Powell v. Chicago et al
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 3/8/2018. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
Case No. 17-cv-5156
CITY OF CHICAGO, RONALD WATTS,
PHILLIP CLINE, DEBRA KIRBY,
DOUGLAS NICHOLS, and MANUEL
Judge John Robert Blakey
MEMORANDUM OPINION AND ORDER
Plaintiff Bruce Powell sued the City of Chicago and five Chicago Police
Department (CPD) officers under 28 U.S.C. § 1983.
He alleges multiple
constitutional violations stemming from a 2009 arrest. . Defendants moved to
dismiss Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim.
For the reasons explained below, this Court denies
The Complaint’s Allegations
On July 17, 2009, Defendant Officers Douglas Nichols and Manuel Leano
approached Plaintiff outside the Ida B. Wells Homes in Chicago and arrested him
without an arrest warrant or probable cause.  ¶¶ 16, 17, 19. Leano and Nichols
did not search Plaintiff when they confronted him on the street. Id. ¶ 17. After
taking Plaintiff to a police station, however, Nichols and Leano subjected him to
intense and futile body-cavity searches. Id. ¶¶ 18, 20. Other Chicago police officers
later took Plaintiff to a hospital to treat injuries that the searches caused. Id. ¶ 22.
Plaintiff remained in police custody during and after the hospital visit. Id. ¶ 31.
After arresting Plaintiff, Nichols and Leano conspired with Defendant
Sergeant Ronald Watts, their supervisor, to fabricate a police report stating that
they arrested Plaintiff because they saw him discard a clear plastic bag containing
drugs. Id. ¶¶ 23, 24. Watts formally approved the false report—and potentially a
series of related false reports—in full knowledge of the falsehoods.
Id. ¶ 25.
Eventually, one or more Defendants communicated the false story to prosecutors,
who charged Plaintiff with possession of a controlled substance.
Id. ¶¶ 25, 27.
Plaintiff does not allege that any prosecutors knew that Leano, Nichols, and Watts
fabricated the evidence.
Though innocent, Plaintiff pled guilty in exchange for a two-year prison
sentence because he felt that he could not prove that the officers fabricated
evidence. Id. ¶¶ 28–29. Plaintiff was continuously in custody from his arrest on
July 17, 2009, until his release from the Illinois Department of Corrections on
January 15, 2010. Id. ¶ 31.
Nearly eight years after Plaintiff’s arrest, the Cook County Circuit Court set
aside his conviction on July 10, 2017, and the State of Illinois formally abandoned
any prosecution. Id. ¶ 33. Two days later, Plaintiff filed this complaint. Id.
The Watts Gang
Dating to at least 2004, Watts and other officers systematically victimized
individuals living at the Ida B. Wells Homes by, among other things, robbing them,
planting evidence on them, and manufacturing false charges against them. Id. ¶¶
2, 43, 46.
CPD’s Internal Affairs Division had received numerous complaints
against the so-called Watts Gang at the time of Plaintiff’s arrest, as had Defendant
Superintendent Phillip Cline and Defendant Debra Kirby, Assistant Deputy
Superintendent and acting Head of Internal Affairs.
Id. ¶ 44.
At the time of
Plaintiff’s 2009 arrest, Internal Affairs had received at least ten formal complaints
of official misconduct each for Watts, Nichols, and Leano (including a complaint
that Plaintiff’s sister made after his arrest). Id. ¶¶ 34, 54.
Plaintiff alleges that CPD had a policy or custom of “failing to discipline,
supervise, and control its officers.” Id. ¶ 51. Entities ranging from the City’s Police
Accountability Task Force to the United States Department of Justice have stated
that CPD maintained a “code of silence” under which officers remained silent about
other officers’ misconduct and punished those who broke the code. Id. ¶¶ 56, 58,
70—72. Plaintiff also alleges that relevant policymakers for the City knew about
CPD’s code of silence, failed to discipline officers who abused their power, and took
no action to fix the problems. Id. ¶ 53.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide
a “short and plain statement of the claim” showing that the pleader merits relief,
Fed. R. Civ. P. 8(a)(2), so Defendants have “fair notice” of the claim “and the
grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain
“sufficient factual matter” to state a facially plausible claim to relief—one that
“allows 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) (citing
Twombly, 550 U.S. at 556). This plausibility standard “asks for more than a sheer
possibility” that a defendant acted unlawfully. Williamson v. Curran, 714 F.3d 432,
436 (7th Cir. 2013). Thus, “threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Limestone Dev. Corp. v.
Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
In evaluating a complaint, this Court accepts all well-pled allegations as true
and draws all reasonable inferences in the plaintiff’s favor. Iqbal, 556 U.S. at 678.
This Court does not, however, accept a complaint’s legal conclusions as true. Brooks
v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Plaintiff asserts Fourth and Fourteenth Amendment claims against
individual Defendants, and also asserts a Monell claim and a state-law maliciousprosecution claim against the City. This Court first addresses the claims against
Leano, Nichols, and Watts (the Officer Defendants); then the claims against Cline
and Kirby (the Supervisory Defendants); and finally, the claims against the City.
The Officer Defendants
Plaintiff claims that the Officer Defendants violated his Fourth Amendment
rights by arresting him without legal cause and knowingly providing fabricated
evidence to prosecutors, and his Fourteenth Amendment due-process rights by
fabricating evidence and failing to disclose the fabrication to prosecutors.
generally . This Court addresses each claim in turn.
1. Fourth Amendment Claim
Plaintiff alleges that Nichols and Leano violated his Fourth Amendment
rights by arresting him without probable cause and knowingly communicating false
information to prosecutors that led to a criminal prosecution against him. Id. ¶¶
Defendants argue that Plaintiff’s Fourth Amendment claim, though
otherwise actionable, is time-barred because it accrued in 2009 (either at the time of
his arrest or when his pretrial detention terminated), not in 2017 when the Cook
County Circuit Court reversed his conviction.  at 10–12. The circumstances of
Plaintiff’s claim raise a complex accrual question that the Supreme Court declined
to answer in Manuel v. City of Joliet, 137 S. Ct. 911, 922 (2017) (remanding the
accrual question to the Seventh Circuit), and that the Seventh Circuit has not yet
decided on remand. The legal theory underlying the Manuel decision, however,
requires this Court to conclude that Plaintiff’s claim did not accrue until the date
his conviction was set aside. Thus, as explained below, he states a plausible Fourth
Section 1983 provides a mechanism for vindicating federal rights, but does
not create any substantive rights. Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.
1997). Instead, courts must “identify the specific constitutional right” at issue in
claims under § 1983. Albright v. Oliver, 510 U.S. 266, 271 (1994). The common law
of torts provides a guide for defining “the contours and prerequisites of a § 1983
claim.” Manuel, 137 S. Ct. at 920–21. After determining the right that a plaintiff
asserts, “courts must still determine the elements of, and rules associated with, an
action seeking damages for a violation of that right.” Id.
The Fourth Amendment prohibits government officials from detaining a
person without probable cause, and continues to govern claims for unlawful pretrial
detention even beyond the start of legal process. Id. at 918, 920 (citing Albright,
510 U.S. at 274). Because § 1983 does not contain a statute of limitations, the law
of the state where the injury occurred determines the length of the statute of
limitations. Wilson v. Garcia, 471 U.S. 261, 276–80 (1985). In Illinois, the relevant
period is two years. 735 ILCS 5/13-202. Thus, because Plaintiff filed this suit on
July 12, 2017, his claim is untimely unless it accrued on or after July 12, 2015.
Plaintiff asserts that, after Manuel, “detention based on fabricated evidence
results in a violation of the Fourth Amendment that continues through conviction
(or acquittal).”  at 6. Plaintiff also relies upon Heck v. Humphrey, 512 U.S. 477
(1994), for support; Heck holds that Section 1983 claims for damages attributable to
an unconstitutional conviction or sentence do not accrue until the conviction or
sentence is invalidated.
Id. at 489.
In Plaintiff’s view, Heck made his Fourth
Amendment claim uncognizable under § 1983 until July 10, 2017, when the state
court set aside his conviction.  at 7.
Defendants do not dispute that Nichols and Leano violated Plaintiff’s rights.
 at 1–2. Instead, they argue that Wallace v. Kato, 549 U.S. 384 (2007), “dooms”
Plaintiff’s claim because Plaintiff had no conviction (yet) during his pretrial
detention that would have triggered the Heck bar.
 at 13–14.
characterize Plaintiff’s complaint as asserting a traditional false-arrest claim; such
claims, they argue, accrue when “the claimant becomes detained pursuant to legal
process.” Id. (citing Wallace, 549 U.S. at 397). Thus, under Defendants’ timeline,
Plaintiff’s claim accrued in 2009 and became time-barred in 2011.  at 12.
Based upon this Court’s review, the facts supporting Plaintiff’s Fourth
Amendment claim closely resemble those in Manuel, where the plaintiff challenged
his 48-day pretrial detention based upon false evidence. 137 S. Ct. at 916. In
Manuel, after finding that the Seventh Circuit “wrongly held that Manuel lacked
any Fourth Amendment claim once legal process began,” the Supreme Court
remanded the question of when Manuel’s claim accrued (because the Seventh
Circuit did not address the elements of this type of Fourth Amendment claim and
thus never reached the accrual issue). Id. at 922. This Court must now define
those missing elements.
a) The Elements of Plaintiff’s Fourth Amendment Claim
To begin, this Court must differentiate between analogous torts to determine
which best encompasses the factual allegations supporting Plaintiff’s Fourth
See Wallace, 549 U.S. at 388–90.
Defendants argue that
Plaintiff asserts the “same rights as those underlying claims for false arrest.” 
at 11. Even though Defendants correctly note that Heck does not equitably toll the
statute of limitations for false-arrest claims, see Wallace, 549 U.S. at 395–96, an
examination of the relevant torts and the allegations of Plaintiff’s complaint
suggests that malicious prosecution provides the closest analog for his claim, see .
To state a false-arrest claim under Illinois law, Plaintiff would have to show
that: (1) the defendants restrained or arrested him; and (2) the defendants acted
without probable cause or other reasonable grounds to make the arrest. Jones-Huff
v. Hill, 208 F. Supp. 3d 912, 922 (N.D. Ill. 2016).
False arrest claims accrue
immediately upon the start of legal process and cover the time of detention “up until
issuance of process or arraignment, but not more. From that point on, any damages
recoverable must be based on a malicious prosecution claim.” Bianchi v. McQueen,
818 F.3d 309, 321 (7th Cir. 2016); see also Wallace, 549 U.S. at 390. 1
To state a malicious-prosecution claim under Illinois law, on the other hand,
Plaintiff would have to show that: (1) the defendants commenced or continued an
original judicial proceeding against him; (2) the proceeding terminated in Plaintiff’s
favor; (3) the defendants lacked probable cause for the proceeding; (4) the
defendants acted with malice; and (5) Plaintiff suffered damages as a result. See,
e.g., Hurlbert v. Charles, 938 N.E.2d 507, 512 (Ill. 2010); Grundhoefer v. Sorin, 20
N.E.3d 775, 780 (Ill. App. Ct. 2014).
These elements neatly mirror Plaintiff’s
Outside the Seventh Circuit, most Circuits recognize Fourth Amendment
malicious-prosecution claims with the following elements: (1) the defendants
initiated a criminal proceeding against the plaintiff; (2) the criminal proceeding
declined to address whether Fourth Amendment malicious-prosecution claims are ever
cognizable under § 1983. 549 U.S. at 390 n.2 (assuming, without deciding, that such claims are
cognizable). Albright’s plurality also declined to expressly answer the question, though Justice
Ginsburg wrote in concurrence that pending criminal proceedings—when initiated because of an
arresting officer’s “deliberately misleading” actions—render a person “effectively ‘seized’ for trial,”
thus creating a cognizable Fourth Amendment claim for malicious prosecution. 510 U.S. at 276–81.
ended in the plaintiff’s favor; (3) the defendants initiated the proceeding without
probable cause; (4) the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff suffered a deprivation of liberty
beyond the initial seizure. See, e.g., Sykes v. Anderson, 625 F.3d 294, 308–09 (6th
Cir. 2010); McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009); Wilkins v.
De-Reyes, 528 F.3d 790, 797–99 (10th Cir. 2008); Pitt v. D.C., 491 F.3d 494, 510–511
(D.C. Cir. 2007); Castellano v. Fragozo, 352 F.3d 939, 953–54, 959–60 (5th Cir.
2003) (en banc); Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1126–27 (9th Cir.
2002); Lambert v. Williams, 223 F.3d 257, 260–62 (4th Cir. 2000); Whiting v.
Traylor, 85 F.3d 581, 584–86 (11th Cir. 1996); Singer v. Fulton Cnty. Sheriff, 63
F.3d 110, 117–18 (2d Cir. 1995). Significantly, the favorable-termination element
means that Plaintiff’s claim would be timely “in the great majority of Circuits.”
Manuel, 137 S. Ct. at 921.
And those Circuits permit Fourth Amendment
malicious-prosecution claims “regardless of what alternative remedy a state
provides.” Julian v. Hanna, 732 F.3d 842, 846 (7th Cir. 2013) (collecting cases).
In contrast to its sister Circuits, the Seventh Circuit (before the Supreme
Court’s decision in Manuel) took a different approach to constitutional claims for
malicious prosecution. See, e.g., Welton v. Anderson, 770 F.3d 670, 673–75 (7th Cir.
2014) (stating that Justice Ginsburg’s Albright concurrence “is not law this circuit is
required to follow” and, regardless, that the facts of the case did not establish a
“continuing seizure” under her approach); Bielanski v. Cnty. of Kane, 550 F.3d 632,
642 (7th Cir. 2008) (rejecting a Fourth Amendment malicious-prosecution claim
because “the Fourth Amendment drops out of the picture following a person’s initial
appearance in court”); Newsome v. McCabe, 256 F.3d 747, 750–51 (7th Cir. 2001)
(holding that federal claims of malicious prosecution depend upon the right to due
process, not the Fourth Amendment, and thus rejecting “any constitutional tort of
malicious prosecution when state courts are open”); Reed v. Chicago, 77 F.3d 1049,
1053 (7th Cir. 1996) (articulating the standards for a federal malicious-prosecution
claim but explaining that the plaintiff’s claim was really one for false arrest).
Here, Plaintiff’s complaint does not specify under which tort he seeks
See generally .
Rather, Plaintiff broadly alleges a violation of his
Fourth Amendment rights. See, e.g., id. ¶¶ 75–76. The failure to name a specific
legal theory does not defeat Plaintiff’s claim, however, because his factual
allegations have “identified the constitutional right at issue.” Hurt v. Wise, 880
F.3d 831, 843 (7th Cir. 2018).
Consistent with the malicious-prosecution framework that other Circuits use
(taking the elements out of order), Plaintiff claims that Leano and Nichols violated
his Fourth Amendment rights because: (1) Plaintiff suffered a deprivation of his
liberty beginning July 17, 2009,  ¶¶ 16–21; (2) Defendants acted maliciously by
falsifying police reports, knowing that those reports would result in Plaintiff’s
criminal prosecution, id. ¶¶ 21–26; (3) Defendants communicated the false reports
to unknowing prosecutors, thereby initiating a criminal proceeding against
Plaintiff, id.; (4) Defendants initiated the proceeding without probable cause, id.;
and (5) the criminal proceeding was set aside in Plaintiff’s favor on July 10, 2017,
id. ¶ 33. Thus, in almost every other Circuit, Plaintiff would have stated a viable
Fourth Amendment malicious-prosecution claim. See Manuel, 137 S. Ct. at 921.
At present, this Court does not have the benefit of the Seventh Circuit’s
decision on Manuel’s remanded accrual question. But the Supreme Court’s holding
in Manuel that the Fourth Amendment governs claims for unlawful pretrial
detention even after the start of legal process, id. at 920, undermines the position
that “the Fourth Amendment drops out of the picture following a person’s initial
appearance in court,” Bielanski, 550 F.3d at 642. Consistent with the precedent in
eight Circuits allowing Fourth Amendment malicious-prosecution claims, the
Supreme Court’s Manuel decision requires this Court to allow Plaintiff’s claim to
proceed, absent a new contrary opinion by the Seventh Circuit. Thus, this Court
denies Defendants’ motion to dismiss Plaintiff’s Fourth Amendment claims against
Nichols and Leano.
2. Fourteenth Amendment Due-Process Claim
Plaintiff alleges that the Officer Defendants violated his Fourteenth
Amendment due-process rights by fabricating evidence (and in Watts’ case, by
knowingly approving fabricated police reports) that led to his conviction and by
failing to disclose the fabrication to prosecutors.  ¶¶ 24–31. Defendants argue
that Plaintiff’s guilty plea defeats his due-process claim because the plea broke the
causal chain between the Officer Defendants’ bad acts and his conviction.  at 7.
Fabricated evidence, Defendants say, supports a procedural due-process claim only
if that evidence is admitted at trial and causes the plaintiff’s conviction. Id. As set
forth below, this Court finds that Plaintiff states a plausible Fourteenth
Amendment claim against the Officer Defendants, at this stage in the case.
Criminal defendants have the right to receive known exculpatory or
impeachment evidence from the prosecution before trial. See Brady v. Maryland,
373 U.S. 83, 87 (1963).
Although Brady originally focused on prosecutors, the
Supreme Court has since extended Brady’s duty to disclose to law enforcement
officers. See Kyles v. Whitley, 514 U.S. 419, 438 (1995); see also Cairel v. Alderden,
821 F.3d 823, 832 (7th Cir. 2016) (“A corollary of the prosecution’s duty to disclose
to the defense is that the police must disclose exculpatory evidence to the
prosecutors”). To state a Brady claim, a plaintiff must also show that the favorable
evidence is material, meaning that the evidence “could reasonably be taken to put
the whole case in such a different light as to undermine confidence” in the outcome
of the proceeding. Saunders–El v. Rohde, 778 F.3d 556, 561 (7th Cir. 2016) (quoting
Kyles, 514 U.S. at 435).
The Seventh Circuit has “consistently held that a police officer who
manufactures false evidence against a criminal defendant violates due process if
that evidence” later deprives the defendant of liberty in some way. Avery v. City of
Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017) (quoting Whitlock v. Brueggemann,
682 F.3d 567, 580 (7th Cir. 2012)). Indeed, convictions premised on deliberately
falsified evidence “always violate the defendant’s right to due process.” Avery, 847
F.3d at 439. Moreover, the fact that a plaintiff possesses a state-law remedy for
malicious prosecution “doesn’t defeat a federal due-process claim against an officer
who fabricates evidence” that later facilitates a wrongful conviction. Id. at 441
(citing Armstrong v. Daily, 786 F.3d 529, 539–41 (7th Cir. 2015)).
Here, Plaintiff alleges that the Officer Defendants led prosecutors to charge
him and pursue a criminal case against him based entirely upon their knowingly
false police reports.  ¶¶ 25–26. He also alleges that the Officer Defendants never
disclosed to prosecutors that they fabricated the police reports. Id. The fabrication,
if disclosed, would have demonstrated Plaintiff’s factual innocence, thus putting
“the whole case in such a different light as to undermine confidence” in the
proceeding against him. Saunders–El, 778 F.3d at 561 (quoting Kyles, 514 U.S. at
That said, this Court must now address Defendants’ contention that
Plaintiff’s guilty plea forecloses any Brady claim.
a) Plaintiff’s Right to Pre-Plea Exculpatory Evidence
Defendants say that Plaintiff has no constitutional right to a pre-plea
disclosure of exculpatory evidence.  at 9–11. This Court disagrees, and finds
that Brady and its progeny require the prosecution team to disclose known (and
material) exculpatory evidence before a criminal defendant pleads guilty.
Generally, when a criminal defendant voluntarily pleads guilty, he forgoes
not only a fair trial, but also some accompanying constitutional guarantees. United
States v. Ruiz, 536 U.S. 622, 628–29 (2002). For example, the Constitution does not
require the prosecution to disclose material impeachment evidence that it knows
about prior to a guilty plea. Id. But that rule likely does not apply to the disclosure
of material exculpatory evidence that the prosecution knows about before a guilty
plea. As the Seventh Circuit explained in McCann v. Mangliardi, 337 F.3d 782, 788
(7th Cir. 2003), a “significant distinction” exists between impeachment and
In holding that the Due Process Clause does not require the
government to disclose impeachment information prior to the entry of
a criminal defendant’s guilty plea, the Court in Ruiz reasoned that it
was “particularly difficult to characterize impeachment information as
critical information of which the defendant must always be aware prior
to pleading guilty . . . .” The Court also noted that “the proposed plea
agreement at issue . . . specifies the Government will provide ‘any
information establishing the factual innocence of the defendant,’” and
“that fact, along with other guilty-plea safeguards . . . diminishes the
force of defendant’s concern that, in the absence of the impeachment
information, innocent individuals accused of crimes will plead guilty.”
Thus, Ruiz indicates a significant distinction between impeachment
information and exculpatory evidence of actual innocence.
Id. at 787–88 (citations omitted) (quoting Ruiz, 536 U.S. at 629–31). Granted, Ruiz
did not face the exact question presented here of whether the prosecution must
disclose known exculpatory evidence before a defendant pleads guilty. Ruiz, 536
U.S. at 630. Neither did McCann, because the plaintiff in that case did not present
evidence that the defendants knew about the material exculpatory evidence before
he pled guilty.
McCann, 337 F.3d at 788.
Nevertheless, in light of Ruiz and
McCann, traditional Brady obligations ostensibly require the pre-plea disclosure of
any known exculpatory evidence if it is material.
As noted in McCann, even though the Supreme Court has not squarely
addressed whether due process requires the disclosure of such exculpatory
information outside the context of a trial, “it is highly likely that the Supreme Court
would find a violation of the Due Process Clause if prosecutors or other relevant
government actors have knowledge of a criminal defendant’s factual innocence but
fail to disclose such information to a defendant before he enters into a guilty plea.”
McCann v. Mangliardi, 337 F.3d 782, 788 (7th Cir. 2003).
Other courts, both in this district and in other Circuits, see the landscape in a
similar fashion, holding under Brady that the prosecution team must disclose all
known material exculpatory evidence before a criminal defendant pleads guilty. See
Garcia v. Hudak, 156 F. Supp. 3d 907, 916 (N.D. Ill. 2016) (holding that “the State
has a constitutional duty to disclose material exculpatory evidence to a criminal
defendant before the defendant pleads guilty”); Ollins v. O’Brien, No. 03-cv-5795,
2005 WL 730987, at *11 (N.D. Ill. Mar. 28, 2005) (holding that “due process requires
the disclosure of information of factual innocence during the plea bargaining
process”); United States v. Dahl, 597 F. App’x 489, 490 (10th Cir. 2015) (holding that
the government’s duty to disclose “in the context of a guilty plea extends only to
material exculpatory evidence”); Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.
1988) (concluding that Brady governs due-process claims brought by individuals
who pled guilty “without knowledge of material evidence withheld by the
prosecution”); but see United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009)
(holding that “a guilty plea precludes the defendant from asserting a Brady
b) Plaintiff’s Guilty Plea and Potential Waiver
Defendants further argue that even if the Officer Defendants violated
Plaintiff’s due-process rights, Plaintiff’s guilty plea (presumably executed with the
advice and assistance of defense counsel) broke the causal chain of events and
waived his constitutional trial rights and associated due-process claims.  at 7;
 at 9–10. With some important exceptions, a guilty plea executed with the
benefit of counsel usually “operates as a waiver of all formal defects” in the
proceedings (even constitutional defects). United States v. Lockett, 859 F.3d 425,
427 (7th Cir. 2017). Plea agreements also typically constitute enforceable contracts,
and no “general constitutional-argument exception” exists for waivers in plea
agreements. United States v. Adkins, 743 F.3d 176, 193 (7th Cir. 2014) (internal
quotation marks omitted). 2
Despite his actual knowledge of the undisclosed
exculpatory evidence, Plaintiff says that he only pled guilty here because he
believed that his own testimony or evidence would not have persuaded a jury over
the fabricated evidence of the Officer Defendants. See  ¶¶ 28–29.
As such, Plaintiff’s case resembles the situation in Saunders v. City of
Chicago, No. 12-cv-09158, 2014 WL 3535723, at *5 (N.D. Ill. July 11, 2014) (Dow,
J.). In Saunders, one of the plaintiffs pled guilty to rape and murder, even though
he maintained his innocence and knew that police fabricated the evidence against
him and his co-defendants. Id. at *1. On a motion to dismiss, the Saunders court
allowed that plaintiff’s Brady claim to proceed:
Indeed, here, Thames made the decision to plead guilty with the
benefit of having seen the power of the inculpatory evidence at the
Clearly, when Plaintiff chose to plead guilty in this case, he knew that the Officer Defendants had
fabricated the evidence against him, See  ¶¶ 28–29. Nevertheless, in certain circumstances,
federal courts can refuse to enforce a knowing waiver contained within a guilty plea if enforcing it
would result in a “miscarriage of justice.” United States v. Litos, 847 F.3d 906, 910 (7th Cir. 2017)
(collecting cases). Given the incomplete factual record here, however, whether Plaintiff’s case falls
within this waiver exception remains to be seen.
government’s disposal; in spite of the falsity of the confessions, police
report, and physical evidence against them, Saunders and Richardson
were convicted at trial and sentenced to 40 years in prison. Assessing
his chances with those results in mind, Thames opted to plead guilty
and received a 30-year sentence . . . . it reasonably can be said that the
fabricated evidence caused Plaintiff’s deprivation of his liberty.
Id. at *5.
Likewise, the court in Garcia allowed the plaintiff’s Brady claim to
survive a motion to dismiss even though the plaintiff knew, when he pled guilty,
that police officers planted drugs on him during his arrest, fabricated police reports
saying that he possessed drugs, and testified to the same effect at his pretrial
hearings. 156 F. Supp. 3d at 910 (Norgle, J.). There, the court reasoned that the
plaintiff lacked the evidence necessary to exculpate himself because the police
officers “suppressed their illegal activities.” Id. at 917.
Given the similar posture here, this Court also allows Plaintiff’s Brady claim
to survive at this point in the proceedings. 3
Under Section 1983, plaintiffs may not hold a supervisory official vicariously
liable for a subordinate’s constitutional misconduct; they must show that the
supervisor had personal responsibility for the constitutional deprivation. See Doyle
v. Camelot Care Ctrs., Inc., 305 F.3d 603, 614 (7th Cir. 2002). Thus, supervisory
officials face liability under § 1983 only if they had “personal involvement in the
Both Saunders and Garcia considered motions to dismiss without the benefit of a full factual
record, and unsurprisingly, neither decision addressed the question of waiver. Likewise, without a
more robust factual record and focused briefing by the parties, this Court cannot determine whether
Plaintiff’s knowing and voluntary guilty plea constitutes an effective waiver of his due-process claim.
For example, was there a written plea agreement? When the judge accepted his guilty plea, did
Plaintiff swear under oath and confirm the facts underlying the government’s case establishing his
guilt? Did his plea specifically address and waive trial rights, including discovery issues? Many
questions remain unanswered.
constitutional deprivation, essentially directing or consenting to the challenged
conduct.” Id. at 614–15. Supervisory officials who merely act negligently in failing
to detect and prevent a subordinate’s misconduct do not qualify as “personally
involved” for the purposes of § 1983. See Gossmeyer v. McDonald, 128 F.3d 481, 495
(7th Cir. 1997). On the other hand, supervisory officials who act (or fail to act) in
deliberate or reckless disregard of a plaintiff’s constitutional rights satisfy § 1983’s
requirements for personal responsibility. See Miller v. Smith, 220 F.3d 491, 495
(7th Cir. 2000).
Here, Plaintiff claims that Cline and Kirby knew, at the time of his arrest,
that Watts and his co-Defendants engaged in, among other things, “fabricating
evidence and manufacturing false charges against persons at the Ida B. Wells
Homes” because of civilian complaints they had previously received about those
officers.  ¶ 42. Although Cline and Kirby possessed the power, and presumably
the opportunity, to prevent the Officer Defendants from continuing to engage in this
wrongdoing, they allegedly “chose to turn a blind eye” to it, resulting in foreseeable
violations of Plaintiff’s Fourth and Fourteenth Amendment rights. Id. ¶¶ 45, 47–49.
Defendants argue that Plaintiff fails to satisfy Rule 8 because he offers only
“formulaic recitation of the elements of a cause of action” lacking any factual
 at 12.
Alternatively, Defendants argue that Cline and Kirby
exhibited, at worst, mere negligence in their failure to act. Id.
This Court disagrees.
Plaintiff alleges that Cline and Kirby knew of the
Officer Defendants’ grave misconduct and knew that the misconduct would likely
continue, yet deliberately did nothing (in their capacity as supervisors) to correct
the problem.  ¶¶ 42–48. Plaintiff neither claims a “constitutional right to an
internal investigation,”  at 16, nor states a theory of vicarious liability. Rather,
Plaintiff says that Cline and Kirby deliberately disregarded his constitutional rights
by failing to stop the Officer Defendants from continuing their illegal scheme of,
among other things, fabricating evidence against residents of the Ida B. Wells
Homes.  ¶ 42. At this early stage, those allegations suffice to state a claim
against Cline and Kirby. See Miller, 220 F.3d at 495. While such claims may or
may not survive summary judgment, this Court denies Defendants’ motion to
dismiss claims against Cline and Kirby.
Finally, Plaintiff alleges that the City’s official policies and customs—
particularly CPD’s “code of silence”—directly caused the deprivation of his Fourth
and Fourteenth Amendment rights.  ¶¶ 51—60, 76. He also asserts a state-law
malicious prosecution claim against the City.
1. Monell Claim
Municipalities face liability under § 1983 when they have policies, laws,
regulations, or customs that rise to the level of constitutional violations. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
Municipal liability for a
constitutional injury under Monell “requires a finding that the individual officer is
liable on the underlying substantive claim.” Treece v. Hochstetler, 213 F.3d 360, 364
(7th Cir. 2000).
According to Plaintiff, the “code of silence” permeated throughout CPD,
enabling “the individual officer defendants to engage in egregious misconduct for
many years.”  ¶¶ 56, 58. Plaintiff specifically alleges that the “code of silence”
was not just an unspoken rule, but part of the customary course of instruction at
the Chicago Police Academy.
Id. ¶ 57.
Based upon those allegations, Plaintiff
sufficiently pleads that the City has a policy or custom that violates the
Constitution. See City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) (inadequate
police training provides the basis for § 1983 liability when the failure to train
amounts to deliberate indifference to the rights of people with whom the police come
into contact); cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397 (1997) (officer’s use of
excessive force in violation of county policy did not attach liability under Monell).
Here, the individual officers remain potentially liable on the underlying claims, so
this Court denies Defendants’ motion to dismiss the Monell claim against the City
at this stage.
2. Malicious-Prosecution Claim
Plaintiff asserts an Illinois-law malicious-prosecution claim against the City
under a vicarious liability theory.  at 6. In Illinois, an employer’s vicarious
liability extends to “the negligent, willful, malicious, or even criminal acts of its
employees” when they commit such acts “within the scope of the employment.”
Bagent v. Blessing Care Corp., 862 N.E.2d 985, 991 (Ill. 2007).
As this Court discussed above, the elements of a malicious-prosecution claim
under Illinois law are functionally identical to the elements of a Fourth Amendment
malicious-prosecution claim. Compare Hurlbert, 938 N.E.2d at 512, with Sykes, 625
F.3d at 308–09.
So, because Plaintiff alleges a sufficient Fourth Amendment
malicious-prosecution claim against the Officer Defendants, he also states a
malicious-prosecution claim under Illinois law. Defendants make no argument that
the Officer Defendants committed their misconduct outside the scope of their
employment for CPD. Because the Officer Defendants remain potentially liable for
the underlying misconduct, this Court denies Defendants’ motion to dismiss the
malicious-prosecution claim against the City.
3. Indemnity Claims
Any indemnity claims against the City remain viable because the individual
officers remain potentially liable on the underlying claims.
See Fleming v.
Livingston Cnty., Ill., 674 F.3d 874, 881 (7th Cir. 2012) (citing 745 ILCS 10/2-109).
This Court denies Defendants’ motion to dismiss . The status hearing set
for March 22, 2018 at 9:45 a.m. in Courtroom 1203 stands. The parties shall come
prepared to set case management dates.
Dated: March 8, 2018
John Robert Blakey
United States District Judge
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