Patrick v. Chicago et al

Filing 85

MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 4/23/2015: Plaintiff's Motion for Reconsideration 72 is granted in part and denied in part. Count I of Plaintiff's complaint is hereby reinstated. Count III remains dismissed, but this dismissal is modified to be without prejudice. Plaintiff may file an amended complaint within 21 days of the date of this order. Mailed notice (cjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEON PATRICK,
Plaintiff,
v.
CITY OF CHICAGO et al.,
Defendants.

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No. 14-cv-3658
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
Plaintiff’s Motion for Reconsideration [72] is granted in part and denied in part. Count I
of Plaintiff’s complaint is hereby reinstated. Count III remains dismissed, but this dismissal is
modified to be without prejudice. Plaintiff may file an amended complaint within 21 days of the
date of this order.

STATEMENT
On December 17, 2014, the Court granted in part Defendants’ motions to dismiss. (Dkt. #
66.) As relevant here, the Court dismissed Counts I and III of Plaintiff’s complaint. Plaintiff now
moves for reconsideration of these rulings. (Pl.’s Mot. Recons., Dkt. # 72.) In light of a recent
Seventh Circuit decision clarifying the circumstances under which Fifth Amendment claims are
time-barred, the Court reinstates Count I of Plaintiff’s complaint in its entirety. Plaintiff’s motion
for reconsideration of the dismissal of Count III is denied. However, the Court reverses its
decision to deny Count III with prejudice and Plaintiff is granted leave to amend.

Background
The factual background of this case is set forth more fully in the Court’s previous order
ruling on the motions to dismiss, and is known to the parties. What follows is only the
information from Plaintiff’s complaint most relevant to the instant motion. The Court presumes
that the facts alleged in Plaintiff’s complaint are true for the purpose of ruling on Defendants’
motions to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
Plaintiff and six co-defendants were convicted of the November 16, 1992 murders of
Jeffery Lassiter and Sharon Haugabook, and Plaintiff subsequently spent 21 years in prison
before his conviction was vacated and a Certificate of Innocence was issued to him by the Circuit
Court of Cook County. (Compl., Dkt. # 1 ¶¶ 1-2, 13.) No physical evidence tied Plaintiff to the
crime. (Id. at ¶ 45.) Instead, Plaintiff was implicated primarily by his own confession to police,
which was secured by police officers confronting Plaintiff with the incriminating false
confessions of his co-defendants – all of which were the product of prolonged and coercive
interrogation without counsel present. (Id. at ¶¶ 19-31.)
Officers knew that these confessions could not have been accurate because they
conflicted with evidence known to the police and included facts that could not have been true.
(Id. at ¶¶ 20-23.) Plaintiff alleges three specific instances relevant here in which police officers
concealed evidence inconsistent with the false confessions or fabricated evidence to corroborate
them. Faye McCoy, a witness who saw the murderers leaving the scene, viewed Plaintiff and
other co-defendants at the police station but stated that none were the men she had seen leaving
the victims’ apartment. (Id. at ¶ 34.) The results of this lineup were not documented, and instead
officers falsely reported that McCoy was afraid to testify in court. (Id.) Daniel Taylor, a co-

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defendant who all the confessions placed at a park prior to the murders and at the murder scene,
was in fact in police lockup on an unrelated arrest at the relevant times. (Id. at ¶¶ 35-36.) Taylor
informed officers of this fact sometime after having made his false confession, and his account
was corroborated by police records and by the testimony of a man named James Anderson who
had shared Taylor’s cell in lockup that night. (Id. at ¶¶ 36, 41.) Police turned over two General
Progress Reports to defense counsel which identified Anderson and stated that officers could not
locate him. (Id. at ¶ 41.) Officers did, however, eventually locate and speak with Anderson, but
neither the interview notes nor any report regarding Anderson’s testimony was disclosed to
Plaintiff. (Id. at ¶¶ 41-42.) In order to corroborate the false confessions and rebut the fact that
Taylor was in police custody before and during the murders, police officers convinced Adrian
Grimes to falsely testify that he saw Taylor and the other co-defendants meeting in a park while
Taylor was actually in lockup. (Id. at ¶¶ 37-38.) Officers secured this false testimony by
threatening Grimes with drug charges and offering leniency in exchange for his testimony, but
details of this coercion were not disclosed to Plaintiff and his co-defendants. (Id. at ¶ 39.)
Following his exoneration 21 years later, Plaintiff filed the instant suit, alleging 13 counts
of various civil rights violations. As relevant here, Count I of Plaintiff’s complaint alleged that
Defendants violated Plaintiff’s Fifth Amendment right against self-incrimination by coercing
Plaintiff to confess to a crime he did not commit. Count III of Plaintiff’s complaint alleged that
Defendants violated Plaintiff’s due process rights by withholding exculpatory evidence prior to
Plaintiff’s trial. The Court dismissed Count I on the grounds that it was time barred, because
Plaintiff failed to bring this claim within the two-year statute of limitations period applicable to §
1983 claims in Illinois. (Dkt. # 66, at 6-9.) The Court then dismissed Count III because it found

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that all of the allegedly exculpatory evidence in question was available to the defense through the
exercise of reasonable diligence, and was thus not suppressed within the meaning of Brady v.
Maryland, 373 U.S. 83, 87 (1963). (Id. at 12-14.) Plaintiff now moves for reconsideration.

Legal Standard
Motions to reconsider interlocutory orders are governed by Federal Rule of Civil
Procedure 54(b). This Rule provides that any order that does not resolve all claims as to all
parties “may be revised at any time before the entry of a judgment adjudicating all the claims and
all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). As such, the Court may, at its
discretion, reconsider its ruling on Defendants’ motions to dismiss. See Moses H. Cone Mem.
Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12 (1983) (holding that “every order short of a final
decree is subject to reopening at the discretion of the district judge”). While motions to
reconsider are permitted, however, they are disfavored. Such motions “serve a limited function:
to correct manifest errors of law or fact or to present newly discovered evidence.” Conditioned
Ocular Enhancement, Inc. v. Bonaventura, 458 F. Supp. 2d 704, 707 (N.D. Ill. 2006) (quoting
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996)). A
manifest error of law or fact under this standard occurs when a district court “has patently
misunderstood a party, or has made a decision outside the adversarial issues presented to the
Court by the parties, or has made an error not of reasoning but of apprehension.” Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). A party
asserting such an error bears a heavy burden, and motions for reconsideration “are not at the
disposal of parties who want to ‘rehash’ old arguments.” Zurich Capital Mkts., Inc. v.
Coglianese, 383 F. Supp. 2d 1041, 1045 (N.D. Ill. 2005).

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Discussion
For the following reasons, the Court reinstates Count I of Plaintiff’s complaint but
declines to reinstate Count III.

COUNT I: FIFTH AMENDMENT CLAIM
In Count I, Plaintiff alleges that the police officer Defendants and Defendant Magats
violated his Fifth Amendment right against self-incrimination by forcing him to make a false
confession. The Court ruled this claim was time-barred because Plaintiff did not assert it within
two years of its accrual.
That a claim falls outside the limitations period is an affirmative defense, and as such
Defendants have the burden of showing that Plaintiff’s claims are time barred. See Jogi v. Voges,
480 F.3d 822, 836 (7th Cir. 2007). Because a complaint need not anticipate and refute
affirmative defenses to survive a motion to dismiss, it need not include facts showing that it is
timely. See Richards v. Mitcheff, 696 F.3d 635, 637–38 (7th Cir. 2012). However, while a
complaint is not obligated to affirmatively plead timeliness, dismissal is appropriate where it is
“clear from the face” of the complaint that it is “hopelessly time-barred.” Cancer Found., Inc. v.
Cerberus Capital Mgmt., LP, 559 F.3d 671, 675 (7th Cir. 2009).
As § 1983 does not have an express statute of limitations provision, federal courts
hearing § 1983 claims adopt the limitations period for personal injury claims applied in the
relevant forum state. See Ashafa v. City of Chi., 146 F.3d 459, 461 (7th Cir. 1998). Here, the
statute of limitations in Illinois for personal injury claims – and thus applicable to Plaintiff’s §

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1983 claims – is two years. See Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008). The
question before the Court is when Plaintiff’s Fifth Amendment claim accrued – at the time his
false confession was admitted against him at trial, or in January 2014 when his conviction was
vacated and he was released from prison.
Plaintiff argues that under the rule established in Heck v. Humphrey, 512 U.S. 477
(1994), his § 1983 claim could not have accrued when he was incarcerated because a challenge
to the voluntariness of his confession would have necessarily undermined the validity of his
conviction. See Heck, 512 U.S. at 486-87 (noting that a plaintiff can only seek damages for
“harm caused by actions whose unlawfulness would render a conviction or sentence invalid” if
that conviction or sentence has already been expunged or declared invalid). If Plaintiff could not
have made his Fifth Amendment claim while he was incarcerated because “judgment in favor of
the plaintiff would necessarily imply the invalidity of his conviction or sentence,” Heck holds
that accrual of that claim was delayed until Plaintiff’s release. Id. at 487.
The decision in Heck, however, failed to make clear whether the delayed accrual test is a
categorical one (in which the general nature of the claim determines whether accrual is delayed)
or whether it is a fact-specific inquiry which depends on whether a plaintiff’s particular claim
would necessarily impugn his conviction. The Seventh Circuit clarified in Wallace v. City of
Chicago that a categorical rule applies to § 1983 claims for false arrest. See 440 F.3d 421, 42627 (7th Cir. 2006) (holding that a “clear rule for false arrest claims” is preferable to “an
evaluation of the evidence,” and that claims for false arrest must accrue immediately at the time
of arrest regardless of the facts of an individual case). While the opinion in Wallace failed to
specify whether Fifth Amendment coerced confession claims were subject to a similar

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categorical rule, the Seventh Circuit in an unpublished opinion suggested that they were – at least
where the prospective plaintiff had pled guilty, because in that case his conviction rested not only
on his confession but also on his plea, and a § 1983 claim challenging the confession would not
necessarily imply that the conviction was invalid. See Franklin v. Burr, 535 Fed. Appx. 532,
533-34 (7th Cir. 2013).
At the time the Court confronted this question in its December 17, 2014 order, whether
Fifth Amendment claims involving a conviction not secured by a guilty plea were subject to a
bright-line rule was unclear. The Court reviewed the then-available precedent and concluded that
a categorical rule applied to all Fifth Amendment claims; because a claim that a confession was
coerced does not “invariably impugn a plaintiff’s conviction,” such a claim is not subject to the
delayed accrual rule in Heck. (Dkt. # 66, at 9.) Plaintiff’s claim that his confession was
involuntary accrued as soon as his confession was used against him at trial, and the Court
therefore dismissed this claim as time barred. (Id.)
Plaintiff urges the Court to reconsider this ruling in light of the Seventh Circuit’s decision
in Matz v. Klotka, 769 F.3d 517, 530-31 (7th Cir. Oct. 6, 2014), which issued before the Court’s
December 17 order but after the parties had briefed the motions to dismiss. While Plaintiff
concedes that Matz does not constitute a change in the controlling law for purposes of a motion
for reconsideration, he argues that the decision in Matz is inconsistent with the Court’s dismissal
of his Fifth Amendment claim and therefore demonstrates that the Court’s analysis of this issue
was erroneous. (Pl.’s Reply, Dkt. # 78 at 5) (“Matz is being used not to show a fundamental
change in the controlling law…but rather to show that this Court’s interpretation of Wallace,
Franklin, and Saunders, and in turn their interpretations of Heck, was incorrect.”)

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In Matz, a still-incarcerated plaintiff brought suit against several police officers alleging
that his Fifth Amendment rights were violated prior to his guilty plea. 769 F.3d at 521-22. The
district court granted summary judgment for the officers, concluding that “because both his
conviction and sentence depended in part on the confession, Matz’s challenge was barred by
Heck.” Id. at 522. The Seventh Circuit affirmed, because a reading of Matz’s sentencing
transcript revealed that his confession figured prominently in the judge’s decision to sentence
him to consecutive rather than concurrent terms. The court therefore ruled that a challenge to
Martz’s confession was barred under Heck. Id. at 531 (“Matz cannot pursue a § 1983 claim for
damages premised on his allegedly coerced confession because success on his claim would call
into question his sentence”). The decision in Matz thus clarifies that whether a Fifth Amendment
claim is Heck-barred is a case-by-case inquiry, not a categorical rule; the Seventh Circuit did not
simply end its inquiry by noting that the plaintiff raised a Fifth Amendment claim, but examined
his sentencing transcript to determine the role his confession played in his sentence. Because the
Seventh Circuit engaged in precisely the sort of fact-intensive, case-specific examination that
this Court held not appropriate for Fifth Amendment claims in its prior order, the portion of that
order that dismissed Plaintiff’s claims as time barred must be reconsidered.
The Court now turns to the specific allegations of Plaintiff’s Fifth Amendment claim in
order to determine whether success on this claim – if brought before Plaintiff’s conviction was
vacated – would necessarily have implied the invalidity of his conviction. At the motion to
dismiss stage, analysis of this question is hampered by the complete lack of a factual record. The
Court must accept as true the allegations in Plaintiff’s complaint regarding the role his
confession played in securing his conviction. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).

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Plaintiff’s complaint alleges that his coerced confession was “the only evidence used against him
at trial” and that no other evidence linked him to the murders. (Compl., Dkt. # 1 at ¶¶ 45, 49.)
While Defendants insist that other evidence linked Plaintiff to the crime, the motion to dismiss
stage is not the appropriate time for them to challenge the factual allegations of the complaint; if
other evidence at trial in fact implicated Plaintiff, Defendants may raise the statute of limitations
defense on summary judgment. Dismissal of a claim on statute of limitations grounds is
appropriate only where it is clear from the face of the complaint that the claim is not timely.
Cancer Found., Inc., 559 F.3d at 675. If Plaintiff’s allegation that his confession was the only
evidence admitted against him is accepted as true, his Fifth Amendment claim would necessarily
implicate the validity of his conviction. As such, he could not have brought such a claim until his
conviction was vacated, and the claim did not accrue until Plaintiff’s conviction was vacated in
2014. Count I of Plaintiff’s complaint is therefore not clearly time barred, and the count is hereby
reinstated.

COUNT III: SUPPRESSION OF EXCULPATORY EVIDENCE
In Count III, Plaintiff alleges that Defendants violated his constitutional right to due
process by withholding exculpatory evidence prior to trial. Specifically, Plaintiff claims that the
following information was suppressed: (1) statements made by his co-defendants that neither
they nor Plaintiff were involved in the shootings; (2) Faye McCoy’s statement that neither
Plaintiff nor his co-defendants were among the men she saw leaving the crime scene; (3) the fact
that Adrian Grimes’ statements were false and coerced; and (4) the statements of James

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Anderson regarding Taylor’s presence in lockup, as well as notes taken at that interview and any
General Progress Report memorializing the interview. (Pl.’s Mot. Recons., Dkt. # 72 at 9-10.)
Prosecutors have a constitutional duty to disclose material, exculpatory evidence to the
defense. See Brady v. Maryland, 373 U.S. 83, 87 (1963). To state a claim under Brady, Plaintiff
must allege that: (1) the evidence is exculpatory or impeaching; (2) the evidence was suppressed
by the government; and (3) he was prejudiced as a result. See Harris v. Kuba, 486 F.3d 1010,
1014 (7th Cir. 2007). Evidence is suppressed where “the prosecution failed to disclose the
evidence before it was too late” for the defendant to make use of it and the evidence “was not
otherwise available to the defendant through the exercise of reasonable diligence.” Id.
The Court dismissed Count III on the grounds that none of the evidence Plaintiff
identifies was actually suppressed, as it was all available to Plaintiff’s defense counsel through
the exercise of reasonable diligence. The Court noted that Plaintiff was well aware that he and
his co-defendants were innocent, and as such was fully equipped to challenge incriminating
statements by Grimes, McCoy, and his co-defendants as false. With regards to Anderson,
Plaintiff was given a report identifying him and his role in potentially challenging Taylor’s alibi,
and Plaintiff therefore could have investigated Anderson’s version of events on his own. Plaintiff
now moves for reconsideration on the grounds that the Court “misapplied the ‘reasonable
diligence’ prong of the Brady doctrine.” (Pl.’s Reply, Dkt. # 78 at 8.)
Plaintiff concedes that the Seventh Circuit’s voluminous case law on the exceptional
nature of motions for reconsideration is intended to prevent litigants from arguing “please take a
closer look at what we argued the first time.” (Id. at 2, n.1.) Yet it is hard to construe Plaintiff’s
arguments as to Count III as anything but. Plaintiff’s motion for reconsideration cites precisely the

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same authority and raises precisely the same arguments as did his briefings on the motions to
dismiss. The “manifest error” Plaintiff complains of is simply that the Court held his asserted Brady
material was discoverable with reasonable diligence when Plaintiff continues to believe it was not.
Unlike Count I addressed above, Plaintiff can point to no newly-available appellate decisions that
would lead the Court to reconsider its analysis of Count III, no new evidence, and no instance in
which the Court committed “an error not of reasoning but of apprehension.” Bank of Waunakee,

906 F.2d at 1191. As such, he has failed to meet his heavy burden of showing that the Court’s
dismissal of Count III was premised on manifest error. See Oto v. Metropolitan Life Ins. Co., 224
F.3d 601, 606 (7th Cir. 2000) (“A manifest error is not demonstrated by the disappointment of the
losing party, instead it is the wholesale disregard, misapplication, or failure to recognize controlling
precedent”) (quotation marks omitted).
As the Court has already confronted and resolved all of Plaintiff’s arguments in its prior
order, it is not necessary to reiterate that reasoning here in full. An abbreviated review of Plaintiff’s
arguments and the Court’s reasons for rejecting them will suffice. The law in this circuit is clear that
it is a criminal defendant’s “responsibility to probe the witnesses and investigate their versions of the
relevant events.” Carvajal v. Dominguez, 542 F.3d 561, 567 (7th Cir. 2008). Plaintiff does not allege
that his co-defendants, McCoy, Grimes, or Anderson were impossible for his defense counsel to
interview or would have lied had Plaintiff questioned them; the facts as alleged in the complaint
leave no doubt that the defense not only had access to the identities of these witnesses but was aware
of their roles in the case. For this reason, Plaintiff’s continued reliance on Boss v. Pierce, 263 F.3d
734 (7th Cir. 2001) is unavailing. As discussed at length in the Court’s prior order, Boss involved
statements by the defense’s alibi witness that she had heard a third party confess to the crime. The
Seventh Circuit’s analysis relied on the fact that defense counsel could hardly have expected an alibi

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witness to possess exculpatory evidence unrelated to the defendant’s alibi; the exercise of reasonable
diligence simply would not have turned up the evidence in question, and the prosecution therefore
had a duty to disclose the witness’s statements to the defense. Here, by contrast, the allegedly
suppressed evidence related directly to each witness’s clearly established role in the case. A criminal
defendant may not be expected to ask an alibi witness for evidence unrelated to the alibi issue, but
reasonable diligence certainly entails questioning available fact witnesses regarding what they saw.
Plaintiff’s objection to Defendants’ conduct appears to be not so much that they suppressed evidence
as that the evidence they ultimately produced was fabricated or otherwise secured by misconduct.
Such a claim is “more appropriately characterized as a claim for malicious prosecution” than a Brady
violation. Saunders-El v. Rohde, No. 14-1570, 2015 WL 400559, at *5 (7th Cir. Jan. 30, 2015)
(holding that where a plaintiff “seeks to charge the officers with a Brady violation for keeping quiet
about their wrongdoing… our case law makes clear that Brady does not require the creation of
exculpatory evidence, nor does it compel police officers to accurately disclose the circumstances of
their investigations”).
Plaintiff also insists that the Court misapplied the Rule 12(b)(6) standard because “the Court
drew all factual inferences against [Plaintiff], such as by incorrectly finding that the State’s
identification of a witness in a report automatically means that a plaintiff exercising reasonable
diligence would be able to locate that witness and extract from that witness all the same favorable
evidence that the witness disclosed to the State.” (Pl.’s Mot. Recons., Dkt. # 72 at 11-12.) In so
doing, Plaintiff badly mischaracterizes the Court’s reasoning and attempts to relabel the Court’s legal
rulings as factual findings. Nowhere in its prior order did the Court resolve any factual disputes
against Plaintiff. Rather, the Court accepted as true the facts stated in Plaintiff’s complaint – that the
witnesses in question made exculpatory statements to the police and that Plaintiff received only the

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identities of the witnesses at issue, and not any details regarding the police misconduct that colored
their testimony. The Court then concluded that under such facts, the “suppressed” evidence was
available to Plaintiff through reasonable diligence as a matter of law.
Accordingly, the Court will not reconsider its dismissal of Count III of Plaintiff’s complaint.

DISMISSAL OF COUNT III WITH PREJUDICE
In addition to reiterating his arguments that Count III should not have been dismissed,
Plaintiff also argues that the Court erred by dismissing the count with prejudice rather than
giving him leave to amend his Brady claims. In support of leave to amend, Plaintiff asserts that
he has since become aware of three additional pieces of material evidence that Defendants failed
to disclose to him prior to trial and which could form the basis for a new Brady claim: (1) a list
of the detainees held in CPD lock-up on November 16, 1992; (2) a list of CPD officers on duty in
the lock-up that night, including officers not on the State’s witness list; and (3) a General
Progress Report setting forth a detailed chronology of Daniel Taylor’s whereabouts on the night
of the murders. (Pl.’s Mot. Recons., Dkt. # 72 at 14-15.)
The Federal Rules of Civil Procedure dictate that a court “should freely give leave [to
amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). As a general rule, amendment of
dismissed claims should be liberally permitted. See Bogie v. Rosenberg, 705 F.3d 603, 608 (7th
Cir. 2013) (“When a complaint fails to state a claim for relief, the plaintiff should ordinarily be
given an opportunity, at least upon request, to amend the complaint to correct the problem if
possible”). Nonetheless, “courts in their sound discretion may deny a proposed amendment if the
moving party has unduly delayed in filing the motion, if the opposing party would suffer undue
prejudice, or if the pleading is futile.” Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008). While its
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prior order failed to articulate the reasoning underlying the dismissal with prejudice, the Court
dismissed Count III with prejudice because amendment would be futile. Amendment of the
complaint regarding the four pieces of evidence in Count III would indeed be futile, because for the
reasons discussed above, the evidence was not suppressed under the meaning of Brady. The question
of whether Plaintiff should be permitted to assert a Brady claim as to the three new pieces of
evidence, however, requires closer examination.
Defendants insist that amendment to include the new evidence would be futile because a
Brady claim based on such evidence could not survive a motion to dismiss, as the new evidence
Plaintiff offers was not material to Plaintiff’s defense and was available to Plaintiff through the
exercise of reasonable diligence. All of the evidence relates to Taylor’s alibi rather than Plaintiff’s,

and as such was of indirect significance to Plaintiff’s defense to the murders. However, given
that Plaintiff’s confession – which was admitted against him at trial – included statements that
Taylor was present for the murders, evidence bolstering Taylor’s alibi would tend to cast doubt
on the truthfulness of Plaintiff’s confession. Moreover, the availability of the three new
documents to the defense is not so obvious as to justify a departure from the usual practice of
permitting liberal amendment of pleadings. Accordingly, amendment of the complaint to include
the proposed new Brady material would not necessarily be futile.
As Defendants note, however, Plaintiff’s new Brady evidence is not actually new;
Plaintiff had referenced (and attached copies of) these documents in his motion for postconviction relief a full nine months prior to filing this civil case. (Defs.’ Joint Resp., Dkt. # 76 at
Ex. 1, pp 15-16.) Defendants insist that they would be prejudiced by leave to amend because
they “would be forced to endure yet another round of motions to dismiss on matters that could
have and should have been asserted in the first instance.” (Id. at 14.) Plaintiff concedes that he
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was aware of the existence of this material at the time he filed his complaint, but justifies its
omission by insisting that he was not aware Defendants possessed these documents prior to his
trial and thus “could not plead that the failure to turn these documents over fell on the named
Defendants.” (Pl.’s Reply, Dkt. # 78 at 11-12.) Plaintiff’s argument is at best unconvincing, at
worst; it is a misrepresentation of the historical procedural facts. The documents at issue were
created by the CPD prior to Plaintiff’s trial; indeed, he specifically asserted them as withheld
Brady material in his motion for post-conviction relief. It is unclear how Plaintiff could hold up
these documents as wrongfully withheld in his exoneration proceedings yet insist that he was
powerless to include them as wrongfully withheld in his complaint. In light of the fact that
Plaintiff’s complaint listed as defendants not only several named officers and prosecutors, but
also the City of Chicago, Cook County, and “unidentified employees” of both, his assertion that
at the time he filed his complaint he could not trace CPD documents to the possession of any of
the Defendants is difficult to credit.
Nevertheless, Plaintiff’s delay in raising claims as to the new Brady material is not so
excessive as to be “undue” for purposes of leave to amend. Discovery in this case has not yet
closed, leaving the parties sufficient opportunity to develop the factual record as to the new
claim. Defendants’ have identified no prejudice to them beyond the inconvenience of having to
move for dismissal of the new claim, and such inconvenience does not outweigh the liberal
policy toward leave to amend embodied in Rule 15(a). Accordingly, the dismissal of Count III is
altered to be without prejudice. Plaintiff may file an amended complaint within 21 days of the
date of this order.

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Conclusion
For the reasons set forth above, Plaintiff’s Motion for Reconsideration [72] is granted in
part and denied in part. Count I of Plaintiff’s complaint is hereby reinstated. Count III remains
dismissed, but this dismissal is modified to be without prejudice. Plaintiff may file an amended
complaint within 21 days of the date of this order.

SO ORDERED.

ENTERED: March 23, 2015

____________________________________
HON. RONALD A. GUZMAN
United States District Judge

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