Kuri v. Szwedo et al

Filing 381

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang on 9/5/2019: For the reasons discussed in the Opinion, the defense's Rule 50, 59, and 60 motions 308 309 324 325 336 are denied. Plaintiff's motion to re-open Monell claim 342 is denied, and the claim is dismissed without prejudice as moot. Status hearing of 09/11/2019 is vacated.Emailed notice(eec)

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

ANTHONY KURI
(a.k.a Ramsey Qurash),
Plaintiff,
v.
JOHN FOLINO, et al.,
Defendants.

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No. 13-cv-01653
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Anthony Kuri brought several federal and state law claims against the City of
Chicago and its police officers after he was charged with murder, detained for three
years in Cook County Jail, and acquitted at trial.1 Some of the defendants were
dismissed during the case’s journey to trial, and the claims against the City were
bifurcated and stayed. Kuri eventually went to trial on five claims against two
Chicago detectives, John Folino and Timothy McDermott (in this Opinion, call them
the Defendants). Kuri won all five claims against Folino and succeeded on four claims
against McDermott. The jury awarded Kuri $3 million for pain and suffering and $1
million for loss of normal life. The Defendants now bring motions under Rules 50, 59,
and 60 of the Federal Rules of Civil Procedure, challenging the jury’s verdict on

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1367.

Court has subject matter jurisdiction over the case under 28 U.S.C. §§ 1331,

various grounds, while Kuri moves to resume the previously stayed claims against
the City. For the reasons discussed below, all four motions are denied.
I. Background
The events of this case stem from a shooting that took place in the West Side
of Chicago on July 23, 2009, the ensuing police investigation, and the state criminal
trial of Anthony Kuri on charges related to that shooting.
A. Kuri’s Relationship to the Victims
Kuri was born in Chicago and spent most of his childhood in group homes or
with foster parents. Trial Tr. at 223:3-224:23. In the summer of 2009 (when the fateful
shooting happened), he was 19 years old. Id. at 231:24-25. At certain points growing
up, when he would have nowhere else to stay, Kuri would stay with a friend named
Zae Russell. Id. at 312:17-21. Russell was a member of a gang called the Conservative
Vice Lords, which, at the time, was somewhat aligned with another gang, the Latin
Kings. Id. at 859:6-11. Tony Fernandez—a close friend of Russell’s and a member of
the Latin Kings—was familiar with Kuri and had seen him hanging out outside of
their high school, although Fernandez knew Kuri by his nickname, “Rowdy.” R. 315,
Fernandez Dep. Tr. at 57:3-58:7; Trial Tr. at 859:3-5.
At some point before 2009, Kuri became a member of a street gang called the
Spanish Cobras. Trial Tr. at 229:12-18; Fernandez Dep. Tr. at 58:13-21. In the
summer of 2009, Kuri, Russell, and Fernandez all spent time in the East Albany Park
area of Chicago, near the intersection of Lawrence and Lawndale. This was known to

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be a dividing line between Spanish Cobra territory and Latin Kings territory. Trial
Tr. at 859:12-17.
B. The July 23, 2009 Shooting
On July 23, 2009, Fernandez and Russell were riding around in Fernandez’s
minivan with some friends, including Guarav Patel, who was driving the van.
Fernandez Dep. Tr. at 63:17-64:7, 65:1-10. At least some of the men in the minivan
were members of either the Latin Kings or the Conservative Vice Lords. Trial Tr. at
470:7-12. At some point, the van approached the intersection of Lawrence and
Lawndale, where the passengers inside encountered two members of the Spanish
Cobras who went by the names “Chino” and “Funk.” Id. at 470:13-17. Words and gang
signs were exchanged between the two groups, but eventually the men in Fernandez’s
van drove away. Id. at 470:13-24; Fernandez Dep. Tr. at 66:23-69:18. Everyone in the
van besides Russell, Fernandez, and Patel was then dropped off, and Russell asked
Patel to drive to Russell’s house on Central Park. Trial Tr. at 471:12-24.
When the van arrived at the house, Russell was sitting in the back row,
Fernandez was sitting in the middle row, and Patel was in the driver’s seat. Trial Tr.
at 471:17-21; Fernandez Dep. Tr. at 85:18-86:11. Fernandez opened the door to let
Russell out of the van and Russell began to get out. Id. at 91:7-15. But when Russell
looked out to his left, he saw two individuals approaching the van, which prompted
him to step back inside the van and close the door. Id. at 91:16-24. Within seconds,
and before Fernandez could get a good look at the two individuals outside, someone
began shooting at the van. Id. at 93:6-15; 95:17-96:3. Russell immediately ducked

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down in the van and was able to evade the gunfire. Trial Tr. at 830:12-18. But Patel
was shot in the neck. Id. at 830:23-831:2. Fernandez was shot in the leg while trying
to attend to Patel and to drive away. Fernandez Dep. Tr. at 93:16-94:7.
Fernandez managed to steer the van away from the shooting towards a group
of people around the corner, who called an ambulance upon seeing the van. Fernandez
Dep. Tr. at 94:21-95:1. Patel, who had already stopped breathing, was taken away in
the first ambulance. Id. at 95:2-9, 105:3-7. A second ambulance took Fernandez to
Illinois Masonic Hospital, where he was treated for bullet wounds in his leg. Id. at
102:21-103:4. According to Fernandez, Russell did not say anything to him about the
identity of the perpetrators or who Russell suspected was behind the shooting that
night. Id. at 108:5-10.
C. Russell’s First Interview
The first CPD officers assigned to the shooting were Detective Frank Szwedo
and his partner Detective John Valkner. Trial Tr. at 456:6-24. When they arrived on
scene, they found a blue-and-silver Huffy bicycle lying on the sidewalk. R. 331.10,
Evidence Inventory at 1. Szwedo and Valkner then tried to interview possible
witnesses, including Russell. Russell later testified that the detectives initially placed
him in handcuffs, suggested to him that shots were fired from inside the car, and said
that they “had to take [him] in for an investigation.” Trial Tr. at 831:18-832:6. It is
undisputed that the handcuffs were eventually removed, and Szwedo questioned
Russell for about ten minutes “[t]o get his account of the incident.” Id. at 464:5-10,

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470:1-2. Szwedo also testified that Russell was cooperative throughout the interaction
and answered all of his questions. Id. at 464:14-21.
Russell explained to Szwedo that he was driving in a minivan with Fernandez,
Patel, and two other members of the Latin Kings he did not know by name when, at
the intersection of Lawrence and Lawndale, they had an altercation with two
“Cobras” known as Chino and Funk. Trial Tr. at 470:7-17. Russell said that the
minivan then drove away, dropped off the two other Latin Kings, and then drove on
to Russell’s house, where two male “Hispanics” approached the van and yelled “King
Killer.” Id. at 471:12-472:11. Russell described the men as wearing white T-shirts and
having short or shaved hairstyles. Id. at 472:22-473:9. At trial, Szwedo explained that
he was probing Russell during this conversation and giving Russell a chance to
explain everything he knew about the incident. Id. at 472:15-21. He also testified that
Russell’s story was consistent with the location of the van and the 911 call. Id. at
474:4-8. Finally, Szwedo asked Russell whether he would be able to recognize the
shooters if they were presented to him. Id. at 475:12-16. Russell responded “maybe.”
Id. At the end of the interaction, Russell gave Szwedo the names of two Spanish
Cobras, along with his own address and phone number. Id. at 474:20-475:5, 475:2123. At no point during the interview did Russell mention Kuri’s name. Id. at 477:312; see also R. 331.2, 8/4/2009 Supp. Report at 11-12.
D. The Wachaa Tip
At some point after the shooting, the case was transferred from Szwedo and
Valker to the Defendants, CPD Detectives John Folino and Timothy McDermott.

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There was no evidence presented at Kuri’s civil trial about how or why the case was
transferred. Trial Tr. at 537:8-17. Around this time, Folino was contacted by an
informant named Abdul Wachaa, who claimed to have information about the July 23
shooting. Id. at 549:22-25. Folino did not write a report documenting his first
conversation with Wachaa. Id. at 550:9-11. Folino testified at Kuri’s civil trial that
this tip was his very first interaction with Wachaa, id. at 539:2-5, but Folino testified
at his deposition that he could not remember whether he had worked with Wachaa
before the Patel murder, id. at 539:13-20. Folino admitted, though, that he used
Wachaa as an informant multiple times afterwards and was still using him at the
time Folino was deposed in this case. Id. at 533:4-24.
Around the same time, on August 3, 2009, Wachaa was arrested for battery
and taken to Swedish Covenant Hospital, where he encountered CPD Officer Carmen
Lopez. Trial Tr. at 1217:15-1218:2; R. 331.5, Lopez Report. Wachaa told Lopez that
he was on the phone with Russell when the shooting took place in front of Russell’s
house. Id. at 1. According to Wachaa, Russell yelled into the phone “Lil David and
Rowdy are in front of my house. They killed Indian Dude and they shot T.C… Rowdy
was on the bike and Lil David was on the pegs.” Id. Russell also allegedly told Wachaa
that the van was on “Wilson by the alley by the row houses,” and then hung up. Id.
Wachaa explained to Officer Lopez that Rowdy and Lil David were both Spanish
Cobras and that he had heard about an altercation between the Cobras and Latin
Kings on Lawrence and Lawndale that same evening. Id. at 1-2. Lopez determined

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that Rowdy was a pseudonym for Kuri and that Lil David was a pseudonym for an
individual named David Gomez. Id. at 2.
Folino testified at the civil trial that he did not document his first conversation
with Wachaa because the same information had already been documented in Lopez’s
report. Trial Tr. at 550:4-8. Folino admitted that Wachaa’s version of the events—
that Russell was on the phone with Wachaa while the shooting transpired and
managed to relay very detailed information about the incident while ducking from
gunfire—seemed implausible. Id. at 560:5-10. Folino also testified that Wachaa
eventually explained to him that he heard this information “on the street,” id. at
562:21-563:7, although it is not clear that Wachaa ever retracted his original account
(which was that Russell relayed all this on the phone in real-time). In any event, the
battery charges against Wachaa were dropped on September 24, 2009. Id. at 1369:18. The question of who first spoke to Wachaa—Folino or Lopez—is highly contested.
See R. 335, Pl.’s Resp. Rule 50, 59 Mots. at 6-7; R. 348, Defs.’ Reply at 4.
E. Investigation
1. The August 1, 2009 Fernandez Interview
On August 1, 2009, Folino and McDermott visited Fernandez at Illinois
Masonic Hospital. R. 331.3, 8/14/2009 Supp. Report at 8. This was the first important
step the Defendants took in the case and the first time any CPD detective spoke to
Fernandez. Trial Tr. at 595:22-24, 602:16-18, 1408:4-12. Fernandez was still in
critical condition at the time, so the detectives did not conduct a “full-blown
interview.” Id. at 1470: 11-16; see also id. at 600:9-11. According to Folino’s police

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report, Fernandez told the detectives that he was willing to cooperate and that he
would be able to identify both of the offenders from the shooting. 8/14/2009 Supp.
Report at 8.
Folino and McDermott, however, did not ask Fernandez for a physical
description of the offenders. Trial Tr. at 1036:4-22, 1475:11-14 (“Q: Did you ask him,
before you showed him a photograph, to give you a description of any people that he
might have seen? A. No.”), 1475:20-24 (“Q. Before you showed him the photographs,
did you ever say ‘Mr. Fernandez, I need you to tell me what you saw. What did they
look like?’ You never asked him that, did you? A. No.”). The detectives instead showed
Fernandez two arrays of photos, both dated July 29, 2009. 8/14/2009 Supp. Report at
8; Trial Tr. at 1410:21-23. They created these arrays based on the descriptions of the
shooters in the original report written by Detective Szwedo. Id. at 1410:4-10. But
Fernandez stated that the offenders were not present in either array. 8/14/2009 Supp.
Report at 8. He also did not mention the names Rowdy or David Gomez or anything
about a bicycle—with or without pegs—during this August 1, 2009 interaction. Trial
Tr. at 606:10-20, 610:1-5. It is not even clear if Fernandez affirmatively told Folino
and McDermott that he saw the shooter; Folino’s report is silent on this question, and
Folino could not remember at trial if Fernandez said so, one way or the other. See
8/14/2009 Supp. Report at 8; Trial Tr. at 606:21-23.
2. Russell’s Second Interview
Around the same time, the Defendants went to see Russell to get a more
detailed account of the shooting. Trial Tr. at 836:24-837:1. Folino and McDermott

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submitted a report on August 14, 2009 documenting this interaction with Russell. R.
331-3, 8/14/2009 Supp. Report. In the report, Folino states that the interview with
Russell took place on August 2, 2009, id. at 8, one day after he and McDermott met
with Fernandez at Illinois Masonic Hospital and one day before Officer Lopez
received the tip from Wachaa. Folino later testified at trial that this interview with
Russell actually took place on August 1, 2009, the same day he and McDermott met
with Fernandez. Trial Tr. at 612:10-613:7. Folino explained this discrepancy as a
“typo” in his report. Id. at 625:6-13.
In any event, Folino and McDermott wrote in their report that Russell
identified the two offenders as Lil David and Rowdy, and that Russell had “known
them for a few years.” 8/14/2009 Supp. Report at 8. The report also explained that
Russell “did not like the way the police treated him” on the night of the incident and,
as a result, “he refused to say anything regarding his observations for that night.” Id.
3. The Photo Arrays
The Defendants’ August 14, 2009 report goes on to list three events that took
place on August 2, 2009. First, Folino and McDermott worked with two assisting
detectives from a tactical team focused on the Lawrence and Lawndale area to
identify “Rowdy” as Kuri and “Little David” as Gomez and then pull their photos.
8/14/2009 Supp. Report at 9. The photo arrays that feature Kuri, however, are dated
August 1, 2009, not August 2, 2009. Trial Tr. at 623:5-12. At trial, Folino testified
that this meant the photographs of Kuri were printed on August 1, 2009. Id. at 624:410. Folino explained this second discrepancy in his report as another typo. Id. at

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627:9-19 (“Q. Now the way your report wrote it up, you said on August 2nd, you went
to get Rowdy and Gomez’s photos, right? A. Based on the report, yes, but it was
August 1st. Q. All right. So we have some more typos you’re saying, right? A. Well, it
was all in chronological order. It looks like it was just a mistake straight down the
line. It was just the one date. Q. So three more typos, right? A. Well, it’s the same
date. It was just a mistake, thinking it was August 2nd, but it was actually August
1st.”). Folino admitted he had no notes from his meeting with the tactical team
detectives to confirm the date on which they discussed Kuri and printed his photo.
Id. at 628:16-19.
Next, the report states that Folino and McDermott took the revised photo
arrays—which included pictures of Kuri and Gomez—to Fernandez at Illinois
Masonic Hospital. 8/14/2009 Supp. Report at 9. The detectives again did not ask
Fernandez for a physical description of the perpetrators before showing him the photo
arrays. Trial Tr. at 1480:7-20. According to the report, Fernandez positively identified
Kuri as one of the two offenders from the night of the shooting. 8/14/2009 Supp.
Report at 9. Fernandez allegedly told Folino and McDermott that he observed Kuri
“riding the Huffy bicycle” when another “male Hispanic that was standing on the pegs
of that bicycle, jumped off the bike and while armed with a handgun fired numerous
shots at occupants of the van … .” Id. The report also states that Fernandez circled
Kuri’s picture on the photo array. Id. Fernandez then told Folino and McDermott that
he was not feeling well and was not able to look at the second array, so they left. Id.
Finally, still on August 2, 2009, Folino and McDermott went back to see Russell and

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presented him with the revised photo arrays. Id. According to the report, Russell
positively identified Kuri as Rowdy, the individual “riding the Huffy bicycle with ‘Lil
David’ standing on the rear pegs … .” Id. Russell also circled Kuri’s picture on the
array. Id.
The next day, on August 3, 2009, Folino and McDermott went back to Illinois
Masonic Hospital to present Fernandez with the second photo array that he had
declined to look at the day before. 8/14/2009 Supp. Report at 10. Fernandez identified
Gomez, but also requested to view larger photographs of the subjects in the photo
array. Id. Folino and McDermott presented Fernandez with six individual
photographs of the subjects in the original array. Id. Fernandez identified Gomez
from these six photographs and then circled Gomez’s picture. Id.
That same day, August 3, 2009, Russell was charged with four counts of
misdemeanor battery. Trial Tr. at 1369:11-12. Those charges were dismissed with
leave to reinstate on September 24, 2009. Id. at 12-14. They were never reinstated.
Id. at 14-16.
4. Kuri’s Interrogation and Arrest
On August 5, 2009, CPD officers took Kuri to a police station and questioned
him for at least eight hours. Trial Tr. at 357:6-17; 955:23-956:3. Kuri estimated that
he was actually in custody for a number of days. Id. at 236:5-7. In any event, Folino
testified at the civil trial that Kuri was not placed under arrest on August 5 because
he was still a witness, rather than a subject. Id. at 718:19-25. The interview was not
videotaped, Kuri was not given Miranda warnings, and Kuri was not given access to

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a lawyer. Id. at 718:23-25, 721:1-25, 729:4-17. At trial, the Defendants stipulated that
they admitted in their Answer to Kuri’s Complaint that Kuri was arrested, not just
questioned, on August 5, 2009. Id. at 1496:10-22.
During the interview, Kuri first denied, but then admitted, that he knew David
Gomez. Trial Tr. at 357:15-358:17. Kuri also told Folino that, on the night of the
murder, he was staying with friends at a house on Tripp Street in Chicago. Trial Tr.
at 1011:1-3; 1077:21-1078:1. Folino eventually spoke with someone who lived at that
address—Teresa Luis—and wrote in a report that she could not remember if Kuri
was at her house on the night of the murder. Id. at 1011:11-1012:3, 1016:13-1017:25.
Indeed, none of Kuri’s alibi witnesses could say definitively that they were with Kuri
on the night Patel was killed (which was now around two weeks in the past). Id. at
1018:15-18.
Kuri was eventually released following the August 5 interview because there
was not enough evidence to charge him. Trial Tr. at 1504:9-20. Folino also testified
that he had tried to locate Russell on August 5 so Russell could view Kuri in a lineup,
but Folino could not find him. Id. at 953:16-954:4. A few days later, Kuri left Chicago
for the suburb of Rochelle, Illinois. Id. at 378:25-379:24. On September 8, 2009, Folino
and another detective went to Rochelle to arrest Kuri. Id. at 766:5-14, 1000:3-15,
1514:21-1515:4. Kuri was interrogated until the early morning hours of September
10, R. 331.4, GPRs at 5, and strongly denied any involvement in the murder
throughout the interview, Trial Tr. at 239:6-241:4. Kuri demanded a DNA test after
the detectives explained that the test would be able to determine whether Kuri had

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made contact with the bike found on the scene. Id. at 655:2-656:24. He also told Folino
to check the recorded footage from the police department cameras located around
Lawrence and Lawndale from the night Patel was shot because they would prove he
was not there. Id. at 241:5-14.
Kuri was later charged with the murder of Patel and the attempted murder of
Fernandez and Russell. He was sent to a maximum-security division of Cook County
Jail to await the state trial. Trial Tr. at 267:2-15. Kuri believed he was facing 60 years
to life in prison. Id. at 310:17-21. He testified at this civil trial that he never
considered taking a plea deal because he knew he was innocent. Id. at 316:2-10. At
the time, Kuri was 19 years old, 5΄6", and around 130 pounds. Id. at 268:5-10; 293:1112. Kuri told the jury that jail was a violent place and he had no friends there. Id. at
268:12-21. He was attacked and beaten up multiple times, including one time when
he was choked by another inmate. Id. at 269:2-7; 273:8-274:25. Kuri described an
occasion when he was handcuffed and then maced by a correctional officer, id. at
280:7-25, and another time when he witnessed another inmate brutally beaten in the
shower, id. at 279:3-19. Kuri explained that he did not seek protective custody while
at Cook County Jail because doing so meant other inmates would believe he was a
snitch (that is, someone cooperating with the police), and because the other inmates
in protective custody were often sex offenders and potentially even more dangerous
than those in the general population. Id. at 282:2-21.
Kuri also testified that he had no privacy in jail. Trial Tr. at 283:4-17. He stated
that some inmates refused to shower because they were afraid to do so and, as a

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result, they developed hygiene problems. Id. at 284:17-285:21. He described feeling
uncomfortable during group strip searches. Id. at 289:1-19. He also compared the food
served in the jail to cat food and said the “meat [was] like something you never even
saw before.” Id. at 290:24-291:6. Kuri explained at trial that he was unable to buy
other types of food sold at the commissary because he had no access to money while
he was detained. Id. at 291:13-292:12. Kuri described feeling depressed and lonely in
jail and that it would sometimes lead him to cry. Id. at 293:24-294:19. He often had
to walk around with his feet chained, which made him feel “worse than an animal.”
Id. at 300:5-15. Kuri had only a few visits from family while he was detained and did
not receive any letters or phone calls. Id. at 297:10-298:12.
After spending about 18 months at Cook County Jail, Kuri attempted suicide.
Trial Tr. at 300:17-302:15. He was placed in a maximum-security psychiatric ward
for around another year following the attempt. Id. at 302:16-303:1. Kuri felt that the
inmates in the psychiatric division of the jail were more dangerous than the inmates
in other divisions because they were mentally unstable and unpredictable. Id. at
303:12-304:12. While housed in the psychiatric division, Kuri started taking several
mental-health medications, including Zoloft, Klonopin, and Buspar, which he
described as “just putting a Band-Aid over a wound.” Id. at 304:13-305:16.
E. The Criminal and Civil Trials
Kuri’s criminal bench trial took place in the Circuit Court of Cook County on
three separate dates between March and June 2012. Kuri had been in Cook County
Jail for about 2½ years when the trial began. As expected, Folino testified at the

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criminal trial that Russell provided him with Kuri’s and Gomez’s names and that
both Russell and Fernandez picked Kuri out of a photo array. Trial Tr. at 796:7-9.
This testimony was contradicted by both Russell and Fernandez. Russell testified
that he did not actually make any identifications during his interviews with Folino
and McDermott. Trial Tr. at 840:17-17. Instead, one of the detectives told Russell who
to pick: “Well, they said that they knew who it was. And they already said that they
had David … they said they just needed me to say that these is them or something,
so I guess so.” Id. at 841:15-19. Russell also testified that Folino and McDermott told
him that if he identified Kuri and Gomez, “then they were gonna give Tony Fernandez
money for being a victim of a crime.” Id. at 842:1-4. Fernandez likewise recanted at
the criminal trial and testified that he did not see who shot him and thus could not
identify either Kuri or Gomez. Fernandez Dep. Tr. at 257:17-24; 261:9-12. He testified
that Russell “told me who they were.” Id. at 270:17-271:2. Finally, there was no
physical evidence presented at the trial connecting Kuri to the shooting. Trial Tr. at
316:21-317:15; 571:17-23. Kuri and Gomez were both acquitted by the state court
judge.
At the federal civil trial, Kuri testified that he had a difficult time readjusting
back into society upon his release. No one from his family was there to greet him or
pick him up when he left Cook County Jail and he had no money to support himself.
Trial Tr. at 324:2-4; 324:18-24. He initially stayed with Gomez’s brother before
finding old friends to stay with. Id. at 325:9-327:6. He was also taken to the

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emergency room numerous times for his anxiety and post-traumatic stress disorder.
Id. at 327:15-328:17.
Kuri filed this suit against the City of Chicago and nine CPD officers in March
2013. See R. 1, Compl. Some of Kuri’s claims and some of the defendants were
eventually dismissed. See R. 56, Dismissal Order; R. 187, Pl.’s SJ Resp. at 39. The
Court also granted the City’s unopposed motion to bifurcate the Monell claims, R. 86,
11/24/2014 Minute Entry, so when the trial started in September 2018, the only
defendants left were Folino and McDermott. Kuri sought damages on five claims
against both Defendants: (1) violation of due process; (2) unlawful detention under
the Fourth Amendment; (3) conspiracy; (4) failure to intervene; and (5) malicious
prosecution.
Things took another turn at the federal civil trial when Russell again
contradicted himself—during the trial itself. At first, Russell testified that the police
did not tell him whose photo to pick out, Trial Tr. at 841:3-4, nor did they tell him
they were going to provide compensation for Fernandez, id. at 842:10-12. Then, just
a few minutes later, Russell testified that the police told him that they knew who
fired the shots the night Patel was murdered and who he needed to identify. Id. at
854:10-15. To make matters worse, Russell testified that he did not see Kuri driving
a bike with Gomez on the back the night of the shooting, id. at 843:24-844:1, 845:1819, but that he nonetheless told the detectives that he saw Kuri on the bike that
night, id. at 862:17-25.

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Fernandez was not present to testify at Kuri’s civil trial, but a video of his
deposition was played for the jury. At several different points during his deposition,
Fernandez testified that the detectives told him who to choose from the photo array.
For example, Fernandez stated:
These officers came to me with these guys’ pictures. I’m like, who this? Who
this? Who this? Well, maybe—maybe they talked to [Russell] first. Whoever
they talked to, the detective talked to first, they had some kind of idea what’s
going on. And then they probably—they just wanted to come to me because I’m
the victim and like, Hey, look, just sign your name right here, boom. These are
the guys that shot you. We got them, bam.
Fernandez Dep. Tr. at 270:2-13. See also id. at 270:19-274:6; 309:14-22; 310:13-312:9;
326:16-327:5 (“A. [W]ell, I just keep telling him I don’t know. I kept telling him, I
don’t know who shot me, who—I don’t know if these guys did it or not. I just kept
telling him, and he just—he kept pushing me to like, Look these are the guys, from
his words… Q. And that’s why you signed your name on … those two pictures. A. I’m
like, oh, okay yeah… But not because I knew, Oh yeah, it was him, no. It was because
they were telling me like it was them.”). He also stated that he did not see Kuri riding
a bike the night of the shooting, nor did he ever tell the police that he did. Id. at 304:611, 318:21-319:10.
The jury found in favor of Kuri, and against Folino and McDermott, on the
following claims: violation of Kuri’s right to due process, Fourth Amendment
unlawful detention, conspiracy, and failure to intervene. R. 312, 10/02/2018 Minute
Entry. It also found in favor of Kuri and against Folino on the claim of malicious
prosecution, although it found in favor of McDermott on that claim. Id. The jury
awarded Kuri a total of $4,000,000 in compensatory damages, comprised of
17

$3,000,000 for pain and suffering and $1,000,000 for loss of normal life. Id. The jury
also awarded $40,000 in punitive damages against Folino and $10,000 in punitive
damages against McDermott. Id.
Folino and McDermott now bring three post-trial motions challenging this
verdict under Federal Rules of Civil Procedure 50(b), 59(a), 60(b). See R. 324, Defs.’
Rule 50 Mot.; R. 325, Defs.’ Rule 59 Mot.; R. 336, Defs.’ Rule 60 Mot. Kuri contests
these motions and brings his own motion to pursue the bifurcated Monell claims
against the City. Pl.’s Resp. Rule 50, 59 Mots.; R. 347, Pl.’s Resp. Rule 60 Mot.; R.
342, Pl.’s Monell Mot.
II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 60(b)(2), a party may be entitled
to relief from the entry of final judgment if that party presents “newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). “Rule 60 relief is
limited to extraordinary situations where a judgment is the inadvertent product of
special circumstances and not merely the erroneous application of law.” Kennedy v.
Schneider Electric, 893 F.3d 414, 419 (7th Cir. 2018) (cleaned up).2 When ruling on a
Rule 60 motion, courts “must be careful not to undermine too lightly the finality of
their judgments.” Id. There are five prerequisites that the movant must establish
before a court will grant a new trial on the basis of newly discovered evidence: (1) the

2This

Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).

18

evidence was discovered following trial; (2) due diligence on the part of the movant to
discover the new evidence is shown or may be inferred; (3) the evidence is not merely
cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such
that a new trial would probably produce a new result. Jones v. Lincoln Elec. Co., 188
F.3d 709, 732 (7th Cir. 1999).
Under Rule 50(a) of the Federal Rules of Civil Procedure, a district court may
enter judgment against a party who has been fully heard on an issue during a jury
trial if “a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue.” Fed. R. Civ. P. 50(a). The Court “must construe the facts
strictly in favor of the party that prevailed at trial.” Schandelmeier–Bartels v. Chi.
Park Dist., 634 F.3d 372, 376 (7th Cir. 2011). “Although the court examines the
evidence to determine whether the jury's verdict was based on that evidence, the
court does not make credibility determinations or weigh the evidence.” Id. And the
Court “can strike a piece of evidence from its weighing process only if reasonable
persons could not believe it because it contradicts indisputable physical facts or laws.”
Mejia v. Cook County, Ill., 650 F.3d 631, 63 (7th Cir. 2011) (cleaned up). Put another
way, “[d]iscrepancies arising from impeachment, inconsistent prior statements, or
the existence of a motive” will not render testimony excludable. Whitehead v. Bond,
680 F.3d 919, 926 (7th Cir. 2012) (cleaned up).
A court may grant a motion for a new trial under Rule 59(a) if the verdict is
against the clear weight of the evidence or if the trial was unfair to the moving party.
Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir. 2011). “In passing on a motion for a

19

new trial, the district court has the power to get a general sense of the weight of the
evidence, assessing the credibility of the witnesses and the comparative strength of
the facts put forth at trial.” Mejia, 650 F.3d at 633 (cleaned up). The district court,
however, may not simply substitute its judgment for the jury’s. “Since the credibility
of witnesses is peculiarly for the jury, it is an invasion of the jury's province to grant
a new trial merely because the evidence was sharply in conflict.” Whitehead, 680 F.3d
at 928. The standard for granting a new trial is, thus, relatively high and a motion
requesting as much will only be granted “when the record shows that the jury's
verdict resulted in a miscarriage of justice or where the verdict, on the record, cries
out to be overturned or shocks our conscience.” Id. at 927-28.
III. Analysis
A. Defendants’ Rule 60 Motion
The Court starts with the Defendants’ Rule 60 motion, as its outcome impacts
the rest of this Opinion. The Defendants argue that new evidence has come to light
that undermines the Court’s authorization to play Fernandez’s video-deposition
testimony. By way of background, Kuri sought to present testimony from Fernandez
at trial but was unable to serve him with a subpoena. Trial Tr. at 575:19-576:2; R.
294, Mot. to Present Fernandez Testimony. The Court expressed skepticism that Kuri
could show Fernandez was unavailable without first serving him with a subpoena.
Id. at 576:20-23. The Court also pointed out that Kuri should have sought judicial
assistance earlier, either via a motion to compel or a motion for assistance from the
United States Marshals Service, and the Court noted that it had issued two prior
warnings about service of trial subpoenas. Id. at 577:13-578:1 (citing to R. 244,
20

5/23/2018 Minute Entry; R. 263, 8/15/2018 Minute Entry). Kuri’s attorney then
offered up his investigator to testify about his efforts to find Fernandez and serve him
with a subpoena. Id. at 578:8-11.
The following day, Kuri’s attorney offered the testimony of his investigator,
Mort Smith, who testified that he began looking for Fernandez in mid-June 2018 and
“continued on periodically throughout the remainder of the summer.” Trial Tr. at
974:6-9. Smith explained that he began by searching incarceration records and then
moved on to other public databases where he found several possible addresses for
Fernandez and his relatives. Id. at 974:14-20. Smith went to one of these addresses
for the first time in June 2018. Id. at 974:21-24. Smith also found three different
phone numbers for Fernandez, but all were dead. Id. at 975:5-6. Eventually, about
two weeks before the trial started on September 24, Smith tracked down Fernandez’s
girlfriend, who refused to share Fernandez’s phone number but offered to convey a
message to him. Id. at 975:7-17. She also told Smith that Fernandez had been
homeless and living in his car. Id. at 976:1-4.
In response to all of this, the Court again pointed out that, if only Kuri had
come to the Court sooner for help, the Court could have aided him in finding
Fernandez. For example: by authorizing a subpoena to a credit reporting agency to
find other addresses; ordering Fernandez’s girlfriend to provide his telephone
number; or sending the Marshals Service to bring him to court. Trial Tr. at 977:22978:8. Nonetheless, the Court allowed Kuri to play a video recording of Fernandez’s
deposition because it was important testimony; there is a preference to decide cases

21

on the merits; and Fernandez was likely dodging service. Id. at 978:11-16. The Court
explained, however, that the decision “was this close, because I definitely could have
helped way back … months ago.” Id. at 978:16-18.
In their motion, the Defendants explain that, in November 2018, they received
investigator Smith’s time records from Kuri’s attorneys as part of the parties’ posttrial briefing. Rule 60 Mot. ¶ 7. According to the defense, the time records did not
align with Smith’s testimony about his service efforts and seemed to show that he did
not begin look for Fernandez until September 2018. Id. ¶ 8; R. 339, Time Records at
64. In response, Kuri’s attorneys submitted Smith’s mileage reimbursement log,
which reflected two trips taken in June 2018 to try and locate Fernandez. Pl.’s Resp.
Rule 60 Mot. ¶ 4; R. 347.1, Smith Mileage Log. Kuri’s attorneys contend that the
documents sent to the Defendants did not include entries for these June trips because
they had underbilled Smith’s time. Id. ¶ 3. The Defendants responded that, even if
Smith had made some efforts to find Fernandez in June, he had not continued to look
for him “periodically throughout the remainder of the summer.” R. 351, Defs.’ Rule
60 Reply ¶¶ 6, 8, 16. Kuri’s attorneys disputed this point, but also argued that Smith
had clearly established that he used reasonable diligence to search for Fernandez and
that the admission of Fernandez’s testimony—even if done so in error—was
insufficient to warrant a new trial. R. 358, Rule 60 Sur-Reply at 6-11.
Federal Rule of Civil Procedure 32 governs the use of deposition testimony
during trial. Under that provision, “a party may use for any purpose the deposition
of a witness, whether or not a party, if the court finds: ... that the party offering the

22

deposition could not procure the witness’s attendance by subpoena....” Fed. R. Civ. P.
32(a)(4)(D). “Implicit in this rule is an obligation to use reasonable diligence to secure
the witness's presence, and the district court has broad discretion to determine
whether the proponent has satisfied this requirement.” Thomas v. Cook Cty. Sheriff’s
Dep’t, 604 F.3d 293, 308 (7th Cir. 2010). A decision to allow deposition testimony,
even in error, will not be grounds to undo the verdict “unless the erroneous ruling
violated the objecting party’s substantial rights.” Maurer v. Speedway, LLC, 774 F.3d
1132, 1135 (7th Cir. 2014). In other words, a decision is not reversible if the error is
harmless in light of the trial record as a whole. Viramontes v. City of Chicago, 840
F.3d 423, 430 (7th Cir. 2016).
Based on the record evidence, it is true that Smith did not look for Fernandez
“periodically” throughout the summer of 2018, at least in a way that qualifies as
reasonable diligence. Smith made some attempts in June and then began again in
earnest in September. Kuri’s sur-reply argues that Smith should be credited for the
work he did between June and September 2018, which included “checking jails and
incarceration records and using public records databases to find possible addresses
for Mr. Fernandez and names and addresses of friends and relatives of Mr.
Fernandez.” Rule 60 Sur-Reply at 2. But these preliminary and cursory steps fall
short of reasonable diligence on their own. To be sure, those steps would probably be
enough in combination with Smith’s efforts in September, which included multiple
prolonged stake-outs, a neighborhood canvass, and confronting Fernandez’s
girlfriend and her father. Id. at 2-3. Indeed, even though Kuri’s attorneys did not ask

23

for judicial help in locating and serving Fernandez, the steps taken by Smith in
September would still be enough to show reasonable diligence if taken early on, in a
timely manner. These efforts, though, came far too late in the game, especially in
light of the Court’s multiple warnings about ensuring service of trial subpoenas. Kuri
chose to wait until September, when trial would be a scant three weeks away, even
though he had three full months to try and locate Fernandez after the trial date was
set on May 23. As a result, the September efforts should be zeroed out in this analysis,
meaning there is insufficient evidence to find that Kuri used reasonable diligence to
serve Fernandez with a trial subpoena.
Nonetheless, the introduction of Fernandez’s deposition testimony does not
warrant a new trial because it was harmless error—although this is a very close call.
There are two reasons to conclude that the error was harmless. First, it is not clear
that an earlier search for Fernandez would have made a difference.3 Although
impossible to know for sure, it is reasonable to infer from Smith’s intense but
unsuccessful attempts to track down Fernandez in September that Fernandez was
dodging the subpoena and his girlfriend was complicit in that effort. It is true that
3In

their sur-reply, the Defendants cite Griman v. Makousky for the proposition that
“whether the plaintiff’s last-minute efforts would have secured the witness’s appearance had
they been undertaken earlier [does] not matter because of the importance of the witnesses’
testimony to the plaintiff’s case.” R. 363, Defs.’ Rule 60 Sur-Reply at 3 (citing 76 F.3d 151,
155 (7th Cir. 1996)). This is very hard to square with the opinion, in which the Seventh
Circuit quotes the trial court as saying, “I am not persuaded that that sort of diligence that
has been shown in the last day [when the plaintiff’s counsel was making frantic efforts to
locate Hunt] would not have been productive had it been attempted earlier.” Griman, 76 F.3d
at 155. As the Court reads it, the trial court in Griman based its decision to exclude deposition
testimony, in part, on its belief that earlier efforts to locate the witness would have made a
difference; the Seventh Circuit appeared to endorse that reasoning. In any event, the plaintiff
in Griman did not begin looking for the witness until the second day of trial, distinguishing
the case from the facts at issue here. Id. at 153.

24

Kuri bears the burden of showing harmless error, but there is no record evidence that
pre-September reasonable diligence would have resulted in successful service on
Fernandez. The record would look different if the Defendants had offered evidence
that, for example, they took a few reasonable steps to look for Fernandez and found
him easily. So, this first form of harmless error is satisfied: even if Kuri’s team had
started to diligently attempt service before September, they probably would not have
found Fernandez.
Second, there is another form of harmlessness: even setting aside Fernandez’s
deposition testimony, the evidence submitted at trial was powerful enough that there
is not a substantial likelihood that the jury’s verdict would have been different. See
Viramontes, 840 F.3d at 430; Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 309
(7th Cir. 2010) (holding that, even if deposition testimony was erroneously allowed,
other live-testimony witnesses corroborated the deposition). The Defendants’ version
of the investigation—that Russell pointed the finger at Kuri (and David Gomez) on
August 1, 2009—was substantially discredited by plentiful other evidence, as well as
by common sense. To start, Chicago Police detective Frank Szwedo—who had zero
motive to testify adversely to fellow detectives Folino and McDermott—testified that
Russell did not identify anyone when Szwedo interviewed him at the scene right after
the shooting. It is true that, sadly, gang-related witnesses sometimes refuse to
identify a shooter on the notion that they would rather exact their own revenge. But
there was no evidence of that in this case. It was the opposite: Szwedo described
Russell as cooperative throughout the interview and conceded that Russell answered

25

all of Szwedo’s questions. Trial Tr. at 464:14-21. At trial, Szwedo explained that he
probed Russell during this conversation and gave Russell a chance to explain
everything he knew about the shooting. Id. at 472:15-21. Indeed, Szwedo recounted
(both in his interview report and at trial) Russell’s detail-laden description of the
lead-up to the shooting and the shooting—including physical identifiers of the
assailants. Trial Tr. at 470-77; 472:22-473:9 (men wearing white T-shirts and having
short or shaved hairstyles); see also 8/4/2009 Supp. Report at 11-12. Yet Russell
already knew Kuri; they were friends to the point that Kuri would stay at Russell’s
house when Kuri had nowhere else to go while growing up. Trial Tr. at 312:17-21
Why Russell would omit the actual identity of the shooter and the bicyclist-accomplice
when providing the otherwise fulsome account to Szwedo is a mystery that presents
a serious hole in the Defendants’ version of the investigation.
The other damaging gap in the defense version of the investigation is the date
of Folino’s crucial interview of Russell, the one that supposedly yielded the
identification of Kuri as a suspect. The written report of interview puts the date at
August 2, 2009. 8/14/2009 Supp. Report at 8. But the problem for the defense is that
Folino ran Kuri’s name through the criminal-history database and pulled Kuri’s
photograph the day before, on August 1. At trial, Folino explained the discrepancy by
labelling the August 2 date on the report as a “typo.” Id. at 625:6-13. But given that
Russell inexplicably did not identify Kuri to Detective Szwedo, the jury could readily
discredit Folino’s “typo” explanation.

26

What’s more, the jury also had ample reason to doubt the defense’s version of
the investigation in light of another common-sense defying aspect. According to the
Defendants, when they interviewed Fernandez on August 1, they purportedly did not
ask him to provide a physical description of the assailants. Instead, the Defendants
showed Fernandez photos of various suspects, allegedly without first asking for a
description. Trial Tr. at 1036:4-22, 1475:11-14 (“Q: Did you ask him, before you
showed him a photograph, to give you a description of any people that he might have
seen? A. No.”), 1475:20-24 (“Q. Before you showed him the photographs, did you ever
say ‘Mr. Fernandez, I need you to tell me what you saw. What did they look like?’ You
never asked him that, did you? A. No.”); 8/14/2009 Supp. Report at 8; Trial Tr. at
1410:18-23. That is simply a bizarre way to interview an eyewitness: show photos of
suspects before asking for a description? The jury had every reason to discredit that
version and conclude that the reality was that the detectives asked Fernandez for a
description, and he could not provide one. At the very least, Fernandez made no
mention of Kuri or David Gomez at the August 1 interview. Trial Tr. at 606:10-20,
610:1-5.
After refuting the Defendants’ claims that Russell was the source of the
information and that Fernandez identified the perpetrators, Kuri did not need to
supply a theory for why the Defendants focused on him, but Kuri actually did provide
some evidence on that score. As described above, see supra at 5-7, the defense asserted
that the tip from Abdul Wachaa came on August 3, via his statement to Officer Lopez.
Folino testified at trial that this tip was his very first interaction with Wachaa. Trial

27

Tr. at 539:2-5. That timing would be important in excluding the possibility that
Wachaa—rather than Russell—prompted the Defendants to focus on Kuri and David
Gomez. But at Folino’s deposition, he made a damning admission: he could not
remember whether he had met Wachaa before or after the Patel murder
investigation. Id. at 539:13-20. At trial, Folino had to contend that the deposition
testimony was “inaccurate,” id. at 539:21-24, and that now (at trial) he did remember
that the Patel investigation was the first time the two had met. But the damage was
done. It did not help matters that Folino did not write and submit a contemporaneous
report—which could have had the benefit of a computer-system date stamp—
documenting his first conversation with Wachaa. Trial Tr. at 550:9-11. Folino also
acknowledged that heused Wachaa as an informant multiple times afterwards and
indeed was still using him at the time Folino was deposed in this case. Id. at 533:419.
In light of the other evidence in the case, it is not surprising that Kuri’s
attorney delivered a closing argument and rebuttal that focused on evidence other
than Fernandez’s deposition testimony. All told, Kuri’s counsel meaningfully
discussed Fernandez’s testimony only in sporadic and brief moments during closings..
See Trial Tr. at 1640:6-10, 1644:25-1645:4, 1646:16-21, 1649:19-1650:21, 1655:14-19,
1657:8-13, 1659:8-16, 1736:25-1737:2, 1743:8-10. In total, Fernandez’s deposition was
mentioned by Kuri’s counsel in around 71 lines of closing and rebuttal argument,
which works out (at 25 lines per page) to fewer than 3 pages out of 67 pages. See Trial
Tr. at 1635-1686, 1736-1752. The influence of Fernandez’s deposition testimony thus

28

was relatively minor on the verdict. It is important to remember too that the
deposition’s influence in Kuri’s favor was diminished because the video excerpts
played at trial included extensive cross-examination of Fernandez by the Defendants’
attorney. Thomas, 604 F.3d at 309 (“The defendants had the opportunity to crossexamine Matias during his deposition, as well as the other inmates whose testimony
corroborated Matias's accounts. Under these circumstances, the minimal prejudice to
the defendants does not warrant a new trial.”). All of this leads to the conclusion that,
even though Kuri failed to use reasonable diligence to locate Fernandez, the
introduction of his deposition testimony was harmless error and no new trial is
justified.
B. Rule 50 and Rule 59 Motions
1. Due Process Claim
Among the various claims pursued by Kuri, he alleged that the Defendants
violated his right to due process of law. To win on this claim, Kuri had to show either
that the Defendants failed to disclose exculpatory evidence or that they manufactured
evidence that deprived him of his liberty. Armstrong v. Daily, 786 F.3d 529, 540 (7th
Cir. 2015); Avery v. City of Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017). The
Defendants argue that the due-process verdict must be tossed out and that the
testimony from Russell and Fernandez presented at the civil trial is not credible and
should be discounted, if not altogether discarded. See Defs.’ Rule 50 Mot. at 2-4; Defs.’
Rule 59 Mot. at 5-8. According to the Defendants, “Russell and Fernandez attacked
their own integrity to such an extent that no reasonable jury could believe any of their
testimony to a degree sufficient to establish Plaintiff[‘s] claims.” Defs.’ Rule 59 Mot.
29

at 5. This conflicting testimony, according to the Defendants, warrants either
judgment as a matter of law or a new trial.
On Russell, it is true that his testimony was all over the place. At the federal
civil trial, he substantially contradicted not only his prior testimony at the criminal
trial and grand jury, but also his own testimony given moments earlier. For example,
he testified that: (1) he did not see Kuri riding a bicycle the night of the shooting,
Trial Tr. at 843:24-844:1, 845:18-19; (2) he told police that he saw Kuri on the bike
that night, id. at 862:17-25; (3) the police did not tell him whose photo to pick out, id.
at 841:3-4; and (4) the police told him they knew who the perpetrators were and told
him who to pick, id. at 854:10-15. The Defendants argue that these inconsistencies
lead to the conclusion that Russell was lying. Defs.’ Rule 59 Mot. at 7.
But as detailed earlier in the harmlessness analysis of Fernandez’s deposition,
there was plenty of other evidence—apart from Russell himself—to undermine the
defense’s version that Russell provided the identification of Kuri to the Defendants.
Again, it is crucial that, right after the shooting at the scene of the crime, Russell
cooperatively recounted to Detective Szwedo a detailed description of what happened
but did not identify Kuri as a perpetrator. This important fact was established by
Szwedo’s testimony (and his police report) and was not at all dependent on Russell’s
testimony. Taking this fact into consideration, combined with the August 2 interviewdate “typo,” it was neither against the manifest weight of the evidence nor legal error
for the jury to conclude that Russell was not the source of the identification, and
instead had been fed it by the Defendants.

30

Kuri also presented evidence that Russell was facing separate criminal charges
when he gave testimony to the grand jury implicating Kuri in the Patel murder. These
charges were dropped shortly after the grand jury indicted Kuri. Trial Tr. at 1369:1116. While this evidence is not conclusive that there was a quid pro quo between
Russell and the Defendants, it is another piece of circumstantial evidence that
provides a plausible, and unfortunately pernicious, explanation for Russell’s eventual
identification of Kuri. Given all the supporting evidence, it was fair for the jury to
believe Russell when he testified that the Defendants told him who to pick from the
photo array and to discredit him when he testified that it did not happen that way.
“The jury heard all of the conflicting and inconsistent testimony, bad memories and
impeachment and all, and then did precisely what it is called upon to do, which is
make a credibility determination that was not manifestly outweighed by other
evidence.” Galvan v. Norberg, 2011 WL 1898237, at *8 (N.D. Ill. May 18, 2011), aff’d,
678 F.3d 581 (7th Cir. 2012); Whitehead, 680 F.3d at 927 (“When a jury has chosen
to credit crucial testimony with full knowledge of the many faults of the witness
providing it, we have no basis to interfere, as the jury is the final arbiter on such
questions.”).
With regard to Fernandez’s deposition testimony, as discussed in the prior
section of this Opinion, the Court must disregard this deposition testimony
completely (because Kuri was not reasonably diligent in trying to find Fernandez),
but that still leaves the jury verdict intact against a manifest-weight challenge. As
detailed above, the defense version that Russell provided the identification of Kuri

31

was significantly undermined by the absence of an identification when Russell spoke
with Szwedo; the August 2 date on the report of Russell’s interview with the
Defendants, which is after the Defendants printed Kuri’s photo; Folino’s concession
at his deposition that he could not remember whether he had met Wachaa before the
Patel investigation; and a lack of a written record of Folino’s first conversation with
Wachaa. The jury had more than enough evidence to reject the defense’s version of
the identification.
Nonetheless, the Defendants make two legal arguments for why the verdict on
this claim needs to be thrown out. First, the Defendants argue that they cannot be
held liable for fabricating evidence because they did not know Russell and
Fernandez’s identifications were false, that is, they did not know that Kuri was
innocent. Defs.’ Rule 50 Mot.. at 6. This argument misses the point. Kuri contended
that Folino and McDermott concocted a false story that Fernandez and Russell
affirmatively identified Kuri based on those witnesses’ own personal knowledge, and
any information from Wachaa only confirmed what Folino and McDermott already
knew. Under Kuri’s theory, the story was false because, in reality, Folino and
McDermott (1) received Kuri’s name from Wachaa, (2) pulled Kuri’s photo on August
1, and (3) fed Kuri’s name to Russell and Fernandez on August 2.4 “Falsified evidence
will never help a jury perform its essential truth-seeking function. That is why
convictions premised on deliberately falsified evidence will always violate the

4This

is what distinguishes this case from those relied on by the Defendants. See Defs.’
Rule 50 Mot. at 5. Petty v. City of Chicago, for example, was a “coercion case” where “there
[was] not one shred of evidence to suggest that CPD officers fabricated evidence.” 754 F. 3d
416, 423 (7th Cir. 2014). That is not so here.

32

defendant's right to due process.” Avery, 847 F.3d at 439 (emphasis in original). The
jury was free to find that Folino and McDermott fabricated the story of Kuri’s
identification, and that is the specific falsity that girds the due-process claim.
Second, the Defendants argue that they cannot be held liable for a Due Process
claim under Brady v. Maryland, because Kuri was able to “make use of the
exculpatory evidence at trial.” Defs.’ Rule 50 Mot.. at 9.5 This argument was
considered and rejected at summary judgment. R. 203, Summary Judgment Op. at
12 (“[U]nder 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.”) (quoting Cairel v. Alderden, 821 F.3d 823, 833 (7th Cir. 2016))
(cleaned up). It is no more convincing at this stage. Kuri was denied his right to due
process when he was detained for three years in Cook County Jail awaiting trial
based on withheld exculpatory evidence.
The Defendants also protest that a finding in favor of Kuri is at odds with Gill
v. City of Milwaukee, 850 F.3d 335 (7th Cir. 2017). Defs.’ Reply at 23. According to
the defense, the previously assigned judge did not address Gill in the summary
judgment opinion. Id. at 23-24. But Gill is cited in the opinion, Summary Judgment
Op. at 12, meaning that the Court considered it and still denied summary judgment
for the Defendants. Even if that were not the case, though, Gill is different from the

5To

be clear, Kuri does not need to show both fabrication of evidence and concealment
of exculpatory evidence to succeed on his due process claim. The jury was allowed, under the
instructions, to find for Kuri if either fact was proven. R. 311.1, Jury Instructions at 20.

33

facts here. The officers in Gill failed to timely turn over incident reports of witness
interviews that supported Gill’s version of events, putting off disclosure for one year.
850 F.3d at 343. The Seventh Circuit held that, even though the evidence’s disclosure
was delayed, it was still disclosed early enough for Gill to make use of it at trial. Id.
Here, if one credits Kuri’s version of events, the Defendants never turned over any of
the exculpatory evidence at issue. Put another way, Kuri does not argue that
exculpatory evidence was disclosed too late; he asserts that the Defendants never
disclosed evidence showing that they fabricated the key identification of the
investigation. Under these circumstances, three years of pretrial detention is a
sufficient deprivation of liberty to be actionable under Brady, even though Kuri was
eventually acquitted.
Finally, the Defendants also make the related but distinct argument that
Kuri’s Brady claim fails because he presented no evidence from which “the jury
[could] infer that the prosecutor would have dismissed the case” had they known
about the exculpatory evidence. Defs.’ Rule 50 Mot. at 9. The Defendants again miss
the mark. Kuri was not required to present testimony from “his criminal defense
attorney or the trial prosecutor to suggest that that the charges would have been
dropped.” Id. The question of what the specific prosecutor trying the criminal case
against Kuri would have done is not controlling. “The appropriate counterfactual to
consider is whether a reasonable prosecutor under these circumstances would have
moved forward with the charges.” Armstrong v. Daily, 786 F.3d 529, 554, n. 7 (7th
Cir. 2015) (emphasis added); see also Fields v. City of Chicago, 2017 WL 4553411, at

34

*3 (N.D. Ill. Oct. 12, 2017) (explaining that to assess the materiality of evidence, the
question is measured as to a reasonable prosecutor).6
Here, the jury was free to infer that a reasonable prosecutor would have
dropped the charges against Kuri if the prosecutor determined that the witness
identifications were a result of police fabrication, rather than personal knowledge.
The testimony from Russell and Fernandez was really the only evidence linking Kuri
to the shooting. See Smith v. Cain, 565 U.S. 73, 75 (2012) (finding that withheld
witness impeachment evidence was enough to trigger “reasonable probability” of a
different result because witness’s “testimony was the only evidence linking Smith to
the crime”). The verdict on Kuri’s due process claim was not against the manifest
weight of the evidence, so it will stand.
This goes for both Folino and McDermott. The Defendants argue that there is
not enough evidence to show that McDermott was personally involved in the
investigation and arrest. Defs.’ Rule 59 Mot. at 12. But McDermott was present at
most of the key points during the investigation, including both interviews with
Russell, Trial Tr. at 1418:2-11, 1419:14-23; both interviews with Fernandez, id. at

6The

Defendants also argue that the prosecutor in this case plowed forward with the
trial even after Russell and Fernandez recanted their identifications on the stand, and that
this proves that turning over additional evidence would not have impacted the outcome of
the case. Defs.’ Rule 50 Mot. at 10. The Defendants improperly equate Russell and
Fernandez’s recantations with other evidence of the fabricated investigation, including
missing and incorrect police reports, information on the Wachaa tip, and the Defendants’
promise to find money for Fernandez in exchange for his identification. None of this was
disclosed to the prosecutor or Kuri before or during trial. By withholding this evidence, the
Defendants “obstructed the ability of the prosecutors and defense counsel to get at the truth
in the criminal trial—which does support the jury’s verdict.” Newsome v. McCabe, 319 F.3d
301, 304 (7th Cir. 2003) (emphasis in original).

35

1408:4-1410:11, 1418:17-1419:12; the August 5 and September 8 interrogations of
Kuri, id. at 1423:5-24, 1515:5-1517:4; and at least some of the conversations with
Wachaa, id. at 1455:3-1456:3. This is enough participation in the investigation to
qualify as personal participation, especially because the jury could reasonably infer
that McDermott had to be in on the plan in order for it to succeed.
2. Fourth Amendment: Unlawful Detention
Next up is Kuri’s claim for unlawful detention under the Fourth Amendment.
The Fourth Amendment bars unreasonable detention not supported by probable
cause. Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 917 (2017). The Defendants argue
that the verdict on this claim cannot stand because they had probable cause to detain
Kuri once Russell and Fernandez identified him. Defs.’ Rule 50 Mot. at 13 (citing
Matthews of City of East St. Louis, 675 F.3d 703, 707-08 (7th Cir. 2016)). According
to the Defendants, “there was no evidentiary basis for the jury to conclude that
Defendants did not justifiably rely on Russell and Fernandez’s identifications in
pursuing charges against Plaintiff.” Id. at 14.
Of course officers are generally permitted to rely on a witness’ account for a
probable-cause determination, even if later on it turns out he witness was lying or
was wrong. But that general proposition is tempered by an exception: “[A] complaint
of … [a] single witness is generally sufficient to establish probable cause, unless the
officer has a reason to question the witness’ account.” Reynolds v. Jamison, 488 F.3d
756, 765 (7th Cir. 2007) (emphasis added). Here, if the jury accepted Kuri’s version
of the events, then the fact that the Defendants told Russell and Fernandez whom to
identify obviously destroys probable cause. Put another way, if the Defendants
36

instructed Russell and Fernandez to pick Kuri’s picture out of an array, it was
unreasonable to rely on those “identifications.” of Kuri. Fabricated or tainted evidence
“cannot support a finding of probable cause.” Alexander v. United States, 721 F.3d
418, 423 (7th Cir. 2013).
The Defendants go on to argue that there was evidence outside of the
identifications that established probable cause, including Kuri’s inability to produce
a reliable alibi, his affiliation with the Spanish Cobras, and his initial lies about
knowing Gomez. Rule 50 Mot. at 14. Neither Rule 50 nor Rule 59 requires vacatur of
the jury verdict on these facts. It is true that the probable-cause threshold is low: “A
police officer has probable cause to arrest if, at the time of the arrest, the facts and
circumstances within the officer’s knowledge are sufficient to permit a prudent person
to believe that the suspect had committed, is committing, or is about to commit an
offense.” Rooni v. Biser, 742 F.3d 737, 740 (7th Cir. 2014). But once the identifications
are subtracted out of the probable-cause equation, there is nothing affirmatively
connecting Kuri to the crime. All that is left either would apply to potentially
thousands of people (the lack of a provable alibi for July 23 and affiliation with the
Spanish Cobras) or means very little without additional evidence linking Kuri to the
crime (disclaiming knowledge of Gomez).7
Lastly, it bears noting that the “probable cause determination must be made
by a jury if there is room for a difference of opinion concerning the facts or reasonable

7At

trial, Kuri explained that, during the August 5 interrogation, he at first falsely
disclaimed knowing Gomez because the police were telling him that Gomez implicated Kuri
in a murder. Trial Tr. 358:8-11.

37

inferences to be drawn from them.” Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir.
2008) (cleaned up). The jury did so here and found that the Defendants lacked
probable cause. Without the identifications of Russell and Fernandez, the verdict was
not against the manifest weight of the evidence.
3. Malicious Prosecution
Next, the Defendants challenge the verdict of liability on the malicious
prosecution claim. On this claim, the jury found against Folino and in favor of
McDermott. The Defendants object to this verdict on two grounds. First, they argue
that Kuri failed to show that Folino acted with malice. Defs.’ Reply at 31-32. See also
Cairel, 821 F.3d at 834 (“To establish a claim for malicious prosecution under Illinois
law, plaintiffs must establish … malice.”). Under Illinois law, “a plaintiff may
demonstrate malice by showing that the prosecutor proceeded with the prosecution
for the purpose of injuring plaintiff or for some other improper motive.” Aguirre v.
City of Chicago, 887 N.E.2d 656, 663 (Ill. App. Ct. 2008) (citing Turner v. City of
Chicago, 415 N.E. 2d 481, 487 (Ill. 1980)). An improper motive for a prosecution is
any reason other than to bring the party to justice. Rodgers v. Peoples Gas, Light &
Coke Co., 733 N.E. 2d 835, 842 (Ill. App. Ct. 2000) (citing Mack v. First Security Bank,
511 N.E. 2d 714, 717 (Ill. 1987)).
This first argument requires little discussion. The jury accepted Kuri’s version
of events and thus believed that Folino fed the identification of Kuri to Russell and
Fernandez. The jury was free to infer that Folino acted with an improper motive when
he knowingly fabricated evidence and concealed exculpatory evidence, because that
misconduct is clearly not designed to bring a truly guilty party to justice. See, e.g.,
38

Bianchi v. McQueen, 58 N.E. 3d 680, 699 (Ill. App. Ct. 2016). As such, the jury’s
verdict against Folino on the malicious prosecution claim will stand.
Second, the Defendants argue that the jury’s verdict in favor of McDermott on
the malicious prosecution claim is inconsistent with the liability finding against
Folino for two reasons: (1) it cannot be squared with the jury’s verdict against
McDermott on the Fourth Amendment claim; and (2) it is inconsistent with the jury’s
verdict against Folino for malicious prosecution. Kuri argues that the Defendants
failed to preserve these arguments because they did not object to the verdicts before
the jury was discharged. Pl.’s Resp. Rule 50, 59 Mots. at 45. The Defendants counter
that, although other courts have held that a party must assert an inconsistency
objection before the jury is excused, the Seventh Circuit has not yet endorsed this
view. Defs.’ Reply at 32. After reviewing the case law on this issue, the Court holds
that a party indeed does forfeit an inconsistency objection by failing to assert the
objection before the jury’s discharge.
To start, the Seventh Circuit has decided a related question, albeit not the
precise one on hand. Specifically, the Seventh Circuit has addressed the forfeiture
issue when a party contends that a general verdict is inconsistent with written
interrogatories put to the jury. In that scenario, under Federal Rule of Civil Procedure
49(b), a party must object to inconsistencies between general verdicts and written
questions before the jury is excused or else the party forfeits its objection. See Strauss
v. Stratojac Corp., 810 F.2d 679, 682-83 (7th Cir. 1987). Here, however, the question

39

is what to do with when a party contends that two general verdicts are inconsistent
but failed to pose the objection before the jury was discharged.
Seven other Circuits deem those objections to be forfeited (nine, if counting
unpublished decisions). See, e.g., Zachar v. Lee, 363 F.3d 70, 75 (1st Cir. 2004);
Anderson Group, LLC v. City of Saratoga Springs, 805 F.3d 34, 46-49 (2d Cir. 2015);
Frank C. Pollara Group, LLC v. Ocean View Inv. Holding, LLC, 784 F.3d 177, 191 (3d
Cir. 2015); Hutcherson v. Lim, 584 Fed App’x 151, 152 (4th Cir. 2014) (nonprecedential disposition); Mosley v. Margalis, 698 Fed. App’x 296, 298 (6th Cir. 2017)
(non-precedential disposition); Chem–Trend, Inc. v. Newport Indus., Inc., 279 F.3d
625, 629 (8th Cir. 2002); Williams v. Gaye, 895 F.3d 1106, 1130 (9th Cir. 2018);
Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1545-46 (10th Cir. 1993); Mason v.
Ford Motor Co., Inc., 307 F.3d 1271, 1275-76 (11th Cir. 2002).8 That rule of forfeiture
makes sense: generally speaking, advocates must pose objections at a point in trial
when the mistake can be avoided or corrected. When a jury verdict is published but
the jury has not been dismissed, that is the moment when lawyers can ask for a
finding of inconsistency, propose an explanation and instruction to the jury, and allow
deliberations to commence again. It is true that the assessment must be made on the
spur of the moment—but many trial objections are expected to be posed in exactly
that on-the-fly situation. There is also nothing that prevents a lawyer from asking for
time, whether in the form of a sidebar or even a recess, in order to consider whether

8The

Court acknowledges that it did not affirmatively ask the parties if they had any
objections to the verdict before dismissing the jury. But there is no hint in any of the Circuit
decisions that the holding turned on whether the trial court expressly asked the parties for
objections before discharging the jury.

40

the verdict is inconsistent. Also, it is par for the course for lawyers to consider, both
before the trial and during the trial, the relationship between the various claims that
will be presented to the jury. For example, lawyers must do that to evaluate jury
instructions and to craft closing arguments. So, it is not as if the moment of the
verdict’s publication is the very first moment that lawyers have thought through how
the claims relate to one another. And adopting a forfeiture rule is “not a mere
technicality,” as it ensures “an opportunity for correction of the error while the jury
remains empaneled, thereby possibly heading off a second lengthy trial.” Anderson
Grp., LLC, 805 F.3d at 46-47 (cleaned up).
Lastly, a forfeiture rule also prevents parties from acting strategically: here,
for example, it is not as if the defense asked for a jury instruction, before
deliberations, to the effect that the Defendants or that certain claims should not be
given separate consideration. Indeed, before the trial, it was the defense that
proposed a separate-consideration instruction, and the defense confirmed its
agreement with the instruction during the trial. R. 251, Proposed Jury Instructions
at 40 (Defendants’ Proposed Instruction No. 13); R. 373, Trial Tr. at 1619:20-1620:8
(referring to Jury Instructions at 16). To take advantage of that instruction and then
turn around to object after-the-fact should be discouraged. So, the Court concludes
that the Defendants forfeited this objection by failing to raise it before the jury’s
discharge.
Even if the Defendants had not forfeited their verdict-inconsistency objections,
the Court would hold that they are not entitled to a new trial. Take first the defense

41

argument that no reasonable jury could find that Folino was liable for malicious
prosecution while McDermott was not. To the contrary, a jury reasonably could
distinguish between Folino and McDermott on this claim. Folino played a much
larger role than McDermott in causing the prosecution’s commencement or
continuance. For example, Folino is the one who decided to contact the State’s
Attorney, in September 2009, to seek charges against Kuri, literally setting the
prosecution into motion. Trial Tr. 749:15-21. Folino also contacted the State’s
Attorney on August 5 (four days after pulling Kuri’s photo to show to Fernandez) to
explain the state of the investigation. Id. at 755:3-757:11. McDermott was not part of
those conversations, id. at 1440:19-23, 1504:11-20, nor did he accompany Folino when
he went to arrest Kuri in September in Rochelle, Trial Tr. at 1437:21-1438:10, 999:181000:15. Folino is also the author listed on the supplemental police report that
detailed the investigation. 8/14/2009 Supp. Report at 1. What’s more, Folino testified
at Kuri’s criminal trial, Trial Tr. at 796:7-9, whereas there was no evidence presented
that McDermott did as well. Lastly, it was Folino who had the handler-informant
relationship with Wachaa, and he even admitted that he has used Wachaa as an
informant on multiple occasions. Id. at 533:4-24. These factual differences are enough
to justify the different outcomes on the malicious prosecution claim for Folino and
McDermott. Fox, 600 F.3d at 844 (“Any plausible explanation for the verdict
precludes reversal.”).
Turning to the Defendants’ second inconsistency objection, it was also
reasonable for the jury to find that McDermott was liable for unlawful detention but

42

not for malicious prosecution. To be sure, there is overlap between the two claims.
Indeed, on one of the malicious-prosecution elements (“commenced or continued”), the
jury was instructed to refer back to the definition given with the unlawful-detention
claim. Jury Instructions at 24 (“You should use the same definition of ‘commenced or
continued’ that I have you earlier for the unlawful-detention claim.”). But there is a
key difference between the two claims: subjective intent. The jury was told that Kuri’s
malicious prosecution claim was “that Defendants Folino and McDermott maliciously
caused him to be prosecuted for murder and attempted murder.” Id. This differed
with their instructions on unlawful detention, which was defined as “causing [Kuri]
to be detained without probable cause before his criminal case went to trial.” Id. at
21. The Fourth Amendment claim did not require Kuri to prove that McDermott acted
with malice; the test is objective only, with no state-of-mind element. So, the
difference in the jury’s verdicts can be plausibly explained by Folino’s larger role in
the prosecution, from which the jury could infer subjective malice, whereas
McDermott was not the driving force behind the prosecution itself. Also, Folino’s role
at Kuri’s criminal trial gave the jury more evidence on malice when compared to
McDermott. At the federal trial, Folino admitted that he testified at the criminal trial
that Russell did not initially identify Kuri the night of the shooting because he
became upset and Szwedo was unable to complete the interview. Id. at 796:7-797:24.
But Szwedo’s testimony that Russell actually cooperated on the night of shooting
contradicts Folino’s explanation. Id. at 464:5-21. Based on this evidence, a jury could
have reasonably inferred that Folino misled the State’s Attorney who brought charges

43

against Kuri and gave false testimony at the criminal trial. In contrast, there was no
evidence presented at the civil trial that McDermott gave any testimony at the
criminal trial or contacted the State’s Attorney to pursue charges. So, even if the
objections were preserved, a new trial would not be warranted.
4. Conspiracy and Failure to Intervene
Next, the Defendants object to the jury’s verdicts on the claims of conspiracy
and failure to intervene. The Defendants first argue that these claims must fall
because there were no underlying constitutional violations. Defs.’ Rule 50 Mot. at 15;
Defs.’ Rule 59 Mot. at 18. As discussed earlier, however, the Court has rejected the
challenges to the verdicts on the underlying substantive claims.
The Defendants next contend that Kuri failed to present any evidence of an
agreement between Folino and McDermott, so there was no basis for the jury to find
them liable for conspiracy. Defs.’ Rule 50 Mot. at 15; Defs.’ Rule 59 Mot. at 18.
Naturally, there was no direct evidence or direct admission of a conspiracy. But
equally naturally, “[c]ircumstantial evidence may provide adequate proof of
conspiracy.” Hoffman–La Roche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir. 1971).
Kuri presented evidence that Folino and McDermott had an opportunity to form an
agreement as partners in the investigation; they interrogated Kuri together; and they
interviewed Russell and Fernandez together. In the context of the case presented by
Kuri—that the Russell identification was fabricated and Fernandez disclaimed being
able to identify the assailants—that is more than enough evidence from which to
survive the Defendants’ objection on this claim. Folino simply could not have carried
on the misconduct without McDermott knowing about it.
44

The Defendants likewise contest the verdict on Kuri’s failure-to-intervene
claim, but there was enough evidence for a reasonable jury to find for Kuri and
against both Defendants. Again, Folino and McDermott were both present at many
of the key points in the investigation. Either one could have stopped the other at any
time, including during the interviews with Russell, the interviews with Fernandez,
or either interrogation of Kuri. Instead, neither stepped in to get the investigation
back on track. The Court will not disturb the verdict on the failure to intervene claim.
5. Damages
The last issue raised by the defense is whether to reduce the jury’s award of
damages for loss of normal life. Defs.’ Rule 59 Mot. at 19. The defense asserts that
Kuri “presented no evidence of an inability to enjoy the pleasurable aspects of life or
any ongoing disability, injury, or pain.” Id. at 22. Illinois law defines “loss of normal
life” as “the temporary or permanent diminished ability to enjoy life… [including] a
person’s inability to pursue the pleasurable aspects of life.” Ill. Pattern Jury Instr.Civ. 30.04.02 (citing to Smith v. City of Evanston, 631 N.E.2d 1269, 1279 (Ill. App. Ct.
1994)). When determining whether or not to remit a damages award, the Court must
consider whether “(1) the award is monstrously excessive; (2) there is no rational
connection between the award and the evidence, indicating that it is merely a product
of the jury's fevered imaginings or personal vendettas; and (3) whether the award is
roughly comparable to awards made in similar cases.” Adams v. City of Chicago, 798
F.3d 539, 543 (7th Cir. 2015).
Although the Defendants are right that Kuri did not complain of an ongoing
disability or injury, he testified in detail about the impact of his lengthy pretrial
45

detention on his health and the normal aspects of life that he missed out on while
detained. For example, Kuri described the complete lack of privacy at Cook County
Jail and his inability to buy food or provisions that would have made him more
comfortable. Trial Tr. at 283:4-13, 291:1-292:12. He described his depression and
eventual suicide attempt. Id. at 293:24-294:19, 300:17-302:15. He stated that he felt
like he missed every holiday while detained and did not receive a hug the entire time
he was in custody. Id. at 293:24-294:8. He also testified about the unique difficulty of
being detained, including no social interaction with women, from ages 19 to 22. Id. at
293:8-22.
Kuri likewise testified about the lasting impact of his arrest and detention on
his mental health. He began taking mental-health medication while he was still at
Cook County Jail, but he explained that the medications made him feel not like
himself and “different.” Trial Tr. at 304:13-305:16. Since his release, Kuri has been
taken to the emergency room many times for symptoms of anxiety and PTSD. Id. at
327:15-328:17. In his own words, his life was “ten times worse” when he was released
from jail. Id. at 327:15-16. Considering all this evidence, an award of $1 million is not
monstrously excessive nor irrational for loss of normal life.
The next step in the analysis is typically to compare the jury’s award to those
in similar cases. “This, however, is not as important as the review of the evidence in
the case at hand; it offers at best a rough approximation of damage awards.” Adams,
798 F.3d at 545. Here, comparable cases are difficult to come by, as loss of normal life
damages are not as commonly awarded as damages for pain and suffering, and, when

46

they are awarded, are often lumped into one compensatory damages category.9 With
that limitation in mind, when viewing the entire $4 million compensatory damages
award, the verdict falls squarely within the bounds of prior verdicts in false
imprisonment cases, which have awarded between $1.5 and $2.25 million per year of
unlawful detention or incarceration. See, e.g., Jimenez v. City of Chicago, 877 F. Supp.
2d 649 (N.D. Ill. 2012), aff’d 732 F.3d 710 (7th Cir. 2013); Dominguez v. Hendley, 545
F.3d 585 (7th Cir. 2008); Johnson v. Guevara, 2009 WL 1886888 (N.D. Ill. June 22,
2009). In light of Kuri’s testimony and the three-year pretrial detention, it made sense
for the jury to allocate one-fourth of the overall award of $4 million to loss of normal
life.
Even if Kuri’s award was higher than most, the Court would not automatically
be required to remit. “To require that a jury’s damages award be no bigger than
previous awards in similar cases would make every such award ripe for remittitur.
There must be room for a jury’s award to exceed the relevant range of cases when the
facts warrant.” Adams, 798 F.3d at 545. The Defendants argue that the facts do not
warrant so here because Kuri gave “one-word answers” and did not have anyone else
testify on his behalf. Defs.’ Reply to Rule 50, 59 Mots. at 35-36. Although Kuri may
not have been the most eloquent or loquacious witness, the Court must view the
testimony through the lens of Kuri’s educational background and overall intelligence.
He sufficiently conveyed the suffering and loss he experienced while detained in Cook

9Although

the Defendants presented a few cases where loss of normal life damages
were broken out separately, none were brought under § 1983 for constitutional violations, so
they are of limited relevance. See Defs. Rule 59 Mot. at 21-22.

47

County Jail for those three years, and he did not need to present expert testimony
corroborating his own experience. The jury was free to credit what he testified to and
the damages award was reasonable in light of that.
C. Plaintiff’s Motion to Pursue Monell Claims
Lastly, Kuri has also filed a motion. He moves to reopen discovery to pursue
his Monell claims against the City of Chicago. Pl.’s Monell Mot. Early on in the
litigation, one of the previously assigned judges granted an agreed motion to bifurcate
Kuri’s claims against the City and stay discovery and trial pending resolution of the
claims against the individual defendants. 11/24/2014 Minute Entry. Kuri argues that
he should now be allowed to pursue his “independent, non-derivative” claims against
the City under Monell v. Department of Social Services of New York, 436 U.S. 658
(1978). Pl.’s Monell Mot. ¶ 2. The City opposes the motion and counters that “there is
no remaining case or controversy.” R. 354, City Resp. at 1.
The City is correct. Kuri cannot recover anything from the City above what he
is able to recover against Folino and McDermott. Spanish Action Comm. of Chi. v.
City of Chi., 766 F.2d 315, 321 (7th Cir. 1985) (explaining that a plaintiff’s award in
§ 1983 suit would not increase if additional defendants were added because
“compensatory damages can only be collected once”); Medina v. City of Chicago, 100
F. Supp. 2d 893, 895-96 (N.D. Ill. 2000). Also, an Illinois statute requires
municipalities to indemnify their employees for compensatory damages awarded in
tort judgments. See 745 ILCS 10/9–102. The Seventh Circuit has held that, under
this statute, a plaintiff may seek a judgment against a municipality requiring it to
indemnify the officer. Wilson v. City of Chicago, 120 F.3d 681, 684–85 (7th Cir. 1997).
48

So, there is no question that the City will pay the compensatory damages award if it
is affirmed.
In other words, Kuri is virtually certain to collect his compensatory damages
award of $4 million against Folino and McDermott (and, eventually, the attorneys’
fees) pending any appeals. Indeed, the Court has already entered judgment on the
compensatory damages award against the City for those claims on which Kuri was
successful. R. 313, 10/03/2018 Judgment. Since Kuri is not able to collect anything in
addition to that, regardless of any Monell claims, and since he has not brought claims
against the City for injunctive relief, there is no live case or controversy against the
City on which Kuri can move forward. The Court has no subject-matter jurisdiction
over Kuri’s Monell claims. The motion is denied, though it is without prejudice if the
City somehow disclaims payment on the compensatory damages award.
IV. Conclusion
For the reasons discussed, the defense’s post-trial motions are denied. Kuri’s
motion to re-open the Monell claim is also denied, and the Monell claim is dismissed
without prejudice as moot. The status hearing of September 11, 2019 is vacated.
ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: September 5, 2019

49