Chambers v. DeBois et al, No. 1:2017cv07452 - Document 55 (N.D. Ill. 2018)
Court Description: Memorandum opinion and order. For the reasons stated in the attached memorandum opinion and order, 1. The Motion to Dismiss Count I is denied; 2. The Motions to dismiss Count II are granted; 3. The Motions to Dismiss Count III are granted with out prejudice; 4. The Motion to Dismiss Count IV is denied;5. The Motions to Dismiss Count V is denied as to Defendant Debois but granted as to Defendants Webb and Crawford. 6. The Motions to Dismiss Count VI is denied as to Defendant Debois but gr anted as to Defendants Webb and Crawford. 7. The Motions to Dismiss of Count VII of Defendants Webb and Crawford are granted but denied as to Defendant Debois. 8. The Motion to Dismiss Count VIII is denied. 9. The Motions to Strike and for a More Definite Statement are denied. Enter memorandum opinion and order. Status hearing set for 7/26/18 at 9:00 a.m. Signed by the Honorable Harry D. Leinenweber on 7/11/2018: Mailed notice (maf)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION TERRILL CHAMBERS, Plaintiff, v. TONY DEBOIS, in his individual capacity; DAVID WEBB, JR., in his individual Capacity; PASCAL CRAWFORD, in his individual capacity; as-of-yet unknown officers and employees of the City of Markham, in their individual Capacities; and THE CITY OF MARKHAM, a municipality, Case No. 17 C 7452 Judge Harry D. Leinenweber Defendants. MEMORANDUM OPINION AND ORDER The Plaintiff has brought an eight-count Amended Complaint against Defendant Tony Debois (“Debois”), a former City of Markham police officer; Defendant David Webb, Jr. (“Webb”), the Mayor of Markham; Defendant Pascal Crawford (“Crawford”), former Chief of Police of Markham; and the City of Markham, itself, seeking money damages pursuant to Section 1983. against process; all Defendants Count subornation of II is perjury; based on against Count III Count I is alleged violation Defendant Debois, is against all of due alleging Defendants based an alleged conspiracy to violate § 1983; Count IV is a Monell claim against the City of Markham; Count V is against all Defendants and alleges a state claim of malicious prosecution; Count VI is against all Defendants and alleges a state claim of abuse of alleges process; a claim Count for VII is against intentional all Defendants infliction of and emotional distress; and Count VIII is against Markham for indemnification. The incident April 18, Copeland 2007 and marijuana. that in gave rise Lindsey, robbed this case Illinois Markham, to when two a man of on individuals, dollars and some A short time later the two robbers were detained and searched by Walker. Copeland was jailed overnight. showed ten occurred Defendant Copeland a Plaintiff’s house. Debois picture and of another Markham policeman, In the morning, Debois Plaintiff and took him to He then drove Copeland to the Markham Court House and had him sign a complaint for the issuance of a search warrant for Plaintiff’s house. Debois threatened Copeland with jail if he refused to cooperate in the issuance of the search warrant. The next day, Debois presented the application to a state court judge who issued the search warrant based on the application of Debois and a “confidential source,” John Doe (Copeland). The application was based on the affidavits of Debois and John Doe (Copeland). Debois, - 2 - in his affidavit, committed numerous fabrications, including that Copeland was well acquainted with Plaintiff and had purchased drugs from him; knew that he kept cannabis and firearms in his home; had gone to Plaintiff’s house the day before and purchased a large quantity of cannabis from him and was shown a gun he had hidden under a cushion on a couch; had signed Plaintiff’s station; and Debois vouched for him. false: from mug shot at the All of the above was Copeland had never met Plaintiff, never bought drugs him, Debois had not conducted any investigation of Plaintiff prior to the application, and Copeland had not worked for him. As a result of the application, a search warrant was issued for Plaintiff’s kilogram of automobiles, (including house Cocaine, nine a mink ATVs which resulted numerous and coat) weapons, dirt and in bikes, numerous the recovery cash, jewelry, of a two televisions, clothing bottles alcohol. of Certain of the items were retained by Debois and other Markham employees for their personal use. After the search, Plaintiff was indicted on four counts of armed violence and one count of possession with intent to deliver 900 grams of cocaine. Prior to trial, Plaintiff filed three motions for a Franks hearing (Franks v. Delaware, 438 U.S. 154 (1978)), supported by affidavits from family members attesting that he was with them - 3 - at the time of the alleged sale to Copeland, an affidavit of Copeland that application Plaintiff or Debois had fabricated the search warrant, for purchased drugs from his that him, coerced him to lie on the application. testimony he and in the never met Debois had had that The state court denied the motions for a Franks hearing and Plaintiff went to trial on October 11, 2011. Debois testified at his trial recovered the cocaine and weapons during the search. that he He did not disclose that he committed perjury when he filed the application for the search warrant. Plaintiff was subsequently convicted and received a 25-year sentence on the armed violence charge and 45 years on the drug charge to be served consecutively. Plaintiff appealed to the Illinois Appellate Court who held that the trial court should have conducted a Franks hearing and remanded the case to allow the trial court to conduct the hearing and to determine whether the search warrant was properly issued. People v. Chambers, 12 N.E.3d 772, 773 (Ill. App. Ct. 2014), aff'd, 47 N.E.3d 545 (Ill. 2016). The state sought leave to appeal to the Supreme Court which was granted and which led to an affirmance hearing. of the Appellate Court order of a Franks After remand, the State dismissed all charges against Plaintiff and he was released from custody on October 21, 2016, after serving almost five years of his sentence. - 4 - Further matters came to light after remand: first, Debois sexually assaulted a female detainee on September 23, 2010 after offering her freedom in return for sex. The FBI subsequently investigated the sexual misconduct during which Debois lied for which he was prosecuted and convicted in federal court and received a five-year sentence. From 1997 to 2007, Debois worked for the Harvey, Illinois Police Department. During his employment, numerous complaints of misconduct were lodged against him and he was named in multiple lawsuits alleging constitutional violations stemming from his misconduct. Debois joined the Markham Police Department in 2007 and served there until he was fired in 2012. From 2004 until 2012 he was named in 13 lawsuits alleging misconduct and civil rights violations. He was hired by Markham at the direction of Mayor Webb and Chief Crawford. Even though they were aware of his history of misconduct he rose rapidly from patrol officer to Deputy Chief of Police. Mayor Webb himself was subsequently indicted and convicted of honest services fraud and filing false tax returns. The Complaint further alleges that the City of Markham “maintains a de facto policy, practice, and custom of failing to properly hire, screen, train, supervise, discipline, and control its officers” and “a de facto policy of concealing officer misconduct.” - 5 - The Plaintiff’s eight-count Complaint is based on the alleged misconduct of Debois, who is charged with fabricating evidence in order to railroad Plaintiff into prison as alleged in Count Crawford I. is Plaintiff’s based on case their against alleged Mayor Webb and participation Chief in the Section 1983 conspiracy count since Plaintiff admits that they did not personally participate in fabricating evidence. The main the thrust of the case against Defendants is based on alleged violation of due process that is the basis for Count I. II. A. Debois DISCUSSION Count I – Qualified Immunity concedes that under current Seventh Circuit case law, Plaintiff makes out a case that his due process rights were violated. However Debois contends that he is entitled to qualified immunity because this tort was not clearly established at the time of the evidence fabrication. The issue gets mixed up because a claim of malicious prosecution was, until recently, considered to be only a state law rather than federal law claim because it was considered to be based on a violation of due process. prosecution Since it Illinois provided has all of a state the tort process of that Plaintiff recognized this in his Amended Complaint. malicious was due. He dropped the Count that sought to plead a federal claim of malicious - 6 - prosecution. However Plaintiff has replaced this pleading with a count that seeks damages for violation of the due process clause similar to a Brady violation claim. The Seventh Circuit in Newsome v. McCabe, 256 F.3d 747, 750-53 (7th Cir. 2001), abrogated by Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017), made an exhaustive study of the rights possessed by an unjustly imprisoned individual who claims that the police rather than the prosecution, prosecution. were complicit in the wrongful The court concluded, based on the Supreme Court case of Albright v. Oliver, 510 U.S. 266 (1994), a fractured decision relying on Parratt v. Taylor, 451 U.S. 527 (1981), overruled by Daniels v. Williams, 474 U.S. 327 (1986), that such claims were limited to procedural due process and since the state supplied a damage remedy, this was all the process that was due. However the Seventh Circuit stated that the plaintiff there had a due process claim because he did not receive a fair trial because the prosecutors withheld exculpatory citing Brady v. Maryland, 373 U.S. 83 (1963). material, The court went on to hold that, even in the situation where the prosecutor is in the dark as to the exculpatory material withheld, there still is “a constitutional tort” which the court had acknowledged Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988). in If Newsome (the plaintiff) could establish such a violation then he - 7 - would state a claim against the erring police officers and, based on the 13-year-old Jones decision, the police were not entitled to qualified immunity. decided four years prior to For the reason that Newsome was Plaintiff’s trial, which, like Jones, was based on perjured and fabricated evidence, Debois’ Motion for Dismissal based on qualified immunity is denied as to Count I. B. Count II – Debois Perjury In Count II, Plaintiff seeks to present a cause of action based on through Debois’ the perjury alleged and conspiracy brought which against is all pled Defendants in Count IV. Defendants argue that this is not an independent constitutional tort. The only case Plaintiff cites is a Southern District of Florida District Court case, Heller v. Plave, 743 F. Supp. 1553, 1558 (S.D. Fla. 1990). However Heller was a Bivens case and provides for a remedy for violations of the plaintiff’s due process rights by the IRS rather than the subject. Count I. of which perjury was a component Thus this count is duplicative of Therefore Count II is dismissed with prejudice. C. Count III – Section 1983 Conspiracy Count III is against all Defendants and pleads a claim of conspiracy to violate Section 1983. The Defendants moved to dismiss must arguing, first, that there - 8 - be an underlying constitutional claim; particularity. and, Since second, the Court it has lacks found sufficient an underlying constitutional violation pled in Count I, the first ground is denied. A plaintiff, in order to allege a Section 1983 conspiracy claim, must set forth the members of the conspiracy, the general conspiracy, purpose and that of the the conspiracy, members of the the dates conspiracy of the directed themselves toward an unconstitutional action by virtue of some mutual understanding. Kunik v. Racine Cty., Wis., 946 F.2d 1574, 1580 (7th Cir. 1991), abrogated by Walker v. Thompson, 288 F.3d 1005, 1008 (7th Cir. 2002). is that Defendants his constitutional are conspicuously bad absent All Plaintiff has alleged here rights persons who is factual any were did violated, and acts. What bad allegations as how the is the respective Defendants participated in the denial of Plaintiff’s constitutional rights. Count III is dismissed without prejudice. D. Count IV – Monell Claim Count IV is against the City of Markham and alleges a claim under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). The case distinguishes between individual acts of municipal employees and those that can rightly be said to result from the existence of a municipal policy. - 9 - A Monell violation has three elements: first, unconstitutional conduct committed by a municipal employee; second, the conduct must be a result of conduct municipal caused policy; plaintiff’s and third, injury. In the unconstitutional this case, Plaintiff alleges that the municipal policy that caused his injury was the ratification of the misconduct alleged in his Complaint as official policy and failure adequately to screen applicants for employment as police officers, failure to investigate officer misconduct, and failure to discipline, train, or officers when it became aware of their misconduct. retrain These de facto policies resulted in the hiring and retention of Debois which caused Plaintiff to be denied a fair trial. Count IV alleges that the City of Markham hired Debois in spite of a long record at his previous employer of misconduct that resulted in a multitude of lawsuits alleging constitutional violations stemming from his conduct; and that Markham retained him despite Markham. Deputy a long record of misconduct while employed at In spite of this he was promoted to the position of Chief of Police. As further demonstration of this policy, the department hired the Mayor’s son who soon was caught stealing money and the mayor himself was convicted of honest services wire fraud and tax evasion. that this is a “splatter paint” - 10 - While Markham complains case similar to what was rejected in McCauley v. Chicago, 671 F.3d 611, 616 (7th Cir. 2011), McCauley was an “equal protection” claim rather than a due process claim. It appears to the Court that the Amended Complaint contains sufficient allegations of improper hiring to survive a Motion to Dismiss. summary judgment stage. The issue can be revisited at the The Motion to Dismiss Count IV is denied. E. Count V - State Malicious Prosecution Although Debois has moved to dismiss the state malicious prosecution claim, he relies solely on the briefs of Webb and Crawford. is the However, the basis for dismissal of Webb and Crawford absence of any allegations that either of them had anything to do with the prosecution of Plaintiff or of any of the procedures leading up to his arrest and prosecution. Complaint involvement is by well short either Webb of or any specific Crawford other The allegations than a assertion that Defendants benefited by the prosecution. of vague The Motion to Dismiss is denied as to Debois but granted as to Webb and Crawford. F. Count VI – Abuse of Process The arguments are the same for Count VI: that Defendants Webb and Crawford had any involvement in the arrest and seizure. Again the only allegations are that Defendants and the City of - 11 - Markham benefited by the seizure. This not enough to supply the “involvement” requirement of this tort. Dismiss is denied as to Debois but Therefore the Motion to granted as to Webb and Crawford. G. Debois Count VII - Intentional Infliction of Emotional Distress does not move obvious why he cannot. to dismiss this Count and it The requirements of this tort are: is (1) extreme and outrageous conduct; (2) intention to inflict severe emotional distress; and (3) the conduct did emotional distress. (Ill. 1994). in fact inflict Doe v. Calumet City, 641 N.E.2d 498, 506 To railroad an individual to prison is extreme and outrageous, and would undoubtedly inflict emotional distress. However, again with respect to Webb and Crawford, the failure to allege any personal involvement in the distressful conduct dooms Count VII as to them. Therefore the Motion of Webb and Crawford to dismiss Count VII is granted. H. Count VIII - Indemnification Defendant City of Markham moves to dismiss this Count in the event none of the counts against the individual Defendants survive. against As we have seen, several of the Counts have survived Debois, so the Motion to denied. - 12 - Dismiss to that extent is I. Motion to Strike and for More Definite Statement Defendants contend that the form of the First Amended Complaint is unwieldy and fails to allege personal involvement of the Defendants with any degree of specificity. disagrees and denies both Motions. facts sufficiently Plaintiff’s Motions. claims to place and to the allow The Court The Complaint sets forth the Defendants them to on file notice of appropriate The Motions are denied. III. CONCLUSION For the reasons stated herein, the Court rules as follows: 1. The Motion to Dismiss Count I is denied; 2. The Motions to dismiss Count II are granted; 3. The Motions to Dismiss Count III are granted without prejudice; 4. The Motion to Dismiss Count IV is denied; 5. The Motions to Dismiss Count V is denied as to Defendant Debois but granted as to Defendants Webb and Crawford. 6. The Motions to Dismiss Count VI is denied as to Defendant Debois but granted as to Defendants Webb and Crawford. 7. The Motions to Dismiss of Count VII of Defendants Webb and Crawford are granted but denied as to Defendant Debois. 8. The Motion to Dismiss Count VIII is denied. - 13 - 9. The Motions to Strike and for a More Definite Statement are denied. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: 7/11/2018 - 14 -
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