with the City that Plaintiff
fails to show causation or deliberate indifference to the extent
that he relies on the City’s practice of paying informants to
make out a Monell claim.
As to Plaintiff’s allegation that the
CPD protected Rodriguez from criminal prosecution, it is unclear
whether this is a claim that the CPD also had a “policy” of
protecting lawless informants (as opposed to simply paying them)
or merely brought as evidence that the CPD knew that Rodriguez
was breaking the law.
In either case, the evidence, even when
viewed in the light most favorable to Plaintiff, does not raise
- 63 -
an inference that anyone at the CPD besides Lewellen protected
Rodriguez.
In his deposition, DEA Agent Doescher (“Doescher”) could
not
say
that
anybody
else
from
the
CPD
besides
Lewellen
contacted him, or anybody else at the DEA, about dropping the
investigation against Rodriguez.
Assistant
U.S.
Attorney
In addition, the letter from
McDuffie
to
Doescher,
even
when
considered despite being hearsay, only repeats back to Doescher
actions that Doescher’s employer, the DEA, had taken.
The two
sentences from the letter that mentions the CPD read:
You have indicated that the Drug Enforcement Agency
(“DEA”) has determined that a target of a DEA
investigation initiated in May, 1996, is a cooperating
individual (“CI”) working with detectives of the
Chicago Police Department, and that the DEA has,
therefore, discontinued its investigation.
Also, I understand that the DEA has advised the
Chicago Department of the approximately 154.6 pounds
of marijuana that the DEA seized on June 19, 1996, and
that the Chicago Police Department has expressed no
interest in obtaining those narcotics.
(ECF No. 237, Ex. L.)
McDuffie’s letter does not suggest that
USAO had any contact with the CPD that was not filtered through
the DEA.
than
McDuffie is thus even further removed from the CPD
Doescher,
anything
to
offer
Rodriguez.
impossible
and
When
to
Doescher,
other
than
Plaintiff’s
believe
that
a
as
that
discussed,
Lewellen
expert
call
from
does
called
opined
a
not
him
that
police
have
about
“it
officer
is
or
Sergeant would be sufficient to accomplish this amazing task [of
- 64 -
discontinuing
a
DEA
investigation],”
the
opinion
is
by
ipse
dixit of the expert since he cited to no source other than “my
experience
and
knowledge
support his disbelief.
of
the
criminal
justice
(Stine’s Rep. at 11.)
credit such an opinion.
system”
to
The Court cannot
See, e.g., GE v. Joiner, 522 U.S. 136,
146 (1997) and Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395
F.3d
416,
expertise’
419
(7th
rather
Cir.
than
2005)
(“A
analytic
witness
strategies
who
invokes
widely
used
‘my
by
specialists is not an expert . . .”).
Likewise, Plaintiff has brought no evidence that the reason
Rodriguez’s gun charge was nonsuited was due to interference by
the CPD.
Finally, Plaintiff’s charges of police wrongdoing are
confined to Lewellen’s actions, e.g., Lewellen telling Rodriguez
to keep dealing drugs, Lewellen promising Rodriguez protection,
and Lewellen giving Rodriguez cocaine.
They do not relate to
any “policy” of the City as required for Monell liability.
The Court grants the City summary judgment on this part of
the claim and as necessary, denies Plaintiff’s summary judgment
motion.
2.
Failing to Discipline Police Officers
The more obvious connection between the CPD and Plaintiff’s
injury
is
that
the
CPD
employed
(arguably) framed Plaintiff.
Lewellen,
the
officer
who
Thus, Plaintiff’s cleanest theory
of liability is that the CPD should have prevented, stopped, or
- 65 -
discovered sooner Lewellen’s framing of Plaintiff.
Although the
City cannot be held responsible on a respondeat superior theory,
Plaintiff may still be able to make out a municipal policy on
the basis of the City’s failure to train, monitor, or discipline
its police officers.
See, e.g., Okla. City v. Tuttle, 471 U.S.
808, 812-13, 820 (1985) (alleging that a failure to “adequately
supervise,
train,
review,
and
discipline
the
police
officers
constitutes deliberate indifference to the constitutional rights
of the decedent”).
Accordingly, a failure to discipline police
officers – not anything to do with informants – is Plaintiff’s
second alleged Monell policy.
At the outset, the Court must agree with the City that
Plaintiff
muddles
establish
his
Plaintiff’s
the
Monell
claim.
own
As
Motion
basis
far
for
as
on
which
the
he
purports
to
can
tell
Judgment,
Summary
Court
from
his
opposition
briefs to City’s Motion, and his expert report, Plaintiff seems
to
characterize
“custom”
with
policymaker
the
the
with
City’s
lack
of
force
of
law
final
discipline
or
authority
an
as
official
over
either
act
by
discipline,
a
a
here
identified as CPD Superintendent Terry Hillard.
Of
because
the
two
Plaintiff
theories,
has
not
the
policymaker
carried
his
claim
burden
to
must
fail
show
that
Hillard was indeed the person with final policymaking authority
over
police
discipline.
Plaintiff
- 66 -
did
not
even
mention
Hillard’s name until his response brief to the City’s Motion for
Summary
Judgment.
Once
he
did
identify
Hillard,
the
only
evidentiary support Plaintiff brings to show that Hillard was
the relevant policymaker is the City’s Statement of Facts.
The
City, however, only stated that “The Superintendent of Police is
the
final
policymaker
for
policies
related
to
the
use
cooperating individuals during the period 1995 to 2000.”
of
(ECF
No. 244 ¶ 31.)
Just because Hillard was the final policymaker for policies
related to informants does not make him the final policymaker
for policies related to discipline.
See, e.g., Pembaur v. City
of Cincinnati, 475 U.S. 469, 481 (1986) (“Municipal liability
attaches only where the decisionmaker possesses final authority
to
establish
municipal
policy
with
respect
to
the
action
ordered.”) (emphasis added) and Valentino v. Vill. of S. Chi.
Heights, 575 F.3d 664, 676 (7th Cir. 2009) (stating that the
relevant inquiry is whether an official is a policymaker “in a
particular area” “on a particular issue”) (internal quotation
marks
omitted).
The
City’s
admission
that
Hillard
is
a
policymaker in one particular area falls short of establishing
that he is the relevant policy maker on a different area.
Stated differently, Plaintiff has not met his burden under
the law to prove that an official is the relevant policymaker.
He
has
not
pointed
to
any
state
- 67 -
law
establishing
that
the
Superintendent
has
the
responsibility
regarding police discipline.
for
setting
policies
See, e.g., Auriemma v. Rice, 957
F.2d 397, 400 (7th Cir. 1992) (directing litigants to look to
state or local law to determine whether an official has “the
responsibility for making law or setting policy in any given
area of a local government’s business”) (quoting
Praprotnik,
485
U.S.
112,
125
(1988)).
St. Louis v.
Neither
has
he
established facts tending to prove that Hillard’s disciplinary
decisions are unconstrained, not subject to meaningful review,
or within the grant of his authority.
See, Valentino, 575 F.3d
at 676 (listing these as the factors that should be consulted in
determining whether an official is a final decision maker in a
particular area).
Because
with
respect
the
to
Court
his
rejects
discipline
Plaintiff’s
claim,
it
policymaker
also
theory
discounts
any
reliance Plaintiff places on the 1997 report by the Commission
on Police Integrity (the “Webb Report”).
To the extent that the
Court is able to place the report (and similar materials) within
a context relevant to Plaintiff’s Monell argument, it gathers
that the report was used to establish that the CPD’s inadequate
discipline was “a deliberate choice to follow a course of action
[]
made
from
among
various
alternatives
by
the
official
or
officials responsible for establishing final policy with respect
to the subject matter in question.”
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Pembaur, 475 U.S. at 483.
According
to
Plaintiff,
the
Webb
Report’s
“most
emphatic
recommendation” was for the City to implement an early warning
system to detect patterns of police misconduct.
(Pl.’s Resp.
to
City)
at
10.)
The
City
(ECF No. 260
thus
had
a
choice
between at least two alternatives, one of which was to implement
such a system, and it deliberately chose to do so.
However,
officials
without
an
responsible
identification
for
of
establishing
the
final
“official
policy
or
with
respect” to discipline generally and the implementation of such
systems more narrowly, the report does not help Plaintiff.
The
City, through its own expert opinion, also points out that many
of
the
recommendations
from
the
Webb
Report
“could
not
be
unilaterally imposed by management and w[ere] only implemented
after an arbitration opinion and award between the City and the
FOP (police union).”
Constraints
into
imposed
question
(ECF 244, Ex. 26 (Noble’s Rep.) ¶ 94.)
by
whether
collective
the
bargaining
Superintendent
of
agreements
the
CPD
was
call
the
policymaker with final authority for establishing disciplinary
regulations.
See, e.g., Auriemma, 957 F.2d at 401 (noting that
where the Superintendent has no power to effect an action, the
City cannot be faulted when he takes (or fails to take) the
action).
Alternatively, Plaintiff argues that the lack of discipline
at the CPD was so widespread as to constitute a “custom” having
- 69 -
force
of
law.
primarily
from
Stine’s
Plaintiff’s
Stine’s
opinion
is
support
expert
that
“there
for
opinion.
is
an
this
The
theory
bottom
comes
line
organizational
of
culture
within the Chicago Police Department that . . . prevented the
City and the CPD from identifying and disciplining CPD members
when they abuse members of the public.”
51.)
(Stine’s Rep. at 50-
Ultimately, “these failures emboldened individual police
officers
of
the
CPD,
like
Officers
Lewellen,
[and]
Sanchez”
whose “actions could only have occurred in an organization where
this culture had been adopted.”
Id. at 51.
In coming to these
conclusions, Stine relies on two primary sources:
the overall
rate of sustained complaints against Chicago police officers and
a review of 41 complaints (called CRs) that “relate to the named
officer
and
unit.”
Id.
at
17.
The
Court
finds
both
insufficient to support Stine’s conclusion.
First, Stine’s reliance on the overall rate of sustained
complaints is unwarranted.
from these numbers:
Stine calculated the sustained rate
“from 2001 to 2006 . . . 10,733 complaints
were filed against [Chicago police officers] . . . by the public
[and] 236 were sustained.”
to a two percent rate.
and
states
that
the
(Stine’s Rep. at 19.)
This computes
Stine calls this sustained rate “low”
“low
sustained
rate”
meant
officers “escaped detection and/or punishment.”
that
Id.
police
This, in
turn, “sent a powerful message to . . . officers like Officers
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Lewellen,
[and]
Sanchez
.
. .
that
the
police
continually violate the rights of the citizens.”
are
free
to
Id. at 19-20.
The Court finds Stine’s conclusion untenable for several
reasons.
First, the Seventh Circuit has previously rejected the
contention that a particular sustained rate “must give rise to a
reasonable man’s suspicions that defendant Chicago’s methods of
review
are
weighted
to
discourage
positive
findings.”
See,
Strauss v. City of Chi., 760 F.2d 765, 768-69 (7th Cir. 1985).
See also, Frake v. City of Chi., 210 F.3d 779, 782 (7th Cir.
2000)
(“We
story.”).
do
not
think
that
numbers
can
tell
the
whole
Second, Stine has offered no benchmark against which
to compare the CPD’s 2% number and thus no basis for concluding
that this number is too “low” or should be higher were the CPD
properly disciplining its police officers.
(In fact, a higher
sustained
was
rate
might
imply
that
the
CPD
violating
its
citizens’ constitutional rights on a more frequent basis and
hence
that
culture.)
the
CPD
had
a
more
problematic
organizational
Last, the 2% rate was computed using 2001-2006 data
when Plaintiff’s injury arose in 1999.
This misalignment of
data used and conclusion drawn, without any explanation as to
why these years were selected, makes even more tenuous the link
required “between the facts or data the expert has worked with
and
the
support.”
conclusion
the
expert’s
testimony
is
intended
to
United States v. Mamah, 332 F.3d 475, 478 (7th Cir.
- 71 -
2003).
See also, Butera v. Cottey, 285 F.3d 601, 608 n.3 (7th
Cir. 2002) (finding of little value an earlier decision partly
because
the
existed
in
injury).
earlier
1999,
decision
nearly
two
examined
years
“conditions
after”
the
as
they
plaintiff’s
In sum, “there is simply too great an analytical gap
between the data and the opinion proffered” for the Court to
accept Stine’s opinion on this point.
GE, 522 U.S. at 146.
As for the 41 CR files, Plaintiff’s expert characterized
them as “relat[ing] to the named officer and unit” but did not
specify which named officers and units these were.
Rep. at 17.)
(Stine’s
Elsewhere, the expert confusingly described the 41
files as not being a targeted review but a random sample.
at 20.
The City’s expert, on the other hand, disputes that the
files were a random sample.
30.)
Id.
(ECF No. 244, Ex. 26 (Noble’s Rep.)
As best as the Court can tell, Plaintiff may have done a
stratified random sample to come up with the 41 CRs; that is, he
narrowed the population of complaint files to those made against
only certain officers (which ones?) and units (again which?),
and from this narrowed universe, randomly drew complaints to
come up with the 41 files he actually reviewed.
However, this
is all guesswork by the Court as Plaintiff has not explained his
methodology to any satisfactory level of detail.
Plaintiff also
has not explained how he came to the conclusion that 41 files
are a sufficient number to reach a reliable conclusion about the
- 72 -
CPD’s disciplinary practices.
Absent any such explanation, the
Court is not convinced that Stine’s “methodology underlying the
testimony is scientifically valid” and thus cannot allow his
opinion to be the key to get Plaintiff through the gate to
trial.
See, Daubert v. Merrell Dow Pharms., 509 U.S. 579, 591-
93 (1993).
The City’s Motion for Summary Judgment is granted.
Plaintiff’s, by necessity, is denied.
IV.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Sanchez’s Motion for Summary Judgment is granted;
2.
Lewellen’s Motion for Summary Judgment is denied with
respect to Count I and Count III and granted with respect to
Count II;
3.
The City of Chicago’s Motion for Summary Judgment is
granted; and
4.
Plaintiff’s
Motion
for
Partial
Summary
Judgment
against Lewellen and the City of Chicago is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: October 26, 2016
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