Avery et al v. City of Milwaukee et al

Filing 155

ORDER signed by Judge Rudolph T. Randa on 9/29/2015 GRANTING 146 Defendants' MOTION to Alter Judgment. 148 152 MOTIONS for Attorney Fees DENIED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM DAMON AVERY,
Plaintiff,
-vs-

Case No. 11-C-408

CITY OF MILWAUKEE, et al.,
Defendants.
DECISION AND ORDER
William Damon Avery was convicted, but later exonerated, for the
1998 murder of Maryetta Griffin. In this civil rights suit, a nine-person
jury found that Milwaukee police detectives Gilbert Hernandez and Daniel
Phillips fabricated Avery’s confession. The jury also concluded that
Hernandez and Phillips conspired to fabricate and failed to intervene to
prevent the use of Avery’s confession as evidence to convict him. Finally,
the jury found that the City of Milwaukee had a policy, practice, or custom
of inadequately investigating homicides which led to Avery’s conviction.
The jury awarded one million dollars in damages.
Now before the Court is the defendants’ motion to alter or amend
the Court’s judgment on this verdict. Fed. R. Civ. P. 59(e). They argue that
Avery is barred from recovering on his due process claim as a matter of

law, that Avery’s confession was not a proximate cause of his incarceration,
and that the policy or practice claim must fail in the absence of a valid
underlying claim against Phillips and Hernandez. The Court agrees with
the first and third arguments. As a result, it is not necessary to reach the
causation issue, but the Court will address it for the sake of a complete
appellate record.
Also before the Court are fee petitions by Avery’s attorneys. Since
the judgment will be altered in favor of the defendants, Avery is no longer
a prevailing party, so these motions must be denied.
For the reasons that follow, the defendants’ motion to alter or
amend the judgment is granted.
I.

Background
In March of 1998, Avery was interviewed as a person of interest in

relation to the Griffin murder. Avery ran a dope house that was frequented
by prostitutes like Griffin. Phillips and Hernandez authored a report which
stated that Avery told them he sold “dope” to Griffin and that after he had
fallen asleep he was awakened by Griffin going through his pockets and
pulling out his money; that he fought with Griffin; that he did not
remember what happened but he told “Ronnie” that he thought he “killed
this bitch;” and that he was responsible for the murder, but he did not
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remember how he killed her. Defendant’s Exhibit 1030. This evidence, in
the view of Milwaukee Assistant District Attorney Mark Williams, was
insufficient to bring homicide charges. Avery was found guilty on charges
arising out of the activities surrounding his dope house operations and sent
to prison.
Three years later in 2001, Keith Randolph, an Avery acquaintance
who was serving time in the same prison as Avery, contacted the
Milwaukee Police Department through his attorney and said he heard
Avery tell him that he was involved in Griffin’s homicide. Detective
Timothy Heier went to the prison and took the inculpatory statement from
Randolph. Once again, District Attorney Williams declined to bring
homicide charges against Avery. In the meantime, Avery was transferred
from Wisconsin to a prison in Oklahoma. On July 25, 2002, while Avery
was in the Oklahoma prison, Milwaukee police detective Kevin Armbruster
received an anonymous call from a prisoner in the same Oklahoma prison
stating that he had information implicating Avery in the Griffin murder.
The anonymous caller turned out to be Antron Kent who said that in
conversations with Avery, Avery admitted killing Griffin. Another inmate,
Jeffrey Kimbrough, said he heard those admissions. Based on these
intersecting admissions by Avery, made to different people at different
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times and at different locations, District Attorney Williams brought a
homicide charge.
Phillips and Hernandez testified at Avery’s criminal trial, in
accordance with their 1998 report, that Avery confessed to being
responsible for Griffin’s murder. Kent, Kimbrough, and Randolph also
testified for the prosecution. Avery was convicted of first degree reckless
homicide, party to a crime, but because there was no DNA evidence linking
Avery to the crime, and because there was DNA evidence from a serial
killer named Walter Ellis discovered on the body of Griffin, Avery was
released in 2010.
Avery’s release resulted in this lawsuit. Avery and his children sued
the City of Milwaukee and seven police detectives: Hernandez, Phillips,
Heier, Katherine Hein (n/k/a Spano), Armbruster, Eric Gulbrandson, and
James DeValkenaere. After lengthy pre-trial litigation, Avery’s suit
survived summary judgment on his claim that the defendants “violated his
clearly established due process rights by creating false written reports that
he confessed, knowing that he had not, and also by manufacturing false
testimony from jailhouse informants in order to corroborate the fabricated
confession.” 40 F. Supp. 2d 1089, 1094-95 (E.D. Wis. 2014). The Court
granted the defendants’ motion for summary judgment on Avery’s claim
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that the defendants violated due process “by not disclosing the fact that
they coached and manipulated the jailhouse informants into falsely
implicating him in the Griffin murder.” Id. at 1096. The latter claim arose
under Brady v. Maryland, 373 U.S. 83 (1963), a “due process case that
entitles criminal defendants to be shown any exculpatory evidence … in
the possession of prosecutors, … .” Id. (quoting Gauger v. Hendle, 349 F.3d
354, 360 (7th Cir. 2003)).
Before trial, the parties stipulated to the dismissal of Avery’s state
law claims and all of his claims against Detective Gulbrandson. ECF Nos.
126, 127. Also before trial, the Court dismissed the loss of companionship
claims brought by Avery’s children. ECF No. 116. Thus, Avery’s case went
to trial on the aforementioned due process claim against Phillips,
Hernandez, Hein (Spano), Heier, Armbruster, DeValkenaere, and the City
of Milwaukee.
Defendants argue, given the verdict and Avery’s testimony, that the
jury’s finding of fabrication is limited to Avery’s confession. The Court
agrees with this characterization of the evidence and the verdict. So does
Avery. ECF No. 153, at 6 (“Plaintiff’s fabrication claim against Defendants
Hernandez and Phillips was based on the March 24, 1998 police report
authored by Hernandez, …”).
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II.

Analysis
Motions under Rule 59(e) serve the limited function of allowing a

court to correct manifest errors of law or consider newly discovered
material evidence. County of McHenry v. Ins. Co. of the West, 438 F.3d 813,
819 (7th Cir. 2006). Rule 59(e) is the correct vehicle for the defendants’ first
and third arguments – that Avery’s due process claim fails as a matter of
law, and that Avery’s Monell claim collapses in the absence of a valid
underlying claim. Neither argument asks the Court to consider whether
the jury had a “legally sufficient evidentiary basis” to find for Avery on
these issues. Fed. R. Civ. P. 50(a), (b) (Judgment as a Matter of Law in a
Jury Trial) (emphasis added). Defendants’ causation argument will be
considered under Rule 50(b). See Cosgrove v. Bartolotta, 150 F.3d 729, 732
(7th Cir. 1998) (“The motion was filed within the time limit for a 50(b)
motion (which is the same as that for a 59(e) motion …) and it contained
the information required for a 50(b) motion. That was good enough;
captions do not control”).
A.

Due process

At summary judgment, the Court found that Avery’s due process
claim was viable pursuant to cases such as Whitlock v. Brueggemann, 682
F.3d 567 (7th Cir. 2012) and Fields v. Wharrie, 740 F.3d 1107 (7th Cir.
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2014) (“Fields II”). In Whitlock, for example, the Seventh Circuit explained
that it has “consistently held that a police officer who manufactures false
evidence against a criminal defendant violates due process if that evidence
is later used to deprive the defendant of her liberty in some way.” 682 F.3d
at 580; see also Fields II, 740 F.3d at 1114 (“it was established law by 1985
(indeed long before) … that a government lawyer’s fabricating evidence
against a criminal defendant was a violation of due process”). The Court
rejected the argument that Avery’s fabrication claim amounts to a claim for
malicious prosecution, which is “knock[ed] out” by the “existence of a tort
claim under state law.” 40 F. Supp. 3d at 1095 (quoting Newsome v.
McCabe, 256 F.3d 747 (7th Cir. 2001)). “Perhaps it used to, see, e.g.,
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003), but no longer in
light of Whitlock and Fields II.” Id.
Since that ruling, the Seventh Circuit has issued two decisions
discussing Whitlock and Fields II in relation to cases such as Newsome and
McCann. First, the court explained that the Newsome-McCann line of cases
does not stand for the proposition that “fabricating evidence does not
violate a defendant’s due process, actionable pursuant to § 1983. Instead,
they merely establish that allegations that sound in malicious prosecution
must be brought pursuant to state law. To the extent that these decisions
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may have rendered the law in this area uncertain, our more recent
decisions have been explicit.” Saunders-El v. Rohde, 778 F.3d 556, 560 (7th
Cir. 2015) (citing and discussing Whitlock, Fields II, and Petty v. City of
Chi., 754 F.3d 416, 422 (7th Cir. 2014)). Thus, the district court erred by
“categorically” holding that “a claim of evidence fabrication cannot form the
basis of a due process claim under § 1983 and must instead be brought as a
state law malicious prosecution claim.” Id. (emphasis in original).
Second, the court explained that “[r]ecent cases in this circuit hold
that a prosecutor who fabricates evidence against a suspect and later uses
that evidence to convict him violates due process, and this due-process
right was clearly established by at least the early 1980s.” Stinson v.
Gauger, --- F.3d ----, 2015 WL 5011961, at *7 (7th Cir. Aug. 25, 2015)
(citing Fields II and Whitlock) (emphasis added). Such a constitutional
violation “occurs when the evidence is fabricated, not when the fabricated
evidence is later introduced at trial – a crucial distinction because the
prosecutor would have absolute immunity for any constitutional violation
committed during the trial.” Id. The court continued:
It’s not entirely clear that the same reasoning applies to police
officers and expert witnesses who are alleged to have fabricated
evidence during an investigation. Unlike prosecutors, police
investigators face liability for failing to disclose their own
fabrication of evidence. That’s because immunity doesn’t
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protect an officer who fails to disclose material exculpatory
evidence as required by Brady, even though a prosecutor who
did the same thing would have absolute immunity for the
suppression, … .
Moreover, a line of cases in this circuit has squarely held that a
police officer’s fabrication of evidence (as distinct from his
suppression of material exculpatory evidence) is not actionable
as a violation of due process as long as state law provides an
adequate remedy for the fabrication – usually in the form of a
malicious-prosecution tort action. Under these cases due
process is satisfied as long as the state permits a suit against
the culpable officer after the fact. Whitlock did not address
this line of cases. If they remain good law, then the dueprocess claim against prosecutors recognized in Whitlock and
applied in Fields II might not be available against police
officers … unless state law lacks an adequate tort remedy for
the fabrication of evidence.
2015 WL 5011961, at *8 (emphases added) (internal citations omitted).
Accordingly, there are mixed signals coming from the Seventh
Circuit regarding the viability of due-process fabrication claims against
police officers. Whitlock baldly states that “a police officer who
manufactures false evidence against a criminal defendant violates due
process if that evidence is later used to deprive the defendant of her liberty
in some way.” 682 F.3d at 580 (emphasis added). Stinson, however, draws
out the distinction between prosecutors and police officers and suggests,
but does not hold, that a due process claim cannot be maintained against
the latter as opposed to the former. Stinson, 2015 WL 5011961, at *8 (“We

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don’t need to resolve this question, however, because Stinson’s claims fail
even assuming Whitlock and Fields II apply to state actors other than
prosecutors”).
The Court is now persuaded, in the wake of Stinson and SaundersEl, that Avery’s due process claim is governed by Newsome-McCann, not
Whitlock-Fields II. The former line of cases, as Stinson makes clear, has
not been overruled. What matters then is whether Avery’s claim “sounds”
in malicious prosecution, Saunders-El, 778 F.3d at 560, and whether there
is an available remedy under Wisconsin law. It does and there is. See
Amended Complaint, ¶¶ 54-55 (alleging that the defendants fabricated
evidence “thereby misleading and misdirecting the criminal prosecution”
which “directly resulted” in an “unjust criminal conviction”); Strid v.
Converse, 331 N.W. 2d 350, 353-54 (Wis. 1983) (listing elements of claim
for malicious prosecution). Therefore, Avery is not entitled to relief on his
due process claim. Saunders-El at 561; McCann, 337 F.3d at 786 (plaintiff’s
claim that defendant denied him due process by “causing him to suffer ‘[a]
deprivation of liberty from a prosecution and a contrived conviction …
deliberately obtained from the use of false evidence,’ … is, in essence, one
for malicious prosecution, rather than a due process violation”); Newsome,
256 F.3d at 750 (“the existence of a tort claim under state law knocks out
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any constitutional theory of malicious prosecution”); Fox v. Hayes, 600 F.3d
819, 841 (7th Cir. 2010) (claim that the defendants violated due process
when they “deliberately fabricated false statements and deliberately
obstructed justice, thereby causing the false arrest of [plaintiff], causing
him to be falsely imprisoned [and] prosecuted” was “nothing more than a
hybrid of [plaintiff’s] Fourth Amendment false arrest and state law
malicious prosecution claims, and accordingly, the due process claim is
barred”); Brooks v. City of Chi., 564 F.3d 830, 833 (7th Cir. 2009) (claim
that “criminal proceedings were instituted … based on false evidence or
testimony” is “one for malicious prosecution, rather than a due process
violation”).1
Moreover, Avery’s claims against Phillips and Hernandez are
“factually distinct” from the claims in Whitlock and Fields II, as was the
case in Munoz v. Rivera, No. 14 C 6794, 2015 WL 3896917, at *2 (N.D. Ill.
June 23, 2015). In Munoz, the plaintiff claimed that a police officer and two
police detectives fabricated evidence that twice led to jury convictions for
the murder of his girlfriend. Unlike in Whitlock, Fields II, and Petty, the
plaintiff alleged “neither manufactured physical evidence nor the

Avery brought a state law claim for malicious prosecution, but he stipulated to
its dismissal with prejudice before trial. That course of action, it would seem, was a
mistake.
1

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‘concoction’ of a false story fed to a witness by law enforcement.” 2015 WL
3896917, at *3. Remember, as relevant here, that the jury did not find that
either Hernandez or Phillips were responsible for fabricating or “feeding a
story” to Randolph, Kimbrough, or Kent. In addition, the contents of the
alleged “false reports” in Munoz were “the very facts defendants testified to
during plaintiff’s trials. Yet, defendants are absolutely immune from § 1983
damages claims based on their testimony.” Id. (emphasis added). The same
reasoning applies here because Hernandez and Phillips testified in
accordance with their 1998 report: in short, that Avery confessed to killing
Maryetta Griffin. Thus, even if Avery’s due process claim was actionable,
Hernandez and Phillips would be entitled to absolute immunity. See
Briscoe v. LaHue, 460 U.S. 325 (1983) (police officers, like other witnesses,
are entitled to absolute immunity from civil damages suits for testimony
provided in judicial proceedings).2
B.

Causation

Under Rule 50(b), a party that filed a Rule 50(a) motion before
submission to the jury can renew that motion within 28 days after the

Likely recognizing this immunity, Avery is careful to state that the premise for
his claim is the police report. Once again, such a claim is a malicious prosecution claim,
not a due process claim. Munoz, 2015 WL 3896917, at *4 (“to the extent plaintiff claims
that defendants’ false reports led to the initiation of his criminal proceedings without
probable cause, his allegations appear to state the elements of Illinois’ law of malicious
prosecution …”) (emphasis added).
2

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entry of judgment on the verdict. Relief may be granted if “a reasonable
jury would not have a legally sufficient basis to find for the party on that
issue.” Fed. R. Civ. P. 50(a). The Court construes the evidence strictly in
favor of the prevailing party and examines the evidence only to determine
whether the jury’s verdict could reasonably be based on that evidence.
Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012).
Section 1983 imposes liability on every official who “subjects, or
causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983
(emphasis added). This provision is “read against the background of tort
liability.” Monroe v. Pape, 365 U.S. 167, 187 (1961). Causation is a
standard element of tort liability, and it includes two requirements: (1)
“cause-in-fact,” i.e., “the injury would not have occurred absent the
conduct;” and (2) “proximate cause,” or “legal cause,” i.e., “the injury is of a
type that a reasonable person would see as a likely result of his or her
conduct.” Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 640 n.1 (7th Cir.
2008).
“The actions of an official who fabricates evidence that later is used
to deprive someone of liberty can be both a but-for and proximate cause of
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the due process violation.” Whitlock at 583. However, the so-called “causal
chain” can be broken by an intervening or superseding cause. “A
superseding cause is something culpable that intervenes …, some action of
a third party that makes the plaintiff’s injury an unforeseeable
consequence of the defendant’s negligence.” Scottsdale Ins. Co. v.
Subscription Plus, Inc., 299 F.3d 618, 621 (7th Cir. 2002). At the same
time, “there is no rule demanding that every case have only one proximate
cause. To the contrary, ‘multiple proximate causes are often present’ and
‘an actor’s tortious conduct need not be close in space or time to the
plaintiff’s harm to be a proximate cause.’” Whitlock at 583 (quoting Rest. 3d
Torts § 29 cmt. B).
Defendants focus on the fact that Avery wasn’t charged until
Randolph, Kent, and Kimbrough came forward and implicated Avery in the
Griffin murder. Thus, the defendants argue – keeping in mind that the jury
did not find that either Hernandez or Phillips were responsible for feeding
a fabricated story to Randolph, Kent, or Kimbrough – that the evidence
offered by those individuals implicating Avery broke the causal chain
between Avery’s confession and his conviction. To the contrary, what
matters is whether Avery’s conviction was foreseeable. The jury could have
found as such despite the subsequent evidence offered by these witnesses
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which independently implicated Avery. If there are competing reasonable
inferences to be drawn from the evidence, it is not the Court’s role to
substitute one reasonable inference for another reasonable inference drawn
by the jury. Based on the evidence presented, the jury could and did draw
reasonable inferences from that evidence to conclude that Avery’s
conviction was a foreseeable consequence of fabricating a confession.
C.

Monell claim

To determine whether the City of Milwaukee’s liability is dependent
on its officers, the Court must look to “the nature of the constitutional
violation, the theory of municipal liability, and the defenses set forth.”
Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir. 2009
(citing Los Angeles v. Heller, 475 U.S. 796, 798-99 (1986)). Avery’s theory of
municipal liability is that the City had a policy or practice to not
adequately investigate homicides, and as a result, the defendants
fabricated evidence against Avery to convict him. The jury found that five
of the defendants did not fabricate evidence, and as to the other two, the
Court has now concluded that Avery has no actionable due process claim as
a matter of law. The jury was not instructed on any affirmative defenses.
Therefore, the judgment must be altered in favor of the City because
Avery’s constitutional rights were not violated. Thomas, 604 F.3d at 304-05
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(discussing Heller) (“Without any affirmative defenses, a verdict in favor of
the officer necessarily meant that the jury did not believe the officer
violated the plaintiff’s constitutional right. And since the City’s liability
was based on the officer’s actions, it too was entitled to a verdict in its
favor”); Matthews v. City of East St. Louis, 675 F.3d 703, 709 (7th Cir.
2012) (“Here, there was no constitutional violation, therefore no municipal
liability”).
***
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the defendants’ motion to alter or amend the
judgment [ECF No. 146] is GRANTED. The motions for attorney’s fees
[ECF Nos. 148, 152] are DENIED. The Clerk of Court is directed to amend
the judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of September, 2015.

BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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