Rivera v. Lake County Illinois et al

Filing 181

ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 9/26/2013: The Motion for Judicial Notice (ECF No. 111) is granted. All pending Motions to Dismiss (ECF Nos. 94, 97, 100, 102, 103, 105, 109, 145, and 164) are granted with respect to Count III and denied with respect to all other Counts and all Defendants.Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JUAN RIVERA,
Plaintiff,
Case No. 12 C 8665
v.

Hon. Harry D. Leinenweber

LAKE COUNTY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court are a Motion for Judicial Notice and
nine different Motions to Dismiss.

For the reasons stated herein,

the Motion for Judicial Notice is granted, and the Motions to
Dismiss are granted with respect to Count III and denied with
respect to all other Counts and all Defendants.
I.

BACKGROUND

This case arises out of the tragic wrongful conviction and
twenty-year incarceration of Plaintiff Juan Rivera (hereinafter,
“Plaintiff” or “Rivera”). The facts that follow are drawn from the
allegations in the Complaint.
In August 1992, eleven-year-old Holly Staker was raped and
murdered.

It was a high-profile crime that drew significant media

attention in the Chicago area.

The crime remains unsolved.

At the time, nineteen-year-old Plaintiff was living with his
family in Staker’s neighborhood.

Plaintiff had recently committed

a nonviolent theft offense, and he was under house arrest as a
condition

of

his

release.

transmitter around his ankle.

As

such,

he

wore

an

electronic

The device tracked his every move,

and alarms went off whenever Plaintiff left his family’s home.
The transmitter’s records from the night of the murder showed
that

Plaintiff

was

at

home

the

entire

night.

In

addition,

telephone records reflect that Plaintiff had a phone conversation
with his mother, who was out of the country, that evening.

This

reliable electronic evidence showed that, on the night of the
murder, Plaintiff was at home and could not have committed the
crime.
Authorities were unable to solve the case, and the killer’s
trail went cold.

Two months after the murder, police visited

Plaintiff at Hill Correctional Center, where he was detained
following his plea in the theft case.
about the murder.

They asked him what he knew

Plaintiff provided information that he thought

might help solve the crime and samples of his own blood and hair so
that he could be eliminated as a suspect.
Three weeks later, police had Plaintiff transferred to Lake
County Jail and began interrogating him about the Staker case.
Plaintiff alleges that during the interrogation, police observed
Plaintiff’s difficulty with written and spoken English – his family
had moved from Puerto Rico a few years earlier.

In addition,

Plaintiff reported to them at the time that he had pronounced

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psychological and emotional issues, including previous suicide
attempts.

Plaintiff

apparently

told

the

police

that

he

had

received psychiatric care and medications to manage those problems.
Though aware of Plaintiff’s vulnerabilities, police – acting
at the urging of prosecutors who were eager to be seen as taking
action

on

the

interrogation

yet

that

unsolved
culminated

constant questioning.

crime
in

–

more

conducted
than 24

a

hours

four-day
of

near

To exhaust and disorient Plaintiff, they

deprived him of sleep, moved him from one location to another, used
different interrogators, and subjected him to multiple polygraph
tests.

To upset Plaintiff, they screamed at him at the top of

their lungs and accused him of committing the rape and murder.

To

confuse him, they told him that he had failed the polygraph tests,
even though the test results showed that his denials were entirely
truthful.

At one point, they allegedly tied Plaintiff’s limbs

together in a “hog tie,” which rendered Plaintiff immobile and
helpless.
Plaintiff alleges further that the police failed to give him
any effective Miranda warnings.

Despite the lack of warnings,

Plaintiff invoked his right to remain silent and his right to
counsel

repeatedly.

Plaintiff

maintained

his

innocence

and

provided corroborating evidence. He requested that the police stop
their abusive questioning.

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But

the

interrogators

persisted,

and,

after

four

days,

Plaintiff suffered a complete mental breakdown. When police forced
him to sign a statement they had written that implicated him in the
murder, he submitted.
Plaintiff

complains

that

other

officials

misconduct and either acquiesced or participated.

noticed

this

Jail personnel

observed Plaintiff in a catatonic state and did nothing to stop the
interrogation.

Prosecutors ignored Plaintiff’s verifiable alibi

and numerous indications that Plaintiff’s statement was coerced.
They disregarded the fact that none of the hundreds of pieces of
physical evidence from the scene connected Plaintiff to the crime.
For example, DNA evidence recovered from the victim’s body did not
match Plaintiff’s DNA.

They knew they had no evidence connecting

Plaintiff to the rape and murder, yet they proceeded to prosecute
him.
To make matters worse, police and prosecutors recruited a
supporting cast of witnesses and used improper promises to induce
them to implicate Plaintiff. Police manufactured a series of false
and fraudulent police reports that ended up in the case file.

It

goes without saying that this conduct was concealed from Plaintiff.
In 1993, a jury convicted Plaintiff of rape and first-degree
murder. The jury could not agree unanimously on the death penalty,
so the trial judge sentenced Plaintiff to life in prison without

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the possibility of parole. Plaintiff might otherwise have been put
to death.
In

Instead, he spent nearly two decades behind bars.

December

2011,

Plaintiff’s conviction.

the

Illinois

Appellate

Court

vacated

In that Court’s view, no rational jury

could have convicted Plaintiff of the crime. Plaintiff walked free
only after prosecutors declined to appeal that decision.
Plaintiff’s Complaint alleges six counts of constitutional
violations brought under 42 U.S.C. § 1983 and six counts of state
law violations.

Because of the widespread misconduct that caused

Plaintiff’s extensive injuries, Plaintiff sues more than twentyfive named persons and entities, as well as unknown Defendants.
While this Court need not recite every Defendant here, it will note
those

Defendants

that

are

often

referred

to

collectively.

Defendants Lucian Tessman, Donald Meadie, Fernando Shipley, Howard
Pratt, and Richard Davis (the “Waukegan Defendants”) are former
officers of the Waukegan Police Department and the Lake County
Major Crimes Task Force.

Defendants Michael Waller, Jeffrey

Pavletic, Matthew Chancey, Steven McCollum, and Michael Mermel (the
“Prosecutor Defendants”) are or were State’s Attorneys. Defendants
Mark

Curran,

Charles

Fagan,

Estate

of

Clinton

Grinnell

(as

successor in interest to Clinton Grinnell), and Michael Blazincic
(the “Sheriff’s Defendants”) are current and former officers of the
Lake County Sheriff’s Department and the Lake County Major Crimes
task force.

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II.

LEGAL STANDARD

A Complaint must provide a short and plain statement of the
claim showing the plaintiff is entitled to relief.

FED. R. CIV.

P. 8(a)(2). A Rule 12(b)(6) motion to dismiss challenges the legal
sufficiency of a complaint.

Hallinan v. Fraternal Order of Police

of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th. Cir. 2009).

To

survive a motion to dismiss, a complaint must contain sufficient
factual allegations, which when accepted as true, state a claim
that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citations omitted).
dismiss,

the

Court

construes

a

When ruling on a motion to
complaint

in

the

light

most

favorable to the plaintiff and accepts all well-pled facts as true.
Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009).
III.

ANALYSIS

Before turning to the Motions to Dismiss, the Court will
address the Motion for Judicial Notice.

Defendants have requested

this Court to take judicial notice of the document located on the
New York Times’ website at http://www.nytimes.com/2011/11/27/
magazine/dna-evidence-lake-county.html?pagewanted=all&_r=0. Courts
can take judicial notice of facts not subject to reasonable dispute
that “can be accurately and readily determined from sources who
accuracy

cannot

P. 201(b)(2).

reasonably

be

questioned.”

FED.

R.

CIV.

Plaintiff does not oppose this Motion, and thus the

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Court takes judicial notice of the document located at that web
address.
A.
1.

Statute of Limitations

Coerced Confession Claims – Counts I, II, V, and VI

Defendants move to dismiss Counts I, II, V, and VI – the
coerced confession claims under § 1983 – on the ground that those
Counts are time-barred.

Section 1983 does not have an express

statute of limitations, so federal courts hearing claims under
§ 1983 adopt the forum state’s statute of limitations for personal
injury claims.
Cir. 1998).

Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th

In Illinois, the statute of limitations for § 1983

claims is two years.
Cir. 2008).
accrue.

Dominguez v. Hendley, 545 F.3d 585, 588 (7th

However, federal law determines when those claims

Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006).

Generally,

claims

accrue

–

and

the

clock

on

the

statute

of

limitations begins to run – “when the plaintiff has a complete and
present cause of action, that is, when the plaintiff can file suit
and obtain relief.”

Wallace v. Kato, 549 U.S. 384, 388 (2007)

(citation and quotation omitted).
The statute of limitations does not begin to run if there is
a bar to suit.

The relevant bar in this case is a consequence of

the fact that § 1983 claims cannot be used to contest a criminal
conviction.

Heck v. Humphrey, 512 U.S. 477, 486-87 (1993).

A

plaintiff who has been convicted and imprisoned may not bring a
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§ 1983 claim that is inconsistent with the validity of that
conviction until the conviction has been set aside in some other
manner, such as by a successful habeas corpus petition.
v. Cook Cnty., Ill., 664 F.3d 627, 630 (7th Cir. 2011).

Rodriguez
But when

there is no extant conviction to impugn, the Heck rule does not bar
a § 1983 claim, and the cause of action accrues when the plaintiff
knows or should know that his constitutional rights were violated.
Wallace, 549 U.S. at 393.
To determine whether Plaintiff’s claims are timely, this Court
must first determine whether Plaintiff’s coerced confession claims
would have impugned the validity of his conviction.

Plaintiff has

alleged that Defendants violated his Fifth and Fourteenth Amendment
right to be free from compulsory self-incrimination by using
physical abuse to extract an inculpatory statement from him which
was

later

introduced

at

trial.

The

Complaint

alleges,

and

Defendants do not contest, that Plaintiff’s conviction rested
largely on his statement.

Thus, Plaintiff’s success on his § 1983

coerced confession claims would have implied the invalidity of his
conviction, and therefore Plaintiff could not have brought these
claims while his conviction was still valid.
Under Heck, Plaintiff did not have a “complete and present
cause of action” until his conviction was set aside in December
2011.

This conclusion is consistent with the weight of authority

in this District, which holds that Wallace’s accrual rule does not

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trump the Heck bar in the coercive interrogation context where “the
plaintiff’s conviction rested largely upon the allegedly coerced
conviction.”

Tillman v. Burge, 813 F.Supp.2d 946, 970-71 (N.D.

Ill. 2011) (collecting cases).

Plaintiff filed his Complaint in

October 2012, well within the two-year statute of limitations.
Accordingly, Plaintiff’s claims are not time-barred.
2.

Due Process – Count IV

In Count IV, Plaintiff alleges that Defendants violated his
Due Process right to a fair trial.

This claim could not have been

brought while Plaintiff’s conviction was valid because success on
this claim would have implied the invalidity of his conviction.
See, Heck, 512 U.S. at 479, discussed supra.

This claim did not

accrue until Plaintiff’s conviction was vacated, and thus his claim
is timely.
3.

State Law Claims – Counts VII, VIII, and IX

Defendants argue that three of Plaintiff’s state law claims –
those

for

malicious

prosecution,

intentional

infliction

of

emotional distress (the “IIED”), and conspiracy – are time-barred.
Claims for malicious prosecution under Illinois law require
termination of the proceedings in favor of the plaintiff. Reynolds
v. Menard, Inc., 850 N.E.2d 831, 837 (Ill. App. 2006).

Criminal

proceedings do not terminate until the State is “precluded from
seeking reinstatement

of

the

charges.”

Chicago, 820 N.E.2d 455, 461 (Ill. 2004).
- 9 -

Ferguson

v.

City

of

Plaintiff’s claim did

not accrue until the State declined to appeal the December 2011
decision that vacated Plaintiff’s conviction.

The Complaint was

filed less than a year later, well within the two-year statute of
limitations, so this claim is timely.

See, 735 Ill. Comp. Stat.

5/13-202.
Courts in this district treat IIED similarly.

Courts hold

consistently “that IIED claims based on facts alleged in parallel
claims for malicious prosecution accrue only when state criminal
proceedings are terminated.” See, e.g., Carroccia v. Anderson, 249
F.Supp.2d 1016, 1028 (N.D. Ill 2003).

As with the malicious

prosecution claim, state criminal proceedings terminated when the
State declined to appeal the December 2011 decision that vacated
Plaintiff’s conviction.

Here, as in Carroccia, Plaintiff’s claim

was filed within a year of the termination of criminal proceedings,
and thus his claim for IIED based on malicious prosecution is
timely.
Defendants have provided no reason why Plaintiff’s conspiracy
claim should be treated differently.

Finding no case law to the

contrary, the Court concludes that Plaintiff’s conspiracy claim is
timely.

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B.
1.

Failure to State a Claim

Monell Claims – Counts I, II, and IV
a.

All Defendants

Plaintiff’s Counts I, II, and IV allege municipal liability
based on misconduct undertaken pursuant to official policy and
practice.

See, Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658

(1978).
A local governing body may be liable for
monetary
damages
under
§
1983
if
the
unconstitutional act complained of is caused
by: (1) an official policy adopted and
promulgated
by
its
officers;
(2)
a
governmental practice or custom that, although
not officially authorized, is widespread and
well settled; or (3) an official with final
policy-making authority.
Id. at 690.

Plaintiff must “plead factual content that allows the

court to draw the reasonable inference that the City maintained a
policy, custom, or practice” that lead to the constitutional
violations.

McCauley v. City of Chicago, 671 F.3d 611, 616 (7th

Cir. 2011) (internal quotation omitted).
The

Complaint

alleges

that

“there

existed

a

widespread

practice . . . under which criminal suspects were coerced to
involuntarily implicate themselves.”
those

policies

and

practices

Compl. ¶ 123.

resulted

in

In addition,

numerous

false

confessions. Compl. ¶ 126. The Complaint alleges that Plaintiff’s
injuries were caused by Defendants “who acted pursuant to the

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policies,

practices,

paragraphs].”

and

customs

set

forth

[in

preceding

Compl. ¶ 128.

These allegations suggest that Plaintiff may be able to prove
his Monell claim as either an official policy or a widespread but
unofficial custom.

The Complaint satisfies Rule 8's pleading

requirements because it alleges facts that, if proven, would show
that Plaintiff is entitled to relief under Monell.

Thus, the

Motion to Dismiss these claims is denied.
b.

Defendant Lake County

Plaintiff’s Monell claims raise a separate issue:

whether

Lake County can be held liable under Monell for actions of other
Defendants.

Plaintiff acknowledges that Lake County is not liable

independently under § 1983 for Monell theories asserted against the
Lake County Sheriff’s Department.

Pls.’ Opp. 10, ECF No. 121.

Plaintiff argues that Lake County can still be liable for the
policies and practices of the Task Force.
Defendant Lake County directs this Court to Ross v. United
States, 910 F.2d 1422 (7th Cir. 1990), a case that addressed § 1983
liability for municipalities with concurrent jurisdiction over an
area of Lake Michigan.

Under the terms of an intergovernmental

agreement, Lake County and the City of Waukegan decided that the
County, and not the City, would be responsible for rescues in the
lake.

Id. at 1429.

In a moment of crisis, a County official

prevented City rescue personnel and civilians from diving to save
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a drowning boy.

Id. at 1424-25.

As to the City’s liability, the

Court noted that, under well-settled principles, “the government’s
failure

to

provide

Constitution.”

essential

services

does

not

violate

the

Id. at 1428 (citing DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189 (1989)).

Because the city had

no constitutional obligation to perform rescues, and because the
city had no control over the County’s rescue policies, the city
could not be held liable under § 1983 for the County’s failure to
rescue.

Ross, 901 F.2d at 1428-29.

However, unlike in Ross, Plaintiff alleges that the municipal
defendant failed to fulfill a constitutional obligation. While the
government has no affirmative duty to rescue, it is axiomatic that
the government must comply with the affirmative commands of the
Fifth Amendment.

In addition, Plaintiff has pled that Defendant

Lake County controlled the policies and practices that lead to the
constitutional violation.

See, Compl. ¶ 28.

Thus, Plaintiff has

stated a claim that Lake County is responsible under Monell for
actions taken by the Task Force, and the Motion is denied.
2.

Federal Malicious Prosecution – Count III

Plaintiff’s Count III is a federal malicious prosecution claim
under § 1983.
malicious

The Seventh Circuit does not recognize federal

prosecution

claims

where,

supplies a similar cause of action.

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as

here,

state

tort

law

Newsome v. McCabe, 256 F.3d

747, 750 (7th Cir. 2001).

Accordingly, Defendants’ Motion to

Dismiss Count III is granted.
3.

Brady – Count IV

Prosecutors have an obligation to disclose to the defense
“evidence [] material either to guilt or punishment.”

Brady v.

Maryland, 373 U.S. 83, 87 (1963). Police officers, for their part,
violate due process when they withhold exculpatory information.
Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008).
In Count IV, Plaintiff alleges that “Police Officer Defendants
deliberately withheld exculpatory evidence from Plaintiff and from
the Prosecutor Defendants.”

Compl. ¶ 142.

Plaintiff complains

that “Police Officer Defendants fabricated and solicited false
evidence, including testimony that they knew to be false and
perjured and fabricated police reports.”

Compl. ¶ 143.

Plaintiff

has also alleged that the Sheriff’s and Prosecutor Defendants were
“in constant contact during Plaintiff’s interrogation.”

Compl.

¶ 73.
Plaintiff’s allegations against the Prosecutor Defendants
state a claim for a Brady violation.

With regard to the Sheriff’s

Defendants, this Court recognizes that Plaintiff’s allegations seem
incongruous:
Defendants

it
could

is difficult
withhold

to

imagine

information

that

from

the Sheriff’s
the

Prosecutor

Defendants if they were in constant communication with those same
prosecutors.

However, at the motion to dismiss stage, this Court

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must draw all inferences in favor of the non-moving party.

It is

possible to infer that the officers withheld information from
prosecutors even as they were in constant communication about other
evidence and the trial in general.
As Defendants point out, Brady is not a vehicle for malicious
prosecution claims.

See, McCann v. Mangialardi, 337 F.3d 782, 786

(7th Cir. 2003) (due process not violated where officer allegedly
manufactured evidence but plaintiff was never tried). However, the
Seventh Circuit has “consistently held that a police officer who
manufactures false evidence against a criminal defendant violates
due process if that evidence is later used to deprive the defendant
of her liberty in some way.”
567, 580 (7th Cir. 2012).

Whitlock v. Brueggemann, 682 F.3d

McCann, in which the Plaintiff was not

convicted, does not govern this case.
786.

See, McCann, 337 F.3d at

Critical in this case is that the allegedly fabricated

evidence was used against Plaintiff at trial and helped secure his
conviction – Count IV is thus not a disguised malicious prosecution
claim.

Accordingly, the Motion to Dismiss Count IV is denied.
4.

Conspiracy – Count V

To state a claim for conspiracy under § 1983, a complaint must
include

plausible

allegations

of

Plaintiff’s constitutional rights.
675 F.3d 743, 749 (7th Cir. 2012).
Defendants,

even

when

confronted
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a

conspiracy

to

violate

Geinosky v. City of Chicago,
The Complaint alleges that
with

evidence

showing

that

Plaintiff had not committed the crime, “took further steps to
implicate Plaintiff in the crime” because they “were determined to
conceal their wrongdoing.”

Compl. ¶ 86.

Under Seventh Circuit

precedent, allegations of a pattern of misconduct by a group of
individuals can give rise to an inference that the misconduct was
the result of a conspiratorial agreement.
743.

This

Complaint

thus

includes

Geinosky, 675 F.3d at

plausible

allegations

of

conspiracy, so the Motion to Dismiss Count V is denied.
5.

Failure to Intervene – Count VI

The Waukegan Defendants and the Prosecutor Defendants argue
that they cannot be liable for failure to intervene. As Defendants
point out, prosecutors ordinarily have no authority over police
departments
misconduct.

and

have

no

duty

to

intervene

to

stop

police

See, Andrews v. Burge, 660 F.Supp.2d 868, 876 n.6

(N.D. Ill. 2009).

However, Plaintiff has limited his theory

against the Prosecutor Defendants.

He argues that they chose to

act as police officers and to participate in the interrogation. By
doing so, they put themselves in a position where they were
exercising

police

powers

and

would

have

had

“a

realistic

opportunity to step forward and prevent a fellow officer from
violating a plaintiff’s right[s].”
1052, 1064 (7th Cir. 2005).

Harper v. Albert, 400 F.3d

Though this Court is aware of no case

that has found prosecutors liable for failure to intervene, the
Court is not convinced that it would be impossible for Plaintiff to

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prove facts supporting this claim.

Therefore, the Motion to

Dismiss Count VI is denied.
6.

Malicious Prosecution – Count VII

In Illinois, a claim for malicious prosecution requires the
commencement or continuation of an original criminal or civil
judicial proceeding by the defendant.

Reynolds v. Menard, Inc.,

850 N.E.2d 831, 837 (Ill. App. 2006). Ordinarily, the prosecutor’s
independent decision to indict “breaks the chain of causation
linking the police to the wrongful prosecution.”

Steeves v.

McGrath, No. 99-C-4567, 2000 WL 198895, at *4 (N.D. Ill. Feb. 11,
2000) (citing Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir.
1996)).
An

assortment

of

non-prosecutor

Defendants

argue

that

Count VII should be dismissed as to them because it fails to allege
sufficiently

that

they

commenced

the

criminal

prosecution.

However, the chain of causation is broken only if the prosecutor’s
decision is completely independent of any action on the part of the
individual whom the plaintiff is trying to hold liable.
City of Chicago, 856 F.2d 985, 993 (7th Cir. 1988).

Jones v.
Here,

Plaintiff has alleged that the other Defendants influenced the
decision to prosecute.

Thus, there was no break in causation, and

the Complaint states a claim against those Defendants for malicious
prosecution.

The Motion to Dismiss Count VII is denied.

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7.

Civil Conspiracy – Count IX

Defendants argue that Count IX should be dismissed because the
underlying tort has already been pled in the case and thus the
civil conspiracy claim is duplicative.
Illinois law.

This argument contravenes

The Illinois Supreme Court has explained that

“dismissal of [a] conspiracy count as duplicative of other theories
of recovery alleged in the complaint is, at [the pleading stage],
premature.”

Dowd & Dowd, Ltd. v. Gleason, 693 N.E.2d 358, 371

(Ill. 1998).

“A plaintiff may plead and prove multiple causes of

action, though it may obtain only one recovery for an injury.”

Id.

Thus, Plaintiff’s conspiracy claim need not be dismissed as
duplicative, and the Motion to Dismiss Count IX is denied.
8.

Defamation – Count X

Plaintiff alleges that, before his conviction was overturned,
Defendant Tessman proclaimed that Plaintiff “is guilty as the day
is long,” and Defendant Maley said “I can tell you 100 percent that
Juan Rivera did the murder.”

Compl. ¶ 187.

Plaintiff alleges that

Defendants Mermel, Tessman, and Maley “published intentionally
false and misleading statements and lies . . . that they knew to be
false.”

Compl. ¶ 177.

In addition, Defendant Mermel made several

statements – including one in which he accused the eleven-year-old
victim of being sexually active – that were calculated to impugn
the DNA evidence that proved that Plaintiff was not involved in the
crime.

Compl. ¶ 178, 180.
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Defendants move to dismiss the defamation count on the grounds
that the statements were (1) true; (2) constitutionally protected
opinion; (3) subject to a reasonable innocent construction; (4)
fair comment on a judicial proceeding; and (5) not of or concerning
Plaintiff.
a.

Truth

In Illinois, “the truth, when published with good motives and
for

justifiable

ends,

defamation action.

shall

be

a

sufficient

ILL. CONST. art 1, § 4.

defense”

to

a

Only “substantial

truth” is required for this defense, which under Illinois law may
be raised in a motion to dismiss.

Lemons v. Chronicle Pub. Co.,

625 N.E.2d 789, 791 (Ill. App. 1993).

In Lemons, Illinois’s

intermediate

a

appellate

court

held

that

statement

that

the

plaintiff was convicted of violence against two individuals was
“substantially true” where the plaintiff injured two victims but
was convicted of violence against only one person.

Id.

The truth

defense was available because the “gist or sting” of the statement
was accurate.

Id.

The case before this Court raises an interesting issue,
because

when

the

statements

were

made,

Plaintiff’s

conviction was valid and Plaintiff was serving time.

guilty

However, the

statements alleged in the Complaint assert more than just the fact
of conviction or incarceration.

The “gist or sting” of those

statements is not just that Plaintiff had been convicted, but that

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he committed the acts for which he was convicted.

The statements

at issue, especially if known to be false, cannot hide behind the
truth defense.
b.

Opinion

Statements of opinion can be protected by the First Amendment,
but one cannot couch factual statements in language of opinion and
claim that the speech is suddenly protected.
Lorain

Journal

Co.,

497

U.S.

1,

18-19

See, Milkovich v.

(1990).

Prefacing

a

statement of fact with “I think” or “in my opinion” does nothing to
lessen the damage inflicted by the “false assertion of fact” that
follows.

Id. at 19; Giant Screen Sports v. Canadian Imperial Bank

of Commerce, 553 F.3d 527 (7th Cir. 2009).

Defendants’ statements

not only lack the prefatory language that would even raise this
issue, but also assert facts:
and murder.

that Plaintiff committed the rape

The statements at issue are not protected opinion.
c.

Reasonable Innocent Construction

A statement is not defamatory per se if it is reasonably
capable of an innocent construction.
114, 121 (Ill. 2006).

Tuite v. Corbitt, 866 N.E.2d

Defendant Maley notes correctly that the

statement that Plaintiff “did the murder” could refer to the fact
that Plaintiff was convicted.

However, that statement is capable

of defamatory constructions as well.

Because this Court is ruling

on a Motion to Dismiss, the Court construes the Complaint in the
light most favorable to Plaintiff.

Justice v. Town of Cicero, 577

- 20 -

F.3d 768, 771 (7th Cir. 2009).

Thus, this defense is unavailable

at this stage.
d.

Fair Comment on a Judicial Proceeding

Just as Defendant Maley’s statement might be subject to a
reasonable innocent construction, so it might be fair comment on a
judicial proceeding if it referred to the fact of conviction rather
than the fact of who committed the crime.

A fact finder might see

the comment as a reference to Plaintiff’s conviction only, in which
case it would be protected by the fair comment privilege if it was
either a complete and accurate report or a fair abridgement of the
official proceeding. Solia Tech., LLC v. Specialty Publ’g Co., 852
N.E.2d 825, 843 (Ill. 2006).

But as with the reasonable innocent

construction argument, this Court cannot at this time dismiss
Count X as fair comment because doing so would require the Court to
construe the Complaint in a light less favorable to Plaintiff.
e.
To

be

Plaintiff.

Of or Concerning Plaintiff

defamatory,

a

statement

must

be

of

or concerning

Green v. Rogers, 917 N.E.2d 450, 459 (Ill. 2009).

In

the statement at issue, Defendant Mermel accused the eleven-yearold victim of being sexually active.

Compl. ¶ 178. That statement

relates to Plaintiff because it explains how Plaintiff could have
raped the victim yet not have been the source of the semen found
inside her.

Defendant cites no authority for the idea that a

statement must mention a person by name to defame that person, or

- 21 -

that a statement can defame only one person.

Plaintiff has pled

adequately that the statements defamed him, and thus dismissal is
inappropriate.
For the foregoing reasons, the Motion to Dismiss Count X is
denied.
9.

Respondeat Superior – Count XI

Count XI alleges respondeat superior liability, and Defendant
Lake County has moved to dismiss it from this Count on the ground
that it is not responsible for any of the named Defendants.

“A

principal is liable for the tort of his agent under the doctrine of
respondeat superior when the tort is committed within the scope of
the agent’s agency.”

Krickl v. Girl Scouts, Ill. Crossroads

Council, Inc., 930 N.E.2d 1096, 1100 (Ill. App. 2010).

Plaintiff

acknowledges that Lake County cannot be held liable under § 1983
based on respondeat superior, and that the County cannot be held
liable for torts committed by Lake County Sheriff’s Defendants
outside of their participation in the Task Force.

The question,

then, is whether Lake County is responsible for any other conduct
implicated by the Complaint.
Viewing the Complaint in the light most favorable to the
Plaintiff, this Court is persuaded that the answer is yes.

The

Complaint alleges that “each of the other Police Officer Defendants
acted as an agent of Lake County while conducting investigations”
and that those officers committed torts.
- 22 -

Compl. ¶ 23.

Plaintiff

must

be

given

assertions.

an

opportunity

to

prove

the

truth

of

these

The Motion to Dismiss Count XI on this ground is

denied.
C.

Group Pleading

Defendants take issue with what they call “group pleading.”
They request that this Court dismiss the Complaint, or, in the
alternative, that this Court order a more definite statement
pursuant to FED. R. CIV. P. 12(c).
1.

Motion to Dismiss

“Federal Rule of Civil Procedure 8(a)(2) requires only a short
and plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
and citation omitted).

A complaint’s “[f]actual allegations must

be enough to raise a right to relief above the speculative level.”
Id.
Defendants are correct that to be liable under § 1983, a
defendant must be responsible personally for the deprivation of the
constitutional right.
(7th Cir. 1983).

Wolf–Lillie v. Sonquist, 699 F.2d 864, 869

However, an allegation directed at multiple

defendants can be adequate to plead personal involvement.
Brooks v. Ross, 578 F.3d 574, 582 (7th Cir. 2009).

See,

This Court

recognizes that a plaintiff may not be able to attribute misconduct
- 23 -

to specific individuals where the plaintiff did not know the
identity of the offender at the time of the incident.

In addition,

where a plaintiff has been injured as the consequence of the
actions of an unknown member of a collective body, identification
of

the

responsible

discovery.

party

may

be

impossible

without

pretrial

Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,

821 (7th Cir. 2009).

Plaintiff’s job at this stage is to allege

with sufficient factual detail that each of the Defendants caused
or participated in an alleged constitutional violation.
To be sure, Plaintiff’s Complaint is lengthy – it spans more
than 200 paragraphs, some of which are more detailed than others.
Some

paragraphs

“Defendants.”

refer

to

all

misconduct

perpetrated

by

Defendants protest that they cannot answer this

Complaint because they do not know which actions they are being
accused of taking and which claims are being asserted against them.
At the same time, many of the Complaint’s paragraphs identify
specific individuals, and many others refer to identifiable subsets
of Defendants (e.g.,

the “Prosecutor Defendants”).

In addition,

Defendants are alleged to have confused Plaintiff deliberately
during the interrogation and withheld information from him leading
up to and during trial.

It is not surprising that Plaintiff

cannot, at this stage, attribute every wrongful act to a specific
Defendant.

- 24 -

The Court is not persuaded that the Complaint is impossible to
answer. The Complaint presents a coherent narrative that “raise[s]
a right to relief above the speculative level,” and far more than
just a “formulaic recitation of elements.” See, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).

Individual Defendants or

subgroups of Defendants are free to admit, deny, or claim lack of
knowledge as to every single allegation in the Complaint.

As one

Court in this District explained recently in a similar case, “[t]he
Defendants, and not [Plaintiff], are in possession of the knowledge
of precisely which of them, if any, interrogated, manipulated,
threatened, or coerced [victims] into giving false testimony.”
Wilson v. City of Chicago, No. 09-C-2477, 2009 WL 3242300, at *2
(N.D. Ill. Oct. 7, 2009).
Under

the

circumstances

presented

here,

it

would

be

unreasonable for this Court to expect more specific allegations
until

the

satisfied

parties
that

the

have

conducted

Complaint

discovery.

refers

This

adequately

to

Court

is

specific

Defendants or subgroups of Defendants when possible, and includes
enough factual content to give those Defendants fair notice of the
claims against them.

Accordingly, the Complaint does not fail for

so-called “group pleading,” and the Motion to Dismiss on this
ground is denied.

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2.

Motion for a More Definite Statement

In the alternative, Defendants move under Rule 12(e) for a
“more

definite

Defendant.

statement”

of

the

allegations

against

each

A defendant can move for a more definite statement

under Rule 12(e) where a “pleading fails to specify the allegations
in a manner that provides sufficient notice.”
Sorema N.A., 534 U.S. 506, 513 (2002).

Swierkiewicz v.

Motions under Rule 12(e)

are disfavored generally, and courts should grant such motions only
if the complaint is so unintelligible that the defendant cannot
draft responsive pleading.

See, Moore v. Fidelity Fin. Servs.,

Inc., 869 F.Supp. 557, 559-560 (N.D. Ill. 1994).

As discussed

above, the Plaintiff’s Complaint is not “unintelligible.”

For

every paragraph in the Complaint, Defendants can draft responsive
pleading that admits, denies, or claims lack of knowledge.

The

Motion for a More Definite Statement is denied.
D.

Availability of Other Remedies

Count II alleges that Defendants used extreme techniques of
physical

and

confession.

psychological
Compl.

¶

coercion

129-34.

to

extract

Defendants

argue

the
that

false
this

Fourteenth Amendment coerced confession claim is barred because
redress is available under explicit constitutional provisions and
state law.
As to constitutional provisions, police torture or other abuse
that results in a confession violates the Fifth Amendment Self- 26 -

Incrimination Clause if the statement is used at trial.
Martinez, 538 U.S. 760, 767 (2003).

Chavez v.

In addition, a plaintiff may

assert a Fourteenth Amendment substantive due process claim based
on “police torture or other abuse that results in a confession.”
Id. at 773.

“Convictions based on evidence obtained by methods

that are so brutal and offensive to human dignity that they shock
the conscience violate the Due Process Clause.”

Id. at 774

(citation and quotation omitted).
This
District:

Court agrees

with

the

of authority

in

this

harmful police interrogation can violate both the Fifth

Amendment’s

Self-Incrimination

Amendment’s Due Process Clause.
F.Supp.2d

weight

946,

969

(N.D.

Ill.

Clause

and

the

Fourteenth

See, e.g., Tillman v. Burge, 813
2011);

Kitchen

v.

Burge,

781

F.Supp.2d 721, 735 (N.D. Ill. 2011).
Defendants

gain

more

traction

with

their

Count II is displaced by state-law remedies.

argument

that

Seventh Circuit

precedent instructs that substantive due process claims cannot be
brought

where

parallel

state-law

tort

claims

are

available.

Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001) (explaining
that “satisfying the elements of the state-law tort of malicious
prosecution . . . knocks out any constitutional tort of malicious
prosecution”).

So, for example, the Court denied a due process

claim that was “nothing more than a hybrid of [plaintiff’s] Fourth

- 27 -

Amendment false arrest and state law malicious prosecution claims.”
Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010).
Count II is based on the misconduct that took place when
Plaintiff was interrogated.

To be sure, similar conduct is at

issue in Counts VII, VIII, and IX, Plaintiff’s state law claims for
malicious

prosecution,

intentional

distress, and civil conspiracy.

infliction

of

emotional

But those claims are not parallel

to the federal claim – they reach different conduct as well.
Plaintiff’s due process claim seeks to remedy the recognized
constitutional wrong associated with the police misconduct that
extracted

his

statement,

for

which

no

state-law

analogue

is

available.
This claim is not an attempt at an “end run” around Circuit
precedent that bars federal malicious prosecution claims.
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003).

See,

Rather,

it is a different federal claim entirely, albeit one that happens
to be brought under the Due Process Clause of the Fourteenth
Amendment, the same clause that would be the vehicle for federal
malicious prosecution claims if such claims were recognized in this
Circuit.

However, this Court is not persuaded that state-law

remedies rectify the conduct complained of here adequately.
Because the Fourteenth Amendment coerced confession claim is
not displaced by the other federal and state law claims in the
complaint, the Motion to Dismiss Count II on this ground is denied.

- 28 -

E.
1.
Defendant

Mermel

Immunity

Absolute Immunity

argues

that

defamation claim against him.

absolute

immunity

bars

the

Illinois recognizes a defense of

absolute immunity that protects executive officials from defamation
claims for statements made when the official “was acting within the
scope of his official duties.”
387 (Ill. 1976).

Blair v. Walker, 349 N.E.2d 385,

A prosecutor’s statements to the press can be

within the scope of employment.

See, Ware v. Carey, 394 N.E.2d

690, (Ill. App. 1979) (prosecutor’s statement regarding investigation into police corruption were “related to his responsibilities
as leader of community law enforcement and his concomitant duty to
investigate police corruption”).

At the same time, “[c]omments to

the media have no functional tie to the judicial process just
because they are made by a prosecutor.”

Buckley v. Fitzsimmons,

509 U.S. 259, 277-78 (1993) (explaining that “[a]t the press
conference, [the prosecutor] did not act in his role as advocate
for the State”).
This Court recognizes the need to give prosecutors wide
latitude to “inform[] public opinion as to the quality of service
rendered by public officials.”
738, 776 (N.D. Ill. 2012).

Hobbs v. Cappelluti, 899 F.Supp.2d

However, Plaintiff has alleged facts

that, if proven, would show that Defendant Mermel’s statements were
made outside the scope of his official duties.
- 29 -

According to the

Complaint, Defendant Mermel’s statements were “made after his
involvement in the criminal case against Plaintiff had ended” and
“were not made in connection with his employment.”

Compl. ¶ 182-

84.
Cases cited by Defendant Mermel do not support dismissing
Plaintiff’s Complaint. In Ware, the immunity issue was resolved on
summary judgment, after a factual record was established.
394 N.E.2d at 702.

Ware,

And in Hobbs, the Court dismissed a portion of

the complaint on immunity grounds because facts alleged in the
complaint showed that the statement was made on the same day that
the Plaintiff’s case was nolle prosequi.
776.

Hobbs, 899 F.Supp.2d at

Here, the Complaint states a claim that Defendant Mermel is

not entitled to absolute immunity, and thus the Motion to Dismiss
on this ground is denied.
2.

Qualified Immunity

The Sheriff’s Defendants and the Prosecutor Defendants argue
that they are entitled to qualified immunity against Plaintiff’s
Fifth

Amendment

coerced

confession

claim.

“The

doctrine

of

qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly
established

statutory

or

constitutional

rights

of

which

a

reasonable person would have known.” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quotation omitted).

- 30 -

Qualified immunity is a full immunity from suit, designed to
protect government officials from not just liability but also the
burdens of standing trial or being subjected to discovery.

Id.

Thus, courts endeavor to “resolv[e] immunity questions at the
earliest possible stage of litigation.” Id. at 232. However, “the
plaintiff is not required initially to plead factual allegations
that anticipate and overcome a defense of qualified immunity.”
Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000).
“Because an immunity defense usually depends on the facts of the
case, dismissal at the pleading stage in inappropriate.”

Alvarado

v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001).
The Sheriff’s Defendants thus withdrew their 12(b)(6) Motion
based on qualified immunity.

The Prosecutor Defendants made no

mention of withdrawing their Motion, although they did not return
to it in their Reply brief.

In any event, the Court agrees with

Plaintiff and the Sheriff’s Defendants that dismissal on qualified
immunity grounds is inappropriate at this stage.

The Motion to

Dismiss on this ground is denied.
F.
1.

Proper Defendants
The Task Force

The Task Force moves to dismiss all claims against it on the
ground that it is not an entity capable of being sued.

Only a

“person” can be held liable under § 1983, see, 42 U.S.C. § 1983,

- 31 -

but “person” includes local governmental entities that are not arms
of the state.

Howlett v. Rose, 496 U.S. 356, 377 (1990).

As alleged, the Task Force is “an inter-agency law-enforcement
organization.”

Am. Compl. ¶ 29.

In addition, Plaintiff has

represented to the Court – through its opposition to the Motions to
Dismiss – that he believes and expects to be able to prove that the
Task Force has an independent legal existence, an organizing
agreement, a budget, and operational staff. The District Court may
rely on this information in ruling on the motion to dismiss.

See,

Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)
(explaining that “a party opposing a Rule 12(b)(6) motion may
submit materials outside the pleadings to illustrate the facts the
party expects to be able to prove”).
There is authority for the idea that a “multijurisdictional
law enforcement agency” is subject to suit under § 1983.

In

Maltby, the Seventh Circuit found that a law-enforcement “Task
Force” could be sued where the Task Force was organized pursuant to
the Illinois Constitution and to the Intergovernmental Cooperation
Act, 5 Ill. Comp. Stat. 220/1.
n.14 (7th Cir. 1994).

Maltby v. Winston, 36 F.3d 548, 560

At the same time, a mere collaboration of

other municipal entities that exists in name only would not be
amenable to suit, just as a municipality’s departments cannot be
sued in their name if they lack independent legal existence.
Manney v. Monroe, 151 F.Supp.2d 976, 988 (N.D. Ill. 2001).

- 32 -

For

example, Courts in this District have held that the Chicago Police
Department is not a suable entity because it “has no separate legal
existence apart from the City of Chicago.”

Chan v. City of

Chicago, 777 F.Supp. 1437, 1442 (N.D. Ill. 1991).
Ultimately, whether the Task Force is amenable to suit is a
question of fact.

Resolution of that question depends on, among

other things, whether the Task Force has an independent legal
existence and is organized as a separate municipal entity under
Illinois law.

This Court cannot resolve that question at this

stage, so the Motion to Dismiss the Task Force is denied.
2.

Marion Grinnell and Estate of Clinton Grinnell

Defendant Marion Grinnell, as alleged personal representative
of the Estate of Clinton Grinnell, has moved to dismiss Plaintiff’s
Complaint against both her and the Estate as barred under Illinois
law. She directs the Court to Illinois’s “Death of party” statute,
which provides:
If a person against whom an action may be
brought dies before the expiration of the time
limited for the commencement thereof . . . an
action may be commenced against his or her
personal representative after the expiration
of the time limited for the commencement of
the action.
735 Ill. Comp. Stat. 5/13-209(b).

However, that section does not

apply to actions brought before the expiration of the time limited
for the commencement of the action.
481, 485 (Ill. 1975).

Rivera v. Taylor, 336 N.E.2d

The fact that the statute was renumbered in

- 33 -

1982, seven years after Taylor was decided, does not change the
proper interpretation of the statute. See, id. at 483 (quoting the
version of the statute then in effect).
Defendants interpret the section differently, and incorrectly.
They appear to argue that it governs only suits instituted before
the expiration of the time limited for the commencement thereof.
See, Doc. 169 at 3-4.

Defendants should read on – the second part

of the statute discusses when an action may be commenced “after the
expiration of the time limited for the commencement of the action.”
735 Ill. Comp. Stat. 5/13-209(b).

The reasoning in Taylor applies

perfectly: the statute exists to extend the statute of limitations
because it discusses when, after the statute of limitations has
lapsed, a plaintiff can still file suit.

Because Plaintiff’s suit

was brought before the statute of limitations expired, Plaintiff
does not need to use that statute to extend the statute of
limitations.
Defendants next direct this Court to 755 Ill. Comp. Stat.
5/18-12, which limits the time for filing claims against the estate
of a decedent.

Illinois courts have explained that this statute

does not limit the time for filing actions to recover damages
caused by the decedent’s tortious acts.

See, Schloegl v. Nardi,

234 N.E.2d 558, 561 (Ill. App. 1968) (holding that estate could be
reopened and executors reappointed so that cause of action not
barred by statute of limitations could be asserted against estate

- 34 -

for personal injuries sustained during decedent’s lifetime). As in
that case, the relevant time bar is the statute of limitations
associated with the claim itself, not one set by 755 Ill. Comp.
Stat. 5/18-12.
Mrs.

Grinnell

argues

that

claims

against

her

should

be

dismissed because Plaintiff failed to follow the procedural steps
necessary to name her as special representative for purposes of
defending this lawsuit.

This Court has the discretion to appoint

a special representative so that the action can be maintained in
case the estate has assets that can be recovered.

Tamburo v.

Dworkin, No. 04-C-3317, 2012 WL 104545, at *4 (N.D. Ill. 2012).
The Motion to Dismiss these Defendants is denied.
3.

David Ostertag

Defendant Ostertag argues that the complaint against him
should be dismissed because it mentions him only several times, and
thus it fails to provide him fair notice of the allegations against
him.

Defendant cites to a case from this District in which the

Court held that a complaint that referred to multiple police
officer defendants collectively “d[id] not provide each defendant
officer with sufficient notice of the wrongdoings alleged.” Carter
v. Dolan, 2009 WL 1809917, at *3 (N.D. Ill. 2009).
In

that

case,

however,

the

“Plaintiff

was

given

the

opportunity to identify the individual conduct of each Defendant
officer and failed to do so.”

Id.

Unlike in Carter, Plaintiff has

- 35 -

not had an opportunity to identify the individual conduct of each
Defendant officer.

As explained earlier, Defendants and not

Plaintiff know which specific wrongs (if any) were committed by
specific

Defendants.

See,

Part

III.C.

Thus

it

would

be

unreasonable for this Court to expect more specific allegations
until the parties have conducted discovery.

Defendant Ostertag is

free

knowledge

to

admit,

deny,

or

claim

lack

of

as

to

all

allegations in the Complaint. The Motion to Dismiss him is denied.
IV.

CONCLUSION

For the reasons stated herein, the Motion for Judicial Notice
(ECF No. 111) is granted.

All pending Motions to Dismiss (ECF Nos.

94, 97, 100, 102, 103, 105, 109, 145, and 164) are granted with
respect to Count III and denied with respect to all other Counts
and all Defendants.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date: September 26, 2013

- 36 -