Richardson v. City of Chicago et al

Filing 159

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 11/17/2015. Plaintiff's motion for reconsideration 119 is granted and Count I of Plaintiff's complaint 1 is reinstated in its entirety. Defendant City of Chicago's motion to bifurcate and stay discovery and trial 137 is granted. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
________________________________________
MICHAEL SAUNDERS,
)
)
Plaintiff,
)
)
v.
)
Case No. 12-cv-09158
)
CITY OF CHICAGO, et al.,
)
Judge Robert M. Dow, Jr.
)
Defendants.
)
________________________________________ )
VINCENT THAMES,
)
)
Plaintiff,
)
)
v.
)
Case No. 12-cv-09170
)
CITY OF CHICAGO, et al.,
)
Judge Robert M. Dow, Jr.
)
Defendants.
)
________________________________________ )
HAROLD RICHARDSON,
)
)
Plaintiff,
)
)
v.
)
Case No. 12-cv-09184
)
CITY OF CHICAGO, et al.,
)
Judge Robert M. Dow, Jr.
)
Defendants.
)
________________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiffs Michael Saunders, Harold Richardson, and Vincent Thames were wrongfully
convicted of the rape and murder of Nina Glover, each spending more than 16 years in prison
before being exonerated by DNA evidence. Plaintiffs filed separate civil rights lawsuits against
the City of Chicago and various individuals seeking to recover for their wrongful convictions
under state and federal law.

On October 13, 2013, the Court issued an identical Memorandum Opinion and Order in
each of the three above-captioned cases (12-cv-9158 [121]; 12-cv-9170 [84]; 12-cv-9184 [81]),
ruling on Defendants’ then-pending motions to dismiss filed in each of those cases. Now before
the Court are Plaintiffs’ motions to reconsider (12-cv-9158 [185]; 12-cv-9170 [131]; 12-cv-9184
[119]) the Court’s dismissal of Count I of their respective complaints, which the Court
previously dismissed as time-barred. For the reasons set forth below, Plaintiffs’ motions (12-cv9158 [185]; 12-cv-9170 [131]; 12-cv-9184 [119]) are granted, and the Court reinstates Count I in
its entirety in each of Plaintiffs’ complaints.
Also before the Court is Defendant City of Chicago’s motion to bifurcate and stay
discovery and trial of Plaintiffs’ municipal-liability claims, filed in each of the three cases (12cv-9158 [207]; 12-cv-9170 [149]; 12-cv-9184 [137]). For the reasons set forth below, Defendant
City of Chicago’s motions (12-cv-9158 [207]; 12-cv-9170 [149]; 12-cv-9184 [137]) are granted.
As an administrative matter, in the Thames case, 12-cv-9170, the docket shows
Individual Defendants’ motion to depose incarcerated witnesses [144] as a pending motion, but
Magistrate Judge Finnegan granted that motion on July 8, 2015 [See 146]. The Clerk is
instructed to strike that motion [144] as an active motion on the Court’s docket.
I.

Background1
The Court set forth the factual history of this case in detail in its previously-issued

memorandum opinion and order (12-cv-9158 [121]; 12-cv-9170 [84]; 12-cv-9184 [81]) ruling on
Defendants’ motions to dismiss. Because the motions currently before the Court mostly relate to
procedural issues, the Court offers only a brief reiteration of the relevant background here.

1

For purposes of Defendants’ motions to dismiss, the Court assumes as true all well-pleaded allegations
set forth in the complaint. See, e.g., Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015).

2

After bench trials that commenced in November 1997, Plaintiffs Saunders and
Richardson were convicted of the rape and murder of Nina Glover, and each was sentenced to
40 years in prison. After seeing the results of those trials, Plaintiff Thames elected to plead guilty
and was sentenced to 30 years in prison. Plaintiffs allege that their convictions and sentences
were based entirely on Defendants’ use of self-incriminating statements that Defendant Officers
obtained from Plaintiffs through the use of unconstitutional interrogation methods. See 12-cv9158 (Saunders) [1, ¶ 117; id. ¶ 84 (“The State’s Attorney prosecuting the case acknowledged
that its entire case against [Saunders] rested on the confession. During pretrial proceedings, the
ASA told the court ‘we cannot proceed without this confession’ and that, if the confession were
suppressed, the state would have ‘to file a certificate of impairment’ because it could not go
forward.”)]; 12-cv-9184 (Richardson) [1, ¶ 108; id. ¶ 3 (“The sum total of the evidence against
[Richardson] was his false confession * * *.”)]; 12-cv-9170 (Thames) [5, ¶ 75 (“Thames was
prosecuted and convicted for Ms. Glover’s rape and murder based solely on these false
statements.”); id. ¶ 2 (“The sum total of the evidence against Thames * * * was his and his codefendants’ false confessions.”)].
In May of 2011, based on DNA samples taken during the original investigation and with
the use of the Combined DNA Index System (CODIS) database, the Illinois State Police linked
convicted felon Johnny Douglas—whom Defendant Officers had met, but failed to subsequently
investigate, at the crime scene on November 7, 1994—to the rape and murder of Ms. Glover.
Based on these findings, on November 16, 2011, the Circuit Court of Cook County granted
Plaintiffs’ joint petition to vacate their convictions, and Plaintiffs were released from prison. The
State of Illinois granted Plaintiffs certificates of innocence on September 14, 2012.

3

On November 15 2012, Plaintiffs Saunders, Thames, and Richardson each filed a
complaint in this case. On November 20, 2012, Thames filed a first amended complaint. Each
operative complaint contains eleven counts and names the City of Chicago and various
individuals (both known and unknown) as Defendants, including police officers and Assistant
State’s Attorneys.
Relevant here, in Count I of their operative complaints, Plaintiffs allege that Defendants
violated the Fifth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 by coercing
confessions from Plaintiffs and then using Plaintiffs’ self-incriminating statements against them
in their respective criminal cases. On November 13, 2013, the Court granted in part and denied
in part Defendants’ motions to dismiss Plaintiffs’ operative complaints, dismissing Count I as
time-barred. Now before the Court are Plaintiffs’ motions to reconsider the dismissal of Count I
in light of subsequently-issued Seventh Circuit opinions regarding the accrual of Fifth
Amendment self-incrimination claims.
Also relevant here, Plaintiffs seek to hold the City of Chicago liable under 42 U.S.C.
§ 1983 pursuant to Monell v. New York Department of Social Services, 436 U.S. 658 (1978), for
the City’s alleged pattern and practice of using unconstitutional means to obtain confessions
from suspects and arrestees, the City’s alleged policy and practice of fabricating statements, the
City’s alleged practice of not recording interrogations, and the City’s alleged failure to
adequately train, supervise, and discipline officers who engaged in the alleged constitutional
violations. These so-called Monell claims survived Defendants’ motions to dismiss. Now before
the Court are Defendants’ motions to bifurcate Plaintiffs’ Monell claims against the City of
Chicago, where Defendants seek to stay discovery and trial on those claims pending resolution of
Plaintiffs’ § 1983 claims against the individual Defendants.

4

II.

Legal Standard
Because the Court’s November 13, 2013 order did not dispose of this case in its entirety,

Plaintiffs’ motion to reconsider is governed by Federal Rule of Civil Procedure 54(b):
[A]ny 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
entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
Fed. R. Civ. P. 54(b). Under this rule, a district court has inherent authority to reconsider its own
orders entered prior to final judgment. See Moses H. Cone Mem. Hosp. v. Mercury Const. Corp.,
460 U.S. 1, 12 (1983) (“[E]very order short of a final decree is subject to reopening at the
discretion of the district judge.”); Diaz v. Indian Head, Inc., 686 F.2d 558, 562–63 (7th Cir.
1982) (interlocutory orders may be “reconsidered and reviewed at any time prior to final
judgment” (citation and internal quotation marks omitted)); Mintz v. Caterpillar Inc., 788 F.3d
673, 679 (7th Cir. 2015) (noting that a district judge has “discretion to reconsider ‘an
interlocutory judgment or order at any time prior to final judgment.’” (quotation omitted)).
“Motions 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, 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
5

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.’”). With respect to the second prong, a motion to reconsider is appropriate if there has
been “a change in, or clarification of, law that makes clear that the earlier ruling was erroneous.”
Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th Cir. 2006) (citations omitted).
III.

Analysis
A.

Motion to Reconsider

In Count I of Plaintiffs’ complaints, they argue that Defendants, acting under color of
law, forced Plaintiffs to falsely incriminate themselves against their will in violation of the Fifth
and Fourteenth Amendments. Plaintiffs further allege that Defendants used the coerced
statements against Plaintiffs to their detriment in their respective criminal cases, and that these
statements were the only reason that Plaintiffs were prosecuted and convicted of the murder of
Ms. Glover. See 12-cv-9158 [1, ¶¶ 84, 114–19]; 12-cv-9170 [5, ¶¶ 2, 72–77]; 12-cv-9184
[1, ¶¶ 3, 105–110].
The Court previously held that Plaintiffs’ self-incrimination claims were time-barred
because the claims accrued before Plaintiffs’ convictions and thus were not tolled during the
pendency of their convictions.2 See Saunders v. City of Chicago, 2013 WL 6009933, at *7 (N.D.
Ill. Nov. 13, 2013). In reaching that conclusion, the Court determined that Plaintiffs’ Fifth
Amendment self-incrimination violations occurred “the first time that their confessions were
2

There is no dispute that Plaintiffs’ claims would be timely if their claims were tolled during the
pendency of their convictions. Section 1983 does not have an express statute of limitations, and so federal
courts apply the forum state’s statute of limitations for personal injury claims. See Ashafa v. City of
Chicago, 146 F.3d 459, 461 (7th Cir. 1988). In Illinois, the statute of limitations for personal injury
claims is two years. Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008). The Circuit Court of Cook
County vacated Plaintiffs’ convictions on November 16, 2011, and Plaintiffs filed their complaints in the
present action on November 20, 2012—just over one year later.

6

introduced in a courtroom proceeding,” id. at *4, and that Plaintiffs’ Fifth Amendment selfincrimination claims “accrued when the confessions first were used against them in a courtroom
proceeding and not, as Plaintiffs’ urge[d], when their convictions were set aside.” Id. at *6. The
Court noted that “courts in this district have not taken a uniform approach to the accrual of Fifth
Amendment claims alleging violations of the right against self-incrimination,” but the Court
relied on a then-recently-released (non-precedential) opinion from the Seventh Circuit, Franklin
v. Burr, 535 F. App’x 532 (7th Cir. 2013), in reaching its decision. Since that time, the Seventh
Circuit has issued three binding opinions that have clarified the law regarding the accrual of Fifth
Amendment self-incrimination claims. See Hill v. Murphy, 785 F.3d 242 (7th Cir. 2015); Moore
v. Burge, 771 F.3d 444 (7th Cir. 2014); Matz v. Klotka, 769 F.3d 517 (7th Cir. 2014). In light of
these decisions, the Court now vacates its prior dismissal of Count I of Plaintiffs’ complaints as
time-barred, and reinstates Count I in its entirety in each of Plaintiffs’ operative complaints.
Starting from the beginning, Heck v. Humphrey, 512 U.S. 477 (1994), held that “when a
state prisoner seeks damages in a § 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence; it if would, the complaint must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 486–87. In addition
to spawning a sea of case law regarding when claims “necessarily imply” the invalidity of
convictions, Heck also affected the calculation of statutes of limitations for § 1983 claims
because, generally speaking, the statute of limitations is tolled for claims while they are barred.
Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014) (“Heck holds that a claim that implies the
invalidity of a criminal conviction does not accrue, and the statute of limitations does not begin
to run, until the conviction is set aside by the judiciary or the defendant receives a pardon.”). But

7

a wrinkle surfaced regarding accrual: do constitutional injuries that occur before any conviction
or sentence accrue at the time of the injury, or are those claims subject to deferred accrual under
Heck if they ultimately impugn a future conviction or sentence?
The Supreme Court addressed this issue—at least in the Fourth Amendment context3—in
Wallace v. Kato, 549 U.S. 384 (2007). Wallace involved a Fourth Amendment wrongful arrest
claim, where the plaintiff alleged that he was wrongfully arrested and detained pursuant to a
police investigation of a murder. Wallace, 549 U.S. at 388. The question was whether that claim
accrued at the time of arrest, or whether the claim was subject to deferred accrual under Heck.
The Supreme Court noted that, in general, “the accrual date of a § 1983 cause of action is a
question of federal law that is not resolved by reference to state law,” and the standard rule is
that accrual occurs when the plaintiff has a complete and present cause of action. Id. In the
Fourth Amendment wrongful-arrest/false-imprisonment context at issue in Wallace, the
plaintiff’s claim accrued at the time of the arrest, but, due to a nuance in false-imprisonment law,
the statute of limitations didn’t begin to run until the false imprisonment ended (i.e., when legal
process was initiated). Id. at 390. Regardless, the Supreme Court held that Heck’s deferredaccrual rule did not apply because the violation accrued before any conviction or sentencing. Id.
at 393; see also Evans v. Poskon, 603 F.3d 362, 363 (7th Cir. 2010) (“Wallace holds that a claim
that accrues before a criminal conviction may and usually must be filed without regard to the
conviction’s validity.”).
To clarify its holding, the Supreme Court contemplated an instance where a plaintiff
suffers a constitutional injury, the plaintiff files a timely § 1983 lawsuit, and then while the
plaintiff’s § 1983 suit is pending, he or she is charged in a criminal proceeding where the
3

See Wallace v. Kato, 126 S. Ct. 2891, 2891 (2006) (limiting the grant of certiorari to the Fourth
Amendment); see also Evans, 603 F.3d at 364–65 (Wallace only applies to Fourth Amendment claims).

8

pending § 1983 claim relates to a ruling that will likely be made in the forthcoming criminal trial.
In that instance, the court should stay the civil suit, and if the plaintiff is ultimately convicted and
if success on the § 1983 claim would impugn that conviction, “Heck will require dismissal” of
the § 1983 suit (without prejudice pending any future invalidation of the conviction); “otherwise,
the civil action will proceed, absent some other bar to suit.” Id. at 393–94. But the Court also
contemplated a related instance where a plaintiff suffers a constitutional injury, the plaintiff does
not file a § 1983 suit prior to conviction, and the plaintiff’s subsequently-filed § 1983 claim
necessarily implies the invalidity of the conviction. The Supreme Court held that although the
claim would be Heck barred (i.e., Heck would require dismissal), the plaintiff’s claim would not
be tolled under Heck while the Heck bar was in place.4 Id. at 394–97.
With this understanding of Heck and Wallace, the next question is whether a § 1983
claim alleging a Fifth Amendment self-incrimination violation is eligible for deferred accrual
under Heck. Regarding statements compelled by police interrogations, the Supreme Court has
said that “it is not until their use in a criminal case that a violation of the Self-Incrimination
Clause occurs.” Chavez v. Martinez, 538 U.S. 760, 767 (2003); Sornberger v. City of Knoxville,
Ill., 434 F.3d 1006, 1026–27 (7th Cir. 2006) (“[W]here, as here, a suspect’s criminal prosecution
was not only initiated, but was commenced because of her allegedly un-warned confession, the
‘criminal case’ contemplated by the Self-Incrimination Clause has begun.”). Applying the
4

See also Wallace, 549 U.S. at 393 (“What petitioner seeks, in other words, is the adoption of a principle
that goes well beyond Heck: that an action which would impugn an anticipated future conviction cannot
be brought until that conviction occurs and is set aside. The impracticality of such a rule should be
obvious. In an action for false arrest it would require the plaintiff (and if he brings suit promptly, the
court) to speculate about whether a prosecution will be brought, whether it will result in a conviction, and
whether the pending civil action will impugn that verdict—all this at a time when it can hardly be known
what evidence the prosecution has in its possession. And what if the plaintiff (or the court) guesses
wrong, and the anticipated future conviction never occurs, because of acquittal or dismissal? Does that
event (instead of the Heck-required setting aside of the extant conviction) trigger accrual of the cause of
action? Or what if prosecution never occurs—what will the trigger be then? We are not disposed to
embrace this bizarre extension of Heck.”).

9

general rule that accrual of § 1983 claims occurs when the plaintiff has a complete and present
cause of action, Fifth Amendment claims alleging self-incrimination violations accrue within the
criminal proceeding itself. Under a strict reading of Wallace, though, because a violation within
a criminal proceeding necessarily occurs before a conviction, it would not be eligible for Heck’s
delayed accrual rule. That being said, Wallace applies only to Fourth Amendment § 1983 claims,
which usually relate to police conduct that occurs before a criminal proceeding is initiated. See
Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir. 2004) (“[W]e have held that the scope of a
Fourth Amendment claim is limited up until the point of arraignment.”). The Supreme Court has
not applied Wallace to Fifth Amendment § 1983 claims, which can be predicated on state action
occurring all the way up to the point of conviction (i.e., during the criminal proceeding or at
sentencing). See Sornberger, 434 F.3d at 1026 (“[T]he Fifth Amendment is, at bottom, a trial
protection.”). As such, applying Wallace equally to § 1983 claims brought under the Fourth and
Fifth Amendments would result in the exclusion of all pre-conviction § 1983 claims from
deferred-accrual eligibility, essentially erasing Heck tolling. This is an unreasonable result.
Since the Court’s initial ruling in this case, the Seventh Circuit has addressed this issue,
explaining that the relevant inquiry for determining Heck-tolling eligibility is whether the alleged
constitutional violation occurred “in court” or “out of court,” thus clarifying the “preconviction/post-conviction” delineation discussed in Wallace. See Moore v. Burge, 771 F.3d
444, 446 (7th Cir. 2014). The Seventh Circuit’s analysis in Moore is particularly instructive:
The [district] judge * * * held that four plaintiffs’ claims * * * are blocked by
Heck v. Humphrey, 512 U.S. 477 (1994), because they remain in prison. The
judge did not recognize that, if Heck governs, then these plaintiffs’ claims are too
early, not too late—for Heck holds that a claim that implies the invalidity of a
criminal conviction does not accrue, and the statute of limitations does not begin
to run, until the conviction is set aside by the judiciary or the defendant receives a
pardon. But we think the district judge wrong about Heck, because he did not take
account of the rule that claims based on out-of-court events, such as gathering of

10

evidence, accrue as soon as the constitutional violation occurs. That’s because
misconduct by the police does not (at least, need not) imply the invalidity of any
particular conviction. See not only Wallace but also, e.g., Rollins v. Willet, 770
F.3d 575 (7th Cir. 2014); Booker v. Ward, 94 F.3d 1052 (7th Cir. 1996). These
decisions deal with the Fourth Amendment’s rule against unreasonable searches
and seizures; their holdings are equally applicable to contentions that police
tortured suspects during interrogation, because that misconduct is actionable
whether or not a suspect confesses, and whether or not any statement is used in
evidence at trial.
To the extent that [plaintiffs] may be arguing that police violated their rights by
giving false testimony, or that during trial prosecutors withheld material
exculpatory evidence about misconduct during their interrogations, Heck indeed
bars relief until a conviction is set aside. The district court must modify its
judgment so that any claims based on proceedings in court are dismissed without
prejudice under Heck. * * * Those claims are unaffected by Heck and are outside
the scope of anyone’s absolute immunity.
Moore, 771 F.3d at 446 (emphasis added). Because Fifth Amendment self-incrimination claims
occur “in court” by definition, see Chavez, 538 U.S. at 767; Sornberger, 434 F.3d at 1026–27,
they are eligible for deferred accrual under Heck.5
To be clear, the in-court/out-of-court distinction impacts the applicability of Heck tolling,
not necessarily Heck barring; a § 1983 claim can necessarily imply the invalidity of a conviction
or a sentence but nonetheless be ineligible for Heck’s deferred-accrual rule. For example,
consider that a coerced confession used to incriminate a suspect can form the basis of both a
Fourth Amendment coerced-confession claim and a Fifth Amendment self-incrimination claim.
The former would be based on out-of-court police action (e.g., unconstitutionally obtaining the
statement), and the latter would be based on in-court police action (e.g., the use of the statement
for self-incrimination purposes). Whether the confession necessarily implies the invalidity of the

5

The Moore court also noted that “[a]bsolute immunity for prosecutors and witnesses * * * would make it
hard for these plaintiffs to recover damages based on the conduct of the trials even if their convictions
should be vacated some day. That may be why all five plaintiffs stress the injuries they say they suffered
at the hands of the police before judicial proceedings began.” Moore, 771 F.3d at 446. Here, too, several
Defendants have raised absolute immunity as an affirmative defense in their answers to Plaintiffs’
complaints.

11

conviction—that is, whether the claim is Heck barred—will be the same for both claims. See Hill
v. Murphy, 785 F.3d 242, 245 (7th Cir. 2015) (noting that a Fifth Amendment due process claim
that was Heck barred also would have been Heck barred—i.e., impugned the validity of the
conviction—if framed as a Fourth Amendment excessive-force claim). But only the latter
claim—the “in court” claim—would be subject to deferred accrual under Heck. The Fourth
Amendment claim accrues regardless of whether any subsequent criminal proceeding is initiated,
and thus, under Wallace, cannot benefit from Heck tolling.
Here, Plaintiffs’ Fifth Amendment self-incrimination claims are based on Defendants’
use of Plaintiffs’ incriminating statements in their respective criminal convictions and
sentencings. See 12-cv-9158 [1, ¶¶ 84, 117]; 12-cv-9170 [5, ¶¶ 2, 75]; 12-cv-9184 [1, ¶¶ 3, 108].
Because Plaintiffs’ claims are based on “in court” violations under Moore, Wallace does not
apply, and Plaintiffs’ self-incrimination claims are eligible for deferred accrual under Heck. See
Taylor v. City of Chicago, 80 F. Supp. 3d 817, 824–25 (N.D. Ill. 2015) (summarizing the recent
Seventh Circuit case law and concluding that Fifth Amendment self-incrimination claims are
eligible for Heck tolling).
But the inquiry does not end there. Just because a Fifth Amendment self-incrimination
claim is Heck eligible does not mean that the claim necessarily implies the invalidity of the
conviction. For example, in Hill v. Murphy, 785 F.3d 242, 250 (7th Cir. 2015), the Seventh
Circuit recently held that only one of three of the plaintiff’s Fifth Amendment involuntarystatement claims was Heck barred. More specifically, the plaintiff in Hill raised three Fourth
Amendment claims (illegal entry, unlawful detention, unlawful seizure of a gun) and a three-part
Fifth Amendment claim (framed as a due process claim) concerning three allegedly-involuntary
statements that he made to police during a pre-arrest interrogation. The court quickly dispensed

12

with the Fourth Amendment claims, stating that these claims were not Heck barred, and noting
that “such claims rarely are.” Hill, 785 F.3d at 245. The court then shifted to the three-part Fifth
Amendment claim, noting that only one of the three statements was Heck barred because only
one of the three statements necessarily implied the invalidity of the conviction. Id. (“One of
[plaintiff’s] due process claims, in contrast [to the other two], challenges his false-statement
conviction head on.”); see also Matz v. Klotka, 769 F.3d 517, 530–31 (7th Cir. 2014) (plaintiff’s
Fifth Amendment self-incrimination claim was Heck barred because the plaintiff’s allegedly
invalid confession “figured prominently” in the court’s sentencing determination, and so
“success on his claim would call into question his sentence”). Both Hill v. Murphy and Matz v.
Klotka post-date the Court’s initial ruling on Defendants’ motion to dismiss, and both opinions
show that Heck can apply to Fifth Amendment self-incrimination claims.
To determine whether a § 1983 claim necessarily implies the invalidity of a conviction or
sentence, a court “must consider the factual basis of the claim,” including the factual allegations
in the complaint. Helman v. Duhaime, 742 F.3d 760, 762 (7th Cir. 2014) (“To the extent that
factual allegations do not [imply the invalidity of the conviction or sentence], [the plaintiff] may
proceed under § 1983.”). At the motion to dismiss stage, courts make this determination by
looking to allegations in the complaint, supplemented by information in the public record—such
as sentencing transcripts—if available. See, e.g., Walden v. City of Chicago, 755 F. Supp. 2d
942, 956 (N.D. Ill. 2010) (affirming at the summary judgment stage what the court concluded at
the motion to dismiss stage: that the plaintiff’s Fifth Amendment coerced-confession claim was
subject to deferred accrual under Heck (citing Walden v. City of Chicago, 391 F. Supp. 2d 660,
675 (N.D. Ill. 2005) (“Since Plaintiff’s well-pleaded complaint contains allegations sufficient to
conclude that his conviction was based primarily on his coerced confession * * *, for purposes of

13

the motion to dismiss at least, the Court holds that Plaintiff could not have challenged his alleged
torture, physical abuse, or coercive interrogation without impugning his conviction. Therefore,
under Heck, Plaintiff’s Section 1983 claims for coercive interrogation and torture did not accrue
until his conviction was wiped away with the innocence pardon in 2003.”))).
Here, Plaintiffs allege in their respective pleadings that Defendants’ use of their
incriminating statements was “the only reason that Plaintiff[s were] prosecuted and convicted of
the murder of Ms. Glover.” See 12-cv-9158 (Saunders) [1, ¶ 117; id. ¶ 84 (“The State’s Attorney
prosecuting the case acknowledged that its entire case against [Saunders] rested on the
confession. During pretrial proceedings, the ASA told the court ‘we cannot proceed without this
confession’ and that, if the confession were suppressed, the state would have ‘to file a certificate
of impairment’ because it could not go forward.”)]; 12-cv-9184 (Richardson) [1, ¶ 108
(Richardson); id. ¶ 3 (“The sum total of the evidence against [Richardson] was his false
confession * * *.”)]; 12-cv-9170 (Thames) [5, ¶ 75 (“Thames was prosecuted and convicted for
Ms. Glover’s rape and murder based solely on these false statements.”); id. ¶ 2 (“The sum total
of the evidence against Thames * * * was his and his co-defendants’ false confessions.”)].6 In
addition to their pleadings, Plaintiffs argue (in briefing the motion to dismiss and the motion to
reconsider) that Defendants relied entirely on the false confessions in the underlying criminal
proceedings. Defendants have not offered any evidence in response to these allegations.
Plaintiffs have adequately pled that their incriminating statements played a significantenough role in their respective criminal proceedings such that the invalidity of those confessions
necessarily implies the invalidity of Plaintiffs’ convictions. See Taylor v. City of Chicago, 80 F.

6

It is of no consequence here that Plaintiff Thames pled guilty whereas Plaintiffs Saunders and
Richardson were tried and convicted. Plaintiff Thames is still eligible for deferred accrual under Heck
because he alleged that his invalid confession “figured prominently” in the court’s sentencing
determination. Matz, 769 F.3d at 530–31.

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Supp. 3d 817, 826 (N.D. Ill. 2015) (plaintiff’s allegations in his complaint “that the Defendant
Officers coerced him into making self-incriminating statements and these statements were later
used during the criminal proceeding to convict him,” such that “his conviction rested largely on
the unconstitutional use of these coerced statements at trial” were sufficient to justify application
of Heck’s deferred accrual rule so as to defeat a motion to dismiss the claim as untimely);
Phillips v. City of Chicago, 2015 WL 5675529, at *3–4 (N.D. Ill. Sept. 24, 2015) (adopting
Taylor’s rationale in holding that coerced-confession claims were subject to deferred accrual
under Heck because the plaintiffs “adequately pleaded the significance of their confessions at
trial”); Rivera v. Lake County, 974 F. Supp. 2d 1179, 1188 (N.D. Ill. 2013) (“Wallace’s accrual
rule does not trump the Heck bar in the coercive interrogation context where ‘the plaintiff’s
conviction rested largely upon the allegedly coerced [confession].’” (quoting Tillman v. Burge,
813 F. Supp. 2d 946, 970–71 (N.D. Ill. 2011))).
For these reasons, the Court now vacates its dismissal of Count I of Plaintiffs’ complaints
as time-barred and reinstates Count I in its entirety in each of Plaintiffs’ complaints. Defendants
are free to re-raise this argument at the summary judgment stage should evidence surface
indicating that Plaintiffs’ incriminating statements did not figure prominently in their respective
convictions and sentences, such that the invalidity of those confessions does not call Plaintiffs’
convictions and sentences into question. See, e.g., Walden, 755 F. Supp. 2d at 956.
B.

Motion to Bifurcate and Stay Discovery on Plaintiffs’ Monell Claims

Plaintiffs seek to hold the City of Chicago liable under 42 U.S.C. § 1983 pursuant to
Monell v. New York Department of Social Services, 436 U.S. 658 (1978), for (1) the City’s
alleged pattern and practice of using unconstitutional means to obtain confessions from suspects
and arrestees, (2) the City’s alleged policy and practice of fabricating statements, (3) the City’s

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alleged practice of not recording interrogations, and (4) the City’s alleged failure to adequately
train, supervise, and discipline officers who engaged in the alleged constitutional violations. The
City now seeks to bifurcate Plaintiffs’ Monell claims against it (see 12-cv-9158 [207]; 12-cv9170 [149]; 12-cv-9184 [137]), and to stay discovery and trial on those claims pending
resolution of Plaintiffs’ § 1983 claims against the individual defendants.
In support of its motion, the City says that Plaintiffs have already served it with broad
and wide-ranging Monell-related discovery requests (which it has yet to answer), claiming that
“these requests are likely only the beginning of such expansive Monell related discovery,” [207,
at 3]. The City argues that bifurcation will increase judicial economy by potentially avoiding this
burdensome discovery. The City also argues that bifurcation will limit the potential for prejudice
against the individual Defendants at trial. Plaintiffs respond by arguing that bifurcation will
decrease judicial economy, claiming that the discovery on their individual claims largely
overlaps with their Monell discovery, that their Monell discovery is nearly complete, and that
bifurcation will expand the scope of this case from three to six civil trials. Plaintiffs also argue
that they will be prejudiced by the delay in adjudicating these important claims.
Federal Rule of Civil Procedure 42(b) authorizes federal courts to order a separate trial of
one or more separate issues or claims if separation (or bifurcation) is warranted “[f]or
convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b).
Bifurcation may be appropriate if “the separation would prevent prejudice to a party or promote
judicial economy.” Chlopek v. Fed. Ins. Co., 499 F.3d 692, 700 (7th Cir. 2007) (citation
omitted). “If one of these criteria is met, the district court may order bifurcation as long as doing
so will not prejudice the non-moving party or violate the Seventh Amendment.” Id. The Court
enjoys “considerable discretion” over its decision. Treece v. Hochstetler, 213 F.3d 360, 364–65

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(7th Cir. 2000) (internal quotations omitted). Federal Rule of Civil Procedure 26(d) also permits
a court to stay discovery on Monell claims. Fed. R. Civ. P. 26(d); see also Carr v. City of N.
Chicago, 908 F. Supp. 2d 926, 927 (N.D. Ill. 2012).
The plethora of bifurcation motions and the inclination of many judges to grant them
stems in large part from the recognition that, often, “claims of municipal liability require an
extensive amount of work on the part of plaintiff’s attorneys and experts, and an extraordinary
amount of money must be spent in order to prepare and prove them.” Moore v. City of Chicago,
2007 WL 3037121, at *9 (N.D. Ill. Oct. 15, 2007). But this argument is not always applicable,
and so courts must evaluate each motion on its own merits; this Court in particular has both
granted and denied motions to bifurcate filed by municipal defendants. Compare Terry v. Cook
Cnty. Dep’t of Corr., 2010 WL 2720754 (N.D. Ill. July 8, 2010) (denying motion to bifurcate),
with Cruz v. City of Chicago, 2008 WL 5244616 (N.D. Ill. Dec. 16, 2008) (granting motion to
bifurcate).
Regarding this motion, the parties’ first disagreement relates to the volume of potentiallyavoidable Monell discovery. The City says that Plaintiffs Monell requests thus far are vast and
burdensome, and only represent a sample of what’s likely to come. The City points to discovery
requests that Plaintiffs issued in May and June of 2015 (which the City has not yet answered) as
proof of the burden of Plaintiffs’ requests, arguing that these requests represent only Plaintiffs’
first attempt to collect Monell-related discovery. Plaintiffs disagree, claiming that their Monellrelated requests overlap considerably with their non-Monell-related requests and are nearly
complete. Plaintiffs also argue that they have been requesting Monell-related discovery all along,
and that their May and June 2015 requests cover both individual and Monell-related requests,
many of which overlap. Plaintiffs further contend that, should bifurcation occur, any attempt to

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separate individual-Defendant discovery requests from Monell-related discovery requests will be
hotly disputed.
Upon closer inspection, Plaintiffs’ arguments are unavailing. The Court is not convinced
that Plaintiffs were pursuing Monell-related discovery before May and June of 2015, at least not
to a measurable degree. While Plaintiffs provided some examples of pre-May requests that could
be interpreted as Monell-related, those examples pale in comparison to the heavily-Monellrelated requests that Plaintiffs made in May and June 2015. [See, e.g., 207-4, at 1 (“Please
identify every policy, procedure, practice of or step taken by the City of Chicago between 1982
and 1997 to train or instruct Chicago Police Department Detectives regarding the custodial
interrogation of suspects or witnesses.”).] The Court is also unconvinced that the parties—or, if
necessary, Magistrate Judge Finnegan—would have much difficulty delineating individualDefendant-related requests from Monell-related requests. The Court also questions Plaintiffs’
representation that they are nearly complete with their Monell discovery. Perhaps Plaintiffs are
nearly complete in issuing Monell-related requests, but their collection of that discovery is not
far along (based in part on the City’s representations that it has not yet responded in detail to the
May and June 2015 requests, plus the fact that expert discovery has yet to begin). In short, the
potentially-avoidable amount of discovery here—pertaining to four separate Monell
allegations—is vast and would place a considerable burden on the City.
Second, the parties dispute whether bifurcation would avoid, as opposed to delay, the
Monell discovery. Of course, should bifurcation occur and should Plaintiffs succeed in phase one
on their individual claims, they would be entitled to proceed with their phase two Monell claims,
meaning that the Monell discovery would still occur at some point in the future (barring a
settlement of some kind). But the parties disagree as to the fate of the Monell claims should

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Plaintiffs fail on their phase one claims. The Seventh Circuit has acknowledged that “a city’s
liability is derivative of its police officer’s liability,” such that “a municipality’s liability for a
constitutional injury ‘requires a finding that the individual officers are liable on the underlying
substantive claim.’” Treece v. Hochstetler, 213 F.3d 360, 364 (7th Cir. 2000) (citations omitted).
On the other hand, the Seventh Circuit has suggested that “a municipality can be held liable
under Monell, even when its officers are not, unless such a finding would create an inconsistent
verdict.” Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir. 2010). Presumably
such a situation could arise in this case should Plaintiffs be unable to recover from the Defendant
Officers because of their qualified immunity, but Plaintiffs could still recover from the
municipality, which lacks such a protection.
The Court is not persuaded in either direction on this issue. Plaintiffs try to devise
hypothetical scenarios in which their Monell claims might fall within the so-called Thomas
“liability gap,” warning that in those instances they might be unjustly precluded from litigating
their Monell claims based on their failure to prove liability on their individual claims. But
Plaintiffs’ concern is premature. Other than the qualified immunity scenario mentioned above,
the Court is unable to determine whether Plaintiffs’ hypothetical theories are plausible in light of
the allegations in Plaintiffs’ complaints, or whether these hypothetical scenarios would create a
potential inconsistency with some hypothetical verdict in this case. Faced with four separate
Monell claims, it is too early for the Court or the parties to presage whether any legitimate
“liability gaps” might exist here; any such determination would need to be made at the
conclusion of the trial on individual liability. While this issue may arise again in this litigation, it
does not influence the Court’s calculus regarding the propriety of bifurcation.

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Third, the City tries to sweeten the pot by offering a Limited Consent to Entry of
Judgment (12-cv-9158 [207-8]; 12-cv-9170 [149-8]; 12-cv-9184 [137-8]), stating that if the case
is bifurcated, and if Plaintiffs were to succeed in establishing that any of the individual police
Defendants is liable for violating a Plaintiff’s constitutional rights as alleged in the complaint,
the City will agree to entry of judgment against it requiring it to indemnify the individual police
Defendant(s) for compensatory damages and reasonable attorneys’ fees, even if the individual is
found to have violated a Plaintiff’s constitutional rights but is not liable because he or she is
entitled to qualified immunity. Plaintiffs are not moved by the City’s (increasingly common)
gesture, arguing that the Limited Consent does not offer all of the relief they seek and instead
offers economic assurances that the City is required to pay anyway.
Regarding the City’s indemnification requirements, Illinois state law requires local
governments “to pay any tort judgment or settlement for compensatory damages” for which their
employees are liable while acting in the scope of their employment. 745 ILL. COMP. STAT. 10/9102. But Illinois law permits, rather than requires, indemnification for “associated attorneys’
fees and costs,” meaning that the Limited Consent does go beyond what is required of the City
under state law. But ultimately the City’s Limited Consent does not factor into the Court’s
analysis here. Even if the City consents to pay certain monetary liabilities, that does not end the
case and controversy as it relates to the City. See, e.g., Chapman v. First Index, Inc., 796 F.3d
783, 787 (7th Cir. 2015) (holding that a defendant’s offer of full compensation does not moot the
litigation or otherwise end the Article III case or controversy). While a Limited Consent such as
this might persuade certain plaintiffs to agree to bifurcate or to drop their Monell claims
altogether (thus promoting judicial efficiency), Plaintiffs here have claimed allegiance to their
efforts to hold the City accountable “for the systemic practices that cause constitutional harms to

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its citizens,” regardless of the City’s indemnification promises. [220, at 22]; see also Owen v.
City of Independence, Mo., 445 U.S. 622, 651 (1980) (“[Section] 1983 was intended not only to
provide compensation to the victims of past abuses, but to serve as a deterrent against future
constitutional deprivations, as well.”). Because the City’s Limited Consent presently does not
impact the likelihood of phase two litigation in this case, it does not impact the Court’s decision
regarding bifurcation.
Fourth, Plaintiffs object to the timing of the City’s motion, arguing that the end of fact
discovery is near, and that any attempt to bifurcate the Monell claims should have been made
long ago. Plaintiffs tie this into an efficiency argument, claiming that bifurcation at this stage
will actually prolong the case and not promote judicial economy. The Court disagrees. While it is
prudent to rule on bifurcation at the outset of discovery, the Court sees no great prejudice in
bifurcating the case now. As the Court already noted, Plaintiffs’ May and June 2015 discovery
requests—which the City apparently has not responded to—represent the bulk of their extant
Monell-related requests. These requests can easily be set aside. In addition, the parties have not
yet begun expert discovery and so, moving forward, the parties can focus their discovery efforts
on Plaintiffs’ individual claims. Thus, the timing of this bifurcation is not problematic from a
“judicial economy” standpoint.
Fifth, both parties argue that an adverse decision on this motion will result in undue
prejudice to them. Plaintiffs argue that bifurcation will prejudice them because they are unhappy
with the terms of the Limited Consent. But the Limited Consent is only a unilateral
representation by the City and does not preclude Plaintiffs from pursuing remedies not offered in
the consent. Plaintiffs also argue that bifurcation seeks to avoid the non-economic benefits of
Plaintiffs’ Monell claims, but bifurcation only delays Plaintiffs’ realization of those benefits, it

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does not avoid them. Plaintiffs correctly argue that bifurcation would create a delay in the
adjudication of their Monell claims, but delay is always a concern with bifurcation, and the Court
will consider the impact of the delay in making its decision. Finally, Plaintiffs argue that they
have already conducted considerable Monell discovery, and bifurcation would render those
efforts for naught. But the Court has already stated that the bulk of the Monell discovery appears
yet to come; to the extent that Plaintiffs have conducted Monell discovery already, they will have
a head start should the case proceed to the Monell phase.
The City argues that it will suffer prejudice if the case is not bifurcated because it will
endure an undue burden in responding to potentially unnecessary discovery. The likelihood that
bifurcation might avoid costly discovery is a common consideration in motions to bifurcate
Monell claims, and the Court will consider the parties’ arguments regarding judicial economy in
making its final decision. The City also argues that the individual Defendants will suffer from the
presentation of the vast Monell discovery at trial, in which Plaintiffs will present four separate
arguments regarding systemic, unconstitutional practices within the individual Defendants’
municipality. While the Court does have some ability to monitor and control prejudice through
limiting instructions and rulings on motions in limine, the Court does recognize the potential
prejudice to the individual Defendants, and will consider this factor in its analysis.
Taking all of these factors into consideration, the Court grants the City’s motion to
bifurcate Plaintiffs’ § 1983 Monell claims against the City, and stays both discovery and trial on
those claims. The Court’s decision is based on the potential benefits to efficiency and judicial
economy, the potential prejudice to the individual Defendants should these claims be tried
together, and the lack of any substantial prejudice to Plaintiffs in delaying the adjudication of
their Monell claims. Ordinarily the Court would enter the City’s Limited Consent on the docket

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in conjunction with its bifurcation order, but the Court notes that the City proposed an
amendment to its Limited Consent in its reply brief, see, e.g., 12-cv-9158 [233, at 6], and
Plaintiffs have not responded to that offer. The parties are ordered to meet and confer regarding
the Limited Consent, and within 21 days of the date of this order, the parties are to file a joint
status informing the Court as to which, if any, Limited Consent they would like the Court to
enter in this case. The parties should send a copy of any agreed-upon Limited Consent to the
Court’s Proposed Order Box.
IV.

Conclusion
For the reasons set forth above, the Court orders as follows:
In Saunders v. City of Chicago, et al. (No. 12-cv-9158), Plaintiff’s motion for

reconsideration [185] is granted and Count I of Plaintiff’s complaint [1] is reinstated in its
entirety. Defendant City of Chicago’s motion to bifurcate and stay discovery and trial [207] is
granted.
In Thames v. City of Chicago, et al. (No. 12-cv-9170), Plaintiff’s motion for
reconsideration [131] is granted and Count I of Plaintiff’s first amended complaint [5] is
reinstated in its entirety. Defendant City of Chicago’s motion to bifurcate and stay discovery and
trial [149] is granted. As a housekeeping matter, the Clerk is instructed to strike docket entry
[144] as an active motion on the Court’s docket.
In Richardson v. City of Chicago, et al. (No. 12-cv-9184), Plaintiff’s motion for
reconsideration [119] is granted and Count I of Plaintiff’s complaint [1] is reinstated in its
entirety. Defendant City of Chicago’s motion to bifurcate and stay discovery and trial [137] is
granted.

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For all cases, within 21 days of the date of this order, the parties are to file a joint status
informing the Court as to which, if any, Limited Consent they would like the Court to enter in
this case. The parties should send a copy of any agreed-upon Limited Consent to the Court’s
Proposed Order Box.

Dated: November 17, 2015

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

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