Ruiz-Cortez v. Chicago et al, No. 1:2011cv01420 - Document 290 (N.D. Ill. 2016)
Court Description: MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/26/2016:Mailed notice(wp, )
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Ruiz-Cortez v. Chicago et al Doc. 290 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHER DISTRICT OF ILLINOIS EASTERN DIVISION REFUGIO RUIZ-CORTEZ, Plaintiff, v. Case No. 11 C 1420 CITY OF CHICAGO, CHICAGO POLICE OFFICERS GLENN LEWELLEN, NOEL SANCHEZ, and UNKNOWN CHICAGO POLICE OFFICERS, Judge Harry D. Leinenweber Defendants. MEMORANDUM OPINION AND ORDER Before the Court are the parties’ Cross Motions for Summary Judgment. For the reasons stated herein, Defendant Noel Sanchez’s and Defendant City of Chicago’s Motions for Summary Judgment [ECF Defendant Nos. Glenn 239 and Lewellen’s 247, Motion respectively] for Summary are granted; Judgment [ECF No. 232] is granted in part and denied in part; and Plaintiff Refugio Ruiz-Cortez’s Motion for Summary Judgment [ECF No. 235] is denied. I. LEGAL STANDARD A party moving for summary judgment must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists “if the evidence is Dockets.Justia.com such that a reasonable nonmoving party.” 242, 248 (1986). jury could return a verdict for the Anderson v. Liberty Lobby, Inc., 477 U.S. In making this determination, all facts and reasonable inferences are construed in favor of the nonmovant. Id. at 248-49. “against a Nonetheless, summary judgment must be entered party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Litigants may cite to “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” to support their P. 56(c). positions However, “[a] in summary party may hearsay to avoid summary judgment.” judgment. not rely FED. on R. CIV. inadmissible MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 656 (7th Cir. 2011). With some exceptions, “hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial.” 1997). Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. Finally, “the proponent of hearsay bears the burden of establishing that the statement is admissible.” Hartford Fire Ins. Co. v. Taylor, 903 F.Supp.2d 623, 640 (N.D. Ill. 2012). - 2 - II. Because all four BACKGROUND parties in this case have moved for summary judgment, the Court must do a Janus-like recitation of the facts so that “[a]s to each motion the nonmovant’s version of any disputed fact [is] credited.” 932 F.Supp.2d 907, 914 (N.D. Padilla v. City of Chi., Ill. 2013). Despite the contentious exchanges of statements of facts, the parties here agree on substantial portions of the record. Where there are disagreements, the Court will note whose version of the events is being argument recounted. as to a Facts that particular are claim specific will be to a discussed party’s in the analysis as they become relevant. In 1999, Plaintiff Ruiz-Cortez (“Ruiz-Cortez”) was convicted of possession with intent to distribute 10 kilograms of cocaine and sentenced to 17.5 years in prison. v. Ruiz, 99-CR-493, ECF No. 35. his sentence, Ruiz-Cortez’s United States In 2010, ten years into serving conviction was vacated on the request of the United States Attorney’s Office (the “USAO”) and he was immediately released. for the arrest dismissal of (“Lewellen”). was an Defendant As a Id., ECF Nos. 50, 52. investigation Chicago result of leading Police to Officer Lewellen’s arrest, The cause eventual Lewellen the USAO concluded that “no reasonable fact-finder would have found the defendant guilty” and on this ground, - 3 - moved to vacate Ruiz- Cortez’s conviction. Id., ECF. No. 50. Importantly, one of the people whom Lewellen was charged of having conspired with was a police informant named Saul Rodriguez (“Rodriguez”). (See, United States v. Rodriguez, 09-CR-332.) Lewellen was one of two Chicago police officers who had arrested Plaintiff back in 1999 and who testified at Plaintiff’s trial. (See, ECF No. 234, Ex. D (Lewellen’s Test. against Ruiz- Cortez).) During this time, Lewellen worked in the narcotics section of the Chicago Police Department (“CPD”) as part of a 10-man team. (See, ECF No. 241, Ex. C (Sanchez’s Dep.) 33-1:7.) Lewellen had recruited informant (“CI”) for Rodriguez the CPD in as a 1996. paid (See, (Lewellen’s Statement of Facts (“SOF”)) ¶ 3.) confidential ECF No. 233 In accordance with CPD’s policy, Lewellen had Rodriguez sign a form obligating the latter not to engage in any illegal activity while serving as a CI. (ECF No. 237, Ex. J.) Shortly after Rodriguez signed this agreement, the Drug Enforcement Agency (“DEA”) seized over 150 pounds of marijuana from his car. (ECF No. 244 (City’s SOF) ¶ 40.) A DEA agent by the name of Alan Doescher (“Doescher”) testified in a deposition taken for this case that Lewellen around this time. Dep.) 7:12-15.) he received two phone calls from (ECF No. 234, Ex. X (Doescher’s According to Doescher, Lewellen informed him that Rodriguez was a CI and asked him to cease the investigation - 4 - because it could compromise other matters on which Rodriguez was providing information. (Doescher’s Dep., 7:22-10:15, 48:22- 50:18.) Doescher replied that he would need to speak to his superior at Doescher the then USAO. relayed Assistant US (Doescher’s Dep., letter from request,” the Attorney Haywood had him 10:15, with McDuffie Sometime informing USAO Dep., conversation 21:9-19.) McDuffie the (Doescher’s later, that terminated the 50:20-24.) Lewellen to (“McDuffie”). he received “pursuant to investigation a [his] into Rodriguez. (ECF No. 237, Ex. L (McDuffie’s Letter).) It does not from another appear the factual record that Doescher or attorney from the USAO communicated with other CPD or City of Chicago personnel about Rodriguez. In 1997, Rodriguez was arrested by Chicago police officers with a handgun in his back pocket. (ECF No. 244, Ex. 22 (arrest report).) with Rodriguez was charged failure firearm, but the case against him was nonsuited. to register a (ECF No. 244, Ex. 23 (quasi-criminal complaint) and Ex. 24 (disposition in People v. Saul Rodriguez, No. 97125928701).) Rodriguez proved to be a fruitful informant for the CPD. During the period from 1996 to 2000, Rodriguez provided information on 65 occasions, leading to the seizure of thousands of kilograms of cocaine and marijuana. Resp. to City’s SOF, ¶¶ 52-53 (admitting - 5 - (ECF No. 263, Pl.’s the above).) CPD records show information. occasions that Rodriguez Id. ¶ 54. for which was paid $803,359.00 for this As the records also show, one of the Rodriguez provided leading up to Ruiz-Cortez’s arrest. information is that (ECF No. 244, Ex. 25.) Several weeks before Ruiz-Cortez’s arrest, the DEA and the CPD’s narcotics section had engaged in a joint investigation and surveillance of his residence based on information provided by Rodriguez that location. drug activity was being conducted at the (ECF No. 264 (Pl.’s Resp. to Lewellen’s SOF) ¶ 16 (admitting the above).) During this surveillance, law enforcement observed two individuals removing a large package from Plaintiff’s residence after meeting with a resident there. Id. at ¶ 17. The teams followed the individuals and searched their vehicle, finding 56 kilograms of cocaine in the package. The police arrested both men. Id. at ¶ 18. On July 8, 1999, Defendant Lewellen and Defendant Sanchez (“Sanchez”), another member of the narcotics section, went to perform additional surveillance on (Pl.’s Resp. to Lewellen’s SOF, ¶ 19.) Plaintiff’s residence. According to Sanchez’s testimony at Ruiz-Cortez’s trial, his testimony at Lewellen’s trial, as well as his deposition in this case, he and Lewellen arrived at the house sometime around 3:00 p.m., at which point Lewellen set up his surveillance at the back of the residence while Sanchez set up at the front and watched the residence from - 6 - his vehicle. (See, ECF No. 241, Ex. G (Sanchez’s Test. against Ruiz-Cortez) 4-5; Ex. F (Sanchez’s Test. against Lewellen) 1011; and Ex. C (Sanchez’s Dep.) 122:18-23.) Sanchez position and stated that surveillance. that he he did could not not see see Lewellen Ruiz-Cortez from his during the (See, Sanchez’s Test. against Lewellen at 13-16 and ECF No. 265 (Pl.’s Resp. to Sanchez’s SOF) ¶ 10 (admitting that at no point when Sanchez was conducting surveillance in the front of the residence could he view Lewellen or the back of the residence).) Sanchez testified that he and Lewellen maintained contact during the stake-out, with Lewellen “calling out” to Sanchez periodic updates over the police radio and cell phones. (See, Sanchez’s Test. against Ruiz-Cortez at 7 and Sanchez’s Test. against Lewellen at 14.) out to Sanchez that a At some point, Lewellen called Hispanic man, entered the back of the residence. dressed in all white, Lewellen further reported that this man would periodically poke his head outside as if looking for something. (See, Sanchez’s Test. against Ruiz- Cortez at 11-12 and Sanchez’s Test. against Lewellen at 15-16.) Plaintiff, however, contends that Lewellen could not have seen him at his apartment before 6:00 p.m. since he did not get home until after that time. (See, ECF No. 262 (Pl.’s Resp. Sanchez’s Mot. Summ. J.) 4-5.) Plaintiff argues that either Sanchez’s testimony is false or Lewellen was lying to Sanchez about what - 7 - Lewellen saw, “hardly what . . . long time partners would do to each other.” Id. at 6. Sanchez testified that around 7:30 p.m. Lewellen called out that a silver car had approached the back of the residence and that the driver gave a head signal to the man in white who came outside when the car approached. (See, Sanchez’s Test. against Ruiz-Cortez at 12-13 and Sanchez’s Test. against Lewellen at 857-859.) Lewellen told Sanchez that the man went back to the residence after receiving the signal and then came out again, at which point Lewellen to said, mean “this that a is it.” narcotics Id. Sanchez understood this transaction was happening. He called for backup, waited the few minutes for the first responding officer to arrive, and then sprinted to join Lewellen in the back. Id. Sanchez further testified that when he reached the back of the residence, he saw that Lewellen was carrying a bag believed to contain narcotics. (See, Sanchez’s Test. against Ruiz-Cortez at 15 and Sanchez’s Test. against Lewellen at 859.) Lewellen motioned to Sanchez that the man in white had run back inside the residence. and Sanchez’s (See, Sanchez’s Test. against Ruiz-Cortez at 15 Test. against Lewellen at 859, 863.) Sanchez waited for Lewellen to secure the narcotics in the trunk of his car before following him to the apartment where Lewellen had seen the man disappear into. (See, - 8 - Sanchez’s Test. against Ruiz-Cortez at 15 and Sanchez’s Test. against Lewellen at 863864.) The white, officers answered under arrest. the knocked door. and Ruiz-Cortez, Lewellen then dressed placed all in Ruiz-Cortez (See, Sanchez’s Test. against Ruiz-Cortez at 15 and Sanchez’s Test. against Lewellen at 865.) After the arrest, Lewellen and Sanchez spoke to DEA agents who had also arrived on the scene. One of the DEA agents, Rebecca a Branum affidavit and Cortez’s trial. (“Branum”), testified authored at a DEA preliminary report hearing and to an Ruiz- As Branum was not at the scene until after the arrest, her account of what happened was not based on personal knowledge but rather her understanding and recall of what the police officers told her. (See, ECF No. 241, Ex. H (Branum’s Prelim. Test.) 7 and ECF No. 241, Ex. I (Branum’s Dep.) 13:2116:21.) At Ruiz-Cortez’s trial, Lewellen testified to personally observing the events relayed above. (See, ECF No. 234, Ex. D, 25-59.) Ruiz-Cortez took the stand at his trial. He denied ever having seen the yellow bag in which the drugs were recovered during the evening of July 8, 1999. (See, ECF No. 234, Ex. A. 210:9-10 and Pl.’s Resp. to Lewellen’s SOF ¶ 39.) As Ruiz- Cortez stated to the judge during his sentencing hearing, “I never had those drugs in my house.” - 9 - (ECF No. 234, Ex. B 7:15-17 and Pl.’s Resp. to Lewellen’s SOF ¶ 47.) duress as a defense. He did not present (Pl.’s Resp. to Lewellen’s SOF ¶ 40.) In 2012, a jury convicted Lewellen of conspiracy to possess with intent to distribute cocaine. No. 802.) (Rodriguez, 09-CR-332, ECF Rodriguez, a co-defendant in the case, cooperated with the Government and testified against Lewellen. Rodriguez testified that Lewellen told him to keep selling drugs after signing him up at as a CI; that “if I got arrested he would keep me out of it”; that Lewellen “was able to talk to them” when Rodriguez was arrested in 1997 with a gun; and that when the CPD stopped paying Rodriguez a thousand dollars for each kilogram of cocaine seized, Lewellen “ma[d]e it right” by giving Rodriguez two kilograms of cocaine. (ECF No. 237, Ex. G (Rodriguez’s Test.), 2892:21-2911.) As is relevant to Ruiz-Cortez’s arrest, Rodriguez testified that he told Lewellen that he was sending one of his couriers, a woman by the name of Lisette Venegas (“Venegas”), to pick up 20 kilograms of cocaine “from one of Changa’s supplier’s worker.” (Rodriguez’s Test. at 2922-2924.) Rodriguez expected that if Lewellen or other officers seized money or drugs as a result of the information he provided, he would get paid as a CI and Venegas, a woman that Lewellen knew from before, would be let go. (Id. at 2923-2924.) This transaction turned out to be the event leading up to Ruiz-Cortez’s arrest. - 10 - Venegas stated in her deposition that on July 8, 1999 she went to Ruiz-Cortez’s address to pick up drugs per Rodriguez’s instructions. 32:23.) (ECF No. 241, Ex. R (Venegas’s Dep.), 27:15- Rodriguez told her that “[a] guy is going to come out, he’s going to give you something, just grab it and take it.” (Id. at 34:2-8.) Venegas stated that she arrived at the apartment “sometime in the morning,” possibly before noon, and grabbed a bag from a Hispanic guy. (Id. at 34:16-35:5.) She pulled up to the back of the house, “walked up a couple of steps and kind of went halfway in and halfway out, and he was already there. And I grabbed the bag and turned around and left.” at 34:9-15.) (Id. After she got the bag, Venegas walked to her car and put it in the trunk. (Id. at 39:18-21.) She did not get in her car, however, as “there was another car blocking my way.” (Id. 43:4-45:17.) The driver of the car, a white male, opened her trunk, grabbed the bag, and told her to get out of there. (Id. 46:1-48:5.) Venegas drove away and saw the other vehicle take off in the opposite direction. (Id. 48:7-49:5.) Plaintiff brings this suit against Chicago police officers and the City of Chicago. (ECF No. 131, Third Am. Compl.) In his Complaint, Plaintiff admitted that he indeed stored cocaine at his apartment but alleged that he did so under the coercion of Carlos Rodriguez (“Carlos”), a.k.a. Changa, who was, as later discovered, a criminal associate of Saul Rodriguez. - 11 - (Id. ¶¶ 23, 30.) Plaintiff said that Carlos approached him several times, offering him an opportunity to make more money than he was currently earning, but that Plaintiff refused him each time. (See, ECF No. 241, Ex. D (Ruiz-Cortez’s Dep.) 66-68.) then insinuated that Plaintiff’s family would meet “accident” if he did not accede to his demands. ¶¶ 25-26 refused. and Ruiz-Cortez’s (See, Compl. ¶ Dep. 28 80-85.) and with an (See, Compl. Still, Ruiz-Cortez’s Carlos Plaintiff Dep. 86-87.) Carlos and another man then showed up at Plaintiff’s apartment one week later with bags containing narcotics. Carlos Plaintiff, “You have to do it. Think about your family.” Compl. ¶¶ 28-30 and Ruiz-Cortez’s Dep. 98-103.) told (See, Plaintiff understood that he was to store the drugs until people came to pick them up. (See, Ruiz-Cortez’s Dep. 110-113.) Plaintiff admitted that he kept the cocaine picked up by the two individuals that the DEA and CPD arrested. (Pl.’s Resp. to Lewellen’s SOF) ¶¶ 16-17.) (ECF No. 264 He also admitted that moments before his arrest, Venegas met him at his apartment and took the cocaine stored there. 174.) (Ruiz-Cortez’s Dep. 163- He disputes, however, that Lewellen saw him do so in the manner Lewellen testified to at Plaintiff’s trial. Ruiz-Cortez, Venegas came to his apartment to According to retrieve the drugs, got into the apartment, took the cocaine, and then walked off to her car alone. (Ruiz-Cortez’s Dep. 168-173.) - 12 - Lewellen intercepted the woman, took the drugs, and let her go because he knew she was a part of his co-conspirator’s criminal enterprise. (ECF No. 237 (Pl.’s SOF) ¶¶ 46, 53 (relying on Rodriguez’s Test. against Lewellen and Venegas’s Dep.).) Lewellen also kept half of the drugs to himself and only inventoried 10 kilograms to the system instead of the 20 kilograms that the woman took from Plaintiff’s apartment. (Pl.’s SOF ¶¶ 44 (relying on Rodriguez’s Test. against Lewellen).) Lewellen then came to Plaintiff’s door with Sanchez to arrest him. In sum, Plaintiff alleges that Lewellen and Sanchez framed him for the crime and the City of Chicago is also responsible. He brings a Motion for Partial Summary Judgment against Lewellen and the City of Chicago. In turn, Lewellen, Sanchez, and the City seek summary judgment against Plaintiff. III. ANALYSIS Ruiz-Cortez names as Defendants in this lawsuit Lewellen and Sanchez, other unknown Chicago police officers, and the City of Chicago. Against the named individual Defendants, Plaintiff asserts the following causes of action: based on fabrication materials of (Count I); Due Process Plaintiff’s a evidence claim rights and for (Count a Due Process claim withholding conspiracy II); and to a prosecution claim based on Illinois law (Count III). the City of Chicago, Plaintiff brings - 13 - a single of Brady violate malicious Against municipality liability or Monell claim (Count IV). After discussing some preliminary matters, the Court addresses each of these causes of action in turn. A. The City of Unknown Chicago Police Officers Chicago moves to have police officers dismissed from the case. the unknown Chicago The Court grants this request. Plaintiff has not attempted to name or serve with process any Chicago police officers other than Sanchez and Lewellen. Discovery appears to have closed, and the trial date is now less than two months away. In line with Seventh Circuit precedent, the unnamed defendants should be dismissed. Rodriguez, 509 F.3d 392, 402 (7th Cir. See, Williams v. 2007) (dismissing an unnamed defendant from the case due to the plaintiff’s “failure to identify this defendant and the lack of any record that this individual was served with process”). In addition, because more than two years have passed since Plaintiff’s criminal case was dismissed, any new defendants will have a statute of limitations defense. See, 745 Ill. Comp. Stat. Ann. 10/8-101 (setting the statute of limitations for an Illinois malicious prosecution claim at one year) and Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008) (explaining that in Illinois, the statute of limitations for § 1983 claims is two years). Therefore, the unknown officers are dismissed from this - 14 - case. LEXIS See, Baker v. Ghidotti, No. 11 C 4197, 2014 U.S. Dist. 41750, at *36 (N.D. Ill. Mar. 28, 2014) (dismissing unnamed defendants for the same reasons). B. Ruiz-Cortez’s Perjury Defendant Lewellen argues that Ruiz-Cortez should not be allowed to bring this lawsuit since he perjured himself at his criminal trial. Lewellen acknowledges that the power to dismiss the claims of a party who perjured himself is at the discretion of a district court. See, Secrease v. W. & S. Life Ins. Co., 800 F.3d 397, 401 (7th Cir. 2015) (reviewing “for an abuse of discretion the court’s selection of dismissal or default as a sanction for serious misconduct”). This Court declines to dismiss Plaintiff’s lawsuit. As the Seventh Circuit has said, “while perjury is a serious offense, one can imagine cases in which a sanction of dismissal would be excessive.” F.3d 696, 703 (7th Cir. Allen v. Chi. Transit Auth., 317 2003). In particular, where “the opposing litigant had perjured himself as well,” dismissal may be inappropriate conduct . . . in process.” given relation the to “the all egregiousness aspects of the of the judicial See, id. and Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003) (internal quotation marks omitted). In this case, Plaintiff and Lewellen accusations of perjury against one another. - 15 - both have leveled Even assuming for the sake of the argument that Lewellen is correct and Plaintiff is an admitted perjurer who is guilty of the underlying crime, it was Lewellen’s criminal misconduct that allowed Plaintiff to be released from prison when he still had seven more years to serve. light Whether true or not, the USAO was of the belief that “in of the newly-discovered evidence [of Lewellen and associates’ illicit activities] there is virtually no admissible evidence of defendant’s guilt” and so moved to have Ruiz-Cortez immediately released from prison. 493, ECF No. 50. United States v. Ruiz, 99-CR- See also, FED. R. EVID. 803(3) (allowing for the use of the USAO’s filing as evidencing its motive or intent when it moved to dismiss Plaintiff’s indictment). If Lewellen is right, then a guilty man was let free, and this injustice was due to the effect Lewellen’s conduct had on the USAO’s ability to prosecute. hands,” and Lewellen thus comes to this Court with “unclean the Court will not preemptively civil penalties by dismissing Plaintiff’s suit. shield him from See, Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815(1945) (stating that the doctrine of unclean hands “gives wide range to the equity court’s use of discretion in refusing to aid the unclean litigant”). C. Lewellen’s Fifth Amendment Invocations Ruiz-Cortez and Lewellen argue over how this Court should treat Lewellen’s Fifth Amendment invocations at his deposition. - 16 - In this circuit, courts considering summary judgment motions may draw adverse inferences against civil litigants who invoke their Fifth Amendment right. (7th Cir. 2008) See, SEC v. Lyttle, 538 F.3d 601, 604 (reviewing a grant of summary judgment and explaining that evidence of wrongdoing could be “enforced by the inference . . . of testify”). See guilt also, from Padilla, [a defendant’s] 932 F.Supp.2d at refusal 919. adverse inferences are permissive and not required. to Such Evans v. City of Chi., 513 F.3d 735, 741 (7th Cir. 2008). For several reasons, this Court will not use the invocation of the Fifth Amendment against Lewellen. First, the questions that Plaintiff asked Lewellen during his deposition for which he asserted his Fifth Amendment privilege are questions that form the crux of Plaintiff’s case against Lewellen – to-wit, that Lewellen testified falsely regarding what he saw in the hours leading up to Plaintiff’s arrest. If the Court were to deem Lewellen’s silence as admissions to the questions, this would come perilously close to entering judgment against Lewellen. But silence, and adverse inferences drawn from it, cannot be the sole basis for finding liability. Seguban, 54 relevant factor evidence, but F.3d to the 387, be 390 (7th LaSalle Bank Lake View v. Cir. considered direct inference forbidden.”). - 17 - in of 1995) light guilt (“Silence of the from is a proffered silence is Second, the questions that Plaintiff asked Lewellen on which Lewellen invoked his Fifth Amendment are on matters that implicate other Defendants in this case. For example, Plaintiff asked, “And when Sanchez testified at the Ruiz-Cortez trial that you radioed him that Ruiz-Cortez was carrying the plastic bag, that testimony of Sanchez was false, wasn’t it?” and “Did you falsely testify against Ruiz-Cortez at his trial as part of the CPD’s plan to protect Saul Rodriguez as an informant by diverting the attention of the federal authorities from your and Saul Rodriguez’s drug-dealing activities and onto Ruiz-Cortez?”. Drawing unfairly an adverse prejudice inference on Co-Defendants questions Sanchez like and this the would City of Chicago. Finally, the Court also finds it relevant that one of the allegations the government brought in Lewellen’s criminal case was obstruction of justice “including but not limited to, the December 21, 1999 false testimony of GLENN LEWELLEN in United States v. Refugio Ruiz-Cortez” but that the jury did not convict Lewellen on this count of racketeering conspiracy. See, Rodriguez, 09-CR-332, ECF No. 271 (Third Superseding Ind.) 8-9. Therefore, the Court will not infer, as Plaintiff would have it, that “Lewellen’s answers would, if truthful, tend to subject him to criminal liability.” - 18 - D. The including parties have numerous Evidentiary Issues raised a requests host that of the evidentiary Court strike issues, opposing parties’ assertions and responses for violating Local Rule 56.1. Requiring strict compliance with local rules is within the discretion of the district courts and is done (at least partly) so that the courts do not have to “wade through improper denials and legal argument in search of a genuinely disputed fact.” Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 527-29 (7th Cir. 2000). The Court, having waded, forgoes wholesale striking of responses. It will consider the content of the parties’ Facts Statements of as well as their evidentiary foundation in reviewing the parties’ Motions. E. Fabrication of Evidence Claim Finally, we arrive at Plaintiff’s first cause of action whereby Plaintiff asserts that Sanchez and Lewellen violated his Due Process by fabricating evidence used against him. It should be emphasized that this fabrication claim is distinct from a Due Process claim stemming from a failure to disclose under Brady. See, Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003) (explaining that the problem for the defendant “was not that evidence useful to him was being concealed; the problem was that the detectives grounds, 440 were F.3d giving 421, false 4223 (7th - 19 - evidence”) Cir. rev’d 2006). on other See also, Saunders-El v. Rohde, 778 F.3d 556, 561-62 (7th Cir. 2015). Simply put, a Brady claim focuses on what the officers should have said (but did not), whereas a fabrication claim rests what the police officers did say. While the case law of the circuit was not always clear, it is by now settled that “[a] criminal defendant’s due process rights may be violated — actionable by way of 42 U.S.C. § 1983 — when the evidence against him is fabricated.” F.3d at 558. Saunders-El, 778 The Saunders-El court clarified that none of the earlier cases from the Seventh Circuit, including Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010), Brooks v. City of Chicago, 564 F.3d 830 (7th Cir. 2009) and Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), “stands for the proposition that fabricating evidence does not violate a defendant’s due process.” 560. Id. at Insofar as the Defendants in this case rely on those earlier cases to argue to the contrary, that argument is rejected. The Individual Defendants are correct, however, that their testimonies at Ruiz-Cortez’s criminal basis for Plaintiff’s Complaint. trial cannot form the This is because the officers are protected by absolute immunity in their roles as witnesses. See, Manning v. Miller, 355 F.3d 1028, 1031-32 (7th Cir. 2004) (explaining that when police officers testify as witnesses, they are “granted absolute immunity - 20 - from civil liability”). Plaintiff concedes as much, stating: “Plaintiff’s due process claim is not predicated on Defendant’s testimony as a witness at Plaintiff’s criminal trial, but rather on Defendant’s role in fabricating evidence prior to testifying at trial.” (ECF No. 262 at 10.) The Court Defendants now reviews allegedly what fabricated evidence outside the of Individual their trial testimonies. 1. Fabrication Claim against Sanchez Plaintiff has not produced any statement directly authored by Sanchez that Plaintiff can say is false. A false piece of evidence is an essential element of a fabrication claim, and Plaintiff must make a showing “sufficient to establish existence” of this element to survive summary judgment. Fields v. Wharrie, (“Fabricated invariably 740 testimony false.”) F.3d is and 1107, testimony Celotex 1110 that Corp., is 477 (7th Cir. made up; U.S. at the See, 2014) it is 322-23. Instead of any direct statements of Sanchez, Plaintiff relies on the statements of Branum, the DEA agent who talked to Lewellen and Sanchez after Plaintiff’s arrest, to adduce that Sanchez fabricated evidence. In particular, Plaintiff relies on Branum’s DEA report, affidavit, and testimony at a preliminary hearing. - 21 - All of these statements are hearsay insofar as they are introduced to establish that Sanchez actually told Branum the events that she memorialized or testified to. Plaintiff believes otherwise, arguing that Branum’s statements “would not be offered for the truth of the matter” and so would not be hearsay. (ECF Eisenstadt, No. the 262 at 12.) plaintiffs had This to is point incorrect. to a In material misrepresentation that the defendant Centel allegedly made and their best candidate was a Chicago Tribune article based on an interview Centel gave. at 742. hearsay: of its Eisenstadt v. Centel Corp., 113 F.3d 738 The Eisenstadt court held: “The article, however, is an out-of-court statement offered to prove the truth contents – to prove, that is, that Centel or investment bankers made the comments attributed to them.” its Id. Branum’s statements here are hearsay in the same way that the article was hearsay in Eisenstadt. While hearsay can still be admitted into evidence if the Rules of Evidence so provide, and Plaintiff may have several venues opened to him to make an argument for admissibility here, Plaintiff has not made any such argument. On this ground alone, the Court can exclude the statements since as the proponent of hearsay, Plaintiff admissible. bears the burden of showing that Hartford Fire Ins., 903 F. Supp. 2d at 640. - 22 - it is Nonetheless, for the sake of completeness, the Court rules that Branum’s various statements – even if admitted and viewed in the most favorable light of Plaintiff – do not make a sufficient showing that Sanchez, not Lewellen, reported falsely to Branum. First, Branum’s DEA report contained multiple instances of “CPD Officer Lewellen said” but did not once mention Sanchez’s name in the narrative. DEA report during (ECF No. 266, Ex. I.) her deposition in When shown the this case, Branum volunteered that, “It was clear that Officer Lewellen was doing all the information for me that – I was probably directing things more through him. He was telling me what happened when I arrived at the scene.” (Branum’s Dep. at 91:11-17.) Second, Branum’s affidavit did not indicate which of the two officers, Lewellen or Sanchez, supplied the details that Branum laid out in her report. (See, ECF No. 266, Ex. J.) Third, during the preliminary hearing, Branum recounted the events leading up to Plaintiff’s arrest from Lewellen’s point of view. (See, Branum’s Prelim. Test. at 7:11-9:6.) offered the following testimony, the underlined Branum also answer being what Plaintiff emphasized over and over (but somewhat misquoted each time) in building his case against Sanchez: A. He [Ruiz-Cortez] walked toward the silver vehicle with the bag. - 23 - Q. What happened at that time? A. And at this point Police Officer Glenn Lewellen pulled into the south parking lot from his fixed surveillance point and when he pulled into the south parking lot, Ruiz dropped the bag in the parking lot and fled back into the south door first floor east apartment and the silver vehicle simultaneously pulled out and went southbound, I believe down Locust. Q. Did law enforcement personnel that Mr. Ruiz had dropped? recover the bag A. Yes. Sanchez was there with Officer Glenn Lewellyn [sic]. Officer Sanchez pulled around right behind him and they recovered the yellow plastic bag from the parking lot. (Id. at 10.) Probed by Plaintiff’s counsel during her deposition in this case, Branum testified that she based this particular answer on “what I was told by one of the two officers that were on the scene, and I don’t recall which ones.” (Branum’s Dep. 20:13-18.) Plaintiff would have the Court draw the inference that this answer by Branum is based on something that Sanchez (and not Lewellen) told her. There is no indication of that in the answer itself or in Branum’s deposition. Plaintiff also would have the Court interpret the phrases “there with Officer Glenn Lewellen” and “pulled around right behind him” to mean that Sanchez saw Ruiz-Cortez drop the bag and “recovered the yellow plastic bag” to mean that Sanchez picked up the bag from where Ruiz-Cortez dropped it (or at least saw Lewellen pick up the bag - 24 - from the ground of the parking lot), as these are the only parts of the narrative Plaintiff can claim to be false. This is stretching the bounds of reasonable inference, the only kind of inferences the Court is obligated to make in favor of Plaintiff as the nonmovant. DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987). Plaintiff can make a showing of falsehood only if Branum’s two-sentence answer is interpreted as conveying such temporal immediacy from when Ruiz-Cortez dropped the bag and when Sanchez arrived on the scene that Sanchez must have seen Ruiz-Cortez drop the bag and must have at least observed Lewellen pick up the bag from the ground. This would require inference upon inference, all piled on a slender reed of an answer that is hearsay and cannot with any comfortable certainty be attributed to Defendant Sanchez. Furthermore, even if the underlined statement reasonably can be construed to mean that Sanchez said he saw Ruiz-Cortez drop the bag, this evidence is still not enough make out a Due Process violation against Sanchez. This is because Plaintiff must still show causation between this allegedly false statement and his conviction injury, and which is in incarceration. this case See, his e.g., prosecution, Whitlock v. Brueggemann, 682 F.3d 567, 582-83 (7th Cir. 2012). In particular, Plaintiff must show that his “injury would not have occurred absent the conduct.” - 25 - Id. (internal quotation marks omitted). Given that Lewellen reported all he had (allegedly) seen before making the arrest, including that he saw Ruiz-Cortez drop the bag of drugs, Plaintiff cannot plausibly argue that Branum that he would he also have gone free saw Plaintiff but for Sanchez drop the bag. telling This is especially true in light of the fact that both Lewellen and Sanchez testified at Ruiz-Cortez’s trial that only Lewellen saw Ruiz-Cortez drop the bag. (See, Sanchez’s Test. against Ruiz- Cortez, 100:22-101:13 and Lewellen’s Test. against Ruiz-Cortez, 47:14-52:5.) In short, Plaintiff cannot officer’s act (fabrication) caused any injury.” show that “the Id. at 582. In addition to Branum’s statements, Ruiz-Cortez brings some circumstantial evidence lied. Plaintiff First, to raise makes the much of inference the fact that Sanchez Sanchez and Lewellen had worked together for about a year in the ten-man narcotics section by the time Plaintiff was arrested. As such, Sanchez must have been privy to the effort to frame Ruiz-Cortez because that Lewellen would lie to Sanchez is “hardly what the jury would conclude that long time partners would do to each other.” (ECF No. 262 at 6.) But this is pure speculation and must be disregarded. Ruiz-Cortez further contends that Sanchez’s statement to the effect that he and Lewellen began surveilling Plaintiff’s apartment around 3:00 p.m. is inconsistent with what others have - 26 - said. However, the evidentiary support that Ruiz-Cortez cites shows no inconsistencies. characterizes the record. Ruiz-Cortez regrettably mis- For example, he contends that Sanchez could not have “conducted a significant period of surveillance on Plaintiff’s residence [because] Saul Rodriguez testified that he directed Lewellen to Plaintiff’s before the cocaine was seized.” record that Plaintiff apartment only minutes (ECF No. 262 at 12-13.) cites, Rodriguez’s The testimony at pages 2922-2924, however, does not contain any reference as to when Rodriguez directed Lewellen to Plaintiff’s apartment. also, ECF No. (correctly 278 noting preliminary (City’s that hearing Resp. to Plaintiff testimony Plaintiff’s SOAF) misrepresented regarding the time (See ¶ 95) Branum’s of the surveillance). Finally, Plaintiff points to aspects of the surveillance that he considers odd and that purportedly support the inference that Sanchez lied. These consist of Sanchez and Lewellen beginning surveillance without “the aid of immediate backup,” Sanchez not knowing that Rodriguez was the particular informant who supplied the information regarding this address before the stake-out began, and Sanchez agreeing with Lewellen not to pursue the silver vehicle allegedly because conditions were not ideal. But Plaintiff has put on no evidence that officers who were not fabricating evidence likely would not do these things. - 27 - Do police officers on surveillance in similar circumstances normally have immediate back-up, know the name of the source of the information, or give chase after a vehicle? Plaintiff has not said, and the Court cannot make a reasonable inference of suspicious behavior out of thin air. In sum, because Plaintiff has not produced any evidence that Sanchez fabricated evidence nor tied any of the alleged fabrication to Plaintiff’s injury, the Court grants Sanchez Summary Judgment on this count. 2. Fabrication Claim against Lewellen To support his fabrication claim against Lewellen, Plaintiff relies on Rodriguez’s testimony, Venegas’s deposition, and his own account of what happened. All three sources, claims Plaintiff, make it “uncontested” that Lewellen lied to federal law enforcement and authored false police reports. Plaintiff argues that this evidence against Lewellen will be “unrebutted here because of Lewellen’s exercise of the Fifth Amendment” and therefore Plaintiff is deserving of summary judgment. Plaintiff overstates his case. As long as “a reasonable jury could return a verdict for” Lewellen, denied. Plaintiff’s motion for Anderson, 477 U.S. at 248. summary judgment must be And a reasonable jury may return a verdict for Lewellen even if he does not bring any affirmative proof to support a finding of no liability. - 28 - As a Defendant in the case, Lewellen may prevail at trial by casting doubt on the witnesses’ credibility and by drawing out inconsistencies in their testimonies. Issues concerning the witnesses’ credibility are certainly present in the case. Rodriguez is a convicted murderer and drug dealer; Venegas is his confessed drug courier; and Ruiz-Cortez admits to lying at his criminal trial. Rodriguez called Plaintiff Plaintiff insists that he (Carlos’s) machinations. “Changa’s was an As for inconsistencies: supplier’s unwilling worker” pawn in when Changa’s Venegas testified that she arrived at Plaintiff’s apartment and saw him on the day in question “in the morning,” possibly before noon, when Plaintiff in his own account stresses that he was working construction all day and did not arrive home until after 6:00 p.m. Plaintiff’s story on how he came to store drugs in his house has also changed, as reflected in the various (Compare, ECF No. 56 complaints (First Am. filed Compl.) ¶¶ in this 25-26 case. with ECF No. 131 (Third Am. Compl.) ¶¶ 28-30.) With all facts and reasonable inferences construed in favor of Lewellen, the Court must conclude that a reasonable jury may find for the Defendant at trial. Plaintiff’s summary judgment is thus denied. Lewellen presses for summary judgment in his own favor. Lewellen first argues that Plaintiff - 29 - improperly added the fabrication of evidence Due Process claim in his briefing and that this claim was not in his Complaint. Lewellen is correct that and “a brief claims.” cannot amend a complaint add new legal Savage v. Finney, No. 12 CV 2398, 2012 U.S. Dist. LEXIS 86425, at *9 (N.D. Ill. June 20, 2012) (citing Seventh Circuit cases). However, in looking at Plaintiff’s Third Amended Complaint (the latest and operative Complaint in this case), the Court finds that Plaintiff pled sufficient facts to put Lewellen on notice that Plaintiff was bringing a fabrication claim. The Complaint alleged that Lewellen committed affirmative falsehoods and not just that he withheld evidence. (See, ECF No. 131, ¶¶ 49-50, 79.) While Plaintiff’s pleading could his have been more transparent, Complaint contains a fabrication claim. Lewellen next argues that Plaintiff’s evidence claim must fail as a matter of law. fabrication of This is because the pre-trial statements and reports authored by Lewellen that Plaintiff claims are false contain the “exact same information” as Lewellen’s testimony at Plaintiff’s criminal trial. Since absolute immunity protects Lewellen’s trial testimony, Lewellen believes that the pre-trial materials do not provide a basis for a fabrication claim. Lewellen’s argument is unconvincing. Insofar as Lewellen’s argument is that his testimony at trial somehow immunizes his - 30 - pre-trial activities, this argument has been rejected. As an investigator who allegedly fabricated evidence, Lewellen’s own subsequent conduct “cannot be an intervening cause sufficient to defeat a finding of causation” and ultimate liability. Whitlock, 682 F.3d at 584. If Lewellen’s argument instead is that his pre-trial statements cannot have caused Plaintiff’s injury because they were not introduced at Plaintiff’s trial, this argument proves too much. protected If by fabricated absolute testimony immunity, and introduced at trial fabricated evidence is not introduced at trial cannot be used to make out a Due Process claim against a defendant – even if its content is identical to what was testified to at trial – then fabrication of evidence can never violate Due Process. This is contrary to case law. See, e.g., id. at 585 (“[T]he deliberate manufacture of false evidence contravenes the Due Process Clause.”). Indeed the prosecutor defendant failed on a similar argument. the only wrong in the case in Whitlock tried and The defendant there argued that – the introduction of perjured testimony leading to a criminal conviction – “is the one that occurred at trial.” Since the defendant was acting within his immunized prosecutorial capacity at trial, any fabrication he participated in prior to trial “is beyond the reach of the law.” - 31 - Id. at 583. The Seventh Circuit rejected the defendant’s argument and affirmed the denial of his summary judgment motion. Cases that inapposite. Lewellen cites to support his position are In Bianchi v. McQueen, Bianchi could not sustain his claim that the defendants fabricated evidence, not because the fabricated evidence was put away “in a drawer” and “no further use [was made] of it,” but because Bianchi was acquitted at his criminal trial. Bianchi v. McQueen, 818 F.3d 309, 313, 319 (7th Cir. 2016). As such, there was no deprivation of liberty, and the claim fails on this essential element. Id. The same applies to Buckley v. Fitzsimmons, 509 U.S. 259, 261 (1993), where the prosecution dropped charges before Buckley’s second trial began, and Lofton v. Eberle, No. 14 C 898, 2015 U.S. Dist. LEXIS 13574 at *6 (N.D. Ill. Feb. 5, 2015), where the case was dismissed via a nolle prosequi. The only deprivations matter. not of cases liberty Plaintiff are cites where distinguishable from there the were present In Starks v. City of Waukegan, the fabricated evidence introduced at trial did not mirror what was introduced. See, Starks v. City of Waukegan, 123 F.Supp.3d 1036, 1046-47 (N.D. Ill. 2015). This is unlike this case, where Plaintiff actually emphasizes that the content of his pre-trial statements are “the same” or contain the “exact same information” as what he testified to at trial. - 32 - This leaves only Munoz v. Rivera, a case dealing with a motion to dismiss. Ill. 2015). Munoz v. Rivera, 169 F.Supp.3d 815 (N.D. There, the plaintiff failed to state a claim due to inadequate pleading of facts. The alleged fabricated evidence in Munoz were vague allegations that the defendants “falsely reported” what they had seen or heard. Id. at 818. As the court noted, “the complaint does not identify or describe the particulars of any ‘false reports’” nor “does received those reports or how they were used.” it allege who Id. at 810. In contrast, Plaintiff in this case has pointed to the specific police reports that Lewellen made. Since the reports contained the same information that Lewellen testified to at his trial, and the information is what Lewellen “called out” to Sanchez and reported to Branum, we know who received the information and how it was used in this case. In sum, the authorities Lewellen relies on do not support the proposition he makes. The Court therefore denies Lewellen summary judgment on this claim. F. Brady Claim A duty to disclose information under Brady v. Maryland, 373 U.S. 83 (1963) extends to police officers. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008). See, Carvajal v. As the Seventh Circuit has explained, “[a] Brady violation can be broken down into three basic elements: (1) - 33 - the evidence at issue is favorable to the accused, either being exculpatory or impeaching; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) there is a reasonable probability that prejudice ensued – in other words, ‘materiality’.” Id. at 566-67. Further, evidence is “suppressed” only when “(1) the prosecution failed to disclose the evidence in time for the defendant to make use of it, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence.” Id. Finally, “[e]vidence is ‘material’ if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. 1. Brady Claim against Sanchez Against Sanchez, Plaintiff first advances the argument that Sanchez’s “fabrication of knowingly false evidence regarding the circumstances of Plaintiff’s arrest is a violation of Brady.” (ECF No. 262, 15.) This is incorrect as a matter of law. In Saunders-El, the plaintiff had argued “both that the fabrication of evidence violated his constitutional rights and, separately, that the police officers’ failure to admit their misdeeds to the prosecution amounts to a withholding of exculpatory evidence in violation of Brady.” Id. at 561. The court rejected this argument, finding that it contravenes case law to allow such a - 34 - recast of an evidence fabrication claim as a so-called Brady claim. Id. at 562. Manning v. Miller, a case cited by Plaintiff, does not hold otherwise. Manning is an older case in which the plaintiff brought a Brady claim but not a fabrication claim. v. Miller, 355 F.3d at 1030-31. See, Manning The court found the facts of the case to be “unique” and made the narrow ruling that “based on the specific facts of this case, we believe that Manning has presented a Brady claim.” Id. at 1033. The court did not hold that simultaneous fabrication and Brady claims are viable where the latter rests on police officers withholding the fact that they fabricated evidence. Moreover, insofar as Plaintiff is aware of the circumstances surrounding his arrest – that he did not drop the bag of cocaine in the parking lot, that instead the drug courier “Venegas was present and in possession of narcotics in the parking lot immediately prior to Plaintiff’s arrest” and that Venegas was not arrested – the information was not suppressed. See, Gauger, 349 F.3d at 360 (stating that “the duty to disclose falls out” when the suspect “knew what he had said issue of at the interrogation”). Plaintiff next argues that a genuine material facts exists “regarding whether Defendant knowingly failed to disclose material information regarding Lewellen’s relationship - 35 - with Rodriguez.” (ECF No. 262, 16.) Plaintiff then lists nine pieces of evidence whose nondisclosures he claims violated his Brady rights. Id. at 16-17. But under Brady, “the evidence suppressed must be exculpatory or impeaching,” and some of the facts Plaintiff lists do not meet this standard. Carvajal, 542 F.3d at 568. Evidence that falls into this category includes any failure to disclose that an informant by the name of Saul Rodriguez provided information Plaintiff admits, leading “the to breadth Plaintiff’s and depth arrest. of the As criminal activities of Rodriguez . . . could not have even been imagined” from the identity of the informant. Lewellen’s Mot. Summ. J. at 16.) (See, Pl.’s Resp. to To be a favorable fact to Plaintiff, any information not disclosed would at least need to have been reasonably probable to alert Plaintiff that something was amiss with Rodriguez’s use as an informant. plausible that Plaintiff would have Only then is it investigated Rodriguez further and perhaps discovered facts about the informant that would have exculpated Plaintiff or (more likely) allowed Plaintiff to impeach “star police officer witness” Lewellen and thus secured a favorable outcome to himself. F.3d at 568-70 (explaining considered “favorable”). have done that, and the standard See, Carvajal, 542 for evidence to be Rodriguez’s identity alone would not neither would - 36 - the fact that “Rodriguez earned $10,000 as a paid informant in Plaintiff’s case,” since CPD policy authorized the payment of such fees. See, Harris v. Kuba, 486 F.3d 1010, 1016 (7th Cir. 2007) (stating that when “evidence is arguably favorable only after several inferences are made . . . [t]his stretches the meaning of ‘favorable’ beyond that of Brady”). So much for several of Plaintiff’s pieces of “material evidence relating to Rodriguez . . . never disclosed.” Those that remain relate to Rodriguez’s and Lewellen’s joint criminal activities. Plaintiff brings circumstantial evidence that Sanchez knew about Rodriguez’s involvement in crimes and knew of Lewellen’s pattern of misconduct (by using and paying Rodriguez) and obstruction prosecution). of justice (in protecting Rodriguez from The Court finds, however, that even viewed in the light most favorable to Plaintiff, the evidence does not create a genuine issue of disputed fact. Take the evidence that criminal activities first. Sanchez knew about Rodriguez’s This includes the fact that Sanchez had “babysat” Rodriguez a handful of times when Rodriguez came to the police station to collect his payment as an informant. (Pl.’s SOAF ¶ 33.) Sanchez had contact. This evidence establishes that Rodriguez and However, the Court cannot infer from this that Sanchez knew of Rodriguez’s criminal activities. It is unreasonable to think that while sitting in the middle of a - 37 - police station, presumably in presence of many police officers, waiting to get paid under an agreement obligating him not to commit crimes, Rodriguez would have started telling Police Officer Sanchez of his large-scale drug dealings, kidnappings, or murders. Plaintiff also stresses the facts that Sanchez worked on “numerous” investigations – in Plaintiff’s view, perhaps as many as 30 – on which Rodriguez was the informant. ¶ 30.) (Pl.’s SOAF Viewed in the light most favorable to Plaintiff, this may support the inference that Sanchez knew that Rodriguez was a prolific informant. however, Plaintiff For would this need to to have bring kindled evidence suspicion, having some tendency to show that Sanchez should have known that a lawabiding informant would not be able to supply information for this many investigations. The closest Plaintiff comes to this is via the expert opinion he submitted. Joseph Stine (“Stine”), Plaintiff’s expert, opined in his report that: Professional law enforcement officers know that the useful “life” of a cooperating individual (C/I) who follows the rules is limited. The lengthy duration of the flow of information from Saul Rodriguez regarding high level illegal drug shipments and stash houses for drugs and drug money should have been a red flag for any supervisor who was not blinded by the bright lights of high profile seizures . . . This information was readily available to supervisory personnel whose job it was to make sure the C/I was in conformity with the policies and procedures designed to prevent the abuses and criminal - 38 - activity that were occurring on a regular basis by these agents of the CPD. (ECF No. 244, Ex. 27 (Stine’s Rep.) 11-12 (emphasis added).) Taking Plaintiff’s expert opinion at face value, the evidence supports an inference that CPD supervisory personnel should have been alerted that Rodriguez was not “follow[ing] the rules.” It is undisputed, however, that Sanchez was not a supervisor at the CPD. Stine thus does not suggest that Sanchez should have known about Rodriguez’s criminal activities. Indeed the expert said nothing about how long the “useful life” of a lawful CI should be and so leaves the Court with no basis for inferring that the “numerous” investigations on which Sanchez participated where Rodriguez was an informant extend beyond this proper longevity. As for the allegation that Sanchez should have known about Lewellen’s illicit activities, Plaintiff brings nothing more than the circumstantial evidence he brought under his fabrication of evidence claim. That evidence was that Sanchez and Lewellen worked and together Plaintiff considers suspicious aspects of the surveillance leading up to his arrest. certain The Court found the evidence insufficient to create a genuine dispute of material fact there, and it is also insufficient here. Plaintiff has provided the Court with no basis to conclude that the officers’ conduct on the surveillance is indicative of wrongdoing. For example, why is two officers going to surveil a - 39 - residence alone suspicious? (as opposed to in groups of three? four?) Of course, if one assumes that the officers were engaging in misconduct, then anything they did looks suspicious. But this is putting the cart before the horse. The standard is not shade whether an unobjectionable accusation conduct of in a wrongdoing nefarious can light. generally Rather, the evidence itself must raise the inference of wrongdoing. Likewise, unless it is reasonable to infer that everybody who worked with Lewellen in the narcotics section for as long as Sanchez did Plaintiff’s (two years arrest) in knew total or and should a have year by known the of time of Lewellen’s criminality, the fact that the two men worked together raises no genuine dispute of material fact. For these reasons, the Court grants Sanchez’s Motion for Summary Judgment on this Count. 2. Brady Claim against Lewellen In his Motion for Summary Judgment against Lewellen, Plaintiff makes the bold claim that Lewellen’s withholding of “material and impeachment evidence” is “undisputed.” disagrees. What may be treated as a matter of Lewellen no genuine dispute is Lewellen’s criminal conviction for conspiring with Rodriguez. there to But the one case that Plaintiff cites to go from this Court granting him summary judgment actually features a denial of both the plaintiff’s and the defendants’ - 40 - motions for summary judgment. See, Thompson v. City of Chi., No. 07 C 1130, 2009 U.S. Dist. LEXIS 20348, at *7 (N.D. Ill. Mar. 12, 2009). Given the disposition of the opinion, the Court is frankly puzzled as to why Plaintiff cited it in his own Motion for Summary Judgment. Plaintiff’s Motion is denied. In the Cross-Motion for Summary Judgment, Lewellen argues that Plaintiff’s Brady claim fails as a matter of law. particular, he contests that (1) any Brady materials In were suppressed, (2) any suppressed evidence was material, and (3) any damages resulted from a Brady violation. a. Plaintiff’s Suppression of Materials first argument that no Brady materials were withheld includes both an evidentiary and a substantive prong. The evidentiary attack is that Plaintiff had not produced the file of his criminal defense attorney and so the defendants do not know what, if anything, was withheld. cannot plausibly contend that he Lewellen, however, disclosed to Ruiz-Cortez information on his and Rodriguez’s criminal activities. This is especially true since he is still disputing (via his criminal conviction appeal and his briefing in case) that he engaged in criminal activities. attorney’s file, it So whatever may have been in Ruiz-Cortez’s was at least information. - 41 - missing this piece of On substantive obligation under Brady with Rodriguez. El’s language grounds, to Lewellen disclose argues his that criminal he has no relationship For this proposition, he relies on Saundersthat “Brady exculpatory evidence.” does not require the creation Saunders-El, 778 F.3d at 562. of But the undisclosed evidence in Saunders-El and the cases cited therein all involved facts themselves. See, information was that the plaintiffs Saunders-El, that police 778 must F.3d officers had have 558 known (suppressed “bludgeoned” the plaintiff and “collected his blood in order to smear it at the crime scene”); evidence was Gauger, Gauger’s 349 own F.3d at statements 356-57, at 360 the (suppressed interrogation); Sornberger v. City of Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006) (suppressed evidence was coercive circumstances leading to the plaintiff’s confession); and Harris, 486 F.3d at 1013, 101617 (suppressed statement was a lie by the police officers to the prosecutor about person confessed who the plaintiff’s to the relationship crime) (“Harris relationship, or lack thereof, with Davis. with knew another about his He was fully capable of challenging the officers’ and prosecutors’ contention to the contrary.”). Such facts do not need to be disclosed because their nondisclosure would not be considered suppression under Brady anyway. Carvajal, 542 F.3d at 567 (7th Cir. 2008). - 42 - In contrast, the Brady materials that Plaintiff claims had been withheld in this case relate to things that ranged far outside Plaintiff’s knowledge. They include Rodriguez’s involvement in crimes and Lewellen’s pattern of misconduct and obstruction of justice – things that Plaintiff at the time of his arrest and criminal trial knew nothing about. No. 233 (Lewellen’s SOF) ¶¶ 98-106.) (See, ECF Saunders-El and its line of cases do not compel the conclusion that Lewellen did not violate Brady by keeping mum about his criminal activities. b. Materiality of suppressed information Lewellen further challenges that any evidence he did not turn over is material. Lewellen claims that this is because evidence regarding his criminal activities would not have been admissible and even if admissible, the evidence could not “reasonably have changed the outcome of the trial.” It is true that to be deemed “material” under Brady, evidence must be admissible. United States v. Silva, 71 F.3d 667, Further, 670 (7th Cir. 1995). the Rules of Evidence provide that “[e]xcept for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct witness’s character Lewellen argues for that in order to truthfulness.” given this attack or support FED. R. EVID. prohibition on the 608(b). extrinsic evidence, Ruiz-Cortez’s defense counsel would not have been able - 43 - to elicit any admissible evidence to impeach when faced with Lewellen’s denials of wrongdoing. As such, any evidence of Lewellen’s wrongdoing “would not have made a difference in the result of the trial.” See, United States v. Veras, 51 F.3d 1365, 1375 (7th Cir. 1995). Lewellen, however, failed to say that under Rule 608(b), a district court has discretion to allow such extrinsic evidence “if they are probative of the untruthfulness of the witness.” character for truthfulness FED. R. EVID. 608(b)(1). or Given that Lewellen provided crucial testimony to convict Ruiz-Cortez – thus distinguishing his case from the other cases he cited – it is reasonable to suppose that the presiding judge at RuizCortez’s trial may have allowed extrinsic attacks on Lewellen’s credibility. Such probability, impeachment changed the result may of have, the with reasonable proceeding. In any event, Lewellen cannot establish as a matter of the law that the evidence would have been ruled inadmissible. Lewellen activities also could argues not have that had evidence a of plausible his illicit probability of changing the outcome of Ruiz-Cortez’s trial when the evidence is considered within the context of “the trial themes and theories presented by” Ruiz-Cortez. Ruiz-Cortez’s theory at his own trial was that his prosecution was based on a case of “mistaken identity”; his theory in this case is that while coerced into - 44 - holding drugs, he could not have been seen in public with the drugs. Under either theory, the credibility of the lone witness who testified that he saw Ruiz-Cortez drop a bag of drugs is likely crucial. Put differently, Ruiz-Cortez may not have needed to put on any defense at all had Lewellen’s “character for untruthfulness” been known. Construing all facts in favor of Ruiz-Cortez, he had a reasonable probability of walking free had he had the opportunity to impeach Lewellen with the withheld information. c. Damages Lastly, Lewellen asserts that Ruiz-Cortez can recover no damages because undisputedly he “was in committed.” prison Plaintiff for is an offense that “undisputedly” he guilty because even had he presented an affirmative defense of duress at his criminal trial, he would still have been convicted since Carlos’s threat of harm to Plaintiff’s family was not imminent and did not deprive Plaintiff of an opportunity to flee or seek the help of law enforcement. Even allowing that Lewellen is correct, however, Plaintiff has raised a triable issue that he was deprived of a fair trial. See, Brady, 373 U.S. at 87 (“The principle of [our holding] is . . . avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials - 45 - are fair; our system of the administration of justice suffers when any accused is treated unfairly.”). It is true that without an injury, there can be no tort. Fields, 740 F.3d at 1114. But this rule only means that had Ruiz-Cortez been acquitted at his criminal trial, he may not be able bring a Brady claim at all. (expressing establish doubts the that requisite “an Carvajal, 542 F.3d at 570 acquitted prejudice for defendant a Brady can ever violation.”). Here, Ruiz-Cortez was convicted and spent ten years in prison. It may be that in a fair trial, he would have received the same sentence, but he arguably did not receive a fair trial. Viewed in the light most favorable to Plaintiff as the nonmovant, Rodriguez’s, Venegas’s, and his own account of what happened may convince a jury that Lewellen lied. A reasonable jury may therefore agree with Plaintiff that “whatever evidence the government presented through Defendant [Lewellen] would have been thoroughly discredited had the true nature relationship with Rodriguez not been suppressed.” at 18.) of his (ECF No. 261 If this is so, then the government would not have carried its burden and Ruiz-Cortez would have not served the 10year sentence even if, in fact, he was guilty of the underlying crime. The three out-of-circuit cases Lewellen cites on this point are unpersuasive. In Olsen v. Correiro, 189 F.3d 52, 55 (1st - 46 - Cir. 1999), the criminal defendant pled charge of manslaughter for time served. guilty to a lesser Here, Ruiz-Cortez has not pled guilty to anything for his ten years in prison. In Townes v. City of N.Y., 176 F.3d 138 (2d Cir. 1999), the Second Circuit was primarily concerned with setting the right level of deterrence on police misconduct where the police did personally benefit from their illegal search and seizure. Townes, 176 F.3d at 141. not See, In such a case, the court found that to award the plaintiff monetary damages would “vastly overdeter police officers and would result in a wealth transfer that ‘is peculiar, if not perverse.’” Id. at 147-48. In this case, Lewellen has been found guilty of conspiring to possess with intent to distribute cocaine and ordered to pay over $6 million in forfeiture for his crime. Rodriguez, 09-CR-332, ECF No. 1344. More proximately, Lewellen is accused of pocketing 10 kilograms of cocaine in the events leading to Ruiz-Cortez’s arrest. Faced with such facts, it is not clear that the Second Circuit would have found the transfer of wealth away from Lewellen to be “perverse” or that monetary damages would “vastly overdeter” the lucrative police misconduct. Finally, Padilla v. Miller, 143 F.Supp.2d 453, 459-60 (M.D. Pa. 1999) is a case factually similar to Townes where the judge allowed the plaintiffs to proceed to trial and only there awarded them with nominal damages. - 47 - For these reasons, the Court denies Lewellen’s Motion for Summary Judgment on Plaintiff’s Brady claim. G. Conspiracy Claim “To establish conspiracy liability in a § 1983 claim, the plaintiff must show that (1) the individuals reached an agreement to deprive him of his constitutional rights, and (2) overt acts rights.” in furtherance actually deprived him of those Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015). 1. Sanchez, the only Overt Act party to have been granted summary judgment on the underlying Due Process violation, argues that he cannot be liable for conspiracy to violate Plaintiff’s constitutional rights when he is not liable for the underlying violation. The Court finds it more helpful to frame Sanchez’s argument as an argument that he has not committed any “overt acts in furtherance” of the conspiracy that actually deprived Plaintiff of his Due Process rights. Indeed, because the Court granted Sanchez summary judgment on Count I, Sanchez cannot be said to have “fabricated or suppressed evidence” and thereby deprived Plaintiff of his Due Process rights. Plaintiff conspiracy argues because he that Sanchez “condoned, is nonetheless facilitated, turned a blind eye to Lewellen’s misconduct.” - 48 - or liable for knowingly (ECF No. 262 at 20.) This “condoned, facilitated, or knowingly turned a blind eye” language comes from Jones v. Chicago, 856 F.2d 985, 992 (7th Cir. 1988), which Plaintiff cites, but there the court was talking about supervisory liability. The court in Jones said, “To of be held liable for conduct their subordinates, supervisors must have been personally involved in that conduct . . . The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.” Id. Plaintiff blithely replaced “The supervisors” with “A police officer” and goes on to state that the law is that “A police officer who knows about misconduct and facilitates it, approves it, condones it, or turns a blind eye for fear of what he might see is liable for conspiracy.” No. 262 at 20.) (ECF (See also, ECF No. 261 at 21.) Even under this formulation, however, Plaintiff has to make a sufficient misconduct. showing that Sanchez knew about Lewellen’s Plaintiff fails to do so, as explained previously. See, Section III, Part F.1. 2. Agreement between Co-Conspirators Agreement is an essential element of conspiracy. Fields v. City of Chi., No. 10 C 1168, 2014 U.S. Dist. LEXIS 14621, at *33 (N.D. Ill. Feb. 6, 2014) (citing Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007)). “A conspiratorial agreement may be established by circumstantial evidence, but only if a reasonable - 49 - jury could conclude that the conspirators had, in fact, reached an understanding that they sought to injure” Plaintiff. Alexander v. City of S. Bend, 433 F.3d 550, 557 (7th Cir. 2006). The Court notes that Sanchez and Lewellen are alleged to have conspired with each other but neither Individual Defendant has been accused of conspiring with a third-party. Thus, the only party with whom the Individual Defendants could have come to a mutual understanding to deprive Plaintiff of his constitutional rights is each other. The evidence Plaintiff brings to raise the inference that Sanchez and Lewellen came to an agreement is the same evidence he brought to support his Due Process claim. This included Branum’s import”), statements Defendants’ work (labeled together as on “of the greatest same team, the the work with Rodriguez, their travel to Plaintiff’s residence by themselves without immediate backup, their false statements to federal authorities, their identical story of surveillance, and their testimonies at Plaintiff’s criminal trial. 21-24 and ECF No. 261 at 22-23.) For (See, ECF No. 262 at the reasons given previously, none of this evidence, individually or together, is sufficient to raise a genuine dispute of material fact. See, Section III, Part E.1 and Part F.1. To the extent that Plaintiff shades any evidence in a new light, he now highlights the fact - 50 - that on the night of Plaintiff’s arrest, contact all at Sanchez points (ECF No. 261, 21-22.) and Lewellen throughout the “were alleged in regular surveillance.” According to Plaintiff, this raises an inference of conspiracy because it shows that the “defendants had an opportunity to confer at [the] relevant time.” the Seventh cannot by agreement. Cir. Circuit has themselves ruled raise that an phone calls inference of Id. and But contact conspiratorial See, Goetzke v. Ferro Corp., 280 F.3d 766, 778 (7th 2002) conspirators] (“To assert are that evidence the of a calls [between conspiracy is alleged simply speculation.”) and Alexander, 433 F.3d at 557 (“The phone calls among officers are nothing more than evidence that the officers remained in contact as they investigated the crimes; without more, to conclude that such phone calls establish a conspiracy is the purest of conjecture.”). See also, Johnson v. Dossey, 878 F. Supp. 2d 905, 922 (N.D. Ill. 2012) (stating that the plaintiff “fails to provide any evidence that these calls and communications were anything other than routine law enforcement communications”). Plaintiff’s remaining level of speculation. contentions do not rise above the For instance, Plaintiff says that “It is impossible to reconcile a coordinated series of events involving information provided by a confidential informant, the alleged surveillance of a residence, the apprehension of a drug courier, - 51 - the recovery of narcotics, the release of a drug courier, and the substitution of Plaintiff into the role of the person possessing the narcotics with the acts of a single cop acting independently.” (ECF No. 261 at 23.) Plaintiff does not say why he finds it impossible that Rodriguez provided Lewellen with information (as Rodriguez said he did), that Lewellen surveilled the part of the residence where he could see Plaintiff, that the officer alone intercepted Venegas, took the narcotics from her, and let her go (as she described in her deposition), and that Lewellen then told other law enforcement that Plaintiff was the person who possessed the drugs. The Court declines Plaintiff’s invitation to speculate that more than one officer must have been involved, especially when witnesses on whose testimonies Plaintiff is relying contradict his conjecture. For the above reasons, the Court grants Sanchez’s and Lewellen’s Motions for Summary on Count II of the Complaint. H. The elements Illinois law are: Malicious Prosecution Claim of a malicious prosecution claim under “(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.” Swick v. Liautaud, 169 Ill. 2D - 52 - 504, 512 (1996) (internal quotation marks omitted). “The absence of any one of these elements bars a plaintiff from pursuing the claim.” Id. 1. Malicious Prosecution Claim against Sanchez Sanchez argues that he had probable cause to arrest RuizCortez. Under Illinois law, “[b]arring any intervening events, a finding that plaintiff a is defendant also had sufficient instituting reasonable to grounds satisfy criminal the to arrest probable proceedings a cause requirement for against the plaintiff. Accordingly, in such circumstances, that finding of the equivalent of ‘probable cause’ should serve to bar an action for malicious prosecution.” Johnson v. Target Stores, Inc., 341 Ill. App. 3d 56, 80 (2003). Because the Court has found that Sanchez did not act improperly after the arrest by giving false testimony or withholding Brady “intervening event” as to Sanchez. materials, there is no It is therefore proper to focus on whether he had probable cause to arrest Ruiz-Cortez in reviewing the malicious prosecution claim against him. Police officers have probable cause to make an arrest when “in light of the facts and circumstances within their knowledge at the time of the arrest,” the officers reasonably believe “that the suspect had committed or was committing an offense.” United States v. Parra, 402 F.3d 752, 763-64 (7th Cir. 2005). Moreover, “courts evaluate probable cause not on the facts as an omniscient observer would perceive them but on the facts as they - 53 - would have appeared to a reasonable person in the position of the arresting officer – seeing what he saw, hearing what he heard.” Id. (internal quotation marks omitted). Sanchez argues he had probable cause to arrest Plaintiff because a reasonable person in his position hearing the “call outs” from a fellow police officer Cortez possessed narcotics. would believe that Ruiz- According to Sanchez, Lewellen told him that a man dressed in all white was in the back parking lot with narcotics. When he joined Lewellen the back, he saw Lewellen with a bag of what was believed to be cocaine and which he believed Lewellen had recovered from where the man dropped it. Sanchez and Lewellen went to where Lewellen indicated the man had fled; a man in all white came to the door and Lewellen put him under arrest. favorable to narrative, then If the evidence, viewed in the light most Plaintiff, Sanchez does had not reasonably probable cause to dispute this arrest. See, e.g., Reynolds v. Jamison, 488 F.3d 756, 768 (7th Cir. 2007) (allowing “law enforcement officer to effect an arrest in reliance on information supporting probable cause supplied by other officers”) (citing United States v. Hensley, 469 U.S. 221, 232-33 (1985)); Parra, 402 F.3d at 764 (adopting the doctrine that “the police who actually make the arrest need not personally know all the facts that constitute probable cause if they reasonably are acting at the direction of another officer - 54 - . . .”); and Duran v. Sirgedas, 240 F. App’x 104 (7th Cir. 2007) (“An officer may reasonably rely on information provided by other officers.”), vacated on other grounds by an opinion in the same case. The question then is whether a genuine dispute of material fact exists as to this version of events. Plaintiff says yes, but he has brought no actual evidence to support his claim. Plaintiff has evidence – in the form of his own testimony, Rodriguez’s testimony, and Venegas’s deposition – that things did not happen as Lewellen described them to Sanchez, but he has not produced any evidence that Sanchez did not hear Lewellen describe these things. Plaintiff again cites to Branum’s testimony, characterizing it as Barnum having said that both Lewellen and Sanchez “pulled up into the parking lot behind the Plaintiff’s residence, saw Plaintiff heading into the apartment after dropping narcotics, and identified Plaintiff as the person who was in the parking lot.” (ECF No. 262 at 26.) said no such things. As discussed previously, Branum See, Section III, Part E.1. Not wishing to concede that Sanchez had probable cause to arrest if his version of events is not disputed, Plaintiff hypothesizes that, “Even were Defendant’s story of surveillance true, his experience as narcotics officer, his role as Lewellen’s partner, and the precise coordination needed to run a - 55 - two-man surveillance operation call into purported ignorance of the actual events.” question Defendant’s The Court does not know what it is in Sanchez’s experience as a police officer, his role in the narcotics section, or the coordination behind a surveillance operation that would cast doubt on his testimony. If it is anything more than what the Court has already rejected (i.e., Sanchez and Lewellen’s time together in the narcotics section), Plaintiff did not say, much less support with evidence from the record. The Court thus finds that Sanchez had probable cause to arrest Plaintiff. See, Potts v. City of Lafayette, 121 F.3d 1106, 1112 (7th Cir. 1997)( stating that “if the underlying facts supporting the probable cause determination are not in dispute, the court can decide whether probable cause exists”) (internal quotation marks omitted) and Fabiano v. City of Palos Hills, 336 Ill. App. 3d 635, 642 (2002) (same). Redundantly, the Court also finds that because the evidence in the record, even when viewed in the light most favorable to Ruiz-Cortez, does not create a sufficient showing that Sanchez gave false testimony, provided false reports, or withheld Brady materials, Sanchez did not act with malice in prosecuting Plaintiff. See, Holland v. City of Chi., 643 F.3d 248, 255 (7th Cir. 2011) (noting that “because the police had probable cause in this case and because there is no alternative basis for establishing malice, [the plaintiff] can establish neither” a - 56 - lack of good faith nor malice). The Court grants Sanchez summary judgment. 2. For Malicious Prosecution Claim against Lewellen the same reasons that the Court denied Plaintiff’s summary judgment on Count I, the Court denies Plaintiff’s Motion for Summary Judgment against Lewellen on Count III as well. A reasonable jury is not required to believe Plaintiff’s evidence, consisting of his, Rodriguez’s, and Venegas’s testimonies, that events unfolded as Plaintiff claims. dispute of material fact as to There is thus a genuine whether Lewellen maliciously prosecuted Plaintiff. Lewellen brings his own Motion for Summary Judgment. He argues that several elements of a malicious prosecution claim are lacking, including termination of Plaintiff’s criminal proceeding in a manner indicative of innocence, probable cause, and damages. and the Lewellen adopts his damages argument from earlier, Court likewise repeats that for the same reasons, Lewellen’s argument is rejected. The Court further rejects Lewellen’s contention that RuizCortez’s criminal indicative (Second) of of proceeding innocence. Torts in did not Illinois defining when terminate adopts an the in a manner Restatement abandonment of proceedings is indicative of the innocence of the accused. Swick, 169 Ill. 2d at 512-13. the See, The Restatement, in turn, states - 57 - that “The abandonment of the proceedings because the accuser believes that . . . a conviction has, in the natural course of events, become termination § 660, in cmt. terminates impossible favor d in of (2nd a or the accused.” 1979). manner improbable, Thus, indicative is Restat a of a sufficient 2d of criminal Torts, proceeding innocence when it is “impossible or improbable” that a court of law will find the accused guilty. This is what happened in this case. Whether or not possessed proceeding Ruiz-Cortez narcotics, his criminal ended in a manner indicative of his legal innocence because “no reasonable fact-finder would have found the defendant guilty.” Ruiz, 99-CR-493, ECF No. 50. Lewellen’s strongest argument may be that he had probable cause to arrest Ruiz-Cortez. defeat a Sanchez, malicious there is a However, this is not sufficient to prosecution genuine claim dispute because, of material unlike fact with as to whether Lewellen fabricated evidence or withheld Brady materials after the arrest. See, Gauger v. Hendle, 352 Ill. Dec. 447, 469 (App. (“The Ct. 2011) existence of probable cause in a malicious-prosecution action is determined by looking to what the defendants knew at the time of subscribing a criminal complaint [or continued prosecution] and not at the (earlier) time of arrest.”). Plaintiff, Lewellen Viewed in the light most favorable to the “engineered plaintiff’s - 58 - prosecution” and prevented the prosecuting attorney from exercising “independent discretion to proceed with charges and the prosecution.” See, Kim v. City of Chi., 368 Ill. App. 3d 648, 660 (2006) (affirming summary judgment where the defendants did not do those things). Moreover, Lewellen may be liable for maliciously prosecuting Plaintiff even if Plaintiff had, in fact, possessed cocaine. This is because in the context of a malicious prosecution case, “[i]t is the state of mind of the person commencing the prosecution that is at issue – not the actual facts of the case or the guilt or innocence of the accused.” Id. at 574. In sum, Lewellen cannot make out that as a matter of law he had probable cause to prosecute Plaintiff. The Court therefore denies Lewellen summary judgment on Count III. I. Monell Claim against the City of Chicago A municipality like the City cannot be held liable under § 1983 unless a plaintiff establishes that his constitutional injury was caused by a municipal “policy”. Soc. Servs., 436 U.S. 658, 690-91 (1978). requirements thus underlie a Monell claim: a municipal “policy” and (2) a Monell v. Dep’t of direct Two distinct (1) the existence of causal link from policy to a plaintiff’s particular constitutional injury. the See, Bd. of the Cty. Comm’Rs of Bryant County v. Brown, 520 U.S. 397, 403-04 (1997) and Okla. City v. Tuttle, 471 U.S. 808, 829 n.3 (1985) (Brennan, J., concurring). - 59 - A municipal “policy” under Monell may come in one of three forms: “(1) an express policy that, when enforced, causes a constitutional although not deprivation; authorized by (2) a widespread written law or practice express that, municipal policy, is so permanent and well settled as to constitute a ‘custom or usage’ with the force of law; or (3) an allegation that the constitutional injury was ‘final policymaking authority.’” caused by a person with McTigue v. City of Chi., 60 F.3d 381, 382 (7th Cir. 1995). Plaintiff argues that there are two that “policies” in this liability on the City: case justify imposing Monell the CPD’s practice of paying informants who continue to commit crimes and the CPD’s failure to properly discipline its police officers. 1. Paying Informants who Engage in Illicit Activities Plaintiff and the City tussle over whether the CPD’s payments to Rodriguez constitute a municipal “policy” of paying informants even while they commit crimes. The Court is of the view out that even if Plaintiff could make a colorable a municipal “policy,” his Monell claim would still fail for lack of causation linking the policy to his injury. A plaintiff bringing a § 1983 action must establish both but-for and proximate causation in linking the challenged action to his constitutional deprivation. See, e.g., Jones, 856 F.2d at 993 (“[P]rinciples of legal causation [] are as applicable to - 60 - constitutional torts as to common law torts.”). The constitutional injury Plaintiff complains of in this case is that Lewellen framed him. The identity of the tortfeasor is important because although Plaintiff spends pages of his briefs detailing Rodriguez’s wide-ranging criminal activities, Plaintiff is not bringing this lawsuit against Rodriguez but against Lewellen, and through Lewellen by means of policy having operation of law, against the City. a City’s See, Monell, 436 U.S. at 694 (1978) (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. or Instead, it is when execution of a government’s policy custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that responsible under § 1983.”). the government as an entity is Plaintiff must thus establish the requisite nexus between the CPD’s policy of paying Rodriguez to Plaintiff being framed by Lewellen. This means that Plaintiff must show that the CPD’s payments to Rodriguez, “direct cause” Plaintiff. in spite or of “moving his criminal force” activities, behind Lewellen were the framing See, e.g., Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). At the least, this means that Plaintiff must show that but for the CPD’s payments to Rodriguez, Lewellen would not have framed Plaintiff. - 61 - This requires making a showing along the lines that had the City not paid Rodriguez as an informant, Rodriguez would not have engaged in criminal activities. In particular, he would not have engaged in criminal activities with a police officer, thereby giving that officer a reason to frame somebody so as to divert attention away from the pair’s criminal activities. Plaintiff has not brought any evidence to support this chain of causation. To the contrary, the record shows that Lewellen and Rodriguez had opportunity and motive to engage in criminal acts that had little to do with the CPD’s informant policy. Lewellen registered Rodriguez as a CI, indicating that he interacted with Rodriguez before Rodriguez ever became an informant or collected a single payment Rodriguez’s suggested from criminal by Lewellen the CPD. enterprise having Further, to and rather was Lewellen lucrative, as pay over $6 forfeiture as a result of his criminal conviction. million in That the duo would not have engaged in illicit money-making activities but for the CPD’s payments to Rodriguez is both implausible and not supported by any evidence. Put differently, Plaintiff has to show that a police officer engaging in criminal activities and framing somebody to hide those crimes must have been a consequence so “known” or “obvious” at the moment when CPD policymakers chose to institute its policy regarding informants that the CPD can be said to have - 62 - been “deliberately indifferent” to those consequences. e.g., Bryant County, 520 U.S. 397 at 407 (1997). See, That the underlying “policy” here is one governing the use of informants, and not anything to do with police officers directly, makes the consequences of police officers’ wrongdoing less than obvious. Insofar as Plaintiff addresses the issue of causation, he takes the stand that any “reference to Defendant Lewellen in this particular argument is a red herring.” Reply to City) at 2.) (ECF No. 273 (Pl.’s According to Plaintiff, “[t]he corruption of Lewellen was another consequence of the City’s practice and custom” but irrelevant to Plaintiff’s claim against the City. This is puzzling given that the underlying constitutional harm Plaintiff complains of was inflicted by Lewellen. In short, the Court agrees with the City that Plaintiff fails to show causation or deliberate indifference to the extent that he relies on the City’s practice of paying informants to make out a Monell claim. As to Plaintiff’s allegation that the CPD protected Rodriguez from criminal prosecution, it is unclear whether this is a claim that the CPD also had a “policy” of protecting lawless informants (as opposed to simply paying them) or merely brought as evidence that the CPD knew that Rodriguez was breaking the law. In either case, the evidence, even when viewed in the light most favorable to Plaintiff, does not raise - 63 - an inference that anyone at the CPD besides Lewellen protected Rodriguez. In his deposition, DEA Agent Doescher (“Doescher”) could not say that anybody else from the CPD besides Lewellen contacted him, or anybody else at the DEA, about dropping the investigation against Rodriguez. Assistant U.S. Attorney In addition, the letter from McDuffie to Doescher, even when considered despite being hearsay, only repeats back to Doescher actions that Doescher’s employer, the DEA, had taken. The two sentences from the letter that mentions the CPD read: You have indicated that the Drug Enforcement Agency (“DEA”) has determined that a target of a DEA investigation initiated in May, 1996, is a cooperating individual (“CI”) working with detectives of the Chicago Police Department, and that the DEA has, therefore, discontinued its investigation. Also, I understand that the DEA has advised the Chicago Department of the approximately 154.6 pounds of marijuana that the DEA seized on June 19, 1996, and that the Chicago Police Department has expressed no interest in obtaining those narcotics. (ECF No. 237, Ex. L.) McDuffie’s letter does not suggest that USAO had any contact with the CPD that was not filtered through the DEA. than McDuffie is thus even further removed from the CPD Doescher, anything to offer Rodriguez. impossible and When to Doescher, other than Plaintiff’s believe that a as that discussed, Lewellen expert call from does called opined a not him that police have about “it officer is or Sergeant would be sufficient to accomplish this amazing task [of - 64 - discontinuing a DEA investigation],” the opinion is by ipse dixit of the expert since he cited to no source other than “my experience and knowledge support his disbelief. of the criminal justice (Stine’s Rep. at 11.) credit such an opinion. system” to The Court cannot See, e.g., GE v. Joiner, 522 U.S. 136, 146 (1997) and Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, expertise’ 419 (7th rather Cir. than 2005) (“A analytic witness strategies who invokes widely used ‘my by specialists is not an expert . . .”). Likewise, Plaintiff has brought no evidence that the reason Rodriguez’s gun charge was nonsuited was due to interference by the CPD. Finally, Plaintiff’s charges of police wrongdoing are confined to Lewellen’s actions, e.g., Lewellen telling Rodriguez to keep dealing drugs, Lewellen promising Rodriguez protection, and Lewellen giving Rodriguez cocaine. They do not relate to any “policy” of the City as required for Monell liability. The Court grants the City summary judgment on this part of the claim and as necessary, denies Plaintiff’s summary judgment motion. 2. Failing to Discipline Police Officers The more obvious connection between the CPD and Plaintiff’s injury is that the CPD employed (arguably) framed Plaintiff. Lewellen, the officer who Thus, Plaintiff’s cleanest theory of liability is that the CPD should have prevented, stopped, or - 65 - discovered sooner Lewellen’s framing of Plaintiff. Although the City cannot be held responsible on a respondeat superior theory, Plaintiff may still be able to make out a municipal policy on the basis of the City’s failure to train, monitor, or discipline its police officers. See, e.g., Okla. City v. Tuttle, 471 U.S. 808, 812-13, 820 (1985) (alleging that a failure to “adequately supervise, train, review, and discipline the police officers constitutes deliberate indifference to the constitutional rights of the decedent”). Accordingly, a failure to discipline police officers – not anything to do with informants – is Plaintiff’s second alleged Monell policy. At the outset, the Court must agree with the City that Plaintiff muddles establish his Plaintiff’s the Monell claim. own As Motion basis far for as on which the he purports to can tell Judgment, Summary Court from his opposition briefs to City’s Motion, and his expert report, Plaintiff seems to characterize “custom” with policymaker the the with City’s lack of force of law final discipline or authority an as official over either act by discipline, a a here identified as CPD Superintendent Terry Hillard. Of because the two Plaintiff theories, has not the policymaker carried his claim burden to must fail show that Hillard was indeed the person with final policymaking authority over police discipline. Plaintiff - 66 - did not even mention Hillard’s name until his response brief to the City’s Motion for Summary Judgment. Once he did identify Hillard, the only evidentiary support Plaintiff brings to show that Hillard was the relevant policymaker is the City’s Statement of Facts. The City, however, only stated that “The Superintendent of Police is the final policymaker for policies related to the use cooperating individuals during the period 1995 to 2000.” of (ECF No. 244 ¶ 31.) Just because Hillard was the final policymaker for policies related to informants does not make him the final policymaker for policies related to discipline. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (“Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.”) (emphasis added) and Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 676 (7th Cir. 2009) (stating that the relevant inquiry is whether an official is a policymaker “in a particular area” “on a particular issue”) (internal quotation marks omitted). The City’s admission that Hillard is a policymaker in one particular area falls short of establishing that he is the relevant policy maker on a different area. Stated differently, Plaintiff has not met his burden under the law to prove that an official is the relevant policymaker. He has not pointed to any state - 67 - law establishing that the Superintendent has the responsibility regarding police discipline. for setting policies See, e.g., Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992) (directing litigants to look to state or local law to determine whether an official has “the responsibility for making law or setting policy in any given area of a local government’s business”) (quoting Praprotnik, 485 U.S. 112, 125 (1988)). St. Louis v. Neither has he established facts tending to prove that Hillard’s disciplinary decisions are unconstrained, not subject to meaningful review, or within the grant of his authority. See, Valentino, 575 F.3d at 676 (listing these as the factors that should be consulted in determining whether an official is a final decision maker in a particular area). Because with respect the to Court his rejects discipline Plaintiff’s claim, it policymaker also theory discounts any reliance Plaintiff places on the 1997 report by the Commission on Police Integrity (the “Webb Report”). To the extent that the Court is able to place the report (and similar materials) within a context relevant to Plaintiff’s Monell argument, it gathers that the report was used to establish that the CPD’s inadequate discipline was “a deliberate choice to follow a course of action [] made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” - 68 - Pembaur, 475 U.S. at 483. According to Plaintiff, the Webb Report’s “most emphatic recommendation” was for the City to implement an early warning system to detect patterns of police misconduct. (Pl.’s Resp. to City) at 10.) The City (ECF No. 260 thus had a choice between at least two alternatives, one of which was to implement such a system, and it deliberately chose to do so. However, officials without an responsible identification for of establishing the final “official policy or with respect” to discipline generally and the implementation of such systems more narrowly, the report does not help Plaintiff. The City, through its own expert opinion, also points out that many of the recommendations from the Webb Report “could not be unilaterally imposed by management and w[ere] only implemented after an arbitration opinion and award between the City and the FOP (police union).” Constraints into imposed question (ECF 244, Ex. 26 (Noble’s Rep.) ¶ 94.) by whether collective the bargaining Superintendent of agreements the CPD was call the policymaker with final authority for establishing disciplinary regulations. See, e.g., Auriemma, 957 F.2d at 401 (noting that where the Superintendent has no power to effect an action, the City cannot be faulted when he takes (or fails to take) the action). Alternatively, Plaintiff argues that the lack of discipline at the CPD was so widespread as to constitute a “custom” having - 69 - force of law. primarily from Stine’s Plaintiff’s Stine’s opinion is support expert that “there for opinion. is an this The theory bottom comes line organizational of culture within the Chicago Police Department that . . . prevented the City and the CPD from identifying and disciplining CPD members when they abuse members of the public.” 51.) (Stine’s Rep. at 50- Ultimately, “these failures emboldened individual police officers of the CPD, like Officers Lewellen, [and] Sanchez” whose “actions could only have occurred in an organization where this culture had been adopted.” Id. at 51. In coming to these conclusions, Stine relies on two primary sources: the overall rate of sustained complaints against Chicago police officers and a review of 41 complaints (called CRs) that “relate to the named officer and unit.” Id. at 17. The Court finds both insufficient to support Stine’s conclusion. First, Stine’s reliance on the overall rate of sustained complaints is unwarranted. from these numbers: Stine calculated the sustained rate “from 2001 to 2006 . . . 10,733 complaints were filed against [Chicago police officers] . . . by the public [and] 236 were sustained.” to a two percent rate. and states that the (Stine’s Rep. at 19.) This computes Stine calls this sustained rate “low” “low sustained rate” meant officers “escaped detection and/or punishment.” that Id. police This, in turn, “sent a powerful message to . . . officers like Officers - 70 - Lewellen, [and] Sanchez . . . that the police continually violate the rights of the citizens.” are free to Id. at 19-20. The Court finds Stine’s conclusion untenable for several reasons. First, the Seventh Circuit has previously rejected the contention that a particular sustained rate “must give rise to a reasonable man’s suspicions that defendant Chicago’s methods of review are weighted to discourage positive findings.” See, Strauss v. City of Chi., 760 F.2d 765, 768-69 (7th Cir. 1985). See also, Frake v. City of Chi., 210 F.3d 779, 782 (7th Cir. 2000) (“We story.”). do not think that numbers can tell the whole Second, Stine has offered no benchmark against which to compare the CPD’s 2% number and thus no basis for concluding that this number is too “low” or should be higher were the CPD properly disciplining its police officers. (In fact, a higher sustained was rate might imply that the CPD violating its citizens’ constitutional rights on a more frequent basis and hence that culture.) the CPD had a more problematic organizational Last, the 2% rate was computed using 2001-2006 data when Plaintiff’s injury arose in 1999. This misalignment of data used and conclusion drawn, without any explanation as to why these years were selected, makes even more tenuous the link required “between the facts or data the expert has worked with and the support.” conclusion the expert’s testimony is intended to United States v. Mamah, 332 F.3d 475, 478 (7th Cir. - 71 - 2003). See also, Butera v. Cottey, 285 F.3d 601, 608 n.3 (7th Cir. 2002) (finding of little value an earlier decision partly because the existed in injury). earlier 1999, decision nearly two examined years “conditions after” the as they plaintiff’s In sum, “there is simply too great an analytical gap between the data and the opinion proffered” for the Court to accept Stine’s opinion on this point. GE, 522 U.S. at 146. As for the 41 CR files, Plaintiff’s expert characterized them as “relat[ing] to the named officer and unit” but did not specify which named officers and units these were. Rep. at 17.) (Stine’s Elsewhere, the expert confusingly described the 41 files as not being a targeted review but a random sample. at 20. The City’s expert, on the other hand, disputes that the files were a random sample. 30.) Id. (ECF No. 244, Ex. 26 (Noble’s Rep.) As best as the Court can tell, Plaintiff may have done a stratified random sample to come up with the 41 CRs; that is, he narrowed the population of complaint files to those made against only certain officers (which ones?) and units (again which?), and from this narrowed universe, randomly drew complaints to come up with the 41 files he actually reviewed. However, this is all guesswork by the Court as Plaintiff has not explained his methodology to any satisfactory level of detail. Plaintiff also has not explained how he came to the conclusion that 41 files are a sufficient number to reach a reliable conclusion about the - 72 - CPD’s disciplinary practices. Absent any such explanation, the Court is not convinced that Stine’s “methodology underlying the testimony is scientifically valid” and thus cannot allow his opinion to be the key to get Plaintiff through the gate to trial. See, Daubert v. Merrell Dow Pharms., 509 U.S. 579, 591- 93 (1993). The City’s Motion for Summary Judgment is granted. Plaintiff’s, by necessity, is denied. IV. CONCLUSION For the reasons stated herein, the Court rules as follows: 1. Sanchez’s Motion for Summary Judgment is granted; 2. Lewellen’s Motion for Summary Judgment is denied with respect to Count I and Count III and granted with respect to Count II; 3. The City of Chicago’s Motion for Summary Judgment is granted; and 4. Plaintiff’s Motion for Partial Summary Judgment against Lewellen and the City of Chicago is denied. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: October 26, 2016 - 73 -
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