Kuri v. Szwedo et al

Filing 203

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 10/30/2017:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY KURI (a.k.a. Ramsey Qurash),
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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Case No. 13 C 1653

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On March 12, 2013, Plaintiff Anthony Kuri filed a First Amended Complaint alleging
violations of his constitutional rights, along with supplemental state law claims, against
Defendants City of Chicago and individual Chicago Police Officers.1 After the parties conducted
fact discovery and briefed the individual Defendant Officers’ motion for summary judgment, the
Executive Committee for the Northern District of Illinois reassigned this lawsuit to the Court on
October 16, 2017. Before the Court is Defendants’ motion for summary judgment brought
pursuant to Federal Rule of Civil Procedure 56(a).
For the following reasons, the Court grants in part and denies in part Defendants’ motion.
The Court grants Defendants’ motion in relation to Defendant Officers Thomas Kolman, Noe
Sanchez, and Carmen Lopez due to their lack of involvement in the alleged constitutional
violations and malicious prosecution. Otherwise, the Court denies the remainder of Defendants’
1

On November 24, 2014, the court granted Defendant City of Chicago’s unopposed motion to
bifurcate the Monell claims and stay Monell discovery. (R. 86.) Also, Plaintiff voluntarily
dismisses individual police officers Robert Cordaro, Tina Figueroa-Mitchell, Frank Szwedo, and
John Valkner. (R. 187, Pl.’s Resp. Brief, at 39.) The Court hereby dismisses these Defendants
from this lawsuit.

summary judgment motion. As such, the remaining individual Defendant Officers in this lawsuit
are Defendant Officers John Folino, Jr. and Timothy McDermott.
BACKGROUND
Plaintiff Anthony Kuri’s present lawsuit stems from his arrest and prosecution for a
shooting that occurred in July 2009 on the 4600 block of North Central Park Avenue in Chicago,
Illinois. More specifically, just before midnight on July 23, 2009, a group of friends in their
teens and twenties – some of whom were Latin Kings – were driving around in Tony
Fernandez’s mini-van. (R. 169, Defs.’ Rule 56.1 Stmt. Facts ¶ 4; R. 181, Pl.’s Rule 56.1 Stmt.
Facts ¶¶ 2, 3.)2 In the early hours of July 24, 2009, the driver of the mini-van, Guarav Patel,
drove the vehicle to the 4600 block of North Central Park Avenue to drop off passenger Zay
Russell at his home. (Defs.’ Stmt. Facts ¶ 5.) At that time, there were only three individuals left
in the mini-van, namely, Patel, Russell, and Fernandez. (Id. ¶¶ 5, 8; Pl.’s Stmt. Facts ¶ 25.) As
Russell began to exit the mini-van, someone started shooting at the vehicle hitting Patel in the
neck and Fernandez in the leg. (Defs.’ Stmt. Facts ¶ 6; Pl.’s Stmt. Facts ¶¶ 6, 7.) Fernandez then
took control of the mini-van and drove to Wilson Avenue, after which he and Russell got out and
summoned help. (Defs.’ Stmt. Facts ¶ 7, Pl.’s Stmt. Facts ¶¶ 7, 8.) An ambulance took Patel and
Fernandez to Illinois Masonic Hospital where Patel was pronounced dead. (Defs.’ Stmt. Facts ¶
8; Pl.’s Stmt. Facts ¶ 8.) Both Fernandez and Russell survived the shooting. (Defs.’ Stmt. Facts
¶ 8.)
Chicago police detectives processed the crime scene where they found a Huffy brand
bicycle. (Pl.’s Stmt. Facts ¶ 20.) The bicycle was processed for fingerprints and DNA testing,

2

The Court considered Defendants’ Northern District of Illinois Local Rule 56.1 arguments
within the context of each challenged fact.
2

which excluded Plaintiff as having contributed to the DNA on the bike. (Id. ¶¶ 20, 49.) It is
undisputed that no forensic evidence collected at the crime scene implicated Plaintiff in any
respect. (Id. ¶ 49.)
On either July 24 or 25, 2009, Defendant Detectives Timothy McDermott and John
Folino were assigned to investigate the shooting. (Id. ¶ 13.) Initially, they reviewed the
paperwork of the shooting, including General Progress Reports (“GPRs”) and other case reports.
(Id.) According to the July 24 GPR (and August 4 Supplementary Report), on the night of the
shooting, Russell told Defendants McDermott and Folino that he had been driving around in a
van with Fernandez, Patel, and two Latin Kings. (Pl.’s Stmt. Facts ¶ 14.) Russell further stated
that about a half an hour before the shooting, two Spanish Cobra gang members, nicknamed
Chino and Funk, tried to start a fight with the individuals in the mini-van. (Id.) The police
reports further indicate that after the shooting, Russell told the police officers that two unknown
male Hispanics riding bikes approached the mini-van and yelled “King Killer.” (Id. ¶ 15.) The
August 4, 2009 Supplemental Report about Russell’s initial interview stated that “Russell may be
able to recognize the offenders in the future,” but he “could not add any additional information at
this time.” (Id. ¶ 27.) There is also evidence in the record that Russell knew Plaintiff since they
were young and that Fernandez “knew of” Plaintiff prior to the shooting. (Id. ¶ 11.) Both
Russell and Fernandez saw the shooter on July 24, 2009 and initially told the police that they did
not know who the shooter was. (Id. ¶ 9.)
Meanwhile, Defendant Officers McDermott and Folino gathered information indicating
that Spanish Cobras were a problem in the area of the shooting, and, in an attempt to identify the
perpetrators, the detectives generated photo arrays to show witnesses. (Defs.’ Stmt. Facts ¶ 13.)
On August 1, 2009, Defendants McDermott and Folino went to the hospital to interview
3

Fernandez. (Defs.’ Stmt. Facts ¶ 14; Pl.’s Stmt. Facts ¶ 17.) At that time, Defendant Officers
brought photo arrays of Spanish Cobra gang members, after which Fernandez told the officers
that the offenders were not in the photo arrays. (Defs.’ Stmt. Facts ¶ 14; Pl.’s Stmt. Facts ¶ 17.)
According to police reports, Fernandez told the detectives that he would be able to identify the
two offenders and that he was willing to cooperate with the investigation. (Defs.’ Stmt. Facts. ¶
14; Pl.’s Stmt. Facts ¶¶ 17, 27, 29.)
On August 2, 2009, Defendants McDermott and Folino went to Russell’s home to reinterview him about the shooting. (Defs.’ Stmt. Facts ¶ 15.) Defendants maintain that Russell
told them “Little David” and “Rowdy” were the offenders. (Id.) Defendant Officers then
learned that “Little David” was David Gomez and “Rowdy” was Plaintiff Anthony Kuri. (Id. ¶
16.) According to Russell’s testimony at Plaintiff’s criminal trial, however, when Defendant
Detectives were interviewing him, the detectives told him they already knew who committed the
crime. (Pl.’s Stmt. Facts ¶¶ 34, 35.)3 Russell further testified that he picked out Gomez and Kuri
from photo arrays because the officers said “if I was to say that it was them then that they was
going to give Tony Fernandez money for being a victim of a crime. So they told me to really
just help Tony out.” (Id. ¶¶ 34, 35; R. 182-3, Russell Trial Tr., at 45; Defs.’ Stmt. Facts ¶ 48.)
Also at Plaintiff’s criminal trial, Russell testified that he did not make an identification of the
offenders from the photo arrays because the “police officer already told me who they were.”
(Russell Trial Tr., at 30.)
3

Despite Defendants’ argument to the contrary, Russell’s and Fernandez’s testimony at
Plaintiff’s criminal trial is not hearsay because if they are called to testify at trial in this lawsuit,
there earlier sworn statements would be admissible as prior statements by a witness. See
Fed.R.Evid. 801(d)(1)(B); Whitlock v. Brueggemann, 682 F.3d 567, 575 (7th Cir. 2012); see,
e.g., Hampton v. City of Chicago, No. 12-CV-5650, 2017 WL 2985743, at *15 (N.D. Ill. July 13,
2017). In fact, Defendants also cite Russell’s testimony, as well as other witness testimony from
the 2012 trial, in their Rule 56.1 Statement of Facts. (Def. Stmt. Facts ¶¶ 7-9, 12, 14, 15, 17, 34.)
4

Officers McDermott and Folino returned to the hospital to interview Fernandez on
August 2, 2009. (Defs.’ Stmt. Facts ¶ 17.) Defendants maintain that at that time Fernandez
picked Kuri from a photo array as being involved in the shooting. (Id.) At Kuri’s criminal trial,
however, Fernandez testified that he did not tell the police that Kuri was at the scene of the
shooting. (Pl.’s Stmt. Facts ¶ 40.) In addition, Fernandez testified at his deposition in this
lawsuit that the Defendant Officers showed him photographs of Kuri and Gomez and that these
photos were already circled. (Id.; R. 182-2, Fernandez Dep., at 120-21.)
According to a handwritten police report that was later entered into the CPD system on
August 3, 2009, Chicago police officers received information from an individual in custody
named Abdul Wachaa. (Defs.’ Stmt. ¶ 19.) The handwritten report indicated that Wachaa told
police Russell had called him after the shooting and told him that Kuri and Gomez were the
offenders involved in the shooting. (Id.; Pl.’s Stmt. Facts ¶ 32.) Wachaa’s “tip” was
memorialized as follows:
Offender [Wachaa] related 20 minutes before he arrived on scene he was on the
cell phone with Zay Russell who was yelling and scared and told offender,
Abdul, Abdul [Wachaa], Joe these niggas are trying to kill me, Lil David [Gomez]
and Rowdy [Kuri] are in front of my house. They killed Indian Dude [Patel], and
they shot TC [Fernandez] and dude in the neck three times, Rowdy was on the
bike and Lil David was on the pegs, and Lil David jumped off the pegs and
started shooting.” Offender [Wachaa] further related that he heard Zay Russell
yelling at Indian Dude drive off or I’m going to slap you.
(Pl.’s Stmt. Facts ¶ 32.) At his deposition in this lawsuit, Defendant Folino testified that when he
later interviewed Wachaa, he learned that the information Wachaa had provided was not
firsthand information, but information Wachaa had heard on the street. (Id. ¶ 51; 182-14, Folino
Dep., at 96; Defs.’ Stmt. Facts ¶ 24.) There was no indication in any police report that
Defendants corroborated Wachaa’s story. (Pl.’s Stmt. Facts ¶ 47; Defs.’ Stmt. Facts ¶ 24.)

5

After August 3, 2009, Defendants McDermott and Folino issued investigative alerts for
both Kuri and Gomez, and, on August 5, 2009, Chicago police arrested Kuri. (Defs.’ Stmt. Facts
¶ 21; Pl.’s Stmt. Facts ¶ 52.) Defendants McDermott and Folino then interviewed Kuri at which
time he denied knowledge or involvement in the shooting. (Defs.’ Stmt. Facts ¶ 21; Pl.’s Stmt.
Facts ¶ 52.) Also on August 5, 2009, Kuri voluntarily took a polygraph test. (Defs.’ Stmt. Facts
¶ 22; Pl.’s Stmt. Facts ¶ 53.) The police officer who administered the polygraph test stated at her
deposition that Kuri was not deceptive when answering certain questions, but that the test
indicated Kuri was deceptive when answering question number 5. (Defs.’ Stmt. Facts ¶ 22; Pl.’s
Stmt. Facts ¶ 53; R. 169-2, Figueroa-Mitchell Dep, at 47; R. 182-32, Figueroa-Mitchell Dep., at
100-01.) Question number 5 asked – “Did you ride a bike to that van that the Indian kid was
sitting in?” (Figueroa-Mitchell Dep, at 75.)
After Kuri completed the polygraph examination on August 5, 2009, the police officers
allowed him to go home. (Pl.’s Stmt. Facts ¶ 54.) On August 8, 2009, Russell went to the police
station and viewed a lineup, after which he gave a statement implicating Kuri and Gomez.
(Defs.’ Stmt. Facts ¶ 26.) On September 11, 2009, Kuri was charged with First Degree Murder
based on an accountability theory. (Pl.’s Stmt. Facts ¶ 55; Defs.’ Stmt. Facts ¶ 31.) On
September 25, 2009, Defendant Folino testified in front of the grand jury that eyewitnesses in
this case told the police that (1) Kuri was riding a bike and Gomez was riding on the back pegs
of the bike; and (2) when Kuri stopped, Gomez pointed a gun and fired at the mini-van. (Pl.’s
Stmt. Facts ¶ 56; R. 182-26, Grand Jury Tr., at 5-6.) Evidence in the record, however, shows
that the Huffy bike recovered from the scene of the shooting did not have back pegs. (Pl.’s Stmt.
Facts ¶ 48.)

6

Further, Fernandez testified in front of the grand jury stating that he identified both
Gomez and Kuri from photo arrays. (Defs.’ Stmt. Facts ¶¶ 55, 56.) Moreover, although Russell
also testified in the grand jury that he identified Gomez and Kuri from photo arrays, at the 2012
criminal trial, Russell stated that he lied to the grand jury to help Fernandez get money for being
the victim of a crime. (Defs.’ Stmt. Facts ¶¶ 43, 49.) On October 2, 2009, a grand jury
indictment charged Gomez and Kuri with First Degree Murder. (Defs.’ Stmt. Facts ¶ 32.) Police
then took Kuri into custody, after which he was detained at the Cook County Jail for
approximately three years before his criminal trial in the Circuit Court of Cook County. (Pl.’s
Stmt. Facts ¶ 57.)
A Circuit Court of Cook County Judge held a bench trial on three separate dates between
March and June 2012. (Id. ¶ 58; Defs.’ Stmt. Facts ¶ 34.) Defendant Folino testified at the
criminal trial that Russell provided the detectives the nicknames for Gomez and Kuri and that
both Russell and Fernandez picked Gomez and Kuri out of photo arrays. (Pl.’s Stmt. Facts ¶
59.) On the other hand, both Russell and Fernandez disputed that they made positive
identifications of Gomez and Kuri. (Id. ¶¶ 60, 61.) The trial judge acquitted Gomez and Kuri on
all counts and then ordered Kuri released from custody. (Pl.’s Stmt. Facts ¶¶ 63, 64; Defs.’ Stmt.
Facts ¶ 74.)
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In determining summary judgment
7

motions, “facts must be viewed in the light most favorable to the nonmoving party only if there
is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that
there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary
judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine
issue for trial.’” Anderson, 477 U.S. at 255 (quotation omitted). “To survive summary
judgment, the nonmoving party must show evidence sufficient to establish every element that is
essential to its claim and for which it will bear the burden of proof at trial.” Diedrich v. Ocwen
Loan Servicing, LLC, 839 F.3d 583, 591 (7th Cir. 2016) (citations omitted).
ANALYSIS
I.

Due Process Fabricated Evidence Claim
Defendants argue that because the court dismissed Plaintiff’s fabricated evidence claim

on January 10, 2014 – concluding that the claim was not cognizable under then current Seventh
Circuit law – Plaintiff cannot bring any such claim despite significant changes in Seventh Circuit
precedent. The Court disagrees because “Rule 54(b) provides that non-final orders may be
revised at any time before the entry of a judgment adjudicating all the claims and all the parties’
rights and liabilities,” Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012), and Seventh Circuit
case law in relation to fabricated evidence claims has significantly evolved over the last three
years.4 In 2016, for example, the Seventh Circuit unequivocally explained that “[a]llegations of
evidence fabrication may state a colorable due-process claim in the wake of our decisions in
4

Because the Court has yet to set a trial date, Defendants are not prejudiced by the reinstatement
of Plaintiff’s fabricated evidence claim, especially because the parties have conducted extensive
fact discovery regarding Plaintiff’s due process fair trial rights.
8

Whitlock and Fields II.” Bianchi v. McQueen, 818 F.3d 309, 319 (7th Cir. 2016); see also Avery
v. City of Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017) (relevant inquiry is “whether the officers
‘created evidence that they knew to be false.’”) (quotation omitted) (emphasis in original). To
clarify, “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.”
Saunders-El v. Rohde, 778 F.3d 556, 560 (7th Cir. 2015) (quoting Whitlock v. Brueggemann, 682
F.3d 567, 580 (7th Cir. 2012)); see also Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014)
(Fields II).
Because Kuri was acquitted after his bench trial, he seeks damages based on the
approximately three years he spent as a pretrial detainee at the Cook County Jail. As the Bianchi
decision instructs “an act of evidence fabrication doesn’t implicate due process rights unless the
fabricated evidence ‘is later used to deprive the [criminal] defendant of her liberty in some
way.’” Id. at 319 (emphasis in original) (quoting Whitlock, 682 F.3d at 580). Thus, if a § 1983
plaintiff is released on bond following his arrest and then acquitted at trial, the fabricated
evidence did not deprive the plaintiff of his liberty interest because he was neither detained nor
incarcerated. See Cairel v. Alderden, 821 F.3d 823, 831 (7th Cir. 2016); Saunders-El, 778 F.3d
at 561. On the other hand, in Alexander v. McKinney, 692 F.3d 553 (7th Cir. 2012), the Seventh
Circuit “endorsed the proposition that a due process claim will lie where a plaintiff spent months
in pretrial custody after bail was revoked on account of fabricated evidence.” Myvett v. Chicago
Police Detective Edward Heerdt, 232 F. Supp. 3d 1005, 1017 (N.D. Ill. 2017). Based on
Alexander, the Myvett court concluded “the accused does not need to be tried and convicted for a
deprivation to occur, something short of a conviction – such as pretrial detention – is sufficient.”
Id. at 1019. Seventh Circuit precedent supports the Myvett court’s conclusion. In particular, the
9

Armstrong decision teaches “[t]hough the most common liberty deprivation cases are based on
post-trial incarceration after a wrongful conviction, the essential elements of this constitutional
claim are more general and not limited to wrongful convictions.” 786 F.3d at 551. In Fields II,
the court concluded that “the fabrication of evidence harmed the defendant before and not just
during the trial, because it was used to help indict him.” 740 F.3d at 1112; see also Sumling v.
Vill. of E. Dundee, No. 14 C 3794, 2015 WL 5545294, at *3 (N.D. Ill. Sept. 18, 2015) (“The
Seventh Circuit has held that due process claims encompass both pretrial and post-trial
deprivations of liberty”) (citing Armstrong, 786 F.3d at 531-32).
Here, Kuri’s theory of liability is that Defendant Officers fabricated and falsified
evidence by affirmatively telling the two eyewitnesses, Russell and Fernandez, who they should
identify as the perpetrators of the shooting. Viewing the evidence and all reasonable inferences
in Kuri’s favor – as the Court is required to do at this procedural posture – he has presented
evidence raising triable issues of material fact that Defendant Officers convinced Russell to
implicate Kuri. Evidence indicates that Russell could not identify the shooter when police
officers initially interviewed him and that he had known Kuri since they were young. Yet, at the
follow-up interview on August 2, 2009, Defendant Officers maintain that Russell implicated
Kuri, even though Russell later testified that he did not make an identification of Kuri or Gomez
because “the police officer already told me who they were.” As to Fernandez, at his initial
interview at the hospital, he told the officers that the offenders were not in the photo arrays they
showed him. When the detectives returned to the hospital the next day, the officers contend that
Fernandez identified Kuri from a photo array – yet Fernandez later testified that the detectives
showed him photo arrays where Kuri’s and Gomez’s photographs had already been circled.

10

Moreover, Defendants’ version of facts, including Detective Folino’s grand jury
testimony that Kuri was riding a bike and Gomez was riding on the back pegs of the bike before
the shooting, was similar to the facts that the informant Wachaa provided, but it is undisputed
that Defendants were unable to corroborate Wachaa’s tip. Rather, Defendant Detectives later
found out that Wachaa had not talked to Russell after the shooting and that Wachaa had heard
this information on the street.
Defendants, on the other hand, point to Russell’s and Fernandez’s numerous inconsistent
statements made through the course of the investigation, to the grand jury, and at Kuri’s criminal
trial in support of their motion. Not only are these inconsistencies part of Kuri’s theory of
liability, but Defendants are suggesting that the Court make credibility determinations, which is
not the Court’s role at summary judgment. Estate of Perry v. Wenzel, 872 F.3d 439, 454 (7th
Cir. 2017) (“district court’s obligation at summary judgment to consider the evidence in the light
most favorable to [plaintiff] and to refrain from making credibility determinations”). Weighing
Russell’s and Fernandez’s credibility will be a question for the jury. Baines v. Walgreen Co.,
863 F.3d 656, 663 (7th Cir. 2017).
Accordingly, Kuri has presented sufficient evidence raising material issues of fact for
trial that Defendant Officers fabricated evidence that caused the deprivation of his due process
liberty interest, namely, the three years of pretrial detention at the Cook County Jail. The Court
therefore denies Defendants’ summary judgment motion in this respect.
II.

Due Process Brady Claim
Next, Kuri alleges that Defendant Officers violated his Fourteenth Amendment due

process rights to a fair trial by deliberately withholding exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Saunders-El, 778
11

F.3d at 561 (“A criminal defendant’s Brady right is one that ‘the Constitution provides as part of
its basic ‘fair trial’ guarantee.’”) (quotation omitted). The Brady duty to disclose applies to
police officers. See Youngblood v. W. Virginia, 547 U.S. 867, 869-70, 126 S.Ct. 2188, 165
L.Ed.2d 269 (2006) (per curiam). “To prevail on a Brady claim for an officer’s failure to
disclose evidence, a plaintiff must show that (1) the evidence was favorable to him; (2) the
officer concealed the evidence; and (3) the concealment prejudiced him.” Gill v. City of
Milwaukee, 850 F.3d 335, 343 (7th Cir. 2017). “Prejudice requires proof that the failure to
disclose caused a deprivation of the accused’s liberty.” Id. (quoting Cairel, 821 F.3d at 832).
In their summary judgment motion, Defendants argue that Kuri’s acquittal precludes his
Brady claim. Defendants’ argument contradicts established Seventh Circuit case law because
“the key to a civil Brady claim is not a conviction or acquittal but a deprivation of liberty.”
Cairel, 821 F.3d at 833. Accordingly, under circumstances “where an accused is held in pretrial
custody before acquittal or dismissal, a failure to disclose exculpatory evidence may cause the
type of deprivation of liberty required for a Brady claim even if the case ends without a trial or
conviction.” Id.; see also Armstrong, 786 F.3d at 553 (Brady claim actionable if “the plaintiff
shows ‘that if all parties had known of some piece of exculpatory evidence, the prosecution
would not have moved forward with charges, the grand jury would not have indicted [the
plaintiff], or the trial court would have granted a motion to dismiss the indictment.’”) (quoting
Mosley v. City of Chicago, 614 F.3d 391, 397 (7th Cir. 2010)); see, e.g., Fields v. City of
Chicago, No. 10 C 1168, 2017 WL 4553411, at *3 (N.D. Ill. Oct. 12, 2017) (“Unlike a
defendant who is released after his arrest and is later acquitted, Fields was deprived of his
liberty; he was held in custody from 1984 through 2003.”).

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In his response brief, Kuri asserts that Defendant Officers failed to disclose exculpatory
evidence, namely, that they knowingly manipulated and fabricated the eyewitnesses’ statements.
See Newsome v. McCabe, 319 F.3d 301, 304 (7th Cir. 2003) (police officers’ “liability is under
the due process clause because they concealed exculpatory evidence – the details of how they
induced the witnesses to finger” the criminal defendant). As discussed directly above,
construing the facts and all reasonable inferences in Kuri’s favor, he has presented evidence that
Defendant Officers fabricated evidence causing the deprivation of his due process liberty
interest. Moreover, outside of Fernandez’s and Russell’s eyewitness accounts, there was no
other evidence, physical or otherwise, implicating Kuri in the shooting except Wachaa’s
unsubstantiated “tip.” Furthermore, the Court can draw a reasonable inference from the evidence
in the record, including Defendant Folino’s testimony in front of the grand jury, that the
prosecutors relied upon Defendant Officers’ version of the facts when deciding to prosecute Kuri
for the July 24, 2009 shooting. In sum, Kuri has presented sufficient evidence creating genuine
issues of material fact for trial that Defendant Officers concealed evidence that Fernandez and
Russell did not identify Kuri without the alleged manipulation and that this concealment
prejudiced Kuri because he was detained at the Cook County Jail for approximately three years
before his trial. See Cairel, 821 F.3d at 832 (“Prejudice requires proof that the failure to disclose
caused a deprivation of the accused’s liberty”).
Nevertheless, Defendant Officers argue that Kuri cannot maintain his Brady claim
because Kuri knew Russell and Fernandez could not identify him prior to his criminal trial.
Defendants Officers’ argument is without merit because even if Kuri knew that Russell’s and
Fernandez’s identifications were false, there is no indication from the record that Kuri knew that
the Defendant Officers used “pressure tactics and inducements” to obtain these false statements.
13

See Avery, 847 F.3d at 443. Defendant Officers also contend that Kuri made use of the alleged
exculpatory evidence at his criminal trial because Russell testified that the police promised to
give Fernandez money for being a crime victim in exchange for Russell’s identification of Kuri.
Although Russell testified as such at the criminal trial, Kuri’s theory of liability is not based on
this one factor, but rather concerns Defendant Officers’ alleged manipulation and fabrication of
the eyewitness identifications and Defendant Officers’ failure to inform the prosecution as such.
Therefore, the Court denies this aspect of Defendants’ summary judgment motion.
III.

Malicious Prosecution Claims
Kuri brings malicious prosecution claims under both Illinois tort law and the Fourth

Amendment. To establish the tort of malicious prosecution under Illinois law, a plaintiff must
show the following elements: “(1) commencement or continuation of an original proceeding; (2)
termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause; (4)
malice; and (5) damages.” Cairel, 821 F.3d at 834; see also Swick v. Liautaud, 169 Ill.2d 504,
215 Ill.Dec. 98, 662 N.E.2d 1238, 1242 (1996). “The failure to establish any one element bars
recovery.” Cairel, 821 F.3d at 834. Likewise, to bring a claim of malicious prosecution under
the Fourth Amendment per Manuel v. City of Joliet, Ill., 137 S.Ct. 911 (2017), courts have set
forth the following elements: “the defendant (1) caused (2) a seizure of the plaintiff pursuant to
legal process unsupported by probable cause, and (3) criminal proceedings terminated in
plaintiff’s favor.” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013) (citation
omitted); Blocker v. City of Chicago, No. 17 CV 00055, 2017 WL 3278323, at *4 (N.D. Ill. Aug.
2, 2017) (“prolonged pretrial detention without probable cause (including a judicial finding of
probable cause based solely on false evidence supplied by police officers), violates the Fourth
Amendment.”).
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Defendants first argue that Kuri has failed to present evidence of the absence of probable
cause. In the context of malicious prosecution claims, Illinois courts define probable cause as “a
state of facts that would lead a person of ordinary care and prudence to believe or to entertain an
honest and sound suspicion that the accused committed the offense charged.” Cairel, 821 F.3d at
834 (citation omitted). “For purposes of a malicious prosecution claim, the pertinent time for
making the probable cause determination is the time when the charging document is filed, rather
than the time of the arrest.” Holland v. City of Chicago, 643 F.3d 248, 254 (7th Cir. 2011). If
there is a disagreement about the relevant facts supporting probable cause, courts “adopt[ ] the
plaintiff’s version of the disputed facts for which there is some support in the record.” Logan v.
Caterpillar, 246 F.3d 912, 926 (7th Cir. 2001) (internal quotation marks omitted); see also
Jimenez v. City of Chicago, 830 F. Supp. 2d 432, 450 (N.D. Ill. 2011).
In their motion, Defendant Officers assert that Russell’s statement to the grand jury,
along with his videotaped statement made to the Cook County Assistant State’s Attorney,
conclusively establishes probable cause. In response, Kuri contends that Defendants cannot
manufacture their own probable cause by fabricating evidence and manipulating eyewitnesses to
implicate him in the shooting. The Court agrees. See Myvett, 232 F. Supp. 3d at 1027
(fabricated witness statements insufficient to establish probable cause); Ruiz-Cortez v. City of
Chicago, No. 11 C 1420, 2016 WL 6270768, at *21 (N.D. Ill. Oct. 26, 2016) (police cannot
“defeat a malicious prosecution claim” at summary judgment if there is a “genuine dispute of
material fact as to whether [police] fabricated evidence or withheld Brady materials after the
arrest”); Fields v. City of Chicago, No. 10 C 1168, 2014 WL 477394, at *13 (N.D. Ill. Feb. 6,
2014) (“the presence (again, the Court stresses, not yet proven) of deliberately fabricated

15

statements by witnesses would be sufficient to permit a reasonable jury to conclude there was no
probable cause”).
Nonetheless, Defendants point to other evidence in the record to support their argument
that probable cause existed to prosecute Kuri for murder, such as Kuri’s polygraph test results –
even though under Illinois law “polygraph examinations may not be utilized in a determination
of probable cause.” Lyons v. Vill. of Woodridge, No. 08 C 5063, 2011 WL 2292299, at *10
(N.D. Ill. June 8, 2011) (quoting People v. Allen, 620 N.E.2d 1105, 1114 (1st Dist. 1993)); see
also People v. Taylor, 101 Ill. 2d 377, 391 (1984) (“Lie detector tests are inadmissible in Illinois
to prove either guilt or innocence”). In any event, evidence in the record indicates that many of
Kuri’s answers during his polygraph testing were not deceptive, calling into question
Defendants’ argument in the first instance. Likewise, Defendants’ reliance on the Wachaa tip to
establish probable cause fares no better because it is undisputed that Wachaa did not have
firsthand knowledge of the shooting, but rather told police information that he had heard on the
street. Last, Defendants assert that Kuri’s alibi witnesses denied they were with him at the time
of the shooting. This fact is hotly contested, and at this stage of the proceedings, the Court must
view the facts in Kuri’s favor. Further, as discussed above, Defendant Officers’ arguments
concerning Russell’s credibility are best left for the jury. Thus, Kuri has set forth sufficient
evidence establishing a triable issue in relation to the absence of probable cause.
Next, Defendant Officers argue that Kuri’s acquittal is not indicative of his innocence
based on what the Circuit Court Judge said at the end of Kuri’s criminal bench trial. In other
words, although the Seventh Circuit has held that “an acquittal is clearly sufficient to show
favorable termination,” see Logan, 246 F.3d at 926, Defendant Officers contend that the Court
should look to the reasoning behind the acquittal – relying on a seminal Illinois malicious
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prosecution case where the prosecution was nolle prossed.5 See Swick, 169 Ill.2d at 513-14
(“Only when a plaintiff establishes that the nolle prosequi was entered for reasons consistent
with his innocence does the plaintiff meet his burden of proof. The circumstances surrounding
the abandonment of the criminal proceedings must compel an inference that there existed a lack
of reasonable grounds to pursue the criminal prosecution.”). Defendants, however, fail to cite
legal authority for the proposition that after an acquittal, the factfinder in a malicious prosecution
case may also consider the judge’s or jury’s opinions or mental impressions concerning the
evidence and witness veracity. Indeed, the Court could find none. If anything, federal law lends
guidance in the opposite direction, namely, the “law neither requires juries to state reasons for
their verdicts nor permits courts to inquire into the reasoning process of the jurors for the purpose
of impeaching their verdict.” Outboard Marine Corp. v. Babcock Indus., Inc., 106 F.3d 182, 186
(7th Cir. 1997) (citing Fed.R.Evid. 606(b)). Construing the facts and all reasonable inferences in
Kuri’s favor, his acquittal shows that the criminal proceedings were terminated in his favor. The
Court thus denies Defendants’ summary judgment motion in relation to Kuri’s malicious
prosecution claims.
IV.

Conspiracy/Failure to Intervene/State Law Conspiracy
Further, Defendants contend that Kuri’s derivative claims for failure to intervene, § 1983

conspiracy, and state law conspiracy under Illinois tort law must fail because he has not
established any underlying constitutional violations nor his state law malicious prosecution

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As the Supreme Court of Illinois explains “[t]he Latin term nolle prosequi means ‘not to wish
to prosecute.’ … We have previously explained that a nolle prosequi is the formal entry of record
by the State which denotes its unwillingness to prosecute a charge.” People v. Hughes, 983
N.E.2d 439, 448, 368 Ill.Dec. 26 (Ill. 2012) (internal citations omitted).
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claim. Because the Court concludes Kuri has presented evidence creating triable issues of fact
supporting his § 1983 and malicious prosecution claims, Defendants’ argument is premature.
V.

Individual Involvement
When bringing constitutional claims under 42 U.S.C. § 1983, individual liability requires

personal involvement in the alleged constitutional violation. See Colbert v. City of Chicago, 851
F.3d 649, 657 (7th Cir. 2017); Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010). In other
words, under § 1983, an individual is only liable for his or her own misconduct. Perez v.
Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015). Also, a “defendant will be deemed to have
sufficient personal responsibility if he directed the conduct causing the constitutional violation,
or if it occurred with his knowledge or consent.” Rasho v. Elyea, 856 F.3d 469, 478 (7th Cir.
2017) (citation omitted).
First, Kuri asserts that Defendant Officer Thomas Kolman interviewed Russell on August
2, 2009, at which time Russell allegedly told the officers that “Little David” and “Rowdy” were
the offenders and then picked them out of photo arrays. The evidence Kuri presents to establish
Defendant Kolman’s involvement does not indicate that he was present at that interview.
Instead, the evidence Kuri relies upon shows that Defendants Folino and McDermott interviewed
Russell on August 2 as memorialized by the August 14, 2009 Supplemental Report authored by
Defendants Folino and McDermott. (Pl.’s Stmt. Facts ¶ 27, Ex. 12.) Kuri also points to
Russell’s 2012 trial testimony to support Defendant Kolman’s involvement, but the testimony he
highlights does not indicate that Defendant Kolman was one of the police detectives who
interviewed him on August 2. (Pl.’s Stmt. Facts ¶ 35; R. 182-3, Ex. 3, Bench Trial Tr. at 44-45.)
Although Defendant Kolman authored an October 7, 2009 Supplemental Report, Defendant
Kolman’s only action highlighted in that report was that he went to the hospital on August 8,
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2009 to interview Fernandez, but was unable to do so at that time. (R. 182-27, Ex. 27, 10/7/09
Supp. Report.) In addition, Kuri relies upon the Felony Complaint that Defendant Officer
Kolman signed for the proposition that Defendant Kolman persuaded the judge to find probable
cause to detain him. (Pl.’s Stmt. Facts ¶ 55; R. 182-35, Ex. 35, Felony Complaint.) Examining
the Felony Complaint and other evidence in the record in Kuri’s favor, nothing indicates that
Defendant Kolman “persuaded the judge to find probable cause” in a nefarious manner as Kuri
suggests. In short, the evidence in the record does not support Kuri’s contention that Defendant
Kolman participated in the alleged wrongdoing underlying his claims, and thus the Court
dismisses Defendant Kolman from this lawsuit.
Second, as to Defendant Officers Noe Sanchez and Carmen Lopez, Kuri argues that they
had a role in creating the false Wachaa tip. After reviewing the parties’ Rule 56.1 Statements
and supporting evidence, there is no evidence in the record that Defendants Sanchez and Lopez
did anything more than author the handwritten police report with information provided to them
by Wachaa. (Pl.’s Stmt. Facts ¶ 30; Defs.’ Stmt. Facts ¶ 19.) Because this evidence – viewed in
Kuri’s favor – does not show Defendants Sanchez and Lopez were involved in any wrongdoing,
the Court dismisses Defendants Sanchez and Lopez from this lawsuit as well.
CONCLUSION
The Court grants in part and denies in part Defendants’ motion for summary judgment.
Dated: October 30, 2017
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge
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