Walker v. White et al

Filing 99

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 6/20/2017: Defendants' motions to dismiss, 38 , 41 , are granted in part, denied in part. Count I is dismissed as to the Brady-violation due process claim. Count II is dismissed as to Finnelly. Count IV is dismissed without prejudice, with leave to replead by August 8, 2017. [For further detail see attached order.] Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JERMAINE WALKER,
Plaintiff,

No. 16 CV 7024

v.

Judge Manish S. Shah

MICHAEL WHITE, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Jermaine Walker brings claims against several Chicago police officers, the
City of Chicago, an investigator for the Cook County State’s Attorney’s Office, and
Cook County arising out of his arrest and later conviction for possession of
narcotics, a conviction which was vacated after Walker was incarcerated for ten
years. Defendants move to dismiss. For the following reasons, the motions to
dismiss are granted in part, denied in part.
I.

Background1
On the evening of February 21, 2016, college student Jermaine Walker was

driving with his brother to attend a family gathering on the north side of Chicago.
On the way, they stopped to make a purchase at a store. As Walker pulled out of the
parking lot and onto West Lawrence Avenue, he noticed lights from a Chicago police

The allegations from Walker’s amended complaint, [24], are taken as true for resolving the
motions to dismiss. Bracketed numbers refer to entries on the district court docket.
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car behind him. Walker pulled over into an alley adjacent to an apartment building,
and the officers followed Walker’s car into the alley.
With his gun drawn, defendant Officer Eric Reyes approached Walker’s car
and asked for Walker’s driver’s license, insurance, and registration. Walker
provided them and asked why he had been pulled over. Reyes did not provide an
explanation but ordered Walker out of his car so it could be searched. Walker
declined to exit his car and asked to speak to a sergeant. Defendant Michael White,
a sergeant, arrived shortly thereafter and asked why Walker needed to speak to
him. Walker responded that he had been pulled over for no reason and had not been
given any justification for the stop. White then ordered Walker out of his car.
Walker delayed, and the officers began screaming at him. Walker then exited his
car. White, Reyes, and Officer Sebastian Flatley (another defendant) began beating
Walker. Other officers nearby, including defendants Brian Daly, Raul Baeza, and
Thomas Gaynor, either participated in beating Walker or stood by and watched
other officers beat Walker.
The apartment building adjacent to the alley had a surveillance camera
mounted in the alley, in plain sight to everyone present. Walker had noticed the
camera while he was in his car. When the officers started beating him, he pointed
out that they were being recorded. After he was beaten, Walker was handcuffed,
arrested, and charged with possession with intent to distribute narcotics within
1000 feet of a school. Walker alleges that the officers and their police reports falsely

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claimed that Walker had narcotics, and that the officers then inventoried narcotics
to support this story.
Walker could not afford bail, so he was detained at the Cook County Jail. He
asserted his right to a speedy trial. He also asked the court to appoint him an
investigator to photograph the camera in the alley and to locate witnesses who
could testify that the camera was in the alley as of the date of his arrest. Walker’s
requested for an investigator was denied.
The Cook County State’s Attorney’s Office assigned defendant Thomas
Finnelly, an investigator for the office, to take photographs of the alley and any
camera that might be there. Finnelly took several photographs of the alley.
Although the surveillance camera was in plain view, Finnelly selectively
photographed the alley to avoid including the camera in any photographs.
Prosecutors relied on the officers’ false police reports and Finnelly’s photographs in
deciding to continue to prosecute Walker. At Walker’s trial, Finnelly’s photographs
were admitted as evidence, and Finnelly testified that he walked the entire length
of the alley but did not see a camera. White and Reyes also testified that there was
no camera in the alley. The inventoried drugs were also used as evidence against
Walker at trial. Walker was convicted and sentenced to twenty-two years in prison.
Walker appealed his conviction, arguing that the trial court erred in denying
him an investigator. On appeal, the state argued that access to an investigator
would not have altered the outcome because the evidence at trial demonstrated that
no camera existed. The appellate court upheld the conviction, holding that the

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overwhelming evidence at trial supported a finding that there was no camera in the
alley and that appointing an investigator would have achieved nothing.
In May 2015, Walker filed a petition for post-conviction relief, presenting
evidence of the camera’s existence. While the petition was pending, the Cook
County State’s Attorney’s Office investigated Walker’s claim that the camera
existed. After investigating, the State’s Attorney’s Office concluded that Finnelly,
Flatley, and Reyes perjured themselves at Walker’s trial. The state moved to vacate
Walker’s conviction and sentence, and to dismiss the charges against him. In March
2016, after Walker had been incarcerated for ten years, the Cook County Circuit
Court vacated the indictment against him and dismissed all charges. A month later,
the court granted Walker a Certificate of Innocence under 735 ILCS 5/2-702.
Walker filed suit a few months later, [1], and amended his complaint. [24].
He brings claims against all defendants for: violating due process under 42 U.S.C.
§ 1983 by fabricating and withholding evidence (Count I); failing to intervene, under
§ 1983 (Count II); conspiracy under § 1983 (Count III); Fourth Amendment
malicious prosecution under § 1983 (Count IV); malicious prosecution under Illinois
law (Count V); conspiracy under Illinois law (Count VI); and intentional inflection of
emotional distress (Count VII). Walker also brings a Monell claim against the City
as part of his due process claim (Count I), a respondeat superior claim against the
City (Count VIII), and an indemnification claim against the City and Cook County
(Count IX). Defendants move to dismiss all claims. [38]; [41]. Walker has since
dismissed the failure to intervene claim (Count II) against Finnelly. [58] at 9.

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II.

Legal Standards
To survive a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), a complaint must contain factual allegations that plausibly suggest a right
to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). The court must construe all
factual allegations as true and draw all reasonable inferences in the plaintiff’s
favor, but the court need not accept legal conclusions or conclusory allegations. Id.
at 678–79.
III.

Analysis
A.

Due Process

Walker alleges that the officers and Finnelly fabricated evidence that no
camera existed in the alley and withheld evidence of the camera’s existence. Walker
also alleges that the officers fabricated false police reports and an inventory
showing that drugs were found in Walker’s possession, and that the officers
withheld the true origin of those drugs.
1.

Fabricating Evidence

The defendants move to dismiss Walker’s due process claim based on
fabrication of evidence, arguing that such allegations must be brought pursuant to
state law through a malicious prosecution claim. Walker responds that he is not
precluded from bringing a due process claim under § 1983 for fabrication of evidence
and that he has properly pled such a claim.
Saunders-El v. Rohde, 778 F.3d 556, 559–61 (7th Cir. 2015), held that
allegations of evidence fabrication can support a due process claim under § 1983,
but that those allegations must be brought pursuant to state law when they sound
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in malicious prosecution. This distinction was reiterated in Bianchi v. McQueen, 818
F.3d 309, 319 (7th Cir. 2016), which held that “[a]llegations of evidence fabrication
may state a colorable due-process claim” but that “[a] deprivation of liberty is a
necessary element of a due-process claim premised on allegations of evidence
fabrication.” Where deprivation of liberty is not in play, the allegation that criminal
proceedings were instituted based on false evidence or testimony is essentially a
claim for malicious prosecution, not a due process violation. Saunders-El, 778 F.3d
at 560 (citing Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009)). Unlike
the plaintiffs in Saunders-El and Bianchi, Walker has alleged a deprivation of
liberty—he was detained before trial and, after his conviction, he was incarcerated
for several years.
The defendants also argue that Walker cannot state a due process claim
based on fabrication of evidence because it is duplicative of his state-law malicious
prosecution claim, which already provides him with a remedy for the alleged
conduct. Walker contends that malicious prosecution and due process are not
duplicative claims because they require different elements (malicious prosecution
requires lack of probable cause, due process requires deprivation of liberty), and
that defendants have not cited any authority forbidding both a malicious
prosecution claim and a due process claim for fabrication of evidence.
Defendants cite Terry v. Talmontas, No. 11 CV 6083, 2013 WL 707907, at *10
(N.D. Ill. Feb. 26, 2013), and some other district court cases for the proposition that
due process claims are redundant of malicious prosecution claims. But Terry did not

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deal with a due process claim based on a conviction involving fabrication of
evidence—Terry only involved an allegation that the plaintiff was arrested without
probable cause and detained for a few weeks until his arraignment and indictment.
Terry is not persuasive, particularly when the Seventh Circuit has recently made
clear that “[t]he availability of a state-law remedy for malicious prosecution doesn’t
defeat a federal due-process claim against an officer who fabricates evidence that is
later used to obtain a wrongful conviction.” Avery v. City of Milwaukee, 847 F.3d
433, 441 (7th Cir. 2017) (distinguishing Albright v. Oliver, 510 U.S. 266 (1994),
because the plaintiff was only claiming he was prosecuted without probable cause,
not that he was convicted because a law enforcement official had acted in bad faith
to undermine the reliability of his trial (citing Armstrong v. Daily, 786 F.3d 529,
539–41 (7th Cir. 2015)). A claim that the plaintiff was wrongfully convicted of a
crime in a trial tainted by falsified evidence, known perjury, or the deliberate
destruction of exculpatory evidence is the kind of claim “‘grounded in the due
process guarantee of fundamental fairness in criminal prosecutions’ and has long
been recognized.” Avery, 847 F.3d at 441 (quoting Armstrong, 786 F.3d at 540).
Here, the availability of a state-law malicious prosecution claim does not bar
Walker’s due process claim for fabrication of evidence.
Defendants also contend that they are entitled to qualified immunity on the
fabrication of evidence claim, arguing that in 2006 (when Walker was arrested and
charged), fabrication of evidence “without regard to its use or disclosure” was not a
recognized constitutional violation. Defendants cite to Buckley v. Fitzsimmons, 20

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F.3d 789 (7th Cir. 1994), for the proposition that (in 1994) there was “no authority
for the proposition that the mere preparation of false evidence, as opposed to its use
in a fashion that deprives someone of a fair trial or otherwise harms him, violates
the Constitution.” Id. at 797 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 281
(1994) (Scalia, J., concurring)). Walker, quite correctly, points out that he alleges
more than mere preparation of false evidence that was never used. Instead, he
alleges that the defendants fabricated evidence regarding the camera and the drugs
and then used that evidence to secure his wrongful conviction, depriving him of a
fair trial. It has long been held that the use of fabricated evidence violates a
criminal defendant’s constitutional rights. See, e.g., Fields v. Wharrie, 740 F.3d
1107, 1114 (7th Cir. 2014) (“For it was established law by 1985 (indeed long before),
when the fabrication is alleged to have occurred, that a government lawyer’s
fabricating evidence against a criminal defendant was a violation of due process.”
(citing Napue v. Illinois, 360 U.S. 264, 269 (1959), Pyle v. Kansas, 317 U.S. 213,
215–16 (1942), and Mooney v. Holohan, 294 U.S. 103, 110 (1935))). Walker will have
to prove that the fabricated evidence was used to deprive him of his liberty, but he
has adequately alleged an established claim. The defendants are not entitled to
dismissal of Walker’s claim based on qualified immunity.
2.

Withholding Evidence

As part of his due process claim, Walker alleges that the officers and Finnelly
withheld evidence of the surveillance camera’s existence and withheld the true
origin of the narcotics purportedly found in Walker’s possession. Defendants argue
that Walker fails to state a due process claim because there is no Brady violation
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when a defendant is aware of the withheld evidence. The defendants contend that
Walker knew at the time of his arrest whether a camera was in the alley and
whether he possessed narcotics. Walker responds that although he knew that the
drugs were not his, he did not know where the police got them from and therefore
lacked exculpatory or impeaching evidence. Notably, Walker does not address the
defendants’ argument that he knew about the camera.
Under Brady v. Maryland, 373 U.S. 83 (1963), due process requires
prosecutors to turn over to the defense all potentially exculpatory evidence, and
“[t]hat obligation extends to police officers, insofar as they must turn over
potentially exculpatory evidence when they turn over investigative files to the
prosecution.” Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007). To establish a
Brady violation, a plaintiff must prove that “(1) the evidence at issue is favorable to
the accused because it is either exculpatory or impeaching; (2) the evidence has
been suppressed by the government, either willfully or inadvertently; and (3) the
suppressed evidence resulted in prejudice,” meaning that the withheld evidence was
material and there was a reasonable probability that it would have produced a
different verdict. Id. The Seventh Circuit has emphasized, however, that Brady
“deals with the concealment of exculpatory evidence unknown to the defendant.”
United States v. Lee, 399 F.3d 864, 865 (7th Cir. 2005) (emphasis added). Evidence
is not suppressed when it is already known to the defendant, or when it is available
to the defendant or his counsel “with minimal research or discovery through the
exercise of reasonable diligence.” Harris, 486 F.3d at 1015–16.

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Walker does not state a Brady-based due process claim against the
defendants for withholding the existence of the surveillance camera. Walker failed
to respond to defendants’ arguments on this point, thus forfeiting any arguments.
See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“[A] litigant
effectively abandons the litigation by not responding to alleged deficiencies in a
motion to dismiss.”). And in any event, Walker alleged that he was aware of the
camera’s existence even before his arrest. There is no Brady violation in such
circumstances. See, e.g., Harris, 486 F.3d at 1015 (plaintiff’s own alibi was not
concealed from him and therefore was not the proper basis for a Brady claim).
The remainder of Walker’s Brady-based due process claim alleges that the
defendant police officers violated his right to due process by withholding the “true
origin” of the inventoried drugs, i.e., that the drugs were from someone other than
Walker.2 The Seventh Circuit, however, does not permit recasting evidencefabrication claims as Brady-based due process claims. See Saunders-El, 778 F.3d at
562 (“In the end, [plaintiff] seeks to charge the officers with a Brady violation for
keeping quiet about their wrongdoing [fabricating evidence], not for failing to
disclose any existing piece of evidence to the prosecution. But 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
to the prosecution.”). Although Walker attempts to articulate his Brady claim as
alleging that the officers withheld evidence as to the drugs’ origin, he merely
2

The complaint does not allege that Finnelly was involved with the drugs, only the camera.

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repeats his fabrication of evidence claim. Moreover, because Walker knew the drugs
were not his and were planted, he knew enough to pursue evidence of the true
source of the drugs, and nothing in the complaint suggests that such an avenue of
investigation was closed off to Walker. His due process claim is not properly brought
under Brady, and therefore the portion of Walker’s due process claim based on
alleged Brady-violations is dismissed for failure to state a claim.3
3.

Monell

Walker asserts a Monell claim against the City as part of his due process
claim, asserting that the misconduct was undertaken pursuant to the policies and
practices of the City of Chicago. The City moves to dismiss the Monell allegations,
arguing that they are dependent on survival of the fabrication of evidence and
Brady-violation due process allegations. The fabrication of evidence due process
claim, however, has survived and therefore the City is not entitled to dismissal of
the Monell claim against it.
B.

Malicious Prosecution (§ 1983)

At the time Walker pled his federal malicious prosecution claim, circuit
precedent held that a malicious prosecution claim in Illinois must be brought under
state law. See Manuel v. City of Joliet, 590 Fed. App’x 641, 642–43 (7th Cir. 2015).
When the parties briefed the motions to dismiss, the appeal from Manuel to the
The defendants also argue for dismissal of Walker’s due process claim to the extent it
relies on the allegations that Finnelly, White, and Reyes falsely testified that there was no
camera in the alley, [24] ¶¶ 62–65, because the defendants are entitled to absolute
immunity for their testimony. In his response brief, Walker clarified that he does not seek
to hold the defendants liable for their testimony, only their pre-testimonial conduct. [58] at
9 n.2.
3

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Supreme Court was still pending. The Supreme Court has since decided Manuel,
confirming that a Fourth Amendment claim for unlawful post-arrest, pretrial
detention exists but declining to address whether such a claim resembles malicious
prosecution. Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 920–22 (2017). Walker pled
his claim under malicious prosecution, which is not entirely consistent with Manuel.
Therefore his federal malicious prosecution claim is dismissed, but he has leave to
replead a Fourth Amendment claim consistent with Manuel.
C.

Malicious Prosecution (Illinois)

To establish malicious prosecution under Illinois law, a plaintiff must allege
facts showing: (1) the commencement of a criminal proceeding by the defendant; (2)
the termination of the criminal proceeding in a manner indicative of plaintiff’s
innocence; (3) the absence of probable cause for such proceeding; (4) the defendant’s
malice; and (5) damages. Swick v. Liautaud, 169 Ill.2d 504, 512 (1996). Defendants
contend that Walker fails to plausibly allege that the criminal proceedings were
terminated in a manner indicative of innocence, arguing that having charges
dismissed after new evidence emerged does not compel an inference that there was
a lack of reasonable grounds to pursue the prosecution for drug possession.
Defendants claim that Walker’s Certificate of Innocence, granted pursuant to 735
ILCS 5/2-702, is irrelevant to establishing this element. Walker responds that he
need not plead that circumstances of the dismissal compel an inference of
innocence, only that proceedings were terminated in a manner indicative of
innocence, and that he has plausibly alleged this requirement.

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Defendants cite Swick and Washington v. Summerville, 127 F.3d 552, 557
(7th Cir. 1997), for the proposition that to establish that criminal proceedings were
terminated in a manner indicative of innocence, a plaintiff needs to show that the
“circumstances surrounding the abandonment of the criminal proceedings must
compel an inference that there existed a lack of reasonable grounds to pursue the
criminal prosecution.” Swick, 169 Ill.2d at 513–14. Both cases, however, were
addressing situations where criminal proceedings were abandoned due to a nolle
prosequi, which is a voluntary dismissal and not a finding that the defendant is
guilty or not guilty. Id.; Washington, 127 F.3d at 557–58. Walker’s circumstances do
not involve a nolle prosequi, and all he need plead are facts plausibly alleging that
the criminal proceedings against him were terminated in a manner indicative of his
innocence.
Walker has sufficiently pled this element. He has alleged that while
incarcerated, he filed a petition for post-conviction relief, presenting evidence of the
camera’s existence. While the petition was pending, the Cook County State’s
Attorney’s Office performed its own investigation, concluding that Finnelly, Flatley,
and Reyes had perjured themselves at Walker’s trial. The state moved to vacate
Walker’s conviction and sentence, and to dismiss the charges against him. The Cook
County Circuit Court vacated the indictment against Walker, dismissed all charges,
and later granted him a Certificate of Innocence under 735 ILCS 5/2-702. While the
defendants argue that evidence of the existence of a camera does not show that
Walker did not possess the drugs for which he was charged, these other facts also

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plausibly allege that Walker’s criminal proceedings were terminated in a manner
indicative of innocence. Walker’s Certificate of Innocence is not irrelevant—to
obtain it, he had to prove his innocence by a preponderance of the evidence.4 Illinois
courts have held that the statute requires a finding of actual innocence, as opposed
to a finding of not guilty or insufficient evidence. Rudy v. People, 2013 IL App (1st)
113449, ¶¶ 14–15; People v. Fields, 2011 IL App (1st) 100169, ¶ 19.
The statute also provides, however, that “[t]he decision to grant or deny a
certificate of innocence shall be binding only with respect to claims filed in the
Court of Claims and shall not have a res judicata effect on any other proceedings.”
735 ILCS 5/2-702(j). Citing to Rodriguez v. Cook County, Illinois, 664 F.3d 627 (7th
Cir. 2011), the defendants argue that § 2-702(j) makes Walker’s Certificate of
Innocence irrelevant to his malicious prosecution claim. But the statute only states
that the certificate does not have a res judicata effect on any other proceedings—it

To obtain a certificate of innocence under 735 ILCS 5/2-702(g), a petitioner must prove by
a preponderance of evidence that:
4

(1) the petitioner was convicted of one or more felonies by the State of Illinois and
subsequently sentenced to a term of imprisonment, and has served all or any part of
the sentence;
(2) (A) the judgment of conviction was reversed or vacated, and the indictment or
information dismissed or, if a new trial was ordered, either the petitioner was found
not guilty at the new trial or the petitioner was not retried and the indictment or
information dismissed; or (B) the statute, or application thereof, on which the
indictment or information was based violated the Constitution of the United States
or the State of Illinois;
(3) the petitioner is innocent of the offenses charged in the indictment or information or
his or her acts or omissions charged in the indictment or information did not
constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about his
or her conviction.

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does not bar its evidentiary use or relevance in later proceedings. See, e.g.,
Kluppelberg v. Burge, 84 F.Supp.3d 741, 745 (N.D. Ill. 2015) (denying motion in
limine to bar use of Certificate of Innocence at trial on malicious prosecution claim
and contrasting § 2-702(j) with other Illinois statutes expressly precluding using
certain findings as evidence). And Rodriguez does not address whether a certificate
of innocence is relevant to the elements of malicious prosecution, but instead held
that a certificate of innocence did not create a new claim, did not restart the statute
of limitations, and did not authorize relitigation of a previously decided federal suit.
664 F.3d at 629–31.
Walker has sufficiently alleged a malicious prosecution claim under Illinois
law.
D.

Intentional Infliction of Emotional Distress

Defendants argue that Walker’s intentional infliction of emotional distress
(IIED) claim is untimely because it is subject to a one-year statute of limitations
under the Illinois Tort Immunity Act, 745 ILCS 10/8-101(a), and the alleged
wrongful conduct occurred more than a year prior to Walker filing suit in July
2016.5 Defendants contend that Bridewell v. Eberle, 730 F.3d 672 (7th Cir. 2013),
rejected the continuing tort doctrine for IIED claims. Walker agrees that the oneyear statute of limitations applies to IIED claims. But he argues that under
Lieberman v. Liberty Healthcare Corp., 408 Ill.App.3d 1102, 1112 (4th Dist. 2011),
The Illinois Tort Immunity Act requires civil actions against local entities to be
“commenced within one year from the date that the injury was received or the cause of
action accrued.” 745 ILCS 10/8-101(a).
5

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which extended Heck v. Humphrey, 512 U.S. 477 (1994), to claims brought under
Illinois law, a plaintiff cannot bring a state-law tort claim inconsistent with the
validity of an existing conviction. Walker argues that he was barred from bringing
an IIED claim based on his wrongful conviction until that conviction was
overturned.
Bridewell held that a claim of intentional infliction of emotional distress in
the course of an arrest and prosecution accrued on the date of the arrest because,
under Illinois law, a claim accrues when the victim first suffers injury and knows its
cause. 730 F.3d at 678. Bridewell also held that such a claim is not a continuing
tort—the time for accrual is not extended indefinitely if the injury party does not
remedy the distress. Id. However, as recognized in Gonzalez v. City of Waukegan,
No. 16 C 2906, 2016 WL 7451627, at *8–9 (N.D. Ill. Dec. 28, 2016), Bridewell did not
address Walker’s situation. Walker does not base his claim on his mere arrest and
prosecution, but he alleges that the defendants’ intentionally inflicted emotional
distress by fabricating evidence and causing his wrongful conviction. Moreover,
under Lieberman’s application of Heck to Illinois claims, Walker could not bring
such an IIED claim until his conviction was overturned. The Seventh Circuit
addressed an identical situation in Parish v. City of Elkhart, 614 F.3d 677, 683–84
(7th Cir. 2010), holding that under Indiana’s adoption of Heck, the plaintiff could
not have brought his IIED claim (based on fabrication of evidence and a wrongful
conviction) until his conviction was disposed of in a manner favorable to him—i.e.,
when he was exonerated. See also Rodriguez, 664 F.3d at 631 (under Heck,

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plaintiff’s claim based on wrongful conviction accrued when the conviction was
vacated).
Defendants argue that Lieberman’s application of Heck was case-specific and
that the Illinois appellate court did not intend to apply Heck generally to all claims
under Illinois law. But this misreads Lieberman’s holding and ignores authority
recognizing Lieberman as adopting Heck to claims arising under Illinois law. See
Northfield Ins. Co. v. City of Waukegan, 701 F.3d 1124, 1137 (7th Cir. 2012)
(Hamilton, J., concurring) (referring to “Illinois’s embrace of [the Heck] rule in
Lieberman”); Smith v. Burge, 222 F.Supp.3d 669, 2016 WL 6948387 at *15 (N.D. Ill.
2016); Starks v. City of Waukegan, 946 F.Supp.2d 780, 803–04 (N.D. Ill. 2013).
Defendants also rely on Phillips v. City of Chicago, No. 14 C 9372, 2015 WL
5675529, at *7 (N.D. Ill. Sept. 24, 2015), for the proposition that a successful IIED
claim would not have necessarily impugned Walker’s conviction and therefore was
not Heck-barred before his conviction was vacated. But Phillips does not address
Lieberman or Parish, and is therefore not persuasive. Moreover, the IIED claim
alleged in the complaint is tied to the validity of the conviction because it alleges
that the extreme and outrageous conduct was related to the trial itself. Walker’s
IIED claim based on his wrongful conviction is not time-barred.
E.

Conspiracy Claims

Finnelly and Cook County argue that Walker’s state-law and § 1983
conspiracy allegations are too general to state a claim and that Walker does not
plausibly allege that Finnelly conspired with officers about the drugs. Walker
responds that conspiracy claims are not subject to a heightened pleading standard,
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that he need not plead a specific agreement, and that he plausibly alleged that
Finnelly conspired with the officers to deny the existence of the camera.
To state a claim for civil conspiracy under Illinois law, “a plaintiff must allege
an agreement and a tortious act committed in furtherance of that agreement.”
McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 133 (1999). For a § 1983
conspiracy claim, the plaintiff must allege that “(1) the individuals reached an
agreement to deprive him of his constitutional rights, and (2) overt acts in
furtherance actually deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d
500, 510 (7th Cir. 2015). Because Walker’s conspiracy claims are not grounded in
fraud, they are not subject to the heighted pleading requirements of Rule 9(b). But
Walker must allege the parties, the general purpose, and the approximate date of
the conspiracy. Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006). Walker’s
conspiracy claims, while somewhat conclusory in the counts themselves, are
sufficiently pled because they incorporate his other allegations. Taken together,
these allegations describe the defendants allegedly fabricating drug evidence and
evidence of the camera’s nonexistence, all for the purpose of convicting Walker at
trial. While Walker does not plead the exact date of the conspiracy, he sufficiently
pleads the approximate timing—defendants took steps in furtherance of the alleged
conspiracy beginning on the date of his arrest and continuing through his trial. And
although Finnelly is correct that the complaint does not allege that he played a role
in fabricating the drug evidence, Walker alleges that Finnelly deliberately and
carefully photographed the alley to imply that no camera existed. From the

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allegations in the complaint, it is plausible to infer that Finnelly intended to work
in concert with the officers by corroborating their version of events and ensuring
Walker’s conviction. Walker has sufficiently pled his conspiracy claims against
Finnelly. Although not an argument raised by the defendants, I do note that every
defendant is alleged to be a state actor, and in such situations, a standalone
conspiracy claim is usually superfluous. See Scott v. City of Chicago, 619 Fed. App’x
548 (7th Cir. 2015) (citing Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009)).
F.

Remaining Claims

Defendants also argue for dismissal of the conspiracy claims and the
remaining claims (failure to intervene against the officers, respondeat superior,
indemnification) because they are dependent on the survival of Walker’s other
claims alleging the underlying tortious conduct. Only some of Walker’s claims have
been dismissed: his Brady-violation due process claim, his failure to intervene claim
against Finnelly, and his federal malicious prosecution claim (with leave to
replead). But his fabrication of evidence due process claim, state-law malicious
prosecution claim, and intentional infliction of emotional distress claims have
survived. Therefore, these other dependent claims are not subject to dismissal.

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IV.

Conclusion
Defendants’ motions to dismiss, [38], [41], are granted in part, denied in part.

Count I is dismissed as to the Brady-violation due process claim. Count II is
dismissed as to Finnelly. Count IV is dismissed without prejudice, with leave to
replead by August 8, 2017.
ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: June 20, 2017

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