Golbert v. Roberts

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CARL CHATMAN, )

)

Plaintiff, )

)

v. ) 14 C 2945

)

CITY OF CHICAGO, Chicago Police Detectives ) Judge John Z. Lee

JOHN ROBERTS, THOMAS MCGREAL, )

MARIA PENA, JACK BOOCK, RITA MISCHKA, )

BARBARA MIDONA, AND KRISTON KATO, )

Chicago Police Sergeants DENNIS WALSH and )

BRYAN HOLY, Chicago Police Officers MICHAEL )

KARCZEWSKI and RICHARD GRIFFIN, )

Cook County Sheriff’s Deputies MICHAEL )

COKELEY and BURROUGH CARTRETTE, )

Sheriff’s Deputy Sergeant MARIA MOKSTAD, )

Assistant State’s Attorney BRIAN HOLMES, )

UNKNOWN CHICAGO POLICE OFFICERS, )

UNKNOWN COOK COUNTY SHERIFF’S )

DEPUTIES, THE COUNTY OF COOK, )

THOMAS DART, in his official capacity as Sheriff )

of Cook County, ANITA ALVAREZ, in her official )

capacity as Cook County State’s Attorney, )

SUSAN RIGGIO, KAREN WOJTCZAK, former )

Office of Professional Standards Investigator, )

MILLICENT WILLIS, former Acting Chief )

Administrator of the Office of Professional Standards, )

and LORI LIGHTFOOT and TISA MORRIS, former )

Chief Administrators of the Office of Professional )

Standards, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

After spending over a decade in prison for sexual assault, Plaintiff Carl Chatman was

declared innocent, and his conviction was vacated. Based on his false conviction, Chatman has

sued the individuals and entities he believes violated his rights under the Fourth, Fifth, and

Fourteenth Amendments to the United States Constitution, as well as federal and state laws. He

alleges that certain Defendants coerced and fabricated his confession, manufactured evidence,

failed to disclose exculpatory evidence, conspired to deprive him of his constitutional rights,

failed to intervene to prevent the deprivation of his constitutional rights, maliciously prosecuted

him, and intentionally inflicted on him emotional distress.

Defendants generally fall within four categories: “the Sheriff Defendants,” “the Officer

Defendants,” “the State’s Attorney’s Office (SAO) Defendants,” and “the Office of Professional

Standards (OPS) Defendants.”1 The Officer Defendants properly titled their motion as one for

partial summary judgment.2 Each other category of Defendants has titled their motion as one for

summary judgment. But because every motion omits one or more counts, the Court construes

each as a motion for partial summary judgment.3 For the reasons provided below, each of the

motions is granted in part and denied in part.

1 “The Sheriff Defendants” include Cook County Sheriff’s Deputies Michael Cokeley and

Burrough Cartrette, Cook County Sheriff’s Deputy Sergeant Maria Mokstad, the County of Cook, and

Thomas Dart in his official capacity as Sheriff of Cook County. “The Officer Defendants” are Chicago

Police Detectives John Roberts, Thomas McGreal, Maria Pena, Jack Boock, Rita Mischka, Barbara

Midona, and Kriston Kato; Chicago Police Sergeants Dennis Walsh and Bryan Holy; Chicago Police

Officers Michael Karczewski and Richard Griffin, and the City of Chicago. “The SAO Defendants”

include Assistant State’s Attorney Brian Holmes and Anita Alvarez in her official capacity as Cook

County State’s Attorney. “The OPS Defendants” are Karen Wojtczak, Office of Professional Standards

(OPS) Investigator, Millicent Willis, Former Acting Chief Administrator of OPS, and Lori Lightfoot and

Tisa Morris, former Chief Administrators of OPS. Although Chatman has also sued Susan Riggio, her

unopposed motion for partial summary judgment has been granted by the Court, and only Count VIII

(Malicious Prosecution–State Law) remains for trial as to her. See 2/14/18 Minute Entry, ECF No. 525.

2 The Officer Defendants’ motion is properly titled because it omits Count I (Coerced

Confession/Fabricated Evidence–5th Am.), Count II (Coerced Confession/Fabricated Evidence–14th

Am.), Count III (Detention–Fourth Am., reinstated on 2/14/18), Count IV (Exculpatory Evidence based

on 24-Hour Surveillance Tape & Coerced Confession/Fabricated Evidence–14th Am.), Count V

(Exculpatory Evidence based on 24-Hour Surveillance Tape & Coerced Confession/Fabricated Evidence–

Conspiracy), Count VI (Failure to Intervene as to all underlying counts), Count VII (Supervisory

Liability, as to unaddressed counts), Count VIII (Malicious Prosecution–State Law), Count IX

(Intentional Infliction of Emotional Distress–State Law), and Count X (Conspiracy–State Law, as to

unaddressed counts).

3 For example, the Sheriff Defendants’ motion omits Counts III and VIII. However, after the

motion was fully briefed, Plaintiff and the Sheriff Defendants stipulated that only Counts IV, V, X, XII,

and XIII remain, subject to their summary judgment motion. See Stipulation of Dismissal, ECF No. 526.

Factual Background4

I. The Incident

On Friday, May 24, 2002, Susan Riggio arrived to work between 6:45 and 7:00 a.m. at

the Circuit Court of Cook County in the Daley Center. Pl.’s Ex. 31, Riggio Dep. (Riggio Dep.)

at 128:19–21. It was the Friday before Memorial Day weekend, and the judge for whom she

worked was out of town, and her co-worker, Jeannette Neibauer, typically arrived at 7:30 a.m.

Def. Officers’ Ex. 6, Midona Dep. (Midona Dep.) at 182:19–20; Def. Officers’ Ex. 19, Neibauer

Dep. (Neibauer Dep.) at 16:21–17:1, 33:12–16.

Riggio claims that at 7:20 a.m., while she was alone in her office in room number 2101, a

man attacked her, beat her head against a table, and sexually assaulted her. Riggio Dep. at

158:8–181:23. According to Riggio, with the door to her office open, she screamed loudly for

help at least three times during the attack and picked up a chair and hit the assailant with it.

Riggio Dep. at 168:14–169:7, 173:16–21; Pl.’s LR 56.1(b)(3)(B) Stmt. (Sheriff Defs.) ¶ 15.

II. The “Sleeping Deputy”

When Neibauer arrived for work, she saw Riggio lying on her desk and heard Riggio

crying and mumbling. Def. Officers’ Ex. 19, Neibauer Dep. at 40:2–24. Neibauer then walked

down the hall to co-worker Pearl Bryant’s office to alert her that something had happened.

Neibauer Dep. at 40:3–11, 41:22–42:7; Pl.’s Ex. 5, Floor Diagram. On the way to Bryant’s

office, Neibauer saw a sheriff’s deputy asleep with his feet on a desk in a room located nearby,

The SAO Defendants’ motion omits Counts III, IV (Exculpatory Evidence based on 24-Hour Surveillance

Tape), and VIII, and the OPS Defendants’ motion omits Count VIII. See generally Defs.’ Mems. Law

Supp. Mots. Summ. J., ECF Nos. 459, 462, 465, 479 (failing to address these counts or a portion of the

counts).

4 Unless noted otherwise, these facts are undisputed and viewed in the light most favorable to

Chatman, the party opposing summary judgment. See Baptist v. Ford Motor Co., 827 F.3d 599, 599 (7th

Cir. 2016).

which she thought was odd. Neibauer Dep. at 40:3–11, 41:22–42:7; Pl.’s Ex. 5, Floor Diagram.

When Neibauer reached Bryant’s office, Neibauer told Bryant that something had happened to

Riggio and asked Bryant to come with her. Def. Officers’ Ex. 21, Bryant Dep. (Bryant Dep.) at

63:8–14. When they entered Riggio’s office, Bryant saw that Riggio was still lying on the desk,

and Bryant told Neibauer to call the Sheriff’s department to send someone to the 21st floor.

Bryant Dep. at 63:23–64:18; Neibauer Dep. at 43:1–10.

Cook County Sheriff’s Deputy Michael Cokeley and Cook County Sheriff’s Deputy

Sergeant Maria Mokstad responded to the call and took the judges’ elevator to a non-public

hallway on the 21st floor. Def. Officers’ Ex. 16, Mokstad Dep. (Mokstad Dep.) at 33:16–22,

37:16–38:4. As Mokstad walked down the hallway, the first person she saw was Cook County

Sheriff’s Deputy Michael Copeland (who is not a defendant) in room 2103A, which is located

near Riggio’s office. Id. at 39:12–40:20. Mokstad called via internal radio for Cook County

Sheriff’s Deputy Lieutenant Burrough Cartrette to come to the 21st floor. See Officers Defs.’

Ex. 17, 12/17/14 Cartrette Dep. (Cartrette Dep.) at 132:11–23. Cartrette arrived shortly

thereafter, and, according to Cartrette, Mokstad told him at that time that she had seen Copeland

sleeping in 2103A. See Cartrette Dep. at 88:1–88:5; 133:14; Pl.’s Ex. 5 (21st Floor Diagram);

Sheriff Defs.’ Ex. 29, Copeland Disciplinary Report at Plaintiff 005144. Mokstad, however,

denies that she saw Copeland sleeping or that she told Cartrette she had seen Copeland sleeping.

Mokstad Dep. at 64:6–65:1. Prior to being sued in the instant case, Cokely was not aware that

Copeland was on the 21st floor that morning. Sheriff Defs.’ LR 56.1(a)(3) Stmt. ¶ 55.

Cokely, Mokstad, and Cartrette then interviewed Riggio and others and asked Riggio for

a description of the assailant, whom she briefly described as a black male wearing a red

Blackhawks jacket. Id. ¶ 30. Riggio stated that she recognized her assailant because she,

Neibauer, and co-worker Virginia Cernick had briefly interacted with him on a previous occasion

at the Daley Center when he was looking for a psychiatrist and the Social Security

Administration office. See Def.’s LR 56.1(a)(3) Stmt. ¶¶ 15–16; Officer Defs.’ Ex. 20, Cernick

Dep. at 27:22–30:18; id. Ex. 19, Neibauer Dep. at 24:7–25:5. The man had been wearing a

Blackhawks jacket at the time. Sheriff Defs.’ LR 56.1(a)(3) Stmt. ¶ 14.

Cartrette then called Sheriff’s Deputy Sergeant Rodriguez (also not a defendant here),

gave him the description of the suspect, and instructed him to initiate a search of the building in

case the suspect was still inside. Id. ¶ 33. Meanwhile, Cokely searched the 21st floor. Id. ¶ 37.

The Sheriff’s deputies guarded the 21st floor until CPD officers arrived at the scene. Id. ¶ 38.

CPD Sergeant Bryan Holy then arrived, along with CPD detectives. Id. ¶ 39. Holy was

responsible for assigning detectives to the investigation, and he remained at the crime scene

while detectives conducted interviews of potential witnesses and lab technicians processed the

scene for evidence. Id.

After the CPD detectives arrived, Neibauer stated, and Defendants dispute, that she told

Detective Maria Pena that she had seen Copeland sleeping on her way to Bryant’s office to get

help. Compare Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 34, and Neibauer Dep. at 49:3–49:7; 120:3–120:9,

with Defs.’ Joint Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 34, and Officer Defs.’ Ex. 3, Pena Dep.

(Pena Dep.) at 98:2–6, 10–12. It is further disputed whether Charles Roe, Daley Center’s

Director of Security, told Pena that a custodian had also seen the deputy sleeping in the area near

where the incident allegedly occurred. Pl.’s Ex. 15, Roe Dep. (Roe Dep.) at 137:19–138:13.

When the disputed facts are viewed in Chatman’s favor, it appears that Pena was informed of the

nearby sleeping deputy by Neibauer and Roe, but Pena neither interviewed Copeland nor

included the information in her General Progress Report (“GPR”). Def. Officers’ Ex. 27, Pena’s

GPR at 9. Pena admits that if she had been told that there was a deputy who had been sleeping

near the crime scene, she would have wanted to know the information that person had because it

might have been pertinent to the investigation. Defs.’ Joint Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶

28.

In addition, Cartrette says that he interviewed Copeland to confirm that he had been

sleeping nearby and then shared the information with Detective Thomas McGreal. Cartrette

Dep. at 86:20–90:13; id. Ex. 2, McGreal Dep. (McGreal Dep.) at 154:12–158:17, 159. But when

Cartrette and Mokstad went to the police station to provide their official statements over the

course of several hours regarding their knowledge of the events on May 24, neither mentioned

the sleeping deputy. Cartrette Dep. at 115:5–24; Mokstad Dep. at 64:19–21. Mokstad denies

ever telling anyone about the sleeping deputy, and Cartrette later denied that he had any

knowledge of the sleeping deputy. Mokstad Dep. at 64:19–21; Pl.’s Ex. 61, 1/31/07 Cartrette

Dep. at 105:15–23, 107:5–7; see Cartrette Dep at 27:2–15. McGreal never told anyone about the

sleeping deputy and did not include this fact in his police reports. See McGreal Dep. at 156:10–

13; Officer Defs.’ Ex. 31, Case Supplemental Report at 8.

III. 24-Hour Surveillance Video from Exterior Cameras at Daley Center

On the day of the incident, Detective Susan Barrett (a non-defendant) was assigned to

review the Daley Center’s exterior surveillance videos. Pl.’s Ex. 58, Barrett Dep. (Barrett Dep.)

at 32:1–5. She was assisted by Daley Center’s Director of Security Roe. Id. at 59:5–13.

The Daley Center had been closed to the public before 8:00 a.m. Pl.’s LR 56.1(b)(3)(C)

Stmt. ¶ 7. During that time, attorneys, court employees, and building workers could enter the

building only if they had sheriff- or building-issued identification. Id. Even then, they could

enter or exit only through two of the four doors on the first floor, which were guarded by a

sheriff’s deputy between 7:00 and 8:00 a.m. Id.

Barrett spent a few hours reviewing digital video images captured by four surveillance

cameras from 6:30 to 8:20 a.m., including one fixed to the southwest corner of the building, to

see if she could see a black male wearing a Blackhawks jacket. Id. ¶ 10; Barrett Dep. at 31:21–

23, 32:1–13, 59:5–13. Detective Barrett did not see anyone matching the suspect’s description in

the videos. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 10; Barrett Dep. at 32:15–18. Roe agreed to make a

copy of the surveillance camera images for the previous 24 hours for the detectives working on

the case. See Defs.’ Joint Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 83. Barrett then walked up to

Sergeant Holy at the Daley Center, told him that the surveillance videos did not capture an

individual matching the description, and handed him her GPR that stated Roe would make a

copy of the surveillance video. Id. ¶ 84; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 11.

Lieutenant Dennis Walsh, who supervised the investigation, stated that it was the

responsibility of the detectives who worked on the case to obtain the video from Roe. Id. ¶ 87.

The detectives who worked on the case were John Roberts, Thomas McGreal, Maria Pena, Jack

Boock, Rita Mischka, and Barbara Midona. Officer Defs.’ LR 56.1(a)(3) Stmt. ¶ 3. Lieutenant

Walsh also states that it was his responsibility, as well as that of Sergeant Bryan Holy, as

supervisors, to ensure that the video was obtained from Roe. Defs.’ Joint Resp. Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 87. There is no evidence that any detective or supervisor ever obtained the

video from Roe. Id. ¶ 85.

IV. Chatman’s Arrest and Detention

Based on interviews with Riggio about her alleged assailant, the CPD transmitted a

message via radio to patrol officers that there had been a sexual assault at the Daley Center.

Officer Defs.’ LR 56.1(a)(3) Stmt. ¶ 21. The message described the suspect as a 5’7” tall, 200-

pound, 50 year-old, black male with salt-and-pepper hair, wearing a Blackhawks jacket, hat, and

silver belt buckle. Id.; Pl.’s Ex. 44, Crim. Trial Tr. at Plaintiff 10186. Due to heightened media

attention, it was considered a high-profile, high-pressure “heater” case. See Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 41; see also Officer Defs.’ Ex. 10, Karczewski Dep. at 74:3; id. Ex. 12,

Griffin Dep. (Griffin Dep.) at 54:15–55:9; id. Ex. 4, Boock Dep. (Boock Dep.) at 201:22–202:9;

Pl.’s Ex. 23, Mischka Dep. at 85:18–24; id. Ex. 62 Kato Dep. at 104:7–21.

The Officer Defendants assert that Officer Richard Griffin saw a man matching the

description walking southbound on Clark Street in downtown Chicago. Officer Defs.’ LR

56.1(a)(3) Stmt. ¶ 22. That man was Chatman. Id. ¶ 28. Chatman is 6’2”, was not wearing a

silver belt buckle, and was not wearing a hat, despite the fact that it was raining. See Pl.’s LR

56.1(b)(3)(B) Stmt. (Officer Defs.) ¶ 22; see Griffin Dep. at 88:5–6. Furthermore, it is

undisputed that Chatman had been diagnosed with bi-polar disorder and schizophrenia and had

had a long and well-documented history of experiencing symptoms of schizophrenia since 1981.

Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 37. Additionally, Chatman was assessed in 2003 as having an IQ

of 68, which meant that his overall intellectual functioning was equal to or better than only two

percent of individuals his age. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 37.

When Officer Griffin stopped Chatman, Officer Michael Karczewski approached them.

Officer Defs.’ LR 56.1(a)(3) Stmt. ¶ 24. It is disputed whether Chatman appeared incoherent,

confused, and delusional when the officers encountered him. Id. ¶¶ 25–27, 31–33. The officers

claim that Chatman told them that he was coming from the Daley Center, but this is hotly

contested. See id. ¶ 22.

The officers proceeded to arrest Chatman at 8:34 a.m. at 151 West Van Buren. Id. ¶ 28.

They brought him to the police station at Harrison and Kedzie, handcuffed him to an iron ring on

the wall of an interview room, and asked him basic questions about himself. Id. ¶¶ 30, 33; Pl.’s

LR 56.1(b)(3)(C) Stmt. ¶ 43. Whenever he was in an interview room, Chatman was handcuffed

to the ring, and he could not lie down because the ring was too high on the wall. Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 44.

Detectives Jack Boock and Rita Mischka interrogated Chatman for two hours in the room

shortly thereafter. Boock Dep. at 96; OPS Defs.’ Ex. 14, Fraction Dep. at 52:18–20. In addition,

after identification lineups,5 they interrogated him a second time for about an hour. Officer

Defs.’ LR 56.1(a)(3) Stmt. ¶ 49; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 43. Although he requested a

lawyer, a phone call to his mother, and his medication, his requests were denied. Pl.’s LR

56.1(b)(3)(C) Stmt. ¶¶ 50–51.

At around noon, Assistant State’s Attorney (“ASA”) Brian Holmes, who had been

assigned to the case for felony review, arrived at the Harrison and Kedzie police station, spoke to

Detectives Pena, Mischka, and Barbara Midona for a rundown, and read any GPRs that were

relevant and available. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶ 46; Holmes Dep. at 148:6–

10, 148:24–149:12. Holmes also spoke to ASA Tracey Gleason, who shared information from

her interview of Riggio, including that Riggio had claimed that she had been sexually assaulted

in an office building on a previous occasion. Holmes Dep. at 163:17–20. Holmes then obtained

statements from the civilian witnesses, including Neibauer, Bryant, and Cernick, as well as the

5 Riggio positively identified Chatman as the assailant, Cernick identified him as the person she

had seen on the prior occasion, and Neibauer could not positively identify him as the same person.

Officer Defs.’ LR 56.1(a)(3) Stmt. ¶ 49; Officer Defs.’ Ex. 20, Cernick Dep. at 57:22–24; id. Ex. 19,

Neibauer Dep. at 48:10–12.

sheriff witnesses, including Mokstad, Cokely, and Cartrette. Id. at 176:7–16; 188:23–189:17,

252:3–10; Cartrette Dep. at 108:23–109:9.

After he completed the interviews, Holmes, along with Boock and Mischka, interrogated

Chatman in the interview room. Boock Dep. at 96:1–4. It is disputed whether Chatman

appeared incoherent, confused, and delusional during the interview and whether his ability to

function was severely impacted by a significant mental health disorder and cognitive

deficiencies. Pl.’s LR 56.1(b)(3)(B) Stmt. (Officer Defs.) ¶¶ 25, 50–51, 60–61. To the contrary,

each Officer Defendant who had prolonged interactions with Chatman attests that each was

unaware that Chatman suffered from any psychological issues or cognitive deficiencies. That

said, it took less than 10 minutes for intake staff member at Cook County Jail to determine that

Chatman should be admitted for an indefinite period into the Mental Health Acute Care Unit,

which served only one half of one percent of the jail population. Pl.’s LR 56.1(b)(3)(B) Stmt.

(Officer Defs.) ¶¶ 25, 50–51, 60–61; Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶¶ 53–54.

During the interrogations at the police station, Chatman never stated that he attacked

Riggio, that he committed the rape, or that he was at the Daley Center on May 24, 2002. Boock

Dep. at 145:17–24. By 7:45 p.m., the crime lab results indicated that Riggio’s rape kit and

clothing tested negative for the presence of semen. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 99. The lab

was still processing Riggio’s underwear. Id.; see id. ¶ 103 (reported at 10:45 a.m. on 5/25/02

that underwear tested negative). Holmes left the police station at 8 p.m., without having

approved charges against Chatman. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶ 48.

At 9:30 p.m., Chatman was taken to the lockup. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 53. At

9:55 p.m., Lieutenant Walsh brought Chatman from the lockup to a different room, stating that

the reason for signing him out of lockup was an “interview.” Id. ¶ 58. At that point, Chatman

had been in custody for about twelve hours without anything to eat or drink.6 Id. ¶ 54; Boock

Dep. at 133:22–134:11, 135:2–4; see Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 52; see also Officer Defs.’

Ex. 1, Roberts Dep. at 116:23–117:13, 118:5–9.

The parties dispute what occurred next. According to Chatman, a “Chinese-looking”

officer—who is presumably Defendant Kriston Kato, the only officer of Asian descent on duty at

the Harrison and Kedzie police station that night—entered the room, and Kato and Chatman

were the only people in the room.7 Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 59–60; Pl.’s LR

56.1(b)(3)(B) Stmt. (Officer Defs.) ¶ 55. Kato proceeded to threaten, intimidate, and abuse

Chatman, who was handcuffed to the ring on the wall and could not move. Pl.’s LR

56.1(b)(3)(B) Stmt. (Officer Defs.) ¶¶ 52, 79; see Defs.’ Joint Resp. Pl.’s LR 56.1(b)(3)(C) Stmt.

¶ 59.

Chatman contends that Kato made the following statements to him. First Kato said, “you

know you did the crime raping Susan Riggio and don’t tell me that you didn’t because I know

you did it.” Pl.’s Ex. 3, Chatman Dep. pt. 1, at 277:19–21, 278:19–24. Kato angrily scolded

him, saying, “[Y]ou know you did the crime of rape . . . and pulled her panties down, bumped

her head all against the desk,” and threatened her with scissors. Id. at 280:8–13; SAO Defs.’ Ex.

B, Chatman Dep. at 57:14–18. But Chatman did not agree. Pl.’s Ex. 3, Chatman Dep. pt. 1, at

280:8–13; SAO Defs.’ Ex. B, Chatman Dep. at 57:14–18. Kato ordered Chatman to admit to

Holmes and the others that he had raped Riggio. Pl.’s Ex. 1, Chatman Dep. pt. 2, at 17:7–9; Pl.’s

6 Detectives were responsible for ensuring that Chatman was fed at Area 4 on May 24, but neither

Boock nor Roberts saw anybody give him food and they had no knowledge whether he was fed that day.

Boock Dep. at 133:22–134:11, 135:2–4; see Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 52; see also Officer Defs.’ Ex.

1, Roberts Dep. at 116:23–117:13, 118:5–9. When a suspect is in an interview room, detectives have to

purchase a meal for the person in custody out of his or her own pocket. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 46.

7 Kato had not been assigned to the investigation, and his name does not appear on any reports. Id.

¶ 79.

Ex. 3, Chatman Dep. pt. 3, at 281:3–5. According to Chatman, “[a]fter I wouldn’t say . . . what

he wanted me to say as far as the lie that I did it[,] he used physical abuse to me,” Pl.’s Ex. 3,

Chatman Dep. pt. 1, at 279:1–7, because Kato was “very angry” that Chatman wouldn’t go along

with what Kato was saying, id. at 280:7–282:11. He contends that Kato struck him in the head

on the left side of his face. Id. at 278:4–11. After Kato struck Chatman, Chatman slumped over,

his whole body went numb from the blow, and he almost fainted. Id. at 282:12–283:10.

Chatman was nervous and afraid. Pl.’s LR 56.1(b)(3)(B) Stmt. (Officer Defs.) ¶ 52.

When Kato looked like he was going to strike Chatman a second time, Pl.’s Ex. 3,

Chatman Dep. pt. 3, at 282:5–6, Chatman agreed that he would say he had done it, but he says he

did not actually confess. Id. at 281:3–5. According to Chatman, “I stopped him because I didn't

want him to beat my brains out.” Id. at 279:22–24. Kato then told Chatman everything that

supposedly took place and coached him as to what he should say to Holmes and the officers

when he admitted to the crime. Id. at 282:6–11, 284:5–11. Defendants deny that Kato ever

spoke to Chatman. Defs.’ Joint Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 59.

At 10:00 p.m., Walsh assigned Detective Roberts to the case. Pl.’s LR 56.1(b)(3)(B)

Stmt. (Officer Defs.) ¶ 56; Officer Defs.’ Ex. 1, Roberts Dep. at 69:19–20. Defendants assert,

and Chatman denies, that shortly after 10:30 p.m., Chatman confessed to Roberts. Officer Defs.’

LR 56.1(a)(3) Stmt. ¶ 56; Officer Defs.’ Ex. 1, Roberts Dep. at 69:19–20; 84:21–85:2; 86:11–

87:17;149:9–151:20; 153:15–154:8. Chatman states that he did not speak to anyone in the room

after Kato, and that after Kato left, Chatman overheard a phone conversation during which

Holmes was told to return to the station. Pl.’s LR 56.1(b)(3)(B) Stmt. (Officer Defs.) ¶ 56; Pl.’s

Ex. 1, Chatman Dep. pt. 2 at 18:22–19:1. It is undisputed that Roberts called Holmes at

midnight. Holmes Dep. at 277:21–22. As such, viewing the record in Chatman’s favor, it is

reasonable to infer that Kato interrogated Chatman for approximately two hours, from 9:55 p.m.

until midnight.

The parties also dispute what occurred when Holmes returned to the police station at 1:00

a.m. on May 25, 2002. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 50. Defendants state, and Chatman

contests, that he orally confessed to Holmes regarding the details of the crime. Pl.’s LR

56.1(b)(3)(B) Stmt. (SAO Defs.) ¶ 53. According to Chatman, he did not confess to Holmes or

anyone that night, and the officers and Holmes then forced him to go to the Daley Center against

his wishes. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 66; Pl.’s Ex. 1, Chatman Dep. pt. 2 at 23:5–8. At this

point, Holmes had not approved any charges against Chatman. Pl.’s LR 56.1(b)(3)(B) Stmt.

(SAO Defs.) ¶ 47.

It is undisputed that, at approximately 2:00 a.m., Holmes, Roberts, Midona, and Walsh

(the “Walkthrough Defendants”) took Chatman, in handcuffs and leg irons, to the Daley Center

for a “walk-through” that lasted over an hour. Id. ¶ 58; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 66. But

the parties’ versions of what transpired while at the Daley Center diverge. According to

Defendants, Chatman led the Walkthrough Defendants to various places in the Daley Center,

explaining where he had been on the morning of May 24, as well as where and how he had raped

Riggio.8 SAO Defs.’ LR 56.1(a)(3) ¶¶ 59–62. According to Chatman, he told the Walkthrough

Defendants that he was nowhere near the area but they would not listen, and the Walkthrough

Defendants physically directed him where to go and coached him with non-public information as

to what to say. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶¶ 41, 58–62; Pl.’s LR 56.1(b)(3)(C)

Stmt. ¶ 69; Pl.’s Ex. 15, Roe Dep. 140:22–24; Pl.’s Ex. 16, Note from Roe. Chatman told the

Walkthrough Defendants that the “Chinese-looking” officer had beaten him and that the officer

8 ASA Holmes and the detectives claim that Chatman told them that he exited (and entered the

previous day) the Daley Center at the southwest corner, near the fountain, closest to Washington and

Clark Streets. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 8.

had told him what to say step by step. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶ 62; Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 70; Pl.’s Ex. 1, Chatman Dep. pt. 1 at 47:3–9, 13–15; 48: 18–22; 56:6–8.

According to Holmes, this was the only occasion during his entire career that he had walked a

suspect through a crime scene. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 79.

After departing the Daley Center and having been in custody for about 19 hours, the

Walkthrough Defendants finally, for the first time, gave Chatman something to eat and drink and

brought him back to the police station at Harrison and Kedzie. Id. ¶ 91. Roberts locked

Chatman in an interview room, rather than the lock-up, where he could not lie down or make a

phone call. Id. ¶ 93. At this time, Holmes still had not approved charges against Chatman. Pl.’s

LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶ 47.

V. Chatman Is Charged

When Chatman awoke in the interview room on May 25, 2002, he was shown a 9-page

statement of confession that Holmes had handwritten. Id. ¶¶ 104, 107. In Defendants’ view,

Chatman had already confessed to Holmes prior to the walk-through at the Daley Center, and

Holmes had drafted the statement based solely on what Chatman had told him during that

confession. Defs.’ Joint Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 94–128. According to Chatman,

he had not previously confessed to Holmes, and the written confession was fabricated to include

information that Holmes and the detectives had learned from witnesses and the forensic lab

results. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 94–128. It is disputed whether it was obvious to

Holmes that Chatman was unable to read or understand the statement before he signed it. Pl.’s

LR 56.1(b)(3)(C) Stmt. ¶¶ 106, 108–09; see Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶¶ 53–54.

Holmes approved the charges against Chatman on May 25, 2002. Pl.’s LR 56.1(b)(3)(B) Stmt.

(SAO Defs.) ¶ 47.

VI. Anonymous Detective/Officer’s Letter Regarding Chatman’s Coerced Confession

Chatman was found guilty after a jury trial on January 29, 2004. OPS Defs.’ LR

56.1(a)(3) ¶ 18. After Chatman’s jury trial, but before he was to be sentenced on March 4, 2004,

Administrative Sergeant Matthew Brown of the CPD Internal Affairs Division (also not a

defendant here) received an envelope in February 2004. Id. ¶¶ 16, 22. The envelope contained

three documents: (1) a memorandum, dated May 27, 2002, from an “Anonymous

Officer/Detective” to “Internal Affairs” and “Office of Professional Standards/Melissa Willis”;

(2) a photocopy of the front of an envelope marked “Inter-Departmental Correspondence”; and

(3) a page with a single sentence stating, “As you can see, I initially sent this report via inter-

office mail, but to no avail.” Id. ¶¶ 24–25.

The memorandum stated the following:

I would like to remain anonymous. I too am an

officer/detective at the 11th District Harrison/Kedzie Station, so it

would not be in my best interests to reveal my identity. Majority

of the officers and detectives are knowledgeable about Detective

Kato’s brutality towards suspects held in custody. The complaints

alleged against Kato are numerous, however, what I am about to

tell you is not a district norm.

On or about May 25, 2002, Detective Kato beat a suspect

into signing a confession. The suspect is homeless and was

apprehended for the assault/rape of a woman in the Daley Center.

The suspect denied the rape and said he was no way near the Daley

Center. Detective Kato hit the suspect and shouted “tell me you

did it!” The homeless suspect said one last time “did what? I

didn’t do nothing. I don’t, don’t, don’t know what you are talking

about.” Detective Kato hit the suspect with such a blow that last

time that the suspect groaned from sheer pain and doubled over

grasping for air. That blow I thought would kill him for sure. The

suspect then said “what–what–what–what do you want me to say?

Kato said “I want you to say you raped that woman.” By this time,

Kato had the assault/rape victim’s total account of the assault.

Kato took the victims [sic] account of the assault, word for word

and laid it out for the homeless suspect to sign. The suspect didn’t

even read it and didn’t know what he was signing. The suspect

was denied a phone call, instead Kato told the suspect, “you are

homeless. Who are you going to call, the other homeless people at

the Gardens?[”]

It is a well known fact from questioning and the suspects

[sic] condition that he did not commit the assault. However Kato

stated that “they wanted someone to be accountable, so I gave

them someone. He’s homeless anyway, at least now (laughingly)

he’ll get three meals a day. That’s my contribution to help feed the

homeless.”

OPS Defs.’ Ex. 13, Command Channel Review (“OPS Review”) at City Def. CC012448.

After reading the contents of the envelope, Brown initiated a Complaint Register (“CR”)

investigation with the Office of Professional Standards (“OPS”) that same morning. OPS Defs.’

LR 56.1(a)(3) ¶ 26. Brown called OPS, obtained CR number 296034 for the file, typed up an

initiation report, attached the envelope and its contents to the initiation report, and sent all of the

documents to OPS. Id.

The OPS investigates specific kinds of police officer misconduct, including the use of

excessive force. Id. ¶ 18. OPS officers investigate CRs and classify complaints in one of four

groups: (1) “Unfounded,” when the allegation is false or not factual; (2) “Exonerated,” when the

incident occurred but the actions of the accused were lawful and proper; (3) “Not Sustained,”

when there is insufficient evidence either to prove or disprove the allegation; or (4) “Sustained,”

when the allegation is supported by substantial evidence to justify disciplinary action. Id. ¶ 19.

As part of the investigation into CR 296034, OPS Investigator Nichelle Fraction (not a

defendant here) conducted an interview of Chatman at Cook County Jail on March 16, 2004. Id.

¶ 28. Fraction asked Chatman to describe the circumstances leading to his confession. Id. ¶ 29.

Chatman told her that, while he was seated in a room at the police station, a “Chinese” officer

threatened to beat him and then struck Chatman on the left side of his temple. OPS Review at

City Def CC 012443. Chatman said that he had told the officer he would admit to committing

the rape because he did not want to get hit again. Id. Chatman related to Fraction that the officer

told Chatman all of the details of the rape and that the officer told him what to say in his

statement. Id.

Defendant Karen Wojtczak, an OPS investigator at the time, was assigned to the

investigation on April 16, 2004, and prior to that date, she had been unaware of the alleged rape

incident at Daley Center. Id. ¶ 36. During the course of her investigation, Wojtczak read the

police department reports, reviewed evidence in the CR investigative file, and obtained

Attendance & Assignment (“A&A”) sheets that confirmed that Kato was on duty at the Harrison

and Kedzie police station at the time of the alleged coerced confession. Pl.’s LR 56.1(b)(3)(B)

Stmt. (OPS Defs.) ¶¶ 36, 49.

After reviewing all of these materials, Wojtczak concluded, on October 1, 2004, that the

CR was “unfounded,” which meant she found the complaint “false or not factual.” See OPS

Defs.’ LR 56.1(a)(3) ¶¶ 50 52. Wojtczak made this determination for three reasons. First,

although she knew about the May 27, 2002 memorandum stating that Kato had used force to

obtain Chatman’s confession, Wojtczak nonetheless concluded that the complaint was false

because the memorandum had not been resubmitted until February 2004, two years after

Chatman’s arrest. Pl.’s LR 56.1(b)(3)(B) Stmt. (OPS Defs.) ¶ 50. Second, despite the

memorandum having corroborated Chatman’s account, a photo of Chatman taken before the

alleged beating took place showed no injury. Id. Third, although Wojtczak was aware that Kato

had been at the same police station when the beating allegedly occurred and that both Chatman

and the anonymous detective/officer had described Kato as having beaten Chatman, she

determined that the complaint was false because Kato’s name did not appear on any police

reports in the case.. Id.

Wojtczak then recommended that the investigation be terminated. See OPS Defs.’ LR

56.1(a)(3) Stmt. ¶¶ 50, 52. Wojtczak’s conclusion and recommendation were approved by her

supervisors, Elizabeth Carmody, Commander Steve Peterson, and Deputy Chief Richard Kobel

(neither of whom are defendants), in October–November 2004. Id. ¶¶ 51, 54. Wojtczak does not

recall any instance when she disagreed with any finding of the investigator while she was a

Deputy Chief of OPS. OPS Defs.’ Ex. 5, Wojtczak Dep. at 36:14–20.

Chatman’s conviction and sentence were affirmed on appeal in March 2006, and his

conviction became final in December 2006. OPS Defs.’ LR 56.1(a)(3) Stmt. ¶ 17. After the

Cook County State’s Attorney’s Office reinvestigated Chatman’s case in 2013, however, the

charges against him were dismissed, and Chatman was released from prison. Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 4. Chatman was granted a Certificate of Innocence. Id.; see People v.

Chatman, 66 N.E.3d 415, 418 (Ill. App. Ct. 2016) (holding that Riggio is not a “victim” within

the meaning of the Illinois Rights of Crime Victims and Witnesses Act).

Legal Standard

“The court shall grant summary judgment if the movant shows 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). The Court gives “the non-moving party the benefit of conflicts in the evidence

and reasonable inferences that could be drawn from it.” Grochocinski v. Mayer Brown Rowe &

Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013). “At summary judgment a court may not assess the

credibility of witnesses, choose between competing inferences or balance the relative weight of

conflicting evidence; it must view all the evidence in the record in the light most favorable to the

non-moving party and resolve all factual disputes in favor of the non-moving party.” Abdullahi v.

City of Madison, 423 F.3d 763, 773 (7th Cir. 2005). The nonmovant “must establish some

genuine issue for trial such that a reasonable jury could return a verdict in her favor.” Gordon v.

FedEx Freight, Inc., 674 F.3d 769, 772–73 (7th Cir. 2012).

Analysis

I. Officer Defendants

Chatman claims that the Officer Defendants, by withholding exculpatory evidence that a

deputy was sleeping nearby when the sexual assault allegedly occurred, violated his due-process

rights under Brady v. Maryland, 373 U.S. 83, 87 (1963).9 Pursuant to Brady, the government

violates the Due Process Clause of the Fourteenth Amendment when it “fails to disclose

evidence materially favorable to the accused.” Mosley v. City of Chi., 614 F.3d 391, 397 (7th

Cir. 2010) (citing Youngblood v. West Virginia, 547 U.S. 867, 869 (2006)). The duty to disclose

“extends to the police and requires that they similarly turn over exculpatory/impeaching evidence

to the prosecutor.” Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008) (citing

Youngblood, 547 U.S. at 870); see Kyles v. Whitley, 514 U.S. 419, 433–34 (1995); Newsome v.

McCabe, 256 F.3d 747, 752 (7th Cir. 2001), abrogated on other grounds by Manuel v. City of

Joliet, 137 S. Ct. 911, 920 (2017); Jones v. Chicago, 856 F.2d 985, 995 (7th Cir. 1988)

(“[I]nformation undermining the credibility of a government witness is within the scope of

Brady’s rule.”).

9 Chatman has also sued the Officer Defendants for withholding exculpatory evidence about the

24-hour Daley Center surveillance video recording, which does not show anyone fitting his description

entering or leaving the Daley Center. See 2d Am. Compl. ¶¶ 76–77, 177–79, 181. The Officer

Defendants have been given sufficient notice of the Brady claim based on the video, see id.; Defs.’ Ex. 8,

Walsh Dep. at 112:17–124:5; id. Ex. 9, Holy Dep. at 17:11–20:17; Roe Dep. at 135:22–136:1, 141:22–

149:24; id., Ex. 58, Barrett Dep. at 59:23–70:3, and they failed to address the issue in their opening brief.

Accordingly, the Court deems the issue waived for purposes of summary judgment. See Silais v.

Sessions, 855 F.3d 736, 742 n.5 (7th Cir. 2017), cert. denied, 2018 WL 942440 (Feb. 20, 2018).

Therefore, Count IV based on the 24-hour Daley Center surveillance video recording remains for trial. In

addition, because Count V (Conspiracy), Count VI (Failure to Intervene), and Count VII (Supervisor

Personal Involvement) are based on the video recording, these counts also remain for trial.

The elements of a Brady violation are: “(1) 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.’” Carvajal, 542 F.3d at 566–67 (quotations

omitted) (citing Youngblood, 547 U.S. at 869–70); see United States v. Bagley, 473 U.S. 667,

676 (1985). Evidence is “favorable to the accused” if it “‘could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.’” Saunders–El v.

Rohde, 778 F.3d 556, 561 (7th Cir. 2016) (quoting Kyles, 514 U.S. at 435). “Patent exculpatory

evidence” that is exculpatory on its face is Brady material, whereas “[l]atent exculpatory

evidence” that “requires processing or supplementation to be recognized as exculpatory,” is not.

United States v. Gray, 648 F.3d 562, 567 (7th Cir. 2011). “Evidence is “suppressed” where it is

not disclosed “in time for the defendant to make use of it” and it “was not otherwise available to

the defendant through the exercise of reasonable diligence.” Carvajal, 542 F.3d at 567.

The Officer Defendants contend that the evidence of Copeland sleeping next door (1) is

not exculpatory or impeaching, (2) was not intentionally suppressed, and (3) was otherwise

available through the exercise of reasonable diligence.10 In addition, they argue that there is

insufficient evidence of a conspiracy to violate Chatman’s Brady rights under either federal or

state law. As a result, the Officer Defendants, in their individual capacities, contend that they are

entitled to qualified immunity.

10 The Sheriff Defendants adopt the Officer Defendants’ arguments that the evidence of a sleeping

deputy is not exculpatory or impeaching and was otherwise available through the exercise of reasonable

diligence. See Sheriff Defs.’ Mem. Law Supp. Summ. J. at 2.

A. Whether the Evidence is Exculpatory or Impeaching

The Officer Defendants assert that, because the sleeping deputy did not see another

person hanging around or sexually assaulting Riggio, the sleeping deputy’s testimony has no

exculpatory or impeaching value whatsoever. They rely on Bielanski v. County of Kane, in

support. 550 F.3d 632, 643–45 (7th Cir. 2008).11 In Bielanski, the plaintiff, who had been

acquitted of sexually assaulting a child, sued investigators, alleging that they had violated her

rights under Brady by withholding evidence that the child had been medicated for ADHD,

assigned to special education classes, was difficult to control and discipline, and had previously

disrobed himself and others. Id. at 643. The Seventh Circuit affirmed the district court’s

granting of a motion to dismiss based on qualified immunity, stating that, while the evidence

could have been used to impeach the child, it was not exculpatory and would not have resulted in

a dismissal of the charges. Id.

But the circumstances here are quite different. Viewed in Chatman’s favor, the facts

show that Riggio’s office door was open during the attack, she screamed “Deputy, Deputy”

loudly at least three times, and she hit the assailant with a chair as she fought for her life, all of

which occurred before the Daley Center was open to the public when ambient noise would have

been minimal. Pl.’s LR 56.1(b)(3)(B) Stmt. (Sheriff Defs.) ¶ 15; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶

7; Riggio Dep. at 158:8–181:23, 168:14–169:7, 173:16–21. Meanwhile, Copeland was sleeping

in an office 10 yards away and was awakened by the sound of radios as deputies arrived later.

Pl.’s LR 56.1(b)(3)(B) Stmt. (Sheriff Defs.) ¶ 9. This is not a case in which inference upon

inference must be made in order for the evidence to be exculpatory. Rather, this evidence is

11 It is questionable whether Bielanski’s holding remains viable, given the Seventh Circuit’s holding

in Bianchi v. McQueen, 818 F.3d 309, 320 (7th Cir. 2016), that a person acquitted at trial can never

establish the prejudice required under Brady.

exculpatory on its face. If given the opportunity, Chatman’s defense counsel could have called

Copeland as a witness at trial to show that the attack did not happen.

Moreover, the importance of Copeland’s testimony is further magnified by the absence of

physical evidence. There were no fingerprints, palm prints, DNA, semen, hairs, blood, fibers,

shoe prints, skin under Riggio’s fingernails, or any other physical evidence on Riggio, her

clothes, or elsewhere that tied Chatman to the crime scene, or to anywhere in the Daley Center

for that matter. The only person who was present near the scene of the alleged crime and who

could contradict Riggio’s testimony was Deputy Copeland. In the same vein, Copeland’s

testimony could also have been used to more effectively cross-examine the government’s expert,

Dr. Temple. Although Dr. Temple explained away the absence of physical evidence tying

Chatman to the crime, Chatman’s counsel could have asked Dr. Temple whether, based on

Copeland’s testimony, another plausible reason for the absence of Chatman’s DNA was that the

crime never happened. Accordingly, the Court denies the Officer Defendants’ summary

judgment on this ground.

B. Whether the Evidence Was Suppressed

The Officer Defendants also contend that there is no evidence that they intentionally

suppressed this evidence.12 However, to prove a section 1983 Brady claim, a plaintiff need not

prove that a defendant acted intentionally but, rather, must establish that the defendant “act[ed]

either knowingly or with deliberate, reckless indifference.” Steidl v. Fermon, 494 F.3d 623, 631

(7th Cir. 2007) (citing Jones, 856 F.2d 992–93); see Pattern Civil Jury Instructions of the

Seventh Circuit 7.14 (2017).

12 The Officer Defendants’ summary judgment motion, memorandum, and statements of fact do not

address whether the Officer Defendants, other than McGreal and Pena, knowingly suppressed the

sleeping deputy evidence, and thus the argument is deemed waived for purposes of summary judgment.

See McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 808 (7th Cir. 2017) (stating that “[t]he

district court was entitled to seek specific guidance through the record”).

According to the Officer Defendants, McGreal second-guessed Cartrette’s reason for

telling him about the sleeping deputy and speculated that Cartrette merely was seeking

McGreal’s assistance in disciplining the deputy. Officer Defs.’ LR 6.1(a)(3) ¶ 38. But there is

evidence in the record from which a reasonable jury could conclude that both McGreal and Pena

knowingly suppressed the evidence because the CPD detectives had decided to pin the crime on

Chatman.

First, viewing the disputed facts in Chatman’s favor, the record shows that on May 24,

2002, Cartrette told McGreal, and Neibauer and Roe told Pena, about the sleeping deputy. Defs.’

Joint Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 17; Defs.’ Joint Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶

23, 25. When Cartrette asked McGreal, and Roe asked Pena, to interview the deputy, both

McGreal and Pena indicated there was no need to speak to the deputy because the police had a

suspect in custody. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 21, 26; Officer Defs.’ Ex. 17, Cartrette Dep.

at 112:11–113:19; Pl.’s Ex. 15, Roe Dep. at 138:14–139:11. A reasonable jury could infer from

the officers’ identical responses that there was a concerted effort to suppress Copeland’s account.

Moreover, McGreal further explained to Cartrette at around 5:00 p.m. that day that the suspect

had confessed and that it was a “done deal.” Officer Defs.’ Ex. 17, Cartrette Dep. at 112:11–13;

see Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 48 (undisputed that Chatman had not confessed at that time).

What is more, although McGreal and Pena were aware of the sleeping deputy, neither of them

documented the information about Copeland in their police reports. Pl.’s LR 56.1(b)(3)(C) Stmt.

¶ 27. A rational jury could conclude from these facts that McGreal and Pena knowingly

concealed exculpatory and impeaching evidence because they did not want to stymie the

investigation’s singular focus on Chatman.

C. Whether the Evidence Was Otherwise Available

Next, the Officer Defendants argue that the existence of the sleeping deputy could have

been discovered by Chatman’s criminal defense counsel, had he exercised reasonable diligence.

“[T]he government will not be found to have suppressed material information if that information

also was available to a defendant through the exercise of reasonable diligence.” Snow v. Pfister,

880 F.3d 857, 867 (7th Cir. 2018). Reasonable diligence, however, does not require defense

attorneys to seek evidence they “had no reason to believe existed.” Boss v. Pierce, 263 F.3d 734,

743 (7th Cir. 2001). “[D]efense counsel cannot be expected to ask witnesses about matters

completely unrelated to the witness’s role in the case. A contrary conclusion would require

defense counsel to conduct a fishing expedition with every . . . potential defense witness . . . .

Reasonable diligence does not require such a practice.” Id. at 741.

In the present case, no police report mentioned the sleeping deputy. Pl.’s LR

56.1(b)(3)(C) Stmt. ¶¶ 20, 24, 27. 31, 32, 33; Cartrette Dep. at 115:5–24; Mokstad Dep. at

64:19–21. Absent clairvoyance, Chatman’s counsel had no reason to believe that the sleeping

deputy existed. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 152, 154, 158–59. Because the police reports

did not state that anyone had mentioned the sleeping deputy, a rational jury could find that

Chatman’s counsel was not required to question every potential defense witnesses about subject

matter outside of his or her designated role. Accordingly, the Court declines to grant summary

judgment on this basis.

D. Conspiracy to Violate Chatman’s Brady Rights

The Officer Defendants further argue that there are no triable issues of fact regarding

Chatman’s federal and state conspiracy claims based on their withholding exculpatory evidence.

“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 in

furtherance actually deprived him of those rights.” Beaman v. Freesmeyer, 776 F.3d 500, 510

(7th Cir. 2015). Under Illinois law, “the elements of a civil conspiracy are: (1) a combination of

two or more persons, (2) for the purpose of accomplishing by some concerted action either an

unlawful purpose or a lawful purpose by unlawful means, (3) in the furtherance of which one of

the conspirators committed an overt tortious or unlawful act.” Fritz v. Johnston, 807 N.E.2d

461, 470 (Ill. 2004).

The Officer Defendants provide a single citation in support of their argument. See

Officer Defs.’ Mem. Supp. Summ. J. at 15–17; Officer Defs.’ Reply at 13–15. They point to a

portion of the Second Amended Complaint, ECF No. 324, in which Chatman alleges that Riggio

had targeted Chatman as the fall guy for a lawsuit scheme. From this, they postulate that there

can be no conspiracy to suppress exculpatory evidence if the victim is motivated to falsely

accuse someone. But just as the nonmovant is required to go beyond the pleadings to survive

summary judgment, see Celotex v. Catrett, 477 U.S. 317, 324 (1986), so must the movant. See

McKinney, 866 F.3d at 808–09 (stating that the party seeking . . . summary judgment must

support his factual assertions . . . with citations to particular parts of the materials in the record”

(internal quotations omitted)). “[W]hen a party fails to develop the factual basis . . . and draws

instead on bare conclusions, the argument is deemed waived.” Poirier v. Doyle, 40 F. App’x

211, 213 (7th Cir. 2002). Because their brief fails to point to any relevant evidence in support of

this argument, the Court deems waived the Officer Defendant’s argument in support of their

motion for summary judgment as to Chatman’s federal and state law conspiracy claims in Counts

V and X.

E. Qualified Immunity

“Qualified immunity protects officers performing discretionary functions from civil

liability so long as their conduct does not violate clearly established statutory or constitutional

rights that a reasonable person would know about.” Burritt v. Ditlefsen, 807 F.3d 239, 249 (7th

Cir. 2015) (internal quotation marks omitted). When a defendant raises qualified immunity as a

defense, the plaintiff has the burden of establishing that the defense is inapplicable. Mustafa v.

City of Chi., 442 F.3d 544, 548 (7th Cir. 2006). “[T]wo questions are pertinent to the defense of

qualified immunity: whether the facts alleged show that the state actor violated a constitutional

right, and whether that right was clearly established.” Hanes v. Zurick, 578 F.3d 491, 493 (7th

Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). With respect to a Brady

claim, the qualified immunity issue is not whether the officer knew he had to disclose

exculpatory information; rather, the question is whether it was clearly established that the

information the plaintiff claims the police failed to disclose was exculpatory or impeaching.

Carvajal, 542 F.3d at 569; Bagley, 473 U.S. at 676–77.

For the reasons discussed above, Chatman has met his burden of establishing that the

qualified immunity defense is inapplicable at the summary judgment stage. Viewing the

disputed and undisputed facts in the record in Chatman’s favor, it was clear at the time that the

sleeping deputy evidence was exculpatory or impeaching. In addition, whether McGreal and

Pena knowingly suppressed the evidence depends on disputed issues of fact. Lastly, a reasonable

jury could view the record and conclude that the evidence was otherwise unavailable. For these

reasons, the Court denies the Officer Defendants’ motion for summary judgment as to Count IV

and that portion of the Sheriff Defendants’ motion that adopts the Officer Defendants’

arguments.

II. Sheriff Defendants

Chatman also asserts a Brady claim against the Sheriff Defendants based on the sleeping

deputy. These Defendants include Sheriff’s Deputies Michael Cokely, Maria Mokstad, and

Burrough Cartrette. The Sheriff Defendants contend that they owed no duty under Brady

because they were not part of the prosecutorial team. They also contend that they did not

knowingly suppress the evidence about Copeland. Based on these arguments, the Sheriff

Defendants, in their individual capacity, assert that they are entitled to qualified immunity.

A. Duty Under Brady

The Court first addresses the Sheriff Defendants’ argument that Cartrette, Cokely, and

Mokstad did not owe a duty under Brady because they were not part of the prosecutorial team.

In support, the Sheriff Defendants rely on Ienco v. Angarone, 291 F. Supp. 2d 755, 760 n.4 (N.D.

Ill. 2003). In Ienco, the district court held that local police officers owed no duty under Brady

with regard to the plaintiff’s federal criminal trial because they played no part in the federal

investigation. Id. at 760–61.

But even if the Court were to find Ienco persuasive, the Seventh Circuit has stated that

“[t]he government’s duty to disclose favorable evidence extends beyond evidence in its

immediate possession to evidence in the possession of other actors assisting the government in

its investigation.” United States v. Walker, 746 F.3d 300, 306 (7th Cir. 2014) (citation omitted);

see Kyles, 514 U.S. at 433–34. Here, Walker is the more apposite case because the Sheriff

Defendants assisted the investigation by securing the crime scene, interviewing Riggio, obtaining

a description of the alleged perpetrator, interviewing other witnesses, and providing information

to CPD detectives with the goal of prosecuting the perpetrator for the sexual assault. Pl.’s LR

56.1(b)(3)(C) Stmt. ¶¶ 34–36; Pl.’s LR 56.1(b)(3)(B) Stmt. (Sheriff Defs.) ¶¶ 32–34, 37, 38, 43,

48. 61–63. Because a reasonable jury could find that the Sheriff Defendants assisted the CPD in

its sexual assault investigation, the Court declines to grant summary judgment on this ground.

B. Whether the Evidence Was Suppressed

Defendants Cartrette and Mokstad next focus on the second Brady requirement—that the

evidence be suppressed. As noted above, a plaintiff asserting a Brady claim must establish that

the defendant “act[ed] either knowingly or with deliberate, reckless indifference.” Steidl v.

Fermon, 494 F.3d 623, 631 (7th Cir. 2007) (citing Jones, 856 F.2d 992–93); see Pattern Civil

Jury Instructions of the Seventh Circuit 7.14 (2017).

As an initial matter, Chatman concedes that Sheriff Deputy Michael Cokely was not

aware of Copeland’s presence prior to this litigation. See Pl.’s LR 56.1(b)(3)(B) Stmt. (Sheriff

Defs.) ¶ 55. Accordingly, the Court grants the Sheriff Defendants’ summary judgment motion as

to Chatman’s Brady and conspiracy claims against Cokely based on the sleeping deputy in

Counts IV and V, respectively.

Mokstad and Cartrette argue that they did not suppress evidence for different reasons.

Mokstad states that she did not tell anyone about Copeland, Sheriff Defs.’ Ex. E, 2/10/15

Mokstad Dep. at 64:19–21, but that is because she was never aware of him, Sheriff Defs.’ Ex. E,

2/10/15 Mokstad Dep. at 64:12–18. By contrast, Cartrette contends that Mokstad knew about the

sleeping deputy, told Cartrette about it, Cartrette Dep. at 88:1–88:5; 133:14; see Sheriff Defs.’

Ex. R, Copeland Disciplinary Report at Chatman/CCSO 00847, and, in turn, Cartrette fulfilled

his disclosure responsibilities by telling Detective McGreal. See Cartrette Dep. at 109:1–110:4,

111:14–113:23; Pl.’s Ex. 61, 1/31/07 Cartrette Dep. at 105:15–23, 107:5–7. But when ASA

Holmes interviewed Cartrette and Mokstad for a statement about their knowledge of the case,

neither of them mentioned Copeland. See Holmes Dep. at 188:23–189:17, 252:3–10; Cartrette

Dep. at 108:23–109:9.

As such, as to Mokstad, when the disputed and undisputed facts are viewed in Chatman’s

favor, Mokstad told Cartrette about Copeland, but she withheld that information from Holmes.

A rational jury could find that she suppressed exculpatory evidence by doing so.

And as for Cartrette, the summary judgment record supports that, although he spoke to

McGreal about the sleeping deputy in the morning of May 24, 2002, Cartrette Dep. at 67:3–12,

Cartrette also withheld the information from Holmes. A rational jury could find that he too

suppressed exculpatory evidence by doing so.

Mokstad and Cartrette assert that they are shielded, in their individual capacities, from

Chatman’s due process claim by qualified immunity. As noted, in the context of a Brady claim,

the qualified immunity issue is not whether the officer knew he had to disclose exculpatory

information; rather, the question is whether it was clearly established that the information the

plaintiff claims the police failed to disclose was exculpatory or impeaching. Carvajal, 542 F.3d

at 569; Bagley, 473 U.S. at 676–77.

For the reasons discussed above, Chatman has satisfied his burden of showing, at least at

this stage of the litigation, that Mokstad and Cartrette should not be afforded qualified immunity.

As explained above, it was clearly established that the sleeping deputy evidence was exculpatory

or impeaching, and a reasonable jury could view the record and conclude that the evidence was

otherwise unavailable. In addition, whether Mokstad and Cartrette knowingly suppressed the

evidence depends on disputed issues of fact.

The Court grants the Sheriff Defendants’ motion as to in Counts IV and V against

Cokley. Because no other claim remains against him, the Court dismisses Cokely as a defendant.

The Court, however, denies the Sheriff Defendants’ motion as to Count IV as to Mokstad and

Cartrette. Because the Sheriff Defendants’ summary judgment arguments as to Counts V, X,

XII, and XIII hinge on the complete lack of viability of Count IV, the motion is denied as to

those counts as well.

III. SAO Defendants

Chatman alleges that Holmes coerced his confession in violation of his Fifth Amendment

right against self-incrimination (Count I) as well as his Fourteenth Amendment substantive due

process rights (Count II). In addition, Chatman asserts that Holmes detained him without

probable cause in violation of the Fourth Amendment prohibition against unreasonable seizures

(Count III). Chatman also claims that Holmes fabricated evidence by creating the false report of

Chatman’s confession and withheld exculpatory evidence regarding the sleeping deputy and the

24-hour surveillance tape, all in violation of his Fourteenth Amendment procedural due process

rights (Count IV). Chatman additionally asserts that Holmes conspired with investigators and

failed to intervene to prevent their violation of Chatman’s constitutional rights (Counts V and

VI). Finally, Chatman accuses Holmes of maliciously prosecuting him, intentionally inflicting

on him emotional distress, as well as conspiring with others to do so in violation of Illinois law

(Counts VIII, IX, and X). According to Chatman, Defendant Alvarez (sued in her official

capacity as State’s Attorney) and Cook County are liable based on respondeat superior and

indemnification (Counts XII and XIII).

The SAO Defendants raise numerous grounds as to why summary judgment should be

granted in their favor. They initially contend that Defendant Holmes did not coerce Chatman’s

confession or fabricate evidence (Counts I and II). Second, they assert that, because Defendant

Holmes acted as a prosecutor at all relevant times, absolute prosecutorial immunity bars all

claims against him, and he thus had no duty to intervene in the actions of the Officer Defendants.

Third, in the alternative, they opine that Holmes should be provided qualified immunity as to the

Brady claim (Count IV). Fourth, they argue that because summary judgment should be granted

as to all underlying claims against Defendant Holmes, the section 1983 conspiracy claim, as well

as the respondeat superior and indemnification claims, also fail (Counts V, XII, and XIII).13

A. Chatman’s Confession

Holmes argues there is no evidence that Chatman’s confession was coerced or that

Holmes participated in the coercion. On the other hand, Chatman asserts that the facts show that

Holmes directly extracted an involuntary confession.

“The voluntariness of a confession depends on the totality of circumstances, including

both the characteristics of the accused and the nature of the interrogation.” Hurt v. Wise, 880

F.3d 831, 845 (7th Cir. 2018) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

Factors relevant to determining whether a confession is voluntary are: “the defendant’s age,

education, intelligence level, and mental state; the length of the defendant’s detention; the nature

of the interrogations; the inclusion of advice about constitutional rights; and the use of physical

punishment, including deprivation of food or sleep.” United States v. Huerta, 239 F.3d 865, 871

(7th Cir. 2001). “In assessing voluntariness, courts must weigh the tactics and setting of the

interrogation alongside any particular vulnerabilities of the suspect.” Dassey v. Dittmann, 877

F.3d 297, 304 (7th Cir. 2017).

13 As noted earlier, the SAO Defendants’ summary judgment motion omits Counts III, IV

(Exculpatory Evidence based on 24-Hour Surveillance Tape), and VIII. See supra, n.3. And although the

SAO Defendants state that they seek summary judgment as to Chatman’s state-law intentional infliction

of emotional distress (IIED) (Count IX) and conspiracy (Count X) claims, they merely incorporate the

Officer Defendants’ arguments. See SAO Defs.’ Mem. Law Supp. Mot. Summ. J. at 21. The Officer

Defendants’ arguments, however, do not address the state-law IIED and state-law conspiracy claims. See

generally Officer Defs.’ Mem. Law Supp. Mot. Summ. J. Accordingly, the Court need not address

Counts III, IV (surveillance tape), VIII, IX, or X against the SAO Defendants.

“Physical abuse may be the ultimate coercion, but the Supreme Court has long

acknowledged the potency of psychological coercion as well.” Id. In fact, an involuntary

confession “can serve as a basis of a § 1983 claim against the police officers responsible even

though no physical force was used in the extraction of the confession.” White v. Rochford, 592

F.2d 381, 383 (7th Cir. 1979). “Whether police have employed sufficiently coercive tactics to

render a confession involuntary is a legal question. But the answer depends on underlying

historical facts.” Hurt, 880 F.3d at 846 (citation omitted). Only where a “defendant[] accept[s]

all historical facts [construed] favorably to the [plaintiff] and argue[s] that those facts do not

show that . . . [the plaintiff’s] confession was involuntary, . . . [is a court] in a position to answer

the ultimate legal question.” Id.

As for Chatman’s mental condition, the parties dispute whether he was noticeably

cognitively impaired, confused, incoherent, and delusional when Holmes interacted with him.

Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶¶ 54, 55; Defs.’ Joint Resp. Pl.’s LR 56.1(b)(3)(C)

Stmt. ¶¶ 37–40, 109, 112, 123. According to Holmes, he had no difficulty understanding or

communicating with Chatman. SAO Defs.’ LR 56.1(a)(3) ¶ 54. According to Chatman, he has a

long and well documented history of schizophrenia and experiencing symptoms of

schizophrenia, dating back to at least 1981, as well as bipolar disorder. Defs.’ Joint Resp. Pl.’s

LR 56.1(b)(3)(C) Stmt. ¶ 38. Additionally, Chatman’s IQ was 68, which is in the “mild mental

retardation range,” and his overall intellectual functioning was equal to or better than only two

percent of individuals of the same age. Id. Chatman also points to Neibauer’s and Cernick’s

description of the man they had seen days earlier wearing a Blackhawks jacket as being

confused, very hard to understand, and incoherent. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶

54. In addition, when Chatman was processed into Cook County Jail, it took only 10 minutes for

intake personnel to determine that he was schizophrenic and delusional and to refer him

indefinitely to the mental health acute care unit, which served only one half of one percent of the

jail population. Id.

The parties also disagree about the nature of the interrogation. The following is the SAO

Defendants’ version of events. Chatman was given food to eat, cigarettes to smoke, and he was

allowed to use the washroom whenever he wished while at the police station. Defs.’ LR

56.1(a)(3) Stmt. ¶ 69. Before Holmes left the police station at 8:00 p.m. on May 24, 2002,

Chatman told Holmes that he had been treated fine and that he did not need anything before

Holmes left. Id. ¶ 55. Roberts called Holmes at midnight requesting that he return to the police

station because Chatman had confessed to Roberts. Id. ¶¶ 49, 58. Holmes returned to the station

at 1:00 a.m. on May 25, 2002, and had Chatman sign a Miranda waiver. Id. ¶¶ 50, 51. While at

the police station, Chatman did not tell Holmes or any other officer that the “Chinese-looking”

officer had hit him. Id. ¶ 57. Holmes and the detectives brought Chatman to the Daley Center at

2:00 a.m. and followed him around as Chatman recounted how he had committed the crime. Id.

¶ 58. At 10:00 a.m. on May 25, 2002, Chatman voluntarily signed a written confession that

Holmes had drafted. Id. ¶ 64. Chatman also signed his initials next to corrections that Chatman

himself had made to the written statement. Id. ¶ 66.

By contrast, Chatman’s account of the interrogation is as follows. After Chatman was

arrested at 8:45 a.m. on May 24, 2002, he was held in custody for over 24 hours, and during the

first 19 hours, he was not given any food or drink. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 54, 69.

Chatman was unable to lie down for any significant length of time due to being handcuffed to a

ring on a wall. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶¶ 43, 64. Although he requested a lawyer, a phone

call to his mother, and his medication, his requests were denied. Id. ¶¶ 50–51. Chatman was

interrogated by Boock and Mischka twice and Boock, Mischka, and Holmes as a group, once.

Id. ¶¶ 47–52; Boock Dep. at 95:2–100:15 (cited in Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 55). He was

then interrogated and beaten by a “Chinese-looking” officer until he promised to confess to

Holmes. Id. ¶¶ 58–61. When Holmes returned to the station, Chatman still did not confess, and

Holmes still did not approve charges. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶ 47. Rather,

Holmes told Chatman that Holmes, Roberts, Walsh, and Midona were taking him to the Daley

Center, and they forced him to go against his wishes. Id. ¶ 50. Shackled and handcuffed,

Chatman followed them around the Daley Center. Id. ¶¶ 50, 58–62. During the walkthrough,

Chatman denied committing the crime and told them that he was innocent and that the “Chinese-

looking” officer had beaten him and had told him what to say step by step. Id. ¶ 62; Pl.’s LR

56.1(b)(3)(C) Stmt. ¶ 70; Pl.’s Ex. 1, Chatman Dep. pt. 1 at 47:3–9, 13–15; 48: 18–22; 56:6–8.

Nonetheless, Holmes coached Chatman on where to go and what to say from approximately 2:00

to 4:00 a.m. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶¶ 58–62; Pl.’s LR 56.1(b)(3)(C) Stmt. ¶

69; Roe Dep. at 140:22–24; Pl.’s Ex. 16, Note from Roe. After the walkthrough, Chatman was

finally given something to eat and drink. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 91. When he was

brought back to the station, rather than taking Chatman to the lock-up where he could make a

phone call and lie down, the officers took him to an interrogation room and handcuffed to a ring

on the wall. Id. ¶ 93. Five hours later, Holmes had Chatman sign a written statement of

confession fabricated by Holmes and place his initials next to corrections that Holmes had made

without Chatman’s input. Id. ¶¶ 94–120. Prior to signing it, Chatman told Holmes he did not

understand the written statement, and he was unable to read any portion of the statement out

loud. Id. ¶ 109. Afterwards, Holmes approved the charges against Chatman based on his signed

confession. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO Defs.) ¶ 47.

Because the material facts are disputed, the Court cannot conclude, as a matter of law,

that Chatman’s confession was voluntary. See Hurt, 880 F.3d at 846 (stating that immunity is

precluded where a jury could find coercion based on disputed facts). Whether physical and

psychological coercive tactics rendered Chatman’s confession involuntary, especially given

Chatman’s disputed mental state, necessarily depends on the credibility of the witnesses.

Furthermore, a reasonable jury could conclude from the above facts that Holmes: (1) saw

that Chatman was plainly incoherent and delusional due to his unmedicated, schizophrenic

condition; (2) knew that Chatman had been repeatedly interrogated, but still professed his

innocence and never confessed to anyone that he had raped Riggio; (3) was aware that a

“Chinese-looking” officer had beaten Chatman and had told Chatman what to say to Holmes; (4)

heard Chatman declare his innocence during the walkthrough; (5) nonetheless fed and coached

Chatman during the walkthrough with incriminating information about the crime; (6) fabricated

Chatman’s written statement of confession based on details he learned from the detectives and

lab results; (7) had Chatman sign a confession that Holmes knew Chatman did not understand;

(8) fabricated corrections to the confession and had Chatman sign his initials next to them in

order to create the false appearance that Chatman had understood the written statement; and (9)

fabricated a report that stated he had witnessed Chatman voluntarily confess. Accordingly, the

Court denies summary judgment based on the argument that Holmes neither coerced Chatman to

confess nor fabricated evidence.

B. Absolute Prosecutorial Immunity

The SAO Defendants next argue that absolute prosecutorial immunity bars Chatman’s

section 1983 claims against Holmes. Chatman counters that his section 1983 claims are based on

Holmes’ conduct as an investigator, not as a prosecutor.

“[I]n initiating a prosecution and in presenting the State’s case, the prosecutor is immune

from a civil suit for damages under § 1983.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976).

That said, “[a] prosecutor’s administrative duties and those investigatory functions that do not

relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings

are not entitled to absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

“When a prosecutor performs the investigative functions normally performed by a detective or

police officer, it is neither appropriate nor justifiable that, for the same act, immunity should

protect the one and not the other.” Id. (internal quotation marks omitted). Where a prosecutor

searches for clues and corroboration in order to establish probable cause to initiate judicial

proceedings, he or she is not protected by absolute immunity, but rather, qualified immunity.

See id. “[T]he official seeking absolute immunity bears the burden of showing that it is justified

by the function in question.” Burns v. Reed, 500 U.S. 478, 478 (1991).

In addition to the disputed facts discussed above, the parties present conflicting accounts

as to when Holmes had probable cause to approve the charges against Chatman. Although

Chatman had been identified by Riggio in a lineup, Holmes had not approved the charges against

Chatman by the time that Holmes left the station at 8:00 p.m. Pl.’s LR 56.1(b)(3)(B) Stmt. (SAO

Defs.) ¶¶ 47–48. Holmes states that, before he returned to the station at 1:00 a.m., Chatman had

confessed to Roberts, and then after he returned, Chatman confessed to him, which provided all

of the probable cause he needed to approve the charges. Defs.’ LR 56.1(a)(3) ¶¶ 49, 53, 58.

Chatman, on the other hand, asserts that he did not confess to anyone that he had raped Riggio

that night. Pl.’s LR 56.1(b)(3)(B) (SAO Defs.) ¶ 49. Holmes’ notes indicate that, rather than

approving the charges, he continued the investigation by taking Chatman to the Daley Center.

Pl.’s Ex. 19, Holmes Dep. at 195:1–17. In Chatman’s view, Holmes continued the investigation

in order to obtain clues and corroboration to establish probable cause that Chatman had raped

Riggio. Pl.’s LR 56.1(b)(3)(B) (SAO Defs.) ¶¶ 44–45, 47, 49, 53, 58; Pl.’s LR 56.1(b)(3)(C)

Stmt. ¶¶ 69, 71–73. It is undisputed Holmes did not approve the charges until after Chatman had

signed the written statement at 10:00 a.m. Pl.’s LR 56.1(b)(3)(B) (SAO Defs.) ¶ 47; Pl.’s Ex. 20,

Gleason Dep. at 141:2–6. It is clear that the issue of when probable cause existed to charge

Chatman turns on hotly disputed questions of fact. Because the determination of whether

Holmes should be afforded prosecutorial immunity, or put differently, whether Holmes was

performing an investigatory or prosecutorial function when he allegedly coerced Chatman’s

confession and fabricated evidence, rests on these disputed issues of fact, the Court denies

summary judgment on this ground.14 See Hill v. Coppleson, 627 F.3d 601, 605–06 (7th Cir.

2010) (stating district court properly denied summary judgment because absolute immunity

depended on a probable-cause question which turned on a disputed issue of fact regarding when

the confession occurred).

C. Brady Claims

The SAO Defendants move for summary judgment as to Chatman’s Brady claims against

Holmes. First, although the SAO Defendants, as well as the Officer Defendants, believe that

Chatman has asserted a Brady claim based on the contention that Holmes and the Officers

withheld Chatman’s cognitive deficiencies from Chatman himself, Chatman unsurprisingly does

not oppose summary judgment in this regard because this was never the basis of his claims.

14 Holmes also argues that, while acting in his role as a prosecutor, he had no duty to intervene to

prevent the detectives from coercing Chatman’s confession and fabricating evidence and that he should

therefore be afforded qualified immunity. Because these arguments rest on the same disputed facts, the

Court declines to grant summary judgment on these grounds. See Colbert v. City of Chi., 851 F.3d 649,

664 (7th Cir. 2017), cert. denied, 138 S. Ct. 657 (2018) (“It is well established that an officer may be

liable if she witnesses another officer violating a civilian’s constitutional rights, has a reasonable

opportunity to intervene, and fails to do so.”); Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir

.2012) (“The only question is whether a prosecutor who is acting in an investigatory capacity is subject to

rules that are any different. We think not.”).

Second, to the extent that Chatman has asserted a Brady claim against Holmes based on

Copeland, it is undisputed that Holmes was never aware of the sleeping deputy, see Defs.’ Joint

Resp. Pl.’s LR 56.1(b)(3)(C) Stmt. ¶ 33, and accordingly, the Court grants summary judgment in

Holmes’ favor as to that portion of the claim in Count IV. Third, the SAO Defendants have not

addressed Chatman’s Brady claim based on the failure to disclose the 24-hour surveillance tapes

from the Daley Center in their opening or reply brief or statements of fact; therefore, that claim

must be adjudicated at trial.

Accordingly, the Court grants the SAO Defendants’ motion for summary judgment as to

Count IV, but only to the extent that Chatman has asserted a Brady claim against Holmes based

on the sleeping deputy. In all other respects, the Court denies the SAO Defendants’ motion to

dismiss Count IV.

D. Counts V (§ 1983 Conspiracy), XII (Respondeat Superior), and

XIII (Indemnification)

Chatman also brings a claim for a section 1983 conspiracy based on the underlying

federal claims, as well as claims for respondeat superior and indemnification based on the

underlying state-law tort claims. The SAO Defendants have moved for summary judgment as to

these counts as being derivative of the underlying claims, and their supporting arguments have

presumed that summary judgment would be granted as to the underlying claims. The Court

grants the SAO Defendants’ motion to the extent that Counts V, XII, and XIII are based on

Chatman’s Brady claim regarding the sleeping deputy. In all other respects, the motion is

denied.

III. OPS Defendants

The OPS Defendants—Karen Wojtczak, Millicent Willis, Lori Lightfoot, and Tisa

Morris—have moved for summary judgment as to Chatman’s intentional infliction of emotional

distress (“IIED”) claim (Count IX) and state law conspiracy claim based on the IIED claim

(Count X).15 Chatman does not oppose the motion as to either claim with regard to Willis,

Lightfoot, and Morris, and he does not oppose the motion as to the conspiracy claim with regard

to Wojtczak. Accordingly, the Court addresses the only remaining cause of action against any of

the OPS Defendants: the IIED claim against Wojtczak.

Under Illinois law, the tort of IIED has three components: (1) the conduct involved must

be truly extreme and outrageous; (2) the actor must either intend that his conduct inflict severe

emotional distress, or know that there is at least a high probability that his conduct will cause

severe emotional distress; and (3) the conduct must in fact cause severe emotional distress.

McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). IIED requires more than “mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities.” Id. (internal quotation

marks omitted). A defendant’s conduct is “evaluated on an objective standard based on all of

the facts and circumstances.” Graham v. Commonwealth Edison Co., 742 N.E.2d 858, 866 (Ill.

App. Ct. 2000).

Wojtczak first argues that Chatman’s IIED claim is time-barred. The Illinois Tort

Immunity Act requires civil actions against local entities or their employees to be commenced

“within one year from the date that the injury was received or the cause of action accrued.” 745

Ill. Comp. Stat. 10/8–101(a). Illinois courts apply “the standard rule that a claim accrues when

the victim first suffers injury and knows its cause.” Bridewell v. Eberle, 730 F.3d 672, 678 (7th

Cir. 2013). In other words, the action must be commenced within the appropriate statute of

limitations from the time the person bringing the action knew or reasonably should have known

15 The OPS Defendants have not moved for summary judgment as to Count VIII (Malicious

Prosecution–State Law).

of the injury for which damages are sought. See Sanders v. JGWPT Holdings, Inc., No. 14 C

9188, 2016 WL 4009941, at *8 (N.D. Ill. July 26, 2016).

Chatman is seeking damages based on the injury caused by the conduct of Wojtczak,

who was assigned to investigate the anonymous memo. Because Wojtczak was assigned to the

investigation on April 16, 2004, it would have been impossible for Chatman to have known the

injury caused by Wojtczak prior to that date because the tort had not yet occurred.16 OPS Defs.’

LR 56.1(a)(3) Stmt. ¶ 36. Nor was the existence of Wojtczak’s involvement in the investigation

known to Chatman until the C.R. file was disclosed during discovery in this case on June 4,

2015. Pl.’s LR 56.1(b)(3)(C) ¶¶ 147–48. Because Chatman filed his claim against Wojtczak less

than a year later, on November 9, 2015, his IIED claim against Wojtczak is timely. 2d Am.

Compl., ECF No. 316 (later corrected on 11/25/14, ECF No. 324).

Next, Wojtczak resurrects an argument previously pressed by the OPS Defendants in

their motion to dismiss. According to her, she had no duty, under Brady or any other law, to turn

over the memo to Chatman. Not so. Intentional infliction of emotional distress is an

independent cause of action in Illinois. Robbins v. Kass, 516 N.E.2d 1023, 1027 (Ill. App. Ct.

1987). Thus, “the duty not to commit the intentional tort of intentional infliction of emotional

distress exists on its own.” Zuidema v. Raymond Christopher, Inc., 866 F. Supp. 2d 933, 940

(N.D. Ill. 2011); see Bannon v. Univ. of Chi., 503 F.3d 623, 630 (7th Cir. 2007) (viewing basis

for an IIED claim as being independent of any duty imposed by another law). Therefore, courts

do not require a violation of the Constitution or any other law in order to prove an IIED claim.

16 It is disputed whether Fraction told Chatman she was from OPS and was investigating a

complaint on his behalf when she interviewed him in March 2004. Pl.’s LR 56.1(b)(3)(B) Stmt. (OPS

Defs.) ¶ 29. It is undisputed that Fraction did not provide Chatman with a copy of the memo that had

triggered the C.R. investigation. Id.; Pl.’s Ex. 10, Chatman Decl. ¶ 9; see Pl.’s Ex. 24, Fraction Dep. at

34:22–36:7, 46:12–47:5, 65:14–18. In any event, without the memo, there was insufficient information

for a reasonable person to know that Wojtczak would engage in tortious conduct in the future. Pl.’s LR

56.1(b)(3)(B) Stmt. (OPS Defs.) ¶¶ 30–33, 35.

See, e.g., Chatman v. City of Chi., No. 14 C 2945, 2016 WL 4734361, at *5 (N.D. Ill. Sept. 12,

2016) (“[I]t is not necessary for Chatman to prove a Brady violation (or even the existence of a

constitutional duty to disclose under Brady) in order to meet the elements of his IIED claim . . .

.); Garrison v. Burke, No. 91 C 20150, 1993 WL 29909, at *4 (N.D. Ill. 1993) (“[T]his court

reads Count IX to be a state law claim for intentional infliction of emotional distress, for which

no constitutional violation is needed.”).

Wojtczak also contends that no triable issues of fact exist as to Chatman’s IIED claim.

The Court disagrees. The record, viewed in the light most favorable to Chatman, shows that

Wojtczak was aware of the memo, which stated that an officer at the Harrison and Kedzie police

station (1) knew Detective Kato’s reputation for brutality toward suspects in custody, (2)

witnessed Kato beating Chatman into signing a confession, and (3) reported that officers were

aware, from questioning and Chatman’s condition, that he did not commit the assault. Defs.’ LR

56.1(a)(3) ¶ 50; Pl.’s LR 56.1(b)(3)(C) ¶ 149; OPS Defs.’ Ex. 13, 5/27/02 Memorandum at City

Def. CC 012448. A reasonable jury could conclude that Wojtczak abused her power and

authority by withholding the memo from Chatman while his criminal proceedings were still

ongoing. Pl.’s LR 56.1(b)(3)(C) ¶ 151. It may also be reasonably inferred from the summary

judgment record that Wojtczak had the power to free an innocent man and to ensure that he

received a new trial, armed with this exculpatory evidence. Id. ¶ 150. A rational jury could also

find that she did so knowing there was a high probability that Chatman would experience severe

emotional distress and that Chatman experienced severe emotion distress by spending over a

decade in prison for a crime he did not commit. Id. ¶ 4. Based on these facts, a reasonable jury

could find Wojtczak liable for IIED. Accordingly, the OPS Defendants’ motion for summary

judgment is denied as to Count IX against Wojtczak.

Conclusion

For the foregoing reasons, the Court denies the Officer Defendants’ summary judgment

motion [457] and grants in part and denies in part the Sheriff Defendants’, the SAO Defendants’,

and the OPS Defendants’ summary judgment motions [465][461][477]. To the extent that

Counts IV, V, and VI against the Officer Defendants are based on the sleeping deputy, the

motion is denied as to McGreal and Pena, and the motion is also denied in all other respects.

The Sheriff Defendants’ motion is granted as to all claims against Micheal Cokely, who is

hereby dismissed as a defendant, and it is denied in all other respects. The SAO Defendants’

motion is granted as to Counts IV, V, XU, and XIII, but only to the extent that those claims are

reliant on Chatman’s Brady claim against Holmes based on the sleeping deputy, and it is denied

in all other respects. The OPS Defendants’ summary judgment motion is granted as to Count IX

against Millicent Willis, Lori Lightfoot, Tisa Morris; granted as to Count X against Millicent

Willis, Lori Lightfoot, Tisa Morris and Karen Wojtczak; and denied as to Count IX against

Karen Wojtczak.

SO ORDERED ENTERED = 3/28/18

JohnZ.Lee is

United States District Judge

42