Kluppelberg v. Burge et al

Filing 618

OPINION AND ORDER: For the foregoing reasons, Burge and Alletto's motion for summary judgment (dkt. 545) is granted as to counts I and VI, granted as to count IV regarding Kluppelberg's claims against Burge for supervisory liability for h is coerced confession, denied as to count IV regarding Kluppelberg's claim against Burge for supervisory liability for suppression of the New File and fabrication of evidence, and denied without prejudice as to counts II and III. Signed by the Honorable Honorable Joan H. Lefkow on 7/25/2017. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES KLUPPELBERG,
Plaintiff,
v.
JON BURGE, et al.,
Defendants.

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Case No. 13 C 03963
Judge Joan H. Lefkow
Magistrate Judge Maria Valdez

OPINION AND ORDER
After his multiple murder convictions were vacated and he was released, having served
almost 23 years of a life sentence, James Kluppelberg filed this civil rights action against the
City of Chicago and a number of individual defendants, including Jon Burge and William
Alletto.1 He alleges that Burge and Alletto, who were high-ranking officials in the police and fire
departments, respectively, are liable as participants in his wrongful conviction.2 The two move
for summary judgment on all claims. (Dkt. 545.) For the reasons stated below, the motion is
denied in part and granted in part.

1

A suggestion of death was filed on June 21, 2017 (dkt. 605), representing that Alletto died on
April 28, 2017. The court decides this motion as it was briefed and leaves it to the parties to determine
whether a motion under Federal Rule of Civil Procedure 25(a) is necessary.
2

The court’s jurisdiction rests on 28 U.S.C. §§ 1331 and 1367(a). Venue is proper pursuant to
28 U.S.C. § 1391(b).

BACKGROUND3
Kluppelberg’s lawsuit alleges misconduct leading to his arrest, prosecution, and
conviction for a 1984 arson that killed six people. He was granted a certificate of innocence in
2012, in part due to the alleged misconduct at issue in this case. When the undisputed facts,
including those that Burge and Alletto have admitted only for the purposes of summary
judgment, are considered, the following narrative emerges.
The morning of March 24, 1984, a house fire at 4448 Hermitage Avenue killed a mother
and her five children (referred to herein interchangeably as the fire or the Hermitage fire). That
same day Alletto, the Director of the Chicago Fire Department’s not-yet-operational Office of
Fire Investigations (OFI),4 went to the scene of the fire with OFI’s Assistant Director, Pat
Burns,5 and a group of fire investigators to conduct a training exercise. Alletto did not conduct a
field examination, take photographs or notes, or make a cause and origin determination, and
neither Alletto nor Burns filed a report commemorating findings they made at the time or
participated in the investigation that followed. The official investigation was conducted by
investigators from the Bomb & Arson Unit (B&A) of the Chicago Police Department (CPD) but,
due to extensive damage to the structure, B&A was unable to determine its cause and origin. In

3

Unless otherwise noted, the facts in this section are taken from the parties’ Local Rule 56.1
statements, and are construed in the light most favorable to the non-moving party. The court will address
many but not all of the factual allegations in the parties’ submissions, as the court is “not bound to discuss
in detail every single factual allegation put forth at the summary judgment stage.” Omnicare, Inc. v.
UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011) (citation omitted). In accordance with its
regular practice, the court has considered the parties’ objections to the statements of fact and includes in
this background only those portions of the statements and responses that are appropriately supported and
relevant to the resolution of this motion. Any facts that are not controverted as required by Local Rule
56.1 are deemed admitted.
4

OFI became operational on April 1, 1984, one week after the fire occurred.

5

Pat Burns is deceased, and his estate has not been named as a party to this lawsuit.

2

1984, Burge was a lieutenant in CPD’s Area Two Violent Crimes Unit (Area 2) and did not
participate in the original investigation of the fire. The case was closed as “apparent accidental
fire deaths” in April 1984. In August 1986, Burge was promoted to Commander of B&A, where
he supervised defendant detectives Leonard Rolston and John Schmitz.6
In late 1987, Duane Glassco, who was in custody at Cook County Jail, approached the
police with an offer to inculpate Kluppelberg in the fire in exchange for a deal on pending
burglary charges against him. Rolston and Schmitz spoke with Glassco, but they did not file a
report of the conversation. In January 1988, Rolston and Schmitz brought Kluppelberg to
Eleventh and State (police headquarters) under the pretense of asking him questions about two
incidents he had reported while working as a security guard. Instead, Rolston and Schmitz beat
Kluppelberg until he confessed to setting the fire. Rolston and Schmitz took Kluppelberg’s
confession to Assistant State’s Attorney (ASA) Larry Axelrood, who interviewed Kluppelberg
and instructed the officers to continue investigating because corroborating evidence was
necessary before charges could be brought. Rolston and Schmitz advised defendant detective
William Kelly and his partner, William Foley,7 who were detectives in CPD’s Area Three
Violent Crimes Unit (Area 3), of the confession and they joined the investigation.
As part of this investigation the detectives spoke with Glassco on multiple occasions, and
Kelly and Foley prepared a report of his statements inculpating Kluppelberg. Glassco testified in
accordance with that report both before the grand jury in January 1988 and at Kluppelberg’s trial
in July 1989. Glassco later admitted his testimony was false and that he only testified in order to

6

John Schmitz is deceased. Meghan Schmitz has been named as a defendant to this lawsuit in her
capacity as personal representative of his estate.
7

William Foley is deceased, and his estate has not been named as a party to this lawsuit.

3

receive favorable treatment in his own pending case.
Rolston, Schmitz, Kelly, and Foley met with ASAs Jeffrey Warnick and Bruce Rather to
discuss bringing murder charges against Kluppelberg. But they were told that, in addition to
needing corroborating evidence, a determination that the fire was arson was necessary because
the original investigators had been unable to determine the cause and origin and the case was
closed as “apparent accidental fire deaths.” Despite the fact that B&A had sole authority to
investigate the fire,8 the detectives approached Alletto and Burns regarding the cause and origin
of the fire. Alletto and Burns told the detectives that they believed the fire had been incendiary,
which is how OFI labeled fires started by people. This opinion directly contradicted B&A’s 1984
opinion that the cause of the fire could not be determined. Nonetheless, Alletto and Burns shared
their opinion at a meeting with ASAs Warnick and Rather. When the grand jury was empaneled,
Foley testified that Burns had investigated the fire and determined it was arson. Burns then
testified as to this opinion for the prosecution at Kluppelberg’s trial.
Kelly and Foley also brought in Dawn Gramont, at whose apartment Kluppelberg had
been staying the night of the fire, for questioning. Kelly and Foley made threats against her and
her children in order to force her to testify against Kluppelberg before the grand jury. Gramont
did so, but called CPD’s Office of Professional Standards (OPS) that same day to report the
detectives’ threats and state that her grand jury testimony had been false. Burge later received a
copy of Gramont’s OPS report and was one of five commanding officers who concurred in
finding it “not sustained”9 and declining to discipline Kelly or Foley.

8

This is because OFI was not in operation at the time of the fire.

9

“Not sustained” is the term used by OPS when there is not sufficient evidence to either prove or
disprove allegations.

4

Kluppelberg was indicted in January 1988, and Burge, who had been promoted to
Commander of Area 3 the same day the grand jury returned the indictment, announced the
indictment at a press conference where he answered questions and repeated portions of
Kluppelberg’s confession and Gramont’s statement. Kluppelberg’s case went to a bench trial in
July 1989. The court granted the defense’s motion to suppress Kluppelberg’s confession but
heard testimony by Glassco and Gramont inculpating Kluppelberg and gave great weight to
Burns’s finding that the fire was arson. Kluppelberg was convicted of murder, attempted murder,
and arson, and sentenced to life in prison. In May 2012, these convictions and the sentence were
vacated after the prosecution moved to nolle prosequi them, and Kluppelberg was released from
prison after serving almost 23 years.
In August 2014, a file stamped “Area Three Violent Crime Unit” was found in a CPD
warehouse in a box marked “Cleared Cases 1984 F-000001.” This file, created in 1984 and
referred to in this lawsuit as the “New File,” contained several reports from B&A regarding the
fire. The New File contained exculpatory evidence, including notes identifying two alternate
suspects who had admitted setting other fires near the Hermitage fire the same night, notes
identifying other alternate suspects who had argued with the victims of the fire, and notes that a
witness had told detectives of dangerous wiring in the building’s basement that regularly got wet
when it rained, suggesting a possible non-human cause of the fire. The New File was not
produced to the State’s Attorney or to the defense before or during Kluppelberg’s trial, despite
the fact that in 1988–89 it was stored in a filing cabinet in Area 3, easily accessible to Burge. In
fact, Kelly and Foley, after being assigned to the case in 1988, retrieved all the files and reports
related to the 1984 investigation, including the New File.
After his conviction was vacated, Kluppelberg filed suit against the City of Chicago and a

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number of individual defendants alleging violations of 42 U.S.C. § 1983 and malicious
prosecution. Kluppelberg’s claims against Burge include that Burge (1) deprived him of due
process by participating in the fabrication and suppression of evidence (count I); (2) is liable
under a theory of supervisory liability for the actions of Rolston, Schmitz, Kelly, and Foley in
fabricating evidence and coercing witnesses (count IV); (3) failed to intervene in the
constitutional violations against him by other defendants (count II); (4) conspired with other
defendants to deprive him of due process (count III); and (5) participated in the malicious
prosecution of him for the fire (count VI). Kluppelberg’s claims against Alletto include that
Alletto (1) deprived him of due process by participating in the fabrication of evidence (count I);
(2) failed to intervene in the constitutional violations committed by Burns (count II); (3)
conspired with other defendants to fabricate evidence (count III); and (4) participated in the
malicious prosecution of him for the fire (count VI). Burge and Alletto move now for summary
judgment arguing that the record does not contain sufficient evidence to support Kluppelberg’s
claims against them or, in the alternative, that they are entitled to qualified immunity.
LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To determine whether any genuine fact issue exists,
the court must pierce the pleadings and assess the proof as presented in depositions, answers to
interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56(c). In
doing so, the court must view the facts in the light most favorable to the non-moving party and

6

draw all reasonable inferences in that party’s favor. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct.
1769, 167 L. Ed. 2d 686 (2007).
The party seeking summary judgment bears the initial burden of proving there is no
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986). In response, “[a] party who bears the burden of proof on a particular
issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual
allegations, that there is a genuine issue of material fact which requires trial.” Day v. N. Ind. Pub.
Serv. Co., 987 F. Supp. 1105, 1109 (N.D. Ind. 1997); see also Insolia v. Philip Morris Inc.,
216 F.3d 596, 598 (7th Cir. 2000). If a claim or defense is factually unsupported, it should be
disposed of on summary judgment. Celotex, 477 U.S. at 323–24.
When a defendant has invoked his Fifth Amendment right against self-incrimination, as
Burge has consistently done during this case, adverse factual inferences may be drawn from the
choice to remain silent. La-Salle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995).
At the same time, a plaintiff may not rest solely on the defendant’s assertion of privilege to
establish liability based on refusal to answer a complaint or to testify at a disciplinary hearing if
there is no other evidence supporting liability. Id. at 391 (quoting National Acceptance Co. of
America v. Bathalter, 705 F.2d 924, 932 (7th Cir. 1983)); see also Baxter v. Palmigiano,
425 U.S. 308, 316, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). Burge relies on this doctrine, not to
establish liability, but to be exonerated from it, contending that there is no other evidence in the
record from which a reasonable jury could infer liability.
To prevent the case from going to the jury undermines the jury’s ability to draw adverse
inferences that could establish the elements of the claim. Nonetheless, the courts that have
addressed the issue in the context of a defendant’s seeking summary judgment have held that the

7

non-movant must point to some evidence in addition to defendant’s silence to avoid summary
judgment. See, e.g., Logan v. City of Chi., 891 F. Supp. 2d 897, 901 (N.D. Ill. 2012) (“[A]
party’s refusal to answer questions during discovery is not enough to create an issue of fact to
avoid summary judgment.”) (internal quotation marks omitted); Thompson v. City of Chi., 2009
WL 674353, *3 (N.D. Ill. March 12, 2009) (reciting that other evidence is necessary for plaintiff
to show an issue of fact). This court accepts that view on the assumption that the Seventh Circuit
would agree, and that the same rule would justify judgment as a matter of law at the close of the
plaintiff’s case.
ANALYSIS
I.
Count I (deprivation of due process by suppressing material evidence,
fabricating evidence, and coercing witnesses)10
A.

Burge

Kluppelberg acknowledges that Burge did not directly participate in (1) coercing his
confession; (2) eliciting Glassco’s false testimony against him; or (3) intimidating Gramont into
testifying against him. As such, Kluppelberg’s only claim for direct deprivation of due process
against Burge appears to be his Brady claim related to the failure to produce the New File.
Kluppelberg claims that Burge suppressed the New File, and by extension, exculpatory
evidence favorable to him. To establish a Brady violation, Kluppelberg must show that (1)
evidence favorable to him, either exculpatory or impeaching, (2) was suppressed by the
government, either willfully or inadvertently, and (3) there is a reasonable probability that
prejudice ensued. See Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). A “Brady

10

In addition to count I, which claims direct deprivation of due process by Burge and Alletto,
Kluppelberg also brought a supervisory liability claim against Burge (count IV). Thus, allegations against
Burge implicating supervisory liability will be addressed in a later section.

8

violation occurs when the government fails to disclose evidence materially favorable to the
accused . . . even evidence that is known only to police investigators and not to the prosecutor.”
Steidl v. Fermon, 494 F.3d 623, 631 (7th Cir. 2007) (emphasis omitted) (quoting Youngblood v.
West Virginia, 547 U.S. 867, 869, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006)) (internal quotation
marks omitted). While an officer need not have deliberately withheld or concealed exculpatory
evidence in order to be liable for a Brady violation, he must at least have known about it. Cf.
Steidl, 494 F.3d at 631.
For summary judgment purposes, Burge does not dispute that the first and third elements
of a Brady violation occurred. Rather, he argues that the evidence in the record does not show
that he knew about the New File. The record supports this argument.
A reasonable jury could only find for Kluppelberg if the undisputed facts give rise to a
reasonable inference that Burge personally knew about the New File before Kluppelberg’s trial.
Viewing the undisputed facts in the light most favorable to Kluppelberg, a reasonable jury could
infer that Kelly and Foley had personal knowledge of the existence and contents of the New File
because they retrieved all files and reports related to the 1984 investigation when they were
assigned to the case in 1988. With regard to Burge’s personal knowledge of the New File,
however, the only evidence Kluppelberg can point to is Burge’s silence. Because “the direct
inference of guilt from silence is forbidden,” Seguban, 54 F.3d at 390, this is insufficient to avoid
summary judgment.
B.

Alletto

Kluppelberg claims that Alletto fabricated a false opinion that the fire was arson, which
was used both to indict and convict him. An officer “who manufactures false evidence against a
criminal defendant violates due process if that evidence is later used to deprive the defendant of

9

her liberty in some way.” Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012).
Alletto argues that even if Kluppelberg can show that the arson opinion was knowingly
false, that opinion was not used to indict, arrest, or prosecute Kluppelberg and, therefore, was not
used to deprive him of his liberty. The record supports this argument.
Alletto acknowledges that he attended meetings with Foley, Kelly, Warnick, and Rather,
where he agreed with Burns that the fire was probably arson. But there is nothing in the record to
indicate that Alletto’s opinion was relied on in securing the indictment or conviction of
Kluppelberg. Rather, the indictment was returned after Foley testified before the grand jury that
Burns had investigated the Hermitage fire and determined that it was arson. And it was Burns
who testified at Kluppelberg’s trial that the fire was arson. Even viewed in the light most
favorable to Kluppelberg, the actions of Burns resulted in the indictment and conviction, not
those of Alletto.11 As a matter of law, no reasonable jury could find in favor of Kluppelberg on
his claim that Alletto deprived him of due process.
II.

Count II (failure to intervene) and Count III (conspiracy)
Both defendants argue that Kluppelberg cannot establish their personal involvement in

the constitutional violations he suffered, and therefore his claims for failure to intervene and
conspiracy must be dismissed. Defendants do not support this cursory argument with pertinent
authority. The court therefore considers the argument waived. See Smith v. Northeastern Ill.
Univ., 388 F.3d 559, 569 (7th Cir. 2004) (holding that undeveloped argument constitutes
waiver); Tyler v. Runyon, 70 F.3d 458, 464 (7th Cir. 1995) (“We have made it clear that a
litigant who fails to press a point by supporting it with pertinent authority, or by showing why it

11

Kluppelberg did not bring a claim for supervisory liability against Alletto; thus, whether Alletto
condoned, facilitated, or approved Burns’ actions in this regard is not at issue as it is with Burge’s
supervision of Rolston, Schmitz, Foley, and Kelly.

10

is sound despite a lack of supporting authority, forfeits the point.”); see also Otto v. Variable
Annuity Life Ins. Co., 134 F.3d 841, 854 (7th Cir. 1998) (refusing to consider unsupported or
cursory arguments); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (stating that
perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived).12 As such, summary judgment is not appropriate on counts II and III as to
both Burge and Alletto. The motion for summary judgment as to these two claims is denied.
III.

Count IV (supervisory liability)
Kluppelberg claims that Burge is liable for the constitutional violations of his

subordinates who (1) coerced Kluppelberg’s confession, (2) elicited false testimony from
Glassco and intimidated Gramont into implicating Kluppelberg, and (3) suppressed the New File.
To establish supervisory liability for the constitutional violations of subordinates, Kluppelberg
must show Burge “kn[ew] about the unconstitutional conduct and facilitate[d] it, approve[d] it,
condone[d] it, or turn[ed] a blind eye for fear of what” he might see. T.E. v. Grindle, 599 F.3d
583, 588 (7th Cir. 2010) (quoting Jones v. City of Chi., 856 F.2d 985, 992 (7th Cir. 1988)). In
other words, “to establish a claim against a supervisory official, there must be a showing that the
official knowingly, willfully, or at least recklessly caused the alleged deprivation by his action or
failure to act.” Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986).
A.

Kluppelberg’s coerced confession

Burge argues that, because the confession was not used against Kluppelberg at his trial,

12

Beyond being cursory, defendants’ argument, at least with respect to the failure to intervene
claim, is incorrect. An officer may be liable under § 1983 for failing to intervene if that officer had reason
to know (1) that any constitutional violation has been committed by a law enforcement official; and (2)
the officer had a realistic opportunity to intervene to prevent the harm from occurring. See Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Because “section 1983 may result in the imposition of liability
in damages both for misfeasance and for nonfeasance,” Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir. 1972),
such liability does not require personal involvement in the constitutional violation committed.

11

he was not harmed by it and, therefore, there is no constitutional tort. See Fields v. Wharrie,
740 F.3d 1107, 1114 (7th Cir. 2014). Additionally, Burge argues any claim is barred by the twoyear statute of limitations because the confession was last used against Kluppelberg in November
1988.13 See Chavez v. Martinez, 538 U.S. 760, 767, 123 S. Ct. 1994, 155 L. Ed. 2d 984 (2003).
Kluppelberg fails to respond to these arguments and, therefore, apparently acquiesces to their
merit. See Palmer v. Marion County, 327 F.3d 588, 597–98 (7th Cir. 2003) (reciting that claims
not addressed in a summary judgment opposition brief are abandoned).
B.

Fabricated evidence

Burge argues that there is insufficient evidence in the record to show that he is liable for
any constitutional violations perpetrated by Rolston, Schmitz, Foley, and Kelly related to the
fabrication of inculpating testimony by Glassco and Gramont. This is true with regard to
Kluppelberg’s claims about the actions of Foley and Kelly. In order for Burge to be liable for
their actions, he would had to have both known about the actions and been in a supervisory
position from which he could facilitate, approve, condone, or turn a blind eye to them. See
Grindle, 599 F.3d at 588; Rascon, 803 F.2d at 274; Almarez v. Haleas, 602 F. Supp. 2d 920, 926
(N.D. Ill. 2008) (noting that the focus of supervisory liability is the supervisor’s “personal
knowledge of the policies and practices that affected plaintiff and whether [the supervisor was]
personally responsible for those policies and practices”). Burge was the commander of B&A
until January 27, 1988, the date the indictment was returned. Thus, irrespective of whether
Kluppelberg could show that Burge was aware of Foley and Kelly’s actions, Kluppelberg has
pointed to no evidence of Burge’s personal responsibility for them.

13

Burge argues the statute of limitations was not tolled under Heck v. Humphrey, 512 U.S. 477,
114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), because Kluppelberg’s conviction did not depend on his
confession. Therefore, he could have brought a § 1983 claim immediately without implying the invalidity
of his criminal conviction, which he failed to do within two years.

12

With regard to the actions of Rolston and Schmitz, who reopened the Hermitage fire
investigation after interviewing Glassco, Kluppelberg alleges that the detectives told Glassco
what to say, adding inculpatory details to his initial story. Kluppelberg further alleges that Burge
was either aware of what Rolston and Schmitz were doing and approved or condoned it or that
he created a custom and practice of fabricating evidence knowing, or at least recklessly
disregarding, that doing so would cause the constitutional violations by his subordinates that
occurred.
Kluppelberg argues that because Burge was Rolston and Schmitz’s supervisor he was,
therefore, responsible for monitoring them. He further points out that the fire was a high-profile
case, which Kluppelberg’s police-practices expert opines indicates that Burge would have been
kept up to date about important investigative developments as they occurred and would have
spoken to the investigators and familiarized himself with the facts of the investigation.
Kluppelberg also points to past testimony by Burge in which he described himself as a hands-on
supervisor, who would routinely look in on suspect interrogations at the police station. Finally,
Kluppelberg points to evidence of Burge’s participation in the abuse and torture of suspects
during his tenure as a Lieutenant in Area 2.
Although circumstantial, a reasonable jury could conclude from this evidence that Burge
knew of or turned a blind eye to the actions of Rolston and Schmitz. As such, summary judgment
is inappropriate on the issue of whether Burge may be liable in his supervisory capacity for
Glassco’s fabricated testimony.
C.

Suppression of the New File

In addition to arguing that Burge directly suppressed the New File, Kluppelberg also
argues that Burge is liable for the suppression on a theory of supervisory liability. Kluppelberg

13

argues that Burge encouraged and condoned the practice of keeping and not producing so-called
“street files,” which led to the New File being suppressed. In support, Kluppelberg points to the
fact that Burge was aware both of the practice of keeping street files, and that such a practice led
to Brady materials being withheld from prosecutors and the defense. Kluppelberg also points to a
review done by his police practices expert that showed the practice of keeping street files
remained widespread in Area 3 into the 1990s. Finally, Kluppelberg argues that this evidence
should be combined with an adverse inference arising from Burge’s invocation of his Fifth
Amendment right in response to questions regarding his knowledge of and participation in the
suppression of the New File.
Burge does not respond and, therefore, has waived any argument regarding his
supervisory liability for the suppression of the New File. See Roe-Midgett v. CC Services, Inc.,
512 F.3d 865, 876 (7th Cir. 2008); Palmer, 327 F.3d at 597–98. Moreover, Kluppelberg has
pointed to sufficient evidence in the record from which a reasonable jury could infer that Burge
either expressly condoned the practice of keeping and withholding street files, which led to the
suppression of the New File, or that he “turn[ed] a blind eye [to the practice] for fear of what” he
might see. Grindle, 599 F.3d at 588 (quoting Jones, 856 F.2d at 992).
IV.

Count VI (malicious prosecution)
Kluppelberg claims Burge and Alletto are liable for malicious prosecution against him

because they participated in fabricating evidence that was presented to prosecutors to secure
probable cause to charge him while also withholding exculpatory evidence. To establish a claim
for malicious prosecution, Kluppelberg must establish five elements: “(1) commencement or
continuation of an original proceeding [by the defendant]; (2) termination of the proceeding in
favor of the plaintiff; (3) the absence of probable cause; (4) malice; and (5) damages.” Colbert v.

14

City of Chi., 851 F.3d 649, 655 (7th Cir. 2017) (alteration in original) (internal quotation marks
omitted). If a plaintiff fails to establish any one of these elements, the claim fails. Holland v. City
of Chi., 643 F.3d 248, 254 (7th Cir. 2011). Defendants challenge only the first and fourth
elements.
A.

Burge

As discussed in section I.A, there is not sufficient evidence in the record to support a
finding that Burge directly participated in fabricating evidence that was used to convince a
prosecutor of probable cause. Moreover, “the chain of causation [in a malicious prosecution
case] is broken by an indictment, absent an allegation of pressure or influence exerted by the
police officers, or knowing misstatements by the officers to the prosecutor.” Colbert, 851 F.3d at
655 (emphasis omitted) (quoting Reed v. City of Chi., 77 F.3d 1049, 1053 (7th Cir. 1996))
(internal quotation marks omitted). Kluppelberg points to no evidence in the record of exertion
of influence or knowing misstatements by Burge to the prosecutors. Without such evidence no
reasonable jury could find that Burge commenced or continued an original proceeding against
Kluppelberg and, therefore, no reasonable jury could find for Kluppelberg on his malicious
prosecution claim against Burge.
B.

Alletto

Liability in a malicious prosecution case only extends to those persons who played a
“significant role” in causing the prosecution of the plaintiff to be commenced or continued.
Bianchi v. McQueen, 58 N.E.3d 680, 698, 2016 IL App (2d) 150646, 405 Ill. Dec. 419 (Ill. App.
2d Dist. 2016). “A criminal proceeding is commenced when a complaint, an information, or an
indictment is filed.” Szczesniak v. CJC Auto Parts, Inc., 21 N.E.3d 486, 491, 2014 IL App (2d)
130636, 386 Ill. Dec. 723 (Ill. App. 2d Dist. 2014) (citing 725 ILCS 5/111–1).

15

Kluppelberg acknowledges that Alletto did not testify before the grand jury that returned
the indictment. Additionally, Alletto’s opinion was not presented to the grand jury; rather, Foley
testified before the grand jury that Burns had determined that the fire was arson. The evidence in
the record thus shows that the grand jury indictment issued independently of Alletto. See
Colbert, 851 F.3d at 655 (finding no malicious prosecution where prosecutor did not rely on
misstatement to obtain indictment). As such, Alletto cannot be liable for malicious prosecution
based only on having shared the arson opinion at the meeting with Rather and Warnick,
regardless of whether he knew it to be incorrect.
V.

Qualified Immunity
Finally, Burge and Alletto argue that they are entitled to qualified immunity. An officer is

entitled to qualified immunity unless his conduct violated a plaintiff’s constitutional right, and
the right was clearly established at the time of the conduct. Steidl v. Fermon, 494 F.3d 623, 627
(7th Cir. 2007).
Kluppelberg claims Burge and Alletto suppressed exculpatory evidence, failed to
intervene to prevent the use of fabricated evidence against him, and conspired to fabricate such
evidence and/or withhold exculpatory evidence from him. That a failure to intervene could
constitute an independent violation of a plaintiff’s constitutional rights under § 1983 was clearly
established prior to 1988. See, e.g., Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir. 1972) (holding that
damages are recoverable under § 1983 both for misfeasance and nonfeasance). Likewise, the
constitutional right to have exculpatory evidence produced and the constitutional prohibition
against fabricating evidence were also well established by 1988. See, e.g., Steidl, 494 F.3d at
632–33 (holding that the duty to disclose exculpatory evidence was clearly established prior to
Steidl’s trial in 1987); Fields v. Wharrie, 740 F.3d 1107, 1114 (7th Cir. 2014) (“[I]t was

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established law by 1985 (indeed long before), . . . that a government lawyer’s fabricating
evidence against a criminal defendant was a violation of due process.”); Smith v. Springer,
859 F.2d 31, 34 (7th Cir. 1988) (holding that plaintiff could prevail on a § 1983 claim if he
showed that the defendant officers fabricated evidence leading to his arrest and prosecution),
overruled on other grounds by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d
383 (1994). Thus, because the constitutional violations alleged by Kluppelberg were clearly
established at the time Burge and Alletto were acting in 1988, they are not entitled to qualified
immunity.
CONCLUSION AND ORDER
For the foregoing reasons, Burge and Alletto’s motion for summary judgment (dkt. 545)
is granted as to counts I and VI, granted as to count IV regarding Kluppelberg’s claims against
Burge for supervisory liability for his coerced confession, denied as to count IV regarding
Kluppelberg’s claim against Burge for supervisory liability for suppression of the New File and
fabrication of evidence, and denied without prejudice as to counts II and III.

Date: July 25, 2017

_______________________________
U.S. District Judge Joan H. Lefkow

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