Purnell v. Chicago Police Department et al

Filing 72

MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 2/6/2017.(gcy, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CORNELIUS PURNELL,
Plaintiff,
v.
McCARTHY, CITY OF CHICAGO,
MARCUS McGRONE, and
TIFFANY MEEKS, each sued in their
individual and official capacities,
Defendants.

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No. 14 C 2530
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff Cornelius Purnell has brought this pro se civil rights action pursuant to 42 U.S.C.
§ 1983, alleging that Defendants, two Chicago police officers, used excessive force against him
and falsely arrested him. Plaintiff claims that the officers fired twenty-two shots at him, striking
him eight times, even though he was unarmed, had not violated the law, and did not resist. To
justify their action, the officers allegedly filed “trumped up” charges. Plaintiff contends, further,
that all of this conduct is consistent with the Chicago Police Department’s de facto policy and
practice of allowing and even fostering police abuse by failing to properly train officers and by
turning a blind eye to widespread instances of such misconduct. Both sides have moved for
judgment on the pleadings.

For the following reasons, Plaintiff’s motions [63 and 64] are

denied, and Defendants’ motion [60] is granted.
DISCUSSION
I.

Standards for Judgment on the Pleadings
Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings.” FED. R. CIV. P. 12(c). Such a motion is

evaluated under the same standards that govern a Rule 12(b)(6) motion to dismiss: the court
accepts as true all facts alleged in the complaint and construes all reasonable inferences in
favor of the non-moving party. See Lodholtz v. York Risk Servs. Grp., 778 F.3d 635, 639 (7th
Cir. 2015) (citing Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014)); Hayes v. City of
Chicago, 670 F.3d 810, 813 (7th Cir. 2012). In considering this motion, the court may rely on
the pleadings, documents attached to or referred to in the pleadings, or information subject to
judicial notice.

See Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012)

(addressing FED. R. CIV. P. 12(b)(6)) (citations omitted); Lodholtz, 778 F.3d at 639 (explaining
that the same standards govern Rules 12(b)(6) and 12(c) (citing Adams v. City of Indianapolis,
742 F.3d 720, 727-28 (7th Cir. 2014)); see also FED. R. CIV. P. 10(c). A motion for judgment on
the pleadings is granted “only if it appears beyond doubt that the plaintiff cannot prove any facts
that would support his claim for relief.” Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (quoting Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend,
163 F.3d 449, 452 (7th Cir. 1998)).
The court may take judicial notice of matters of public record. See Wigod v. Wells Fargo
Bank, N.A., 673 F.3d 547, 556 (7th Cir. 2012); Palay v. United States, 349 F.3d 418, 425 n.5
(7th Cir. 2003); FED. R. EVID. 201(b).

Such matters include public court documents, see

White v. Keely, 814 F.3d 883, 885 n.2 (7th Cir. 2016), as well as “proceedings in other courts
related to the matter presently before it.” Coexist Found., Inc. v. Fehrenbacher, No. 11 CV6279, 2016 WL 4091623, at *3 n.1 (N.D. Ill. Aug. 2, 2016) (Coleman, J.) (citing Opoka v. I.N.S.,
94 F.3d 392, 394 (7th Cir. 1996)); see also United States v. Hope, 906 F.2d 254, 260 n.1 (7th
Cir. 1990) (court may consider “proceedings in other courts, both within and outside of the
federal judicial system, if the proceedings have a direct relation to matters at issue”) (citation
omitted). To the extent that judicially-noticed facts contradict the allegations of the complaint,
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the court will not accept those allegations. Wright & Miller, FEDERAL PRACTICE & PROCEDURE §
1363 at 464-65 (3d ed. 2013); see also Goode v. PennyMac Loan Servs., LLC, No. 14 CV 1900,
2014 WL 6461689, at *3-4 (N.D. Ill. Nov. 18, 2014) (Chang, J.) (concluding that information in
the public record, including a foreclosure action, mortgage documents, and assignments,
rendered the allegations in the complaint “implausible”).
II.

Factual Allegations and Plaintiff’s Guilty Plea
Plaintiff alleges that on March 23, 2012, he was attending a birthday party in Chicago,

Illinois, when he went outside to smoke a cigarette and make a call on his mobile telephone.
Suddenly, he alleges, Defendants McGrone and Meeks, two Chicago police officers, appeared
and “confronted” Plaintiff for no apparent reason. (Compl. ¶ 3.) At the time, Plaintiff asserts, he
was not violating the law, was not carrying a weapon, and did not brandish anything that looked
like a weapon in the officers’ direction. (Compl. ¶¶ 6-7.) Nevertheless, Defendants pulled out
their weapons and fired twenty-two rounds at him. (Compl. ¶ 4.) Eight bullets struck Plaintiff.
(Id.) Plaintiff heard McGrone remark, “He should be dead after all that.” (Comp. ¶ 5.)
Defendants transported Plaintiff to Christ Hospital for treatment of his multiple gunshot
wounds. (Compl. ¶ 9.) Afterwards, Plaintiff alleges, Defendants filed numerous “trumped up”
charges against Plaintiff. (Compl. ¶ 10.) In the ensuing months, Plaintiff had to undergo several
surgeries. (Compl. ¶ 11.) He suffered excruciating pain and mental anguish. (Id.)
Plaintiff contends that the use of excessive force by Chicago law enforcement officers is
so persistent and widespread that the Chicago Police Department has an effective policy and
practice of allowing police mistreatment to continue unabated. (Compl. ¶¶ 12-17.) According to
Plaintiff, police investigators turn a blind eye to citizen reports of police abuse. (Compl. ¶ 14.)
Plaintiff additionally maintains that the Chicago Police Department does not properly train its
officers. (Compl. ¶ 16.)
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All of these allegations ordinarily would be presumed true for purposes of this motion,
but as explained above, the court is also free to take judicial notice of matters of public record,
even at the pleadings stage.

In their motion, Defendants have demonstrated that Plaintiff

pleaded guilty to charges arising from the March 2012 police encounter. Specifically, on April
29, 2015, he pleaded guilty pursuant to a negotiated plea agreement to unlawful use of a
weapon by a felon. (See Defs.’ Ex. B, Report of Proceedings in the Circuit Court of Cook
County [60-2].) Plaintiff acknowledged in those proceedings that he was guilty of knowingly
possessing on his person a .45 caliber handgun on March 23, 2012, after having previously
been convicted of a felony offense. (Id. at 7-8). Plaintiff also pleaded guilty to a charge of
aggravated assault, admitting that he had pointed a handgun at Defendant McGrone. (Id.)
The transcripts from the change-of-plea proceeding in the Cook County Circuit Court
shed additional light on the circumstances surrounding the police encounter. The Cook County
State’s Attorney explained that Defendants were in the area in response to a call about a man
with a gun. (Id. at 12.) When Defendants arrived at the address of the distress call, a woman
exited a door yelling, “He’s in the back yard!”

(Id.)

Plaintiff, through counsel, expressly

stipulated that Defendants discovered him standing near a garage with a semi-automatic
handgun in his hand. (Id. at 12-13.) Plaintiff also conceded that, when police ordered him to
drop the gun, he instead raised the handgun and pointed it at the officers, at which point the
officers fired their own weapons. (Id. at 13.) When the trial judge asked Plaintiff, “All right, is
that, in fact, what happened?” Plaintiff responded, “Yes.” (Id. at 14.) The trial court found that
there was a “factual basis for [Plaintiff’s] guilty pleas to the charges of unlawful use and
possession of a weapon by a felon, [and] to the charge of aggravated assault . . . .” (Id. at 1415.)

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III.

Analysis
Plaintiff’s current account of the events of March 23 is wholly incompatible with both of

his convictions. “[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate the conviction or sentence has already been invalidated.” Heck v. Humphrey, 512
U.S. 477, 487 (1994); see also Viramontes v. City of Chicago, 840 F.3d 423, 427-28 (7th Cir.
2016) (citing Heck). Until the sentence has been invalidated, the cause of action for damages
simply “does not accrue.”

Heck, 512 U.S. at 490. Whether or not the plaintiff intends to

challenge his conviction is “irrelevant”: “if he makes allegations that are inconsistent with the
conviction’s having been valid, Heck kicks in and bars his civil suit.” Okoro v. Callaghan, 324
F.3d 488, 490 (7th Cir. 2003); Viramontes, 840 F.3d at 428. In this case, the allegation that
Defendants falsely arrested Plaintiff for possession of a gun would necessarily call into question
the validity of his conviction.
The court recognizes that a wrongful arrest does not “inevitably” undermine a conviction;
in a number of instances, an individual could “have a successful wrongful arrest claim and still
have a perfectly valid conviction.” Reynolds v. Jamison, 488 F.3d 756, 767 (7th Cir. 2007)
(quoting Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir. 1996)). But even where a claim is
theoretically compatible with the underlying conviction, it may nevertheless be Heck-barred “if
specific factual allegations in the complaint are necessarily inconsistent with the validity of the
conviction . . . .” McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006); Okoro, 324 F.3d at 490
(finding claim barred where plaintiff, who was convicted of selling drugs to an undercover officer,
maintained that he had tried to sell jewels, not drugs, to the officer); see also Viramontes, 840
F.3d at 427; Tolliver v. City of Chicago, 820 F.3d 237, 242-43 (7th Cir. 2016). “To properly
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apply Heck’s bar against certain damage actions, a district court must analyze the relationship
between the plaintiff’s § 1983 claim and the charge on which he was convicted.” Hardrick v.
City of Bolingbrook, 522 F.3d 758, 762 (7th Cir. 2008) (quoting VanGilder v. Baker, 435 F.3d
689, 691 (7th Cir. 2006)).
Under the circumstances of this case, Plaintiff cannot sue Defendants for false arrest,
because that claim relies on allegations that are flatly inconsistent with the facts supporting his
convictions. First, Plaintiff may not allege that he had no gun on the date in question. In
circumstances like these, where a plaintiff’s false arrest claim relies on allegedly false evidence,
such a claim cannot be squared with a conviction. See Ellis v. City of Chicago, No. 13 CV 2382,
2016 WL 212489, at *3 (N.D. Ill. Jan. 19, 2016) (Chang, J.) (prisoner’s claim that police planted
evidence, fabricated police reports, and provided false testimony in criminal proceedings to
achieve his conviction was “exactly the type of claim that Heck precludes”); Willis v. Wagner,
No. 08 CV 01964, 2012 WL 4597486, at *2, 4 (N.D. Ill. Sept. 29, 2012) (Chang, J.) (plaintiff
could not, consistent with his conviction for being an armed habitual criminal, claim that police
planted a gun to justify an unlawful arrest). Because Plaintiff pleaded guilty to being a felon in
possession of a firearm, any allegation that he had no gun when he was arrested is a nonstarter.
Case precedent likewise bars Plaintiff from declaring that he did not aim his gun at the
Defendants. Under 720 ILCS 5/12-1(a), a person commits an assault “when, without lawful
authority, he or she knowingly engages in conduct which places another in reasonable
apprehension of receiving a battery.” An individual commits aggravated assault when the victim
is a peace officer performing his or her official duties. 720 ILCS 5/12-2(b)(4.1)(i). Thus, as a
matter of law, pointing a gun at a police officer constitutes aggravated assault. See, e.g., United
States v. Robinson, 537 F.3d 798, 803 (7th Cir. 2008) (discussing difference between felony
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attempted aggravated battery and misdemeanor attempted aggravated assault under Illinois
law); United States v. Purifoy, 326 F.3d 879, 881 (7th Cir. 2003) (“When he pointed his gun at
the arresting officers, he committed an aggravated assault—he was actually using the
weapon.”) (emphasis in original).
Again, Plaintiff’s conviction of aggravated assault bars any allegation that he had no gun
or that he did not aim his gun at Defendants. Plaintiff stipulated at his change-of-plea hearing
that Defendants found him with a semi-automatic handgun in his hand when they responded to
a 911 call and conceded that he raised the gun and pointed it at officers. (Defs.’ Ex. B at 12.)
When the trial judge specifically asked Plaintiff, “All right, is that, in fact, what happened?”
Plaintiff responded, “Yes.” (Id. at 14.) Plaintiff now claims that he was simply standing outside
smoking and using his cellular telephone, and that he was not carrying a gun or any other
weapon.

But any finding that Plaintiff was not carrying a gun would necessarily impugn

Plaintiff’s underlying convictions for unlawful possession of a weapon by a felon, 1 and for
aggravated assault. Plaintiff’s admissions at his plea agreement demonstrate that Defendants
had probable cause to arrest him. Plaintiff’s false arrest claim is irreconcilable with his criminal
convictions.
For similar reasons, Plaintiff cannot pursue his excessive force claim. The allegations in
his complaint in support of that claim are at odds with the factual basis for his conviction for
aggravated battery. Police may, of course, use only “reasonable” force in effecting an arrest.

1

Plaintiff does not contest that he was a felon at the time of his 2012 arrest; nor
does he suggest that a court has reversed his current convictions. Aside from Plaintiff’s
concessions at the change-of-plea hearing, the Illinois Department of Corrections website
reflects both that Plaintiff was convicted of robbery in 2009, and that his convictions for unlawful
possession or use of a firearm, and for aggravated assault of a peace officer with a weapon, still
stand.
See https://www.illinois.gov/idoc/OFFENDER/Pages/InmateSearch.aspx (visited
November 9, 2016).
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See, e.g., Graham v. Connor, 490 U.S. 386, 396-97 (1989); Phillips v. Community Ins. Corp.,
678 F.3d 513, 519-20 (7th Cir. 2012). And a conviction for assault or battery of a peace officer
does not necessarily bar a Section 1983 claim of excessive force stemming from the same
incident, “so long as the § 1983 case does not undermine the validity of the criminal conviction.”
Hardrick, 522 F.3d at 762; Brengettcy v. Horton, 423 F.3d 674, 683 (7th Cir. 2005).

“A

contention that a guard struck back after being hit is compatible with Heck. Otherwise guards
(and for that matter any public employee) could maul anyone who strikes them, without risk of
civil liability as long as the private party is punished by criminal prosecution or prison discipline
for the initial wrong.” Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir. 2008). “An argument along
the lines of ‘The guards violated my rights by injuring me, whether or not I struck first’ does not
present the sort of inconsistency” that warrants application of the Heck doctrine. Id. at 902; see
also Hemphill v. Hopkins, No. 08 CV 0157, 2011 WL 6155967, at *2 (N.D. Ill. Dec. 12, 2011)
(Feinerman, J.) (“Heck does not bar an excessive force claim if the plaintiff, putting aside any
challenge to his conviction, proceeds on the theory that the degree of force applied was
unreasonable”); Gilbert, 512 F.3d at 901 (“Heck and Edwards do not affect litigation about what
happens after the crime is completed. Public officials who use force reasonably necessary to
subdue an aggressor are not liable on the merits; but whether the force was reasonable is a
question that may be litigated without transgressing Heck or Edwards.”) (emphasis in original);
Elcock v. Whitecotton, 434 Fed. App’x 541, 542-43 7th Cir. 2011) (“[A] claim of excessive force
. . . will not undermine a finding that the plaintiff attacked or wrongly resisted a police officer or
prison guard.”) (unpublished opinion).
In some cases, however, the plaintiff’s allegations about excessive force do directly
contradict or necessarily imply the invalidity of his conviction.

In those circumstances, the

excessive force claim is barred. Thus, in Moore v. Mahone, the Seventh Circuit affirmed the
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conclusion that a prisoner who had been convicted of battery of correctional officers could not
allege, in an excessive force claim against those officers, that he had not battered the officers.
652 F.3d at 722, 722-725 (7th Cir. 2011). The prisoner might have argued that the officers
overreacted to his conduct; such an allegation might not have implied the invalidity of his battery
conviction. But because Moore asserted and persisted with his claim that he had committed no
battery to justify any use of force, his claim was barred by Heck, and could properly be
dismissed without prejudice. Id. at 724-25.
It is possible for a plaintiff to remain “agnostic” about the facts supporting his criminal
conviction. See Gilbert, 512 F.3d at 901-02. But “a plaintiff is master of his claim and can, if he
insists, stick to a position that forecloses relief.” Evans v. Poskon, 603 F.3d 362, 364 (7th Cir.
2010) (citing Okoro, 324 F.3d at 488). That is what has happened in this case. Plaintiff Purnell
has alleged specifically that he was not carrying a weapon, that he did not brandish anything
that looked like a weapon in the officers’ direction, that he complied with Defendants’ directives,
and that the officers—for no reason whatsoever—pulled out their weapons and fired twenty-two
shots at him. (Compl. ¶¶ 4, 6-8.) He stands by these allegations in his response to Defendants’
motion for judgment on the pleadings, insisting that he “never had a weapon in his hands or
brandish[ed] anything that look[ed] like a weapon in the direction of the Defendants,” and that
his eyewitnesses will testify that the officers’ reports are false. (Pl.’s Joint Mot. for J. on the
Pleadings [64] at 2.) Whatever his reasons for pleading guilty (Plaintiff explains he did so to
avoid a longer sentence (id. at 3)), Plaintiff will not be able to proceed without calling into
question the validity of that plea and conviction. See Viramontes, 840 F.3d at 428-29; Okoro,
324 F.3d at 490. Plaintiff’s steadfast insistence that he presented no danger to Defendants, and
that they shot him without any justification for doing so, requires dismissal of that claim pursuant
to Heck.
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The circumstances here are very similar to Tolliver. Plaintiff in that case had pleaded
guilty to aggravated battery to a police officer, based on stipulations that he had driven his
vehicle towards an officer who, in fear for his safety, fired his service weapon at the vehicle.
820 F.3d at 241. Plaintiff then file a civil rights action in which he maintained that he was
paralyzed except for his “eyeballs” at the time, and was therefore unable to intentionally drive
the car; he claimed the car merely rolled in the officer’s general direction. Id. at 240, 243. The
Court of Appeals affirmed summary judgment in favor of the officer under the Heck doctrine,
finding that the plaintiff’s version of events was inconsistent with his conviction for aggravated
battery of a peace officer. Id. at 243-44. The Court of Appeals observed that “If the incident
unfolded as Tolliver alleges in his civil suit, then he could not have been guilty of aggravated
battery of a peace officer because the officer shot him without provocation and was injured as a
result of involuntary and unintentional actions by a paralyzed Tolliver.” Id. at 244; see also
Saffold v. Vill. of Schaumburg, No. 08 CV 5032, 2009 WL 2601318, at *2-3 (N.D. Ill. Aug. 24,
2009) (Dow, J.) (under Heck, plaintiff could not deny that he was guilty of telephone harassment
unless or until the judgment on his guilty plea was vacated).
The Seventh Circuit generally recommends dismissal without prejudice if the plaintiff
can conceivably cure the Heck defect in his pleading. Moore, 652 F.3d at 725-26. The court
will adopt that approach here, but cautions that it may not be possible for the defect to be cured
in this case.

For Plaintiff to pursue a completely different approach at this stage of the

proceedings could amount to an admission that he distorted the truth completely in his original
complaint and therefore drafted the pleading in bad faith, justifying a “strike” under 28 U.S.C.
§ 1915(g).

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CONCLUSION
For the reasons stated above, Plaintiff’s duplicate motions for judgment on the pleadings
[63 and 64] are denied, and Defendants’ motion for judgment on the pleadings [60] is granted.
Plaintiff has leave to file an amended complaint, if he can do so in good faith, within 28 days.
The Clerk is directed to send Plaintiff an amended complaint form.
ENTER:

Dated:

February 6, 2017

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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