Hill v. City Of Harvey et al

Filing 50

MEMORANDUM Opinion: Defendants' motions to dismiss 17 , 36 and 39 are denied. Status hearing set for 1/18/2018 at 9:30 AM. Signed by the Honorable Charles P. Kocoras on 1/3/2018. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EZRA HILL,

Plaintiff,
v.

17 C 4699

CITY OF HARVEY, et al.,
Defendants.
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Before the Court are three motions to dismiss Plaintiff Ezra Hill’s (“Hill”)
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendants City of
Harvey (“Harvey”), Officer Gregory Thomas (“Thomas”), Harvey Deputy Police
Chief Jason Banks (“Banks”), Cook County, Assistant State’s Attorney Liam Reardon
(“Reardon”) (collectively, “Defendants”). For the following reasons, the motions to
dismiss are denied.
BACKGROUND
The following facts are taken from Hill’s complaint and are assumed to be true
for purposes of this motion to dismiss. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.
1995).

The Court draws all reasonable inferences in favor of Hill. Tamayo v.

Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

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On March 12, 2014, at approximately 10:31 a.m., Eric Bond (“Bond”) was
driving a stolen Honda Civic (“the Civic”) on Center Avenue, just north of East 146th
Street in Harvey, Illinois when he spotted a black Oldsmobile Intrigue (“the Intrigue”)
behind him. Though Hill owned the Intrigue, he was not inside the car at the time, as
he had lent it to Andrew White (“White”) and Antonio Johnson (“Johnson”) earlier
that morning.

Also in the Civic with Bond were Alquan McReynolds

(“McReynolds”) and Ahmad Thornton (“Thornton”). Due to a pre-existing conflict
between the parties, White and Johnson emerged from the Intrigue and opened fire on
the Civic. According to the complaint, White fired 6 bullets from a .38 Smith and
Wesson Long Nose Revolver and Johnson fired 6 times from a .38 caliber Snub Nose
Revolver.
Bond sped off in the stolen Civic after the melee, ultimately colliding with a
Ford Mustang at the intersection of East 147th Street and Center Avenue. Bond,
McReynolds and Thornton then separately fled the scene of the collision on foot and
were each subsequently apprehended by Harvey Police Officers. White and Johnson
drove away from the scene and parked in the driveway of White’s residence in
Harvey. Officers Banks and Thomas arrived at the White residence roughly 20
minutes after the shooting, where they encountered White and Johnson sitting in the
Intrigue.
After arresting White and Johnson, Thomas searched the Intrigue and
discovered a Benelli M4 semi-automatic shotgun (“the shotgun”) in the trunk.
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Thomas inventoried the shotgun as having six live rounds in it, which is the capacity
for that particular weapon. After officers completed a search of the Intrigue, White
and Johnson were transported to the Harvey police station. Upon arriving at the
police station, White and Johnson participated in an identification lineup and then
were subsequently separated - Johnson was placed in a cell, White in an interrogation
room. According to the complaint, it is at this moment that Thomas, Banks and
Reardon concocted their scheme to fabricate a case against Hill.
McReynolds was the first person to be questioned by Thomas and Reardon at
approximately 5:03 p.m. on the evening of March 12. Following the interview with
McReynolds, Thomas created a Police Continuation Report (“McReynolds report”)
that stated that McReynolds identified Johnson and White, but that “he did not see
very clearly” another passenger in the Intrigue. However, the McReynolds report
noted that McReynolds stated that the third person “appeared to be” Hill.
After their interview with McReynolds, Thomas and Reardon questioned
Thornton at 5:17 p.m. According to another report prepared by Thomas, Thornton
observed White driving the Intrigue, with Hill in the back seat and Johnson “standing
next to the black Oldsmobile on the passenger’s side…and pointing a black handgun
toward the vehicle [sic] was occupied by him, Bond and McReynolds, Alquan.”
Thornton’s report contradicted the McReynolds’ report, the latter allegedly claiming
that three individuals were outside of the car firing guns at the Civic.

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Following their interviews with McReynolds and Thornton, Thomas and
Reardon questioned Bond. Bond admitted to Thomas that on the morning of March
12, 2014, he gave a fake name to the arresting officer, Officer Jeffery Tibbs (“Tibbs”),
because he had an outstanding warrant. Following his interview with Bond, Thomas
created a report to memorialize their discussion.

In the report, Bond allegedly

claimed that he observed White exit from the driver’s seat of the Intrigue, Hill exit
from the driver’s-side back seat and Johnson exit the front passenger door. The report
further stated that Bond saw all three men with weapons and all three fired at the
Civic. The report specifically stated that Bond observed Hill with a “large gun.”
After interviewing Bond, Thomas and Reardon questioned White. Present with
White during the discussion was his mother Elizabeth Kellogg (“Kellogg”). During
the questioning Hill alleged that Thomas and Reardon threatened White to agree to
their version of events or risk being charged with multiple counts of attempted
murder. Thomas and Reardon pressured then fifteen-year-old White to state that “Hill
was in the car and fired the shotgun four times.” Banks, also in the room for part of
the questioning, told White that they intended to tie the alleged crime to Hill. Banks
implored White to call Hill on his cellular phone in an effort to entrap him. The
complaint is unclear as to whether White ever placed the call to Hill. However, the
complaint alleges that Thomas and Reardon threatened White that he could be tried
and sentenced as an adult on multiple counts of attempted murder if he did not support
their version of events.
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Thomas and Reardon prepared a statement for White to sign at 12:22 a.m., on
Thursday, March 13, 2014, that implicated Hill. White did not read the statement
before signing it. However, Hill contends that White repeatedly told Thomas, Banks,
and Reardon that Hill was not with them.
Hill alleges that “at no point did the [Harvey policed department] identify or
produce any physical evidence that could link Hill to the crime.” The complaint is
imprecise as to what evidence was presented to the grand jury that indicted Hill. The
complaint does make clear that both McReynolds and Thornton testified before the
grand jury, but both delivered testimony that Hill argues contradicted the official
reports prepared by Thomas. Specifically, Hill alleges that McReynolds testified that
only White and Johnson emerged from the Intrigue and fired on the Civic. Moreover,
McReynolds also testified that after identifying White and Johnson in a lineup, he was
instructed by Thomas and Banks to pick Hill out of a photo composite with pictures of
Hill and five other men. McReynolds admitted to not knowing Hill well, but picked
Hill from the photo composite only because he was instructed to do so. On the grand
jury witness stand, when asked directly if he saw Hill shooting at him, McReynolds
responded “no.” When asked if he saw Hill in the car, he responded “I don’t think I
saw him in the car.”
Thornton also admitted to the grand jury that he could only recall “about like
10, 11” shots fired from the Intrigue, and relayed that to Thomas. According to Hill,
Thomas insisted in his report, that 16 shots were fired – 12 from the revolvers, four
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from the shotgun. At no point in Thornton’s grand jury testimony did he identify Hill
as a participant in the crime. Instead, Thornton’s only testimony about Hill was
merely that he knew who Hill was, through a mutual acquaintance. At some point,
which is unclear from the complaint, the grand jury returned an indictment for Hill’s
arrest. On September 3, 2014, Hill was arrested and charged with attempted murder.
Hill went on trial 31 months later. On March 8, 2017, Hill was found not guilty.
LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
“tests the sufficiency of the complaint, not the merits of the case.” McReynolds v.
Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012). The allegations in a
complaint must set forth a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff need not provide
detailed factual allegations, but must provide enough factual support to raise his right
to relief above a speculative level. Bell Atlantic. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A claim must be facially plausible, meaning that the pleadings must “allow[ ]
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The claim must be
described “in sufficient detail to give the defendant ‘fair notice of what the . . . claim
is and the grounds upon which it rests.’” E.E.O.C. v. Concentra Health Servs., Inc.,
496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
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statements,” are insufficient to withstand a motion to dismiss under Rule 12(b)(6).
Iqbal, 556 U.S. at 678.
DISCUSSION
I.

Count I—42 U.S.C. § 1983 against Thomas, Banks, and Reardon
Hill alleges that Thomas, Banks, and Reardon violated his Fourth and

Fourteenth Amendment rights to due process and a fair trial.

Specifically, Hill

contends that his pretrial confinement violated the Fourth Amendment because
Defendants lacked the necessary physical evidence or probable cause to arrest him.
Similarly, Hill claims that Defendants fabricated and coerced evidence resulting in his
pretrial detention in violation of his due process rights under the Fourteenth
Amendment.
In response, Defendants contend that the fabrication of evidence does not give
rise to a cognizable due process claim in the Seventh Circuit.

Until recently,

Defendants would have been correct. However, new case law from the Seventh
Circuit has dispensed with that view. As the law now stands, “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.” Whitlock
v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012); see also Saunders–El, 778 F.3d
at 560 (observing that if “a police officer . . . manufactures false evidence,” and “that
evidence is later used to deprive [a person] of [his] liberty in some way,” that person
may bring a due process claim under § 1983); Armstrong v. Daily, 786 F.3d 529 (7th
7

Cir. 2015) (observing that a due process claim may lie when “a law enforcement
official [ ] acts in bad faith to undermine the reliability of a trial, such as by
manufacturing false evidence, arranging for perjured testimony, or destroying
exculpatory evidence”). Thus, this Court concludes that the Seventh Circuit has
affirmed that a due process claim exists when fabricated evidence is used to deprive a
criminal defendant of liberty, even when the prosecution of that defendant is
ultimately unsuccessful.
Defendants argue that even if Hill could bring a due process claim, he is unable
to show that their individual conduct caused his alleged injury.

Defendants

misunderstand Hill’s complaint. Hill is not alleging that the actions of one individual
Defendant caused his harm, but instead that the Defendants’ actions collectively
caused him to be confined unjustly for 31 months. In Pinkerton v. United States, the
Supreme Court held that in a conspiracy “‘an overt act of one [conspirator] may be the
act of all without any new agreement specifically directed to that act.’” 328 U.S. 640,
646–47, 66 S. Ct. 1180, 1184, 90 L.Ed. 1489 (1946) (quoting United States v. Kissel,
218 U.S. 601, 608, 31 S. Ct. 124, 126, 54 L.Ed. 1168 (1910)). A defendant is
responsible for a substantive offense committed by his coconspirators unless the
criminal act “was not in fact done in furtherance of the conspiracy, did not fall within
the scope of the unlawful project, or was merely a part of the ramifications of the plan
which could not be reasonably foreseen as a necessary or natural consequence of the
unlawful agreement.” Id. at 647–48, 66 S.Ct. at 1184. This rule applies even if the
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defendant does not participate in the substantive offense or have any knowledge of it.
Id.
Here, Hill is alleging that the only reason he was ever arrested, detained and
indicted is because Defendants entered into a conspiracy “to tie the . . . crime to Hill.”
In the complaint Hill alleges that Banks: i) presented McReynolds with a photo
composite with pictures of Hill and five other men from which Thomas instructed
McReynolds to identify Hill; and ii) told White that he intended to tie Hill to the
shooting and asked White to call Hill on the phone and “entrap him.” Similarly, Hill
contends that Thomas: i) fabricated eye witness statements; ii) secured a coerced
confession by White; iii) and manipulated photo lineups all in an effort to frame Hill.
Lastly, Hill alleges that Reardon, along with Thomas, pressured White to sign a false
statement implicating Hill in the shooting.

While the complaint does not make

entirely clear how much of this information was provided to the grand jury, the
complaint sufficiently alleges enough factual allegations to support the notion that but
for Defendants’ actions Hill would not have been indicted. Thus, Hill has put forth a
plausible claim that allows this Court to draw the reasonable inference that the
Defendants’ collective actions deprived Hill of his liberty. Iqbal, 556 U.S. at 678.
For that reason, Defendants’ request to dismiss Count I is denied.
It should also be noted that Reardon argues that he is immune from suit because
absolute immunity extends to the prosecutor as advocate, for actions “intimately
associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424
9

U.S. 409, 431 (1976). However, Hill argues that Reardon has no immunity because
his actions were “investigative and unrelated to the preparation and initiation of
judicial proceedings.” Id. The Supreme Court has said that “[a] prosecutor neither is,
nor should consider himself to be, an advocate before he has probable cause to have
anyone arrested.” Buckley, 509 U.S. at 274, 113 S.Ct. 2606 (footnote omitted); see
Whitlock, 682 F.3d at 580 (noting that the “focus of [the] case, as we have narrowed
it, is exclusively on the period before probable cause supported the prosecution, when
a prosecutor is unquestionably acting in an investigative role”). Hill argues that
Reardon, along with the other Defendants, never had probable cause to arrest him.
Hill’s complaint alleges that Reardon was directly involved in obtaining the
false evidence and testimony relied on to charge Hill. According to Hill, “Reardon
was engaged in the investigation every step of the way, before any probable cause
existed.” Specifically, Hill contends that Reardon “engaged in coercion of witness,
falsifying evidence, and manipulating reports.” These allegations are sufficient to
defeat Reardon’s motion to dismiss on the grounds of absolute prosecutorial
immunity. Whitlock, 682 F.3d at 577–80 (stating that a prosecutor does not have
absolute immunity from a due process claim based on his pre-probable cause
fabrication of evidence). At this stage of the pleadings, we are required to assume all
of Hill’s factual allegations as true, Murphy, 51 F.3d at 717, and draw all reasonable
inferences in favor of Hill. Tamayo, 526 F.3d at 1081. Therefore, the complaint as
pled sufficiently demonstrates that Reardon was acting in the capacity of an
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investigator, performing functions normally performed by a police officer or
detective. Thus, Reardon is not entitled to prosecutorial immunity.
II.

Count II—Conspiracy
For a § 1983 conspiracy claim, Hill 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 Hill’s conspiracy claims are not grounded in fraud,
they are not subject to the heightened pleading requirements of Rule 9(b). But Hill
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). Hill’s conspiracy
claims are sufficiently pled because they incorporate his other allegations. Taken
together, these allegations describe the Defendants working together to go after Hill
from the inception of this case. Hill alleges that “within 24 hours of the crime,
Thomas, Banks, and Reardon worked together to interview Andrew White and coerce
him into signing a false statement implicating Hill.” During the interview, Banks
“candidly told White that they intended to tie the alleged crime to Hill, at one point
imploring White to call Hill on his cellular phone and entrap him.” Two and a half
years later, on the morning of Hill’s 2017 criminal trial, Thomas told White “if they
couldn’t make the attempted murder charge against Hill stick, they would ‘get’ Hill on
something else.”

These allegations are sufficient to allege that the Defendants

reached an agreement to deprive Hill of his constitutional rights. Therefore, assuming
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facts in the light most favorable to Hill, we deny Defendants’ request to dismiss Count
II.
III.

Count III—Monell
Hill asserts a Monell claim against the City of Harvey. Harvey moves to

dismiss the Monell allegations as improper and baseless. As both sides agree in their
briefs, there are three recognized ways for Hill to assert municipal liability: “(1)
through an express policy that, when enforced, causes a constitutional deprivation; (2)
through a ‘wide-spread practice’ that although not authorized by written law and
express policy, is so permanent and well-settled as to constitute a ‘custom or usage’
with the force of law; or (3) through an allegation that the constitutional injury was
caused by a person with ‘final decision policymaking authority.’” Calhoun v. Ramsey,
408 F.3d 375, 380 (7th Cir. 2005) (quoting McTigue v. City of Chi., 60 F.3d 381, 382
(7th Cir. 1995)). The Seventh Circuit has not adopted any bright line rules in defining
the term “widespread custom or practice” except to state that the allegedly
unconstitutional conduct “must be more than one instance.” Thomas v. Cook Cnty.
Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010).
Hill alleges that Harvey maintains a wide-spread practice “of fabricating
charges against innocent arrestees and other misconduct.” Specifically, Hill claims
that Harvey: “[c]onduct[s] unlawfully coercive interrogations of witnesses, suspects
and arrestees to obtain confessions and false implication of others; unlawfully
manipulate[s] juveniles and teenagers to falsely confess and falsely implicate others,
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including by utilizing the unlawful tactics; produc[es] false reports, and giv[es] false
statements and testimony about interrogations, confessions, and witness statements;
and pursu[es] and obtain[s] prosecutions and detentions based on statements obtained
through unlawful interrogations.” Taken together with Hill’s detailed claims about
the alleged misconduct of Thomas and Banks, these allegations are sufficient to
withstand Harvey’s motion to dismiss. See Nebel v. City of Burbank, No. 01 C 6403,
2003 U.S. Dist. LEXIS 4942, at *16 (N.D. Ill. Mar. 27, 2003) (“Because there is no
heightened pleading requirement in § 1983 municipal liability cases, [Plaintiff]’s
conclusory allegations are sufficient to put the defendants on notice of the claims
against them and to withstand the motion to strike and dismiss.”). Thus, Harvey’s
motion to dismiss Count III is denied.
IV.

Count VI—State Law Civil Conspiracy Claim
In Illinois, “the elements of a civil conspiracy are: (1) a combination of two or

more persons, (2) for the purpose of accomplishing by some concerted action either an
unlawful purpose or a lawful purpose by unlawful means, (3) in the furtherance of
which one of the conspirators committed an overt tortious or unlawful act.” Fritz v.
Johnston, 209 Ill. 2d 302, 317, 807 N.E.2d 461, 470 (2004). As with civil conspiracy
claims under § 1983, Illinois courts acknowledge that “[a] conspiracy, by its very
nature, is secretive” and “the agreement is rarely susceptible to direct proof.” Reuter v.
MasterCard Int’l, Inc., 397 Ill. App. 3d 915, 927–28, 921 N.E.2d 1205, 1216 (2010).
Thus, Illinois courts permit a conspiracy to be established “from circumstantial
13

evidence and inferences drawn from evidence, coupled with common-sense
knowledge of the behavior of persons in similar circumstances.”

Adcock v.

Brakegate, Ltd., 164 Ill.2d 54, 66, 645 N.E.2d 888, 895 (1994). “The conspiracy may
be inferred if parties pursue the same object by common means, one performing one
part and another performing another part.” Rodgers, 315 Ill. App. 3d at 350, 733
N.E.2d at 843.
Hill contends that Defendants conspired to maliciously prosecute him.
Defendants do not make any new arguments against the state law conspiracy claim.
The Court’s reasoning with regard to the § 1983 conspiracy claim applies with the
same force here. The Court, therefore, denies Defendants’ motion to dismiss on this
claim.
V.

Count VII—State Law Malicious Prosecution
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. Banks was the only Defendant to challenge the allegations
underpinning this count. Therefore, the remaining Defendants have waived their
argument and their motions to dismiss are denied. See Berry v. Delta Airlines, Inc.,
260 F.3d 803, 810 (7th Cir. 2001). Here, Banks claims that Hill failed to identify any
false claims or fabricated evidence attributable to Banks that was used to indict or
14

prosecute Hill, as required under Illinois law to bring an action for malicious
prosecution. Davis v. Temple, 284 Ill. App. 3d 983, 990 (1996). Banks misreads the
complaint. Hill is alleging that Defendants conspired to frame Hill for the crime
without probable cause.

Therefore, any testimony or evidence put forth by one

Defendant in furtherance of the conspiracy’s goal can be held against all Defendants.
Pinkerton, 328 U.S. at 646–47. Hill has sufficiently alleged that Defendants lacked
any actual evidence against him. Furthermore, Hill alleges that Defendants fabricated
photo lineups, witness statements, and other evidence to incriminate him. These
allegations are sufficient to withstand a 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at
678. Banks motion to dismiss Count VII is denied.
CONCLUSION
For the aforementioned reasons, Defendants’ motions to dismiss are denied. It
is so ordered.
ENTER:

DATE: January 3, 2018

________________________________
Charles P. Kocoras
United States District Judge

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