Myvett v. Fiorito et al
MEMORANDUM Opinion Signed by the Honorable Charles P. Kocoras on 10/31/2013. Mailed notice(yp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
CITY OF CHICAGO, a municipal
corporation, and Chicago Police Officer
RICHARD FIORITO, Star 11624,
13 C 3880
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the motion of Defendants Officer
Richard Fiorito (“Officer Fiorito”) and the City of Chicago (the “City”) (collectively
“Defendants”) to dismiss the complaint of Plaintiff Paul Myvett (“Myvett”) pursuant
to Federal Rule of Civil Procedure 12(b)(6).
For the reasons set forth below,
Defendants’ motion is granted.
The following well-pleaded allegations are derived from Myvett’s complaint,
and the Court accepts them as true for the purposes of the instant motion. At all times
relevant, Officer Fiorito was employed as a patrol officer with the Chicago Police
Department. He worked the midnight shift and was paid overtime for any appearance
in court, which would invariably occur after the conclusion of his shift. To collect
more overtime pay, Officer Fiorito concocted a scheme in which he arrested innocent
motorists for driving under the influence (“D.U.I.”). Officer Fiorito falsified reports
about these motorists and refused to permit them to submit to breathalyzer
On June 22, 2009, Officer Fiorito ordered Myvett to drive away from a party,
after which Officer Fiorito pulled Myvett over and arrested him for D.U.I. Officer
Fiorito did not allow Myvett to submit to a breathalyzer test. Myvett’s prosecution
lasted nearly three years until May 24, 2012, when Myvett’s case was disposed of in a
manner indicative of innocence.
The City suspected Officer Fiorito of misconduct related to his D.U.I. arrests.
Officer Fiorito’s supervisor commissioned an Internal Affairs investigation into the
alleged misconduct in or about January 2008, but the investigation was either not
conducted, or the results were concealed and never released to the public. The
Chicago Police Department has a “code of silence,” under which officers do not report
the misconduct of fellow officers. The City failed to train and supervise Officer
Fiorito properly in accordance with its normal policy, thus allowing him to perpetrate
misconduct against Myvett and others.
On May 24, 2013, Myvett filed a three-count complaint against Defendants
alleging: an infringement upon his due process rights in violation of the Fifth and
Fourteenth Amendments of the United States Constitution, in violation of the Civil
Rights Act of 1866, 42 U.S.C. § 1983 (“Section 1983”) (Count I); a claim against the
City pursuant to Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658
(1978) (Count II); and a claim for malicious prosecution under Illinois law (Count
III). Myvett’s complaint seeks compensatory and punitive damages against Officer
Fiorito, compensatory damages against the City, and attorneys’ fees. On August 23,
2013, Defendants brought a motion to dismiss Myvett’s complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint
and not the merits of the case. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d
873, 878 (7th Cir. 2012). The allegations in a complaint must set forth a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). A plaintiff need not provide detailed factual allegations but must
provide enough factual support to raise his right to relief above a speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim must be facially
plausible, meaning that the pleadings must allow the court to draw the reasonable
inference that the defendant is liable for the purported misconduct. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient to withstand a motion to
dismiss under Rule 12(b)(6). Id. at 678.
Section 1983 Claims
Defendants argue that: (i) there is no viable due process claim against Officer
Fiorito; (ii) there is, as a result, no viable Monell claim against the City; and (iii) this
Court should decline to exercise supplementary jurisdiction over Myvett’s state law
claim for malicious prosecution and dismiss it without prejudice so that it may be filed
in state court. Myvett contends that Officer Fiorito violated his due process rights by:
(i) failing to disclose his scheme to garner more overtime pay; and (ii) failing to
disclose dashboard camera footage of Myvett’s arrest. These actions, Myvett avers,
violated the rule articulated in Brady v. Maryland, 383 U.S. 83 (1963) because Myvett
would not have been prosecuted had this evidence been disclosed.
contend that Myvett’s due process claims constitute: (i) a false arrest claim under the
Fourth Amendment; and (ii) a claim for malicious prosecution, which should be
pursued in state court. The Court shall analyze the due process claims under both
substantive and procedural due process.
Substantive Due Process
Section 1983 does not confer substantive due process rights in and of itself, but
instead provides a vehicle through which one can defend federal rights conferred
elsewhere in the Constitution. Albright v. Oliver, 510 U.S. 266, 271 (1994). Thus,
Myvett cannot allege a violation of his substantive due process rights under the
Fourteenth Amendment when the Fourth Amendment provides a constitutional
protection against arrest without probable cause. See id. at 273. Nor can Myvett
argue that his subsequent incarceration and prosecution violated his substantive due
process rights; rather, this claim is one in effect for malicious prosecution. See
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003) (case involving claim of
incarceration and prosecution due to manufactured evidence).
When there is a
remedy under state law for malicious prosecution, a plaintiff cannot allege it as a
constitutional tort. Newsome v. McKabe, 256 F.3d 747, 751 (7th Cir. 2001). A
plaintiff cannot disguise a malicious prosecution and Fourth Amendment false arrest
claim by combining them. McCann, 337 F.3d at 786. A claim under substantive due
process thus fails.
Procedural Due Process
In order to succeed on a procedural process claim, Myvett must show a
violation pursuant to Brady. To do so, Myvett must be able to demonstrate that
Officer Fiorito “withheld information or evidence necessary for the fair and impartial
trial guaranteed by the U.S. Constitution.” Ienco v. City of Chi., 286 F.3d 994, 998-99
(7th Cir. 2002) (citation omitted). An officer violates his duty under Brady when he
fails to disclose material evidence favorable to the defendant. Mosley v. City of Chi.,
614 F.3d 391, 397 (7th Cir. 2010). This duty pertains to both impeachment and
exculpatory evidence. Id. at 397. In order to establish a Brady violation, Myvett must
show that: (i) the evidence at issue is favorable to him; (ii) the evidence was either not
disclosed in time for him to use it or that it was unavailable to him through the
exercise of due diligence; and (iii) the evidence at issue is material. Carvajal v.
Dominguez, 542 F.3d 561, 566-67 (7th Cir. 2008). In Carvajal, the court expressed
doubts as to whether a Brady claim could be sustained by a defendant who was tried
and acquitted. See id. at 570. “The Brady rule is not a rule of pretrial discovery.”
United States v. Gray, 648 F.3d 562, 567 (7th Cir. 2011). Thus, though it has not
been explicitly held that an acquitted defendant is foreclosed from pursuing a Brady
claim, a defendant can only pursue such a claim if he did not receive the exculpatory
evidence in time to make use of it in order to receive a fair trial.
In the case at bar, it is unclear whether Myvett even stood trial, as the
complaint is vague about the specific manner in which his state court case was
disposed of. Nowhere in the complaint, however, is it alleged that Myvett was
convicted of a crime due to Officer Fiorito’s misconduct. This Court therefore reads
the facts to indicate that Myvett learned of Officer Fiorito’s scheme and misconduct in
other cases as well as the information regarding the dashboard camera footage in time
to make use of it during his prosecution. Myvett thus cannot establish a violation of
either his substantive or procedural due process rights, and this count is dismissed.
Myvett alleges that the City had a custom, policy, or practice of: (i) failing to
train and supervise officers properly; and (ii) a code of silence by which investigations
were either not conducted or whose findings were concealed, thus allowing Officer
Fiorito and other officers to perpetrate misconduct. Myvett’s Monell claim against the
City must fail because there exists no actionable constitutional violation on the part of
Officer Fiorito. See Durkin v. City of Chi., 341 F.3d 606, 615 (7th Cir. 2003) (no
Monell claim against a city where there is no underlying substantive constitutional
State Law Malicious Prosecution Claim
The Court declines to exercise supplemental jurisdiction over Myvett’s state
law malicious prosecution claim. See 28 U.S.C. § 1367(c) (granting courts discretion
with respect to claims brought pursuant to supplemental jurisdiction when the
underlying federal claims are dismissed). As the instant litigation is in its infancy,
federal judicial resources have not been greatly invested in it, so a dismissal without
prejudice will not inconvenience the parties, as Myvett may refile the case in state
court. See 28 U.S.C. § 1361(d) (tolling statute of limitations for thirty days after
dismissal unless state law provides for a longer time period).
For the foregoing reasons, Myvett’s Section 1983 claims are dismissed with
prejudice. Myvett’s state law claim for malicious prosecution is dismissed without
Charles P. Kocoras
United States District Judge
October 31, 2013
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