Saunders v. Chicago et al

Filing 153

MEMORANDUM OPINION AND ORDER: for the reasons stated below, the Court grants Plaintiffs consolidated motion to reconsider 146 and reinstates Count II in its entirety in each of Plaintiffs' complaints. 12-cv-9158, 146 ; 12-cv-9170, 107 ; 12-cv-9184, 96 . Signed by the Honorable Robert M. Dow, Jr on 7/9/2014. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
________________________________________
MICHAEL SAUNDERS,

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Plaintiff,
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v.
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CITY OF CHICAGO, ET AL.,
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Defendants.
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________________________________________ )
VINCENT THAMES,
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Plaintiff,
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v.
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CITY OF CHICAGO, ET AL.,
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Defendants.
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________________________________________ )
HAROLD RICHARDSON,
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Plaintiff,
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v.
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CITY OF CHICAGO, ET AL.,
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Defendants.
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________________________________________ )

Case No. 12-cv-09158
Judge Robert M. Dow, Jr.

Case No. 12-cv-09170

Case No. 12-cv-09184

MEMORANDUM OPINION AND ORDER
On November 13, 2013, the Court granted in part Defendants’ motions to dismiss. See
12-cv-9158, [121]; 12-cv-9170, [84]; 12-cv-9184, [81]. Among Plaintiffs’ claims that the Court
dismissed were portions of Count II of their respective complaints, in which Plaintiffs alleged
that the Defendants violated their due process right by fabricating evidence in their criminal

prosecutions. The Court determined that, although Plaintiffs stated a due process claim with
respect to their Brady allegation, their evidence-fabrication allegations could not support a
cognizable constitutional claim. In light of the Seventh Circuit’s recent decision in Fields v.
Wharrie, 740 F.3d 1107 (7th Cir. 2014), Plaintiffs now move the Court to reconsider its ruling on
the evidence fabrication issue. In consideration of that case, and the clarification it provides
concerning the Seventh Circuit’s prior ruling in Whitlock v. Brueggemann, 682 F.3d 567 (7th
Cir. 2012), the Court agrees that Plaintiffs have stated violations of their due process rights by
alleging that Defendants fabricated evidence that resulted in their wrongful convictions and
incarceration.

Accordingly, for the reasons stated below, the Court grants Plaintiffs’

consolidated motion to reconsider and reinstates Count II in its entirety in each of Plaintiffs’
complaints. 12-cv-9158, [146]; 12-cv-9170, [107]; 12-cv-9184, [96].
I.

Background
In their respective complaints, Plaintiffs Michael Saunders, Harold Richardson, and

Vincent Thames each allege that certain Defendants fabricated evidence, which was used to
secure their wrongful convictions for the 1994 rape and murder of Nina Glover in Chicago,
Illinois. Richardson and Saunders were convicted after bench trials that commenced in 1997 and
sentenced to 40 years in prison. In light of those outcomes, Thames opted to plead guilty and
was sentenced to 30 years in prison in February 1998. In November 2011, on the basis of postconviction DNA testing, the Circuit Court of Cook County granted Plaintiffs’ joint petition to
vacate their convictions. The State of Illinois granted certificates of innocence to Plaintiffs on
September 14, 2012, after each spent more than sixteen years in prison.
On November 15, 2012, Saunders filed an eleven-count complaint against the City of
Chicago, various Chicago detectives, a Chicago youth police officer, two Cook County Assistant

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State’s Attorneys, and Cook County, Illinois. On that same day, Richardson filed his own
eleven-count complaint against the City and the same Chicago detectives. Thames filed a
complaint on that day as well, but then filed an amended complaint five days later, which
included ten counts and named as Defendants the City, the same Chicago detectives, Cook
County, and one of the two Assistant State’s Attorneys whom Saunders sued. Each Plaintiff
alleged that they suffered various constitutional and state law violations, resulting in their
wrongful convictions and incarceration. Various motions to dismiss followed, which the Court
granted in part on November 13, 2013.
Relevant here is the Court’s dismissal of a portion of Count II of Plaintiffs’ respective
complaints. Each alleged that Defendants violated his due process rights by (a) withholding
materially exculpatory evidence in violation of Brady v. Maryland, and (b) fabricating evidence
that was used to prosecute and secure his conviction. The Court held that, although Plaintiffs
stated a Brady claim, Seventh Circuit law foreclosed the pursuit of their fabrication-based claims
as constitutional violations; rather, the Court held, Plaintiffs could only pursue those allegations
in the form of state law claims for malicious prosecution. Two-and-a-half months later, the
Seventh Circuit issued its decision in Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014) (“Fields
II”), which – as this Court recognized in Bianchi v. McQueen, 2014 WL 700628 (N.D. Ill. Feb.
24, 2014) (Dow, J.) – clarified the law in the realm of evidence fabrication claims. On that basis,
Plaintiffs jointly ask the Court to reconsider the partial dismissal of Count II of their complaints.
Defendant Officers1 oppose their motion.
II.

Motion for Reconsideration Standard
Plaintiff’s motion is governed by Federal Rule of Civil Procedure 54(b):

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The Court notes that Count II of Thames’ Amended Complaint (12-cv-9170, [5]) alleges that ASA
Johnson fabricated evidence in concert with Defendant Officers. Defendant Johnson, however, has not
filed a brief in opposition to Plaintiffs’ motion for reconsideration.

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any order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
Fed. R. Civ. P. 54(b). Accordingly, under Rule 54(b), the Court may exercise its inherent
authority to reconsider its interlocutory orders. See Moses H. Cone Mem. Hosp. v. Mercury
Const. Corp., 460 U.S. 1, 12 (1983) (“every order short of a final decree is subject to reopening
at the discretion of the district judge”); Sims v. EGA Prods., Inc., 475 F.3d 865, 870 (7th Cir.
2007) (“nonfinal orders are generally modifiable”).
It is well established, however, that “[m]otions for reconsideration serve a limited
function: to correct manifest errors of law or fact or to present newly discovered evidence.”
Conditioned Ocular Enhancement, Inc. v. Bonaventura, 458 F. Supp. 2d 704, 707 (N.D. Ill.
2006) (quoting Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th
Cir. 1996)). In regard to the “manifest error” prong, the Seventh Circuit has explained that a
motion to reconsider is proper only when “the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to the Court by the parties, or has made
an error not of reasoning but of apprehension.” Bank of Waunakee v. Rochester Cheese Sales,
Inc., 906 F.2d 1185, 1191 (7th Cir. 1990); see also Wiegel v. Stork Craft Mfg., Inc., 2012 WL
2130910, at *2 (N.D. Ill. June 6, 2012) (“Reconsideration is not appropriate where a party seeks
to raise arguments that could have been raised in the original briefing.”); Oto v. Metropolitan
Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (“A ‘manifest error’ is not demonstrated by the
disappointment of the losing party,” instead it “is the ‘wholesale disregard, misapplication, or
failure to recognize controlling precedent.’”); Bilek v. American Home Mortg. Servicing, 2010
WL 3306912, at *1 (N.D. Ill. Aug. 19, 2010). And with respect to the second prong, the court of

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appeals has explained that a motion to reconsider may be appropriate if there has been “a
controlling or significant change in the law or facts since the submission of the issue to the
Court.” Bank of Waunakee, 906 F.2d at 1191.
III.

Discussion
In Bianchi, this Court explained the significance of the Seventh Circuit’s decision in

Fields II. Bianchi, 2014 WL 700628 at *9. Prior to Fields II, it seemed to be settled law in the
Seventh Circuit that an allegation of evidence fabrication did not state a cognizable due process
claim. See Petty v. City of Chicago, 2014 WL 2568264, *4 (7th Cir. June 8, 2014) (“In the past,
we have labeled a claim [for evidence fabrication] as a malicious prosecution claim. And we did
not allow the claims to be brought in federal court because there was an adequate state law
remedy.”) (internal citations omitted); Fields v. Wharrie, 672 F.3d 505, 516-17 (7th Cir. 2012)
(“Fields I”) (“In Buckley v. Fitzsimmons . . . . We explained that fabricating evidence, including
in the form of testimony, is not an actionable constitutional wrong.”) (citing Buckley v.
Fitzsimmons, 20 F.3d 789, 795-96 (7th Cir. 1994)). Previously, the Seventh Circuit had held that
when a plaintiff alleges that “criminal proceedings were instituted against him based on false
evidence or testimony, such a claim ‘is, in essence, one for malicious prosecution, rather than a
due process violation,’” (Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009) (quoting
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2009))), and, separately, that a plaintiff’s
attempt to bring an evidence fabrication claim under the due process clause was an improper
attempt at “shoe-horning into the more general protections of the Fourteenth Amendment,” rather
than bringing a state law malicious prosecution claim. Fox v. Hayes, 600 F.3d 819, 841 (7th Cir.
2010) (citing Brooks, 564 F.3d at 833, and McCann, 337 F.3d at 786)). And because the Seventh
Circuit also had said that “[t]he existence of a tort claim under state law knocks out any

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constitutional theory of malicious prosecution,” (Newsome v. McCabe, 256 F.3d 747, 750 (7th
Cir. 2001)), and that plaintiffs “cannot invoke the substantive due process clause where state
laws provide an adequate postdeprivation remedy for the complained-of conduct,” (Fox v. Hayes,
600 F.3d 819, 841 (7th Cir. 2010)), decisions in the Northern District of Illinois generally arrived
at one of two conclusions when ruling on an evidence fabrication claim. Judges typically held
either that fabricating evidence does not violate due process, (see Chihak v. City of Chicago,
2013 WL 3944411, *3 (N.D. Ill. July 31, 2013)), or that fabricating evidence may violate due
process, but the existence of a state law tort for malicious prosecution dictates that a plaintiff
must bring his claim pursuant to state law rather than as a due process claim under Section 1983.
See Caine v. Burge, 2012 WL 2458640, *6 (N.D. Ill. June 27, 2012). In either case, the
consensus among judges in this district seemed to be that evidence fabrication-based due process
claims could not be brought under Section 1983. Fields II put that notion to rest.
Fields II clarifies that the Seventh Circuit’s earlier decision in Whitlock v. Brueggemann,
682 F.3d 567 (7th Cir. 2012), definitively stands for the proposition that a prosecutor can violate
one’s due process rights by fabricating evidence if that evidence is later used to deprive the
defendant of liberty in some way. Petty, 2014 WL 2568264, *5 (“In Fields II, we stated that a
prosecutor who falsely creates evidence against a defendant violates the defendant’s due process
right.”); see also Fields II, 2014 WL 243245 at *4; Whitlock, 682 F.3d at 580. Although this
would seem to directly contradict Buckley (as the dissent in Fields II argues), the majority
reconciled the two cases by distinguishing coercing witness testimony (the primary allegation in
Buckley), which does not violate due process, from fabricating witness testimony (the allegations
in Whitlock and Fields II), which does. Id. In light of Fields II, it is apparent that allegations of
evidence fabrication can support a due process claim under Section 1983. And because neither

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Whitlock nor Fields II addressed the effect that the existence of the tort of state law malicious
prosecution has on such a claim, it seems that malicious prosecution does not enter the calculus
and knock out the availability of Section 1983 as a remedy, despite what Brooks, Fox, et al.
previously seemed to suggest.
On the basis of Fields II, and consistent with this Court’s articulation of that decision’s
significance in Bianchi, Plaintiffs ask the Court to reconsider the dismissal of their evidence
fabrication-based due process claims. Defendants make several arguments in opposition to
Plaintiffs’ motion. First, they argue that, even if fabricating evidence violates a defendant’s due
process rights, the Seventh Circuit’s failure to address the impact of Fields II (a qualified
immunity case) on Newsome and its progeny cuts in favor of determining that the existence of a
state law claim for malicious prosecution still prevents Plaintiffs’ suit via Section 1983, since
one panel of the Seventh Circuit cannot implicitly overrule another. However, as this Court
noted in Bianchi, Fields II and Whitlock can be ready in harmony with the Seventh Circuit’s
prior rulings, particularly in light of the Seventh Circuit’s post-Whitlock decision in Julian v.
Hanna, 732 F.3d 842 (7th Cir. 2013). In Julian, the Court noted that damages for an evidence
fabrication-based malicious prosecution claim begin to accrue at the moment of a plaintiff’s
arrest and accumulate until the plaintiff’s charges are dismissed. Julian, 732 F.3d at 847.
Reading Julian along with Fields II, Whitlock, and the Brooks, Fox, McCann line of cases
suggests that a plaintiff has a potential malicious prosecution claim the moment he is arrested
based on fabricated evidence (even if he is never tried, convicted, or incarcerated), while that
plaintiff does not have an evidence fabrication due process claim unless and until he is convicted
and/or deprived of his liberty in some meaningful way. While there is some overlap between the
two brands of evidence fabrication claims, they are distinct.

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Defendants argue that Fields II cannot be harmonized with Newsome and McCann in this
way, because both cases – like Whitlock, Fields II, and this case – involved allegations that
fabricated evidence was used to wrongfully convict the plaintiff. But neither Newsome nor
McCann addressed whether fabricated evidence violates a defendant’s due process rights. In
Newsome, the plaintiff expressly brought a constitutional malicious prosecution claim pursuant
to Section 1983 on the theory that he had a constitutional right not to be prosecuted without
probable cause,” a cause of action which the Court found foreclosed in light of the availability of
an equivalent state law remedy. 256 F.3d at 750. In McCann, the Seventh Circuit deemed the
plaintiff’s “false evidence” due process claim waived and, without addressing whether
allegations of evidence fabrication violated due process, noted that his particular claim – that the
defendants manufactured evidence for the purpose of having him prosecuted, convicted, and
imprisoned – was simply a “recast of his Fourth Amendment false arrest claim” and/or a claim
for malicious prosecution. Neither case calls into question the Court’s conclusion that, after
Fields II, fabricating evidence violates a defendant’s due process rights when it deprives him of
liberty and that he can seek recompense for that constitutional injury pursuant to 42 U.S.C. §
1983. If anything, reading Newsome and McCann (and Brooks, Fox, etc.) with the benefit of
Fields II, suggests that the two common pre-Whitlock interpretations of those cases (as discussed
above) were either overbroad or plainly incorrect. See Fields II, 740 F.3d at 1114 (“it was
established law by 1985 (indeed long before) . . . that . . . fabricating evidence against a criminal
defendant was a violation of due process.”); Whitlock, 682 F.3d at 585 (“all courts that have
directly confronted the question before us agree that the deliberate manufacture of false evidence
contravenes the Due Process Clause.”). In other words, Whitlock and Fields II serve to clarify,
not overrule, any prior decisions that are ostensibly contradictory or have led to contrary results.

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Defendants next argue that, even if there is a federal cause of action for such a
constitutional claim, these Plaintiffs (Saunders, Richardson, and Thames) have not stated one
since the claims at issue here are against police officers, while the allegations in Whitlock and
Fields II were lodged against prosecutors. But Whitlock made explicitly clear that the policeprosecutor distinction, at least in the context of fabricating evidence in an investigative capacity,
is meaningless. In fact, “the whole point of the Supreme Court’s rule in Buckley is that the
police and investigating prosecutors are subject to the same constraints.” Whitlock, 682 F.3d at
581. As Whitlock noted, “[i]t would be ‘incongruous’ to hold a police officer liable for
fabricating evidence but hold that the prosecutor has not committed any violation for taking the
same action in the same capacity.” Id. at 580-81 (citing Burns v. Reed, 500 U.S. 478, 495
(1991)).
Defendants also argue that Plaintiffs’ complaints never actually allege that Defendants
fabricated evidence, but merely accuse Defendants of coercing witness testimony – the critical
distinction in making out a due process claim, says Fields II.

A look back at Plaintiffs’

complaints belies that argument. Saunders alleges that Defendants planted a mop and shovel,
which the officers falsely alleged were used by the boys to hide Ms. Glover’s body. See 12-cv9158, [1] at ¶¶ 74-77, 122-23. And each Plaintiff alleges that Defendants fabricated police
reports, fabricated Plaintiff’s own confession, and fabricated the confessions of the other
Plaintiffs, all of which was then used as evidence in each Plaintiff’s prosecution. See id.; 12-cv915870, [5] at ¶¶ 29, 43-44, 80-81; 12-cv-9184, [1] at ¶¶ 44, 60, 60-61, 113-14. Defendants
argue that Plaintiffs are disguising coercion claims with a “fabrication” label. Defendants point
out that all three Plaintiffs allege that their confessions were “fabricated” because the police
force-fed them non-public information about the crime scene (which the boys could not possibly

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have known) and had them regurgitate that information back to them in the form of confessions,
which were then memorialized in “fabricated” police reports.
The Court notes first that, interpreting the allegations in the light most favorable to the
Plaintiffs, their fabrication allegations are not limited to that narrow fact scenario (as Defendants
argue). Each Plaintiff repeatedly alleges that Defendants fabricated police reports and other
evidence to make the Plaintiffs’ confessions seem real. In any event, Fields II suggests that a
defendant’s due process rights are implicated by both fabricated testimony (that is, “testimony
that is made up”) and false testimony (that is, “testimony known to be untrue by the witness and
by whoever cajoled or coerced the witness to give it”). Petty, 2014 WL 2568264 at *5 (quoting
Fields II, 740 F.3d at 1110). The Seventh Circuit described false testimony as the “equivalent”
of fabricated testimony and distinguished both types of evidence from coerced testimony, which
does not violate due process. Id. As the Seventh Circuit said in Petty, an allegation that “CPD
officers created evidence that they knew to be false” “is the hallmark of a fabrication case.”
Therefore, even by Defendants’ narrow reading of the complaints, Plaintiffs have alleged the
creation of “false” evidence – which is the equivalent of fabricated evidence. Accordingly,
Plaintiffs have stated due process violations on the basis of their evidence fabrication allegations.
Finally, Defendants argue that, regardless of any of the foregoing, Thames cannot state a
due process claim because he pled guilty. They argue that Fields II stands for the proposition
that a defendant’s due process rights are not violated “unless and until fabricated evidence is
used at trial.” Def. Opp. Br. at 14. Whitlock, a holding explicitly endorsed by Fields II,
however, made clear that 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 [his] liberty in some way.” 682 F.3d at 580 (emphasis

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added). And Alexander v. McKinney, the only case besides Fields II and Petty in which the
Seventh Circuit has discussed its holding in Whitlock, emphasized that the due process violation
– that is, the liberty deprivation – caused by fabricated evidence results from its use to secure the
defendant’s conviction, not from its use at a trial. 692 F.3d 553, 557 (7th Cir. 2012) (“[In
Whitlock v. Brueggemann] we held that a prosecutor acting in an investigatory capacity who
fabricates evidence that is used to obtain a wrongful conviction violates a convicted defendant’s
clearly established due process rights.”). Moreover, Alexander, discussing the Second Circuit’s
decision in Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), strongly suggested that a defendant
who spends significant time in jail (8 months, in that case) on the basis of fabricated evidence
before his charges eventually are dropped likewise suffers a due process violation. Id. Here,
Thames properly alleges that he (like Saunders and Richardson) was deprived of his liberty by
way of incarceration before and after he was wrongfully convicted.
Further, this Court already has held that Thames has stated a Brady-based due process
claim, despite his guilty plea. See November 13, 2013 Memorandum and Order at 20 (quoting
McCann: “it is highly unlikely that the Supreme Court would find a violation of the Due Process
Clause if prosecutors or other relevant government actors have knowledge of a criminal
defendant’s factual innocence but fail to disclose such information to defendant before he enters
a guilty plea.”). And it would be inharmonious to hold that a Brady violation violates the due
process rights of a defendant who pleads guilty, while holding that fabricated evidence does not.
In either case, Defendant’s misconduct can be said to cause the injury, in so far as it influences
the criminal defendant’s decision to take the plea after taking stock of the lack of exculpatory
evidence in his possession (complete or not) and inculpatory evidence in the government’s
possession (false or not). Indeed, here, Thames made the decision to plead guilty with the

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benefit of having seen the power of the inculpatory evidence at the government’s disposal; in
spite of the falsity of the confessions, police report, and physical evidence against them,
Saunders and Richardson were convicted at trial and sentenced to 40 years in prison. Assessing
his chances with those results in mind, Thames opted to plead guilty and received a 30-year
sentence as a result. In all three cases, it reasonably can be said that the fabricated evidence
caused Plaintiff a deprivation of his liberty.
IV.

Conclusion
For the reasons stated, the Court grants Plaintiffs’ consolidated motion to reconsider. 12-

cv-9158 [146]; 12-cv-9170 [107]; 12-cv-9184 [96].

Dated: July 9, 2014

____________________________________
Robert M. Dow, Jr.
United States District Judge

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