White v. Chicago et al
Filing
39
MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 2/18/2016.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LIONEL WHITE,
Plaintiff,
vs.
CITY OF CHICAGO and ANTHONY ROTKVICH,
Defendants.
)
)
)
)
)
)
)
)
)
14 C 9915
Judge Feinerman
MEMORANDUM OPINION AND ORDER
Chicago police officer Anthony Rotkvich arrested Lionel White for drug offenses, and
White spent the next 16 months detained at Cook County Jail before being tried and acquitted of
the charges against him. White then filed this suit against Rotkvich and the City of Chicago
under 42 U.S.C. § 1983 and Illinois law. Doc. 1. The court dismissed the complaint under
Federal Rule of Civil Procedure 12(b)(6), but allowed White to file an amended complaint. Doc.
21. Based on the allegation that Rotkvich’s false police reports resulted in White’s prosecution
and pretrial detention, the amended complaint brings Fourth and Fourteenth Amendment claims
against Chicago and Rotkvich and a state law malicious prosecution claim against Chicago.
Doc. 22. Defendants move to dismiss the amended complaint under Rule 12(b)(6). Doc. 27.
The motion is granted; the federal claims are dismissed with prejudice, while the state law claims
are dismissed without prejudice to White refiling them in state court.
Background
In considering the motion to dismiss, the court assumes the truth of the amended
complaint’s factual allegations, though not its legal conclusions. See Lodholtz v. York Risk
Servs. Grp., Inc., 778 F.3d 635, 639 (7th Cir. 2015). The court must consider “documents
1
attached to the [amended] complaint, documents that are critical to the [amended] complaint and
referred to in it, and information that is subject to proper judicial notice,” along with additional
facts set forth in White’s brief opposing dismissal, so long as those facts “are consistent with the
pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir. 2013)
(internal quotation marks omitted); see also Runnion ex rel. Runnion v. Girl Scouts of Greater
Chi. & Nw. Ind., 786 F.3d 510, 528 n.8 (7th Cir. 2015). The following facts are set forth as
favorably to White as those materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir.
2012). The court does not and could not know at this point whether White’s allegations are
entirely true, partly true, or entirely false.
On August 11, 2012, more than two years before this suit was filed, Rotkvich arrested
White as White walked out the front door of a multi-unit apartment building. Doc. 22 at ¶¶ 5-6.
Rotkvich had a warrant to search Apartment 2S, and he and other officers executed the warrant
and found “contraband” there. Id. at ¶¶ 8, 10(b). Rotkvich had no reason to believe that White
was connected with the contraband. Id. at ¶ 9. However, in police reports that he prepared,
Rotkvich wrote four false statements connecting White with the contraband—first, that White
admitted that he sold illegal drugs; second, that White admitted that he was the person named in
the search warrant; third, that another person told the officers that White lived in Apartment 2S;
and fourth, that the officers found “proof of residence” for White in Apartment 2S, when in fact
they found only an envelope addressed to “Whi Lio” in Apartment 1. Id. at ¶ 10.
As a result of Rotkvich’s reports, White was charged with a criminal offense “related to
the contraband purportedly found in Apartment 2S,” and he spent the next 16 months in jail
awaiting trial. Id. at ¶¶ 10, 11. He was acquitted on December 10, 2013. Id. at ¶ 11. Exactly
2
one year later, White filed this suit against Rotkvich and the City of Chicago, alleging that
Rotkvich’s falsehoods caused his prosecution and pretrial detention.
Discussion
The amended complaint claims that Chicago and Rotkvich violated the Fourth and
Fourteenth Amendments, and that Chicago committed the Illinois tort of malicious prosecution.
Doc. 22 at ¶¶ 12-13. White acknowledges that Llovet v. City of Chicago, 761 F.3d 759 (7th Cir.
2014), forecloses his Fourth Amendment claim. Doc. 22 at ¶ 12 n.1; Doc. 30 at 1 n.2. After
briefing on the present motion concluded, the Supreme Court granted certiorari in Manuel v. City
of Joliet, No. 14-9496 (U.S.), which will address whether Llovet was correctly decided. But
unless and until the Supreme Court says otherwise, this court remains bound by Llovet, see
Jansen v. Packaging Corp. of Am., 123 F.3d 490, 495 (7th Cir. 1997) (en banc) (per curiam), and
so the Fourth Amendment claim is dismissed with prejudice.
The Fourteenth Amendment claim is significantly more difficult to resolve. White claims
that Rotkvich violated the Due Process Clause by fabricating evidence of his (supposed) guilt.
The claim is called a “Whitlock claim” because in Whitlock v. Brueggemann, 682 F.3d 567 (7th
Cir. 2012), the Seventh Circuit held that “a police officer who manufactures false evidence
against a criminal defendant violates due process if that evidence is later used to deprive the
defendant of her liberty in some way.” Id. at 580. Significantly for present purposes, the two
plaintiffs in Whitlock had been convicted at trial and spent 17 and 21 years in prison before their
release. Id. at 570; see also Fields v. Wharrie, 740 F.3d 1107, 1109, 1113 (7th Cir. 2014)
(holding that a plaintiff who alleged that he was convicted and imprisoned on the strength of
fabricated evidence stated a Whitlock claim). In Saunders-El v. Rohde, 778 F.3d 556 (7th Cir.
2015), the Seventh Circuit held that a Whitlock claim was unavailable to a plaintiff who had been
3
charged based on (allegedly) fabricated evidence, who was quickly released on bond following
his arrest and thus did not suffer pretrial detention, and who ultimately was acquitted; such a
plaintiff, the court ruled, could pursue only a state law malicious prosecution claim. Id. at 561;
see also Alexander v. McKinney, 692 F.3d 553, 557 (7th Cir. 2012) (same).
This case presents the question whether a civil plaintiff who (unlike the Saunders-El and
Alexander plaintiffs) did suffer pretrial detention as a result of fabricated evidence, but who
(unlike the Whitlock and Fields plaintiffs) later was acquitted, can bring a Whitlock claim, or
whether such a plaintiff is limited to bringing a malicious prosecution claim under state law. The
principal reason this question is difficult, at least from the perspective of a district judge dutybound to follow circuit precedent, is that the Seventh Circuit has issued conflicting signals
regarding the viability of a Whitlock claim under these circumstances. Accordingly, the court
will do the best it can with the guidance that the Seventh Circuit and the Supreme Court have
made available. Reviewing that guidance requires a return to first principles.
The Due Process Clause prohibits States from “depriv[ing] any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. Outside the context of
certain government actions altogether prohibited by the substantive component of the Due
Process Clause, see Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (collecting cases), “the
deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is
not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest
without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990).
“The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(internal quotation marks omitted). That opportunity sometimes may occur after the deprivation
4
of liberty or property. See id. at 342-43 (approving a system in which the Social Security
Administration may terminate disability payments without a prior hearing, so long as it provides
the recipient with a post-termination opportunity to contest the decision); see also City of Los
Angeles v. David, 538 U.S. 715, 718 (2003) (holding that a hearing is not required within 48
hours of when a city imposes a parking fine); Ingraham v. Wright, 430 U.S. 651, 682 (1977)
(holding that a hearing is not required before a junior high school imposes corporal punishment
on a student); Mitchell v. W.T. Grant Co., 416 U.S. 600, 619-20 (1974) (same, where a court
issues a writ to sequester a debtor’s property). Whether the Due Process Clause requires predeprivation process depends on the “the importance of, and harm to, the private interest, the
likelihood of interim error, and the governmental interest in a delay.” David, 538 U.S. at 716.
Two lines of precedent applying these principles are relevant here. The first, sometimes
called the Parratt-Hudson doctrine, holds that the Due Process Clause generally does not require
pre-deprivation process if the deprivation results from the random and unauthorized act of a state
officer. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 541
(1981). A State cannot possibly ensure hearings before its officers act randomly and without
authority, and “the State cannot be required constitutionally to do the impossible by providing
predeprivation process.” Zinermon, 494 U.S. at 129. Accordingly, all the process the victim of
such a deprivation is due is an effective post-deprivation state law tort remedy against the
offending officer. See Hudson, 468 U.S. at 534-35 (holding that a prison guard’s intentional
destruction of a prisoner’s possessions did not give rise to a federal due process claim because
state law provided an adequate post-deprivation tort remedy).
Justice Kennedy’s concurrence in Albright v. Oliver, 510 U.S. 266 (1994), applied the
Parratt-Hudson doctrine to a suit similar to this one. The plaintiff had been charged with a
5
crime without probable cause; after the charge was dismissed, he brought suit under § 1983
against the police detective who arrested him and caused him to be charged. Citing Parratt,
Justice Kennedy reasoned that because state law would have allowed the plaintiff to sue the
detective for malicious prosecution, the federal due process claim had to be dismissed. See id. at
285-86 (Kennedy, J., concurring) (“Given the state remedy and the holding of Parratt, there is
neither need nor legitimacy to invoke § 1983 in this case.”).
The Seventh Circuit concluded in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001),
that Justice Kennedy’s concurrence was the controlling opinion in Albright. Id. at 751.
Newsome therefore held, citing the Parratt-Hudson doctrine, that “a federal suit for malicious
prosecution by state officers is permissible only if the state in which the plaintiff had been
prosecuted does not provide an adequate remedy.” Llovet, 761 F.3d at 760; see also Julian v.
Hanna, 732 F.3d 842, 846 (7th Cir. 2013) (holding that a federal due process malicious
prosecution claim against an Indiana police officer could proceed because Indiana law did not
provide an adequate post-deprivation tort law remedy); Newsome, 256 F.3d at 750-51. This
result obtains regardless of whether the plaintiff describes his claim using the term “malicious
prosecution”; what matters is whether the claim “in essence” complains of conduct that amounts
to malicious prosecution under state law. Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir.
2009) (internal quotation marks omitted); cf. Runnion, 786 F.3d at 517-18 (rejecting an argument
that the complaint failed to state a claim due to its incorrectly naming the legal theory entitling
the plaintiff to relief).
The second line of precedent holds that post-deprivation process is never enough if the
liberty deprivation results from a criminal conviction. The Due Process Clause’s central
command is that criminal defendants must receive fair trials. See Bell v. Wolfish, 441 U.S. 520,
6
535 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.”). Notwithstanding the ParrattHudson doctrine, that is true even if the trial is made unfair by the isolated and unauthorized act
of a state employee. See Bracy v. Gramley, 520 U.S. 899, 905 (1997) (holding that a conviction
would violate due process if the judge disfavored the defendant in retaliation for the defendant’s
refusal to pay a bribe); Albright, 510 U.S. at 281 (Kennedy, J., concurring) (noting, before
applying the Parratt-Hudson doctrine to a claim by a plaintiff who had not been convicted, that
“[t]he State must, of course, comply with the constitutional requirements of due process before it
convicts and sentences a person who has violated the law”); Brady v. Maryland, 373 U.S. 83, 86
(1963) (holding that a conviction violated due process because the prosecutor knowingly refused
to disclose crucial exculpatory evidence to the defendant); Napue v. Illinois, 360 U.S. 264, 269
(1959) (holding that a conviction violated due process because the prosecutor knowingly allowed
a government witness to commit perjury). Cases like Whitlock and Fields, which allow due
process evidence fabrication claims by plaintiffs convicted on the strength of fabricated
evidence, illustrate this principle.
White, by contrast, was not convicted, and the Seventh Circuit has held that Illinois law
provides an adequate malicious prosecution remedy for alleged police misconduct like
Rotkvich’s. See Llovet, 761 F.3d at 760. In Illinois, the elements of malicious prosecution are:
“(1) the defendants commenced judicial proceedings, (2) for which there was no probable cause,
(3) the proceeding[s] were instituted or continued maliciously, (4) the proceedings were
terminated in the plaintiff’s favor, and (5) the plaintiff sustained an injury.” Saunders-El, 778
F.3d at 561. White alleges that Rotkvich lacked probable cause to believe that White committed
a crime, but lied in police reports so that he would be charged with a crime and detained before
7
trial. That sounds in malicious prosecution. Indeed, White’s claim is materially
indistinguishable from the claims brought by the plaintiffs in Fox v. Hayes, 600 F.3d 819 (7th
Cir. 2010), and Brooks v. City of Chicago, supra, where the Seventh Circuit unambiguously held,
in circumstances where the plaintiff had not been convicted, that the claims sounded in malicious
prosecution and thus could not be brought under the Due Process Clause.
The plaintiff in Fox suffered pretrial detention upon being charged with murdering his
daughter. After DNA testing showed that the plaintiff could not have been the perpetrator, the
prosecutor dropped the charges, and the plaintiff was released, the plaintiff sued the investigating
officers under § 1983, alleging that they violated federal due process by manufacturing evidence
of his guilt. Specifically, the complaint alleged “that the defendants violated [the plaintiff’s] due
process rights when they ‘deliberately fabricated false statements and deliberately obstructed
justice, thereby causing the false arrest of [the plaintiff], causing him to be falsely imprisoned
[and] prosecuted.’” 600 F.3d at 841 (third alteration in original). Citing Parratt, the Seventh
Circuit held that the due process claim failed because a state law malicious prosecution tort claim
provided an adequate remedy for the defendants’ alleged misconduct. Ibid.
The plaintiff in Brooks was arrested on a warrant and held for five months before being
released. 564 F.3d at 831. He brought due process claims against certain police officers,
alleging that they caused the warrant to be issued by “submitting false police reports.” Id. at 833.
As in Fox, the court held that the due process claim failed because it was, “in essence, one for
malicious prosecution,” and that it therefore had to be brought under state law. Ibid.
Like the plaintiffs in Fox and Brooks, White was charged on the strength of allegedly
fabricated evidence and suffered pretrial detention, but was not convicted. It follows that
White’s due process evidence fabrication claim cannot be distinguished from the due process
8
claims rejected in Fox and Brooks. And because this court is duty-bound to adhere to Fox and
Brooks, given that they have not been overruled (more on this later), White’s due process claim
must fail. As the Seventh Circuit observed, “[t]he Justices have insisted that courts lower in the
hierarchy apply their precedents unless overruled, even if they seem incompatible with more
recent decisions,” and that “only an express overruling relieves an inferior court of the duty to
follow decisions on the books.” A Woman’s Choice-East Side Women’s Clinic v. Newman, 305
F.3d 684, 687 (7th Cir. 2002). The Seventh Circuit made this observation in the context of its
relationship with the Supreme Court, but the same holds of this court’s relationship with the
Seventh Circuit. See Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004)
(“In a hierarchical system, decisions of a superior court are authoritative on inferior courts. Just
as the court of appeals must follow decisions of the Supreme Court whether or not we agree with
them, so district judges must follow the decisions of this court whether or not they agree.”)
(citations omitted).
White makes three arguments as to why dismissing his due process evidence fabrication
claim is incompatible with prevailing Seventh Circuit precedent. First, he argues that Whitlock
shows that his claim can proceed notwithstanding Fox and Brooks. Doc. 30 at 1-2. The
defendants in Whitlock manufactured evidence that the plaintiffs committed murder, leading to
the plaintiffs’ conviction and lengthy incarceration. 682 F.3d at 572. After being exonerated in
post-conviction proceedings, the plaintiffs sued the defendants under § 1983, alleging that they
violated the Due Process Clause by fabricating the evidence that put them away. Id. at 573. As
noted, the Seventh Circuit allowed the claim to proceed, holding that a state officer “violates due
process” if he “manufactures false evidence against a criminal defendant” and “that evidence is
later used to deprive the defendant of her liberty in some way.” Id. at 580.
9
There is significant tension between Whitlock and Newsome; in fact, Whitlock’s holding
directly contradicts Newsome’s. As in Whitlock, the plaintiff in Newsome sued a state officer for
violating the Due Process Clause by fabricating evidence that was later used to secure the
plaintiff’s murder conviction and lengthy imprisonment. 256 F.3d at 748-49. Unlike Whitlock,
however, Newsome held that the claim could not proceed; as noted, the Seventh Circuit ruled that
the claim sounded in malicious prosecution and that because Illinois law provided an adequate
tort remedy for malicious prosecution, the claim was barred by Parratt. Id. at 751. It is very
difficult, if not impossible, to escape the conclusion that if Newsome were decided today, it
would have come out differently.
Does that mean that Whitlock overruled Newsome? Whitlock mentioned Newsome only
once, in passing, and it cited a passage in Newsome dealing with a different issue. See 682 F.3d
at 583-84. Given its treatment (or non-treatment) of Newsome, it is debatable whether Whitlock
technically overruled Newsome. As the Seventh Circuit recently cautioned: “That’s not how
precedent works. In this circuit it takes a circulation to the full court under Circuit Rule 40(e) for
one panel to overrule another.” Iqbal v. Patel, 780 F.3d 728, 729 (7th Cir. 2015) (holding that a
later Seventh Circuit decision could not have overruled an earlier decision without so much as
citing it). There was no Circuit Rule 40(e) circulation in Whitlock. Additionally, since issuing
Whitlock, the Seventh Circuit repeatedly has reaffirmed Newsome’s general principle—although
not its application to plaintiffs who had been convicted as a result of fabricated evidence—that
evidence fabrication claims sounding in malicious prosecution must be brought under state law
whenever state law provides an adequate remedy. See Howlett v. Hack, 794 F.3d 721, 727 (7th
Cir. 2015) (citing Newsome for the proposition that “a claim [for malicious prosecution under
§ 1983] is not actionable if there is an adequate state-law remedy”); Saunders-El, 778 F.3d at
10
560 (“In Newsome, we established that the existence of a state law claim for malicious
prosecution renders unavailable § 1983 as a vehicle for bringing a federal malicious prosecution
claim”; also reaffirming Fox and Brooks); Llovet, 761 F.3d at 760 (citing Newsome for the
proposition that “a federal suit for malicious prosecution by state officers is permissible only if
the state in which the plaintiff had been prosecuted does not provide an adequate remedy”);
Serino v. Hensley, 735 F.3d 588, 593 (7th Cir. 2013) (“[T]he existence of a malicious
prosecution cause of action under state law ‘knocks out any constitutional tort of malicious
prosecution, because, when a state-law remedy exists … due process of law is afforded by the
opportunity to pursue a claim in state court.’”) (quoting Newsome, 256 F.3d at 751); Julian, 732
F.3d at 846 (rejecting a call to overrule Newsome); Alexander, 692 F.3d at 557 (citing Brooks to
reject the plaintiff’s “attempt to piece together an amorphous substantive due process claim from
the remains of his forgone or otherwise unavailable constitutional and state law claims,”
explaining that the court saw “no reason to depart from [its] precedent”).
But even if Whitlock could be read as overruling Newsome in the context of evidence
fabrication claims brought by plaintiffs who had been convicted, Whitlock cannot properly be
read as overruling Fox or Brooks, which it did not mention at all, and which involved evidence
fabrication claims by plaintiffs who had not been convicted. That is, while Whitlock’s precise
holding is incompatible with Newsome, given that they considered the same claim brought by
plaintiffs in materially identical circumstances, Whitlock can co-exist with Fox and Brooks.
Given this, the only correct reading of Whitlock is as a narrow correction of Newsome rather than
as a complete change of course—although Newsome is correct to the extent it held that postdeprivation process generally is adequate to address malicious deprivations of liberty, it missed
the important corollary that post-deprivation process is not adequate when the deprivation results
11
from a criminal conviction. Thus, it remains true that the Parratt-Hudson doctrine applies to
evidence fabrication claims whenever the plaintiff was not convicted, as demonstrated by Fox,
Brooks, and the cases reaffirming those two decisions after Whitlock.
This conclusion may appear difficult to square with the passage in Whitlock stating that
“a police officer who manufactures false evidence against a criminal defendant violates due
process if that evidence is later used to deprive the defendant of her liberty in some way.” 682
F.3d at 580 (emphasis added). Pretrial detention deprives the civil plaintiff of liberty “in some
way,” even if there is no conviction. But the fact that a literal reading of this passage is
inconsistent with Fox and Brooks does not mean that Whitlock overruled Fox and Brooks. In
addition to that “not [being] how precedent works,” Iqbal, 780 F.3d at 729, that is not how
opinions are properly read.
In FDIC v. O’Neil, 809 F.2d 350 (7th Cir. 1987), a party relied on a passage from Howell
v. Continental Credit Corp., 655 F.2d 743 (7th Cir. 1981), to support a certain point. The
Seventh Circuit acknowledged that the passage from Howell supported the party, but rejected its
argument just the same: “The fact that this court in Howell articulated its result in language broad
enough to cover the present case shows only that courts cannot write readable opinions without
using general language. Lesson Number One in the study of law is that general language in an
opinion must not be ripped from its context to make a rule far broader than the factual
circumstances which called forth the language.” O’Neil, 809 F.2d at 354; see also Todd v.
Collecto, Inc., 731 F.3d 734, 738 (7th Cir. 2013) (“In O’Rourke, this court addressed only
§ 1692e, and we also did not consider claims under that provision by plaintiffs who are not
consumers. The broad language in the opinion must be understood in that context.”). The
context of Whitlock was a plaintiff who had been convicted, not one who (as in Fox and Brooks)
12
had been charged, detained before trial, but not convicted. The broad language of Whitlock must
be read in its particular context. So, if the defendant fabricated evidence that the plaintiff
committed a crime and the plaintiff was convicted as a result, the plaintiff has a viable Whitlock
claim even if state law provides an adequate tort remedy for malicious prosecution. But if, as in
Fox and Brooks, the plaintiff was acquitted or the charges were dropped before trial, a viable
state law malicious prosecution claim is the only process to which the Due Process Clause
entitles him.
Second, White argues that Armstrong v. Daily, 786 F.3d 529 (7th Cir. 2015), shows that a
due process evidence fabrication claim can succeed even if the plaintiff was not convicted. Doc.
30 at 3-7. That is wrong, as Armstrong did not even address an evidence fabrication claim. The
plaintiff in Armstrong was imprisoned for 29 years for sexual assault and murder. His conviction
was vacated in 2005, but he remained in custody pending retrial. After the conviction was
vacated, state forensics technicians destroyed crucial evidence that could have led to the
plaintiff’s exoneration. In 2009, a state court responded to the evidence destruction by
dismissing the remaining charges, and the plaintiff sued the forensics technicians in federal
court. He alleged that they violated federal due process by destroying the evidence, thereby
causing him to remain detained longer than he otherwise would have. 786 F.3d at 531-32.
Armstrong held that the plaintiff stated a valid due process claim even though he was not
convicted, or even tried, as a result of the evidence destruction. The destruction of crucial
evidence of a person’s innocence prevents all future criminal trials against that person from
being fair, so charges against such a person must be dismissed. But if a due process claim based
on such misconduct required a criminal conviction, then the dismissal of the criminal case would
prevent the victim of the misconduct from recovering for any harm the misconduct caused him.
13
Armstrong concluded that, “[u]nder these circumstances, requiring a plaintiff to undergo a
second trial and conviction to pursue a civil claim under § 1983 would work an obvious
injustice. It would deny victims of the most egregious evidence destruction—for whom
dismissal is appropriate because a fair trial is impossible—a civil remedy for their loss of
liberty.” Id. at 553.
Armstrong’s reasoning does not apply here. White alleges that Rotkvich fabricated
evidence of his guilt, not that he destroyed evidence of his innocence, and he thus makes
something closer to a Brady claim than a Whitlock claim. The difference is not academic. As
Armstrong explained, destroying exculpatory evidence makes a fair trial impossible; no jury will
ever be able to get a full account of the case for the defendant’s innocence. Fake evidence of
guilt, meanwhile, makes a trial unfair only if it is introduced at trial; as Armstrong itself
recognized, “an accused has no claim against an officer who fabricates evidence and puts the
evidence in a drawer, never to be used.” Armstrong, 786 F.3d at 553; see also Whitlock, 682
F.3d at 582. The bottom line is that Armstrong did not concern a due process evidence
fabrication claim, let alone under the circumstances presented here, and Armstrong thus did not
overrule Fox and Brooks. It follows that this court cannot read Armstrong as relieving it of its
obligation to adhere to Fox and Brooks.
Like Whitlock, Armstrong has language that, if read literally, is difficult to square with
Fox and Brooks: “Though the most common liberty deprivation cases are based on post-trial
incarceration after a wrongful conviction, the essential elements of this constitutional claim are
more general and not limited to wrongful convictions.” 786 F.3d at 551. But as with Whitlock’s
broad language, this passage from Armstrong must be read in the context of a Brady-like
14
evidence destruction claim. Under the principles set forth in Iqbal and O’Neil, the passage
cannot properly be read as overruling Fox and Brooks.
Third, White relies on Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), which holds that a
due process evidence fabrication claim may proceed when the plaintiff was detained before trial
even if he was subsequently acquitted. Id. at 346, 349; Doc. 30 at 3 n.4. Zahrey is on all fours
with this case, but its holding directly contradicts Fox and Brooks, and this court is bound by the
Seventh Circuit, not the Second. See United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994)
(“A district court in Wisconsin must follow [the Seventh Circuit’s] decisions, but it owes no
more than respectful consideration to the views of other circuits.”).
White correctly notes that the Seventh Circuit has cited Zahrey approvingly on several
occasions. Doc. 30 at 3 n.4; see Armstrong, 786 F.3d at 551; Saunders-El, 778 F.3d at 561;
Fields, 740 F.3d at 1114; Alexander, 692 F.3d at 557; Whitlock, 682 F.3d at 582. But none of
those cases cite Zahrey for the proposition that evidence fabrication resulting in pretrial detention
but not conviction amounts to a due process violation notwithstanding the availability of an
adequate state law malicious prosecution remedy. Fields cites Zahrey for an unrelated
proposition about absolute prosecutorial immunity. 740 F.3d at 1114. Armstrong cites Zahrey
for the proposition that a person has a right not to be deprived “of his liberty without due process
of law, as the result of the destruction of evidence by a state actor.” 786 F.3d at 551. And
Saunders-El, Alexander, and Whitlock cite Zahrey for the propositions that a due process
evidence fabrication claim requires a deprivation of liberty and that pretrial detention counts as a
deprivation of liberty. See Saunders-El, 778 F.3d at 561; Alexander, 692 F.3d at 557; Whitlock,
682 F.3d at 582. But White’s due process claim fails not because he was never deprived of
15
liberty—he clearly was—but because the availability of a state law malicious prosecution claim
affords him the process he is due.
In the end, Fox and Brooks are the precedents closest factually to this case and, absent
their overruling, they must be faithfully applied to this case. See A Woman’s Choice, 305 F.3d at
687; Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1017 (7th Cir. 2002) (applying a rule clearly
established by Brulotte v. Thys Co., 379 U.S. 29 (1964), even though it had “been severely, and
… justly, criticized” and undermined by subsequent cases, because it had never been explicitly
overruled). In adhering to Fox and Brooks and holding that White’s due process evidence
fabrication claim fails because he did not sustain a conviction, the undersigned respectfully and
regretfully parts company with his esteemed colleague’s decisions in Sumling v. Village of East
Dundee, 2015 WL 5545294, at *3-4 (N.D. Ill. Sept. 18, 2015), and Collier v. City of Chicago,
2015 WL 5081408, at *6-7 (N.D. Ill. Aug. 26, 2015).
Conclusion
For the foregoing reasons, White’s federal claims are dismissed. Because White has
already been given the chance to replead his federal claims, and because his opposition to
Defendants’ Rule 12(b)(6) motion does not request another opportunity to replead in the event
the motion is granted, the dismissal of the federal claims is with prejudice. See James Cape &
Sons Co. v. PCC Constr. Co., 453 F.3d 396, 400-01 (7th Cir. 2006) (rejecting the plaintiff’s
argument that the district court erred in dismissing its complaint with prejudice, rather than
without prejudice and with leave to amend, where the plaintiff did not request leave to amend).
The only remaining claim—the state law malicious prosecution claim—arises under
Illinois law. Section 1367(c)(3) of Title 28 provides that “[t]he district courts may decline to
exercise supplemental jurisdiction over a claim under subsection (a) if … the district court has
16
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “As a
general matter, when all federal claims have been dismissed prior to trial, the federal court
should relinquish jurisdiction over the remaining pend[e]nt state claims.” Williams v. Rodriguez,
509 F.3d 392, 404 (7th Cir. 2007). This general rule has three exceptions: “when the [refiling] of
the state claims is barred by the statute of limitations; where substantial judicial resources have
already been expended on the state claims; and when it is clearly apparent how the state claim is
to be decided.” Ibid.
None of the exceptions apply here. Illinois law gives White one year to refile his state
law claim in state court if the applicable limitations period for those claims expired while the
case was pending in federal court. See 735 ILCS 5/13–217; Davis v. Cook Cnty., 534 F.3d 650,
654 (7th Cir. 2008). Substantial federal judicial resources have not yet been committed to the
state law claim. And it is not clearly apparent how the state law claim should be decided. It
follows that relinquishing jurisdiction over the state law claim is the appropriate course under
§ 1367(c)(3). See RWJ Mgmt. Co. v. BP Prods. N. Am., Inc., 672 F.3d 476, 479-80 (7th Cir.
2012); Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir. 1994). Accordingly, the
state law malicious prosecution claim is dismissed without prejudice to its refiling in state court.
February 18, 2016
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?