The opinion
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 Case No. 17 C 7452
WEBB, JR., in his individual
Capacity; PASCAL CRAWFORD, Judge Harry D. Leinenweber
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,
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. Count I is
against all Defendants based on alleged violation of due
process; Count II is against Defendant Debois, alleging
subornation of perjury; Count III is against all 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 process; Count VII is against all Defendants and
alleges a claim for intentional infliction of emotional
distress; and Count VIII is against Markham for indemnification.
The incident that gave rise to this case occurred on
April 18, 2007 in Markham, Illinois when two individuals,
Copeland and Lindsey, robbed a man of ten dollars and some
marijuana. A short time later the two robbers were detained and
searched by Defendant Debois and another Markham policeman,
Walker. Copeland was jailed overnight. In the morning, Debois
showed Copeland a picture of Plaintiff and took him to
Plaintiff’s house. 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, in his affidavit, committed
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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 mug shot at the
station; and Debois vouched for him. All of the above was
false: Copeland had never met Plaintiff, never bought drugs
from 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 house which resulted in the recovery of a
kilogram of Cocaine, numerous weapons, cash, jewelry, two
automobiles, nine ATVs and dirt bikes, televisions, clothing
(including a mink coat) and numerous bottles of alcohol.
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
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at the time of the alleged sale to Copeland, an affidavit of
Copeland that Debois had fabricated his testimony in the
application for the search warrant, that he had never met
Plaintiff or purchased drugs from him, and that Debois had
coerced him to lie on the application. The state court denied
the motions for a Franks hearing and Plaintiff went to trial on
October 11, 2011. Debois testified at his trial that he
recovered the cocaine and weapons during the search. 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 of the Appellate Court order of a Franks
hearing. 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.
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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.”
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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 I. Plaintiff’s case against Mayor Webb and Chief
Crawford is based on their alleged participation in the
Section 1983 conspiracy count since Plaintiff admits that they
did not personally participate in fabricating evidence. The
main thrust of the case against Defendants is based on the
alleged violation of due process that is the basis for Count I.
II. DISCUSSION
A. Count I – Qualified Immunity
Debois 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. Since Illinois has a state tort of malicious
prosecution it provided all of the process that was due.
Plaintiff recognized this in his Amended Complaint. He dropped
the Count that sought to plead a federal claim of malicious
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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, were complicit in the wrongful
prosecution. 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 material,
citing Brady v. Maryland, 373 U.S. 83 (1963). 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 in
Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988). If
Newsome (the plaintiff) could establish such a violation then he
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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. For the reason that Newsome was
decided four years prior to 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 Debois’ perjury and brought against all Defendants
through the alleged conspiracy which is pled 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 of which perjury was a component
rather than the subject. Thus this count is duplicative of
Count I. 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 arguing, first, that there must be an underlying
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constitutional claim; and, second, it lacks sufficient
particularity. Since the Court has found 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 purpose of the conspiracy, the dates of the
conspiracy, and that the members of the conspiracy 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). All Plaintiff has alleged here
is that his constitutional rights were violated, and the
Defendants are bad persons who did bad acts. What is
conspicuously absent is any factual allegations as how 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. A Monell
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violation has three elements: first, unconstitutional conduct
committed by a municipal employee; second, the conduct must be a
result of municipal policy; and third, the unconstitutional
conduct caused plaintiff’s injury. In 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 retrain
officers when it became aware of their misconduct. 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 a long record of misconduct while employed at
Markham. In spite of this he was promoted to the position of
Deputy 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. While Markham complains
that this is a “splatter paint” case similar to what was
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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. The issue can be revisited at the
summary judgment stage. 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. However, the basis for dismissal of Webb and Crawford
is the 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. The
Complaint is well short of any specific allegations of
involvement by either Webb or Crawford other than a vague
assertion that Defendants benefited by the prosecution. 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
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Markham benefited by the seizure. This not enough to supply the
“involvement” requirement of this tort. Therefore the Motion to
Dismiss is denied as to Debois but granted as to Webb and
Crawford.
G. Count VII - Intentional Infliction
of Emotional Distress
Debois does not move to dismiss this Count and it is
obvious why he cannot. The requirements of this tort are: (1)
extreme and outrageous conduct; (2) intention to inflict severe
emotional distress; and (3) the conduct did in fact inflict
emotional distress. Doe v. Calumet City, 641 N.E.2d 498, 506
(Ill. 1994). 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. As we have seen, several of the Counts have survived
against Debois, so the Motion to Dismiss to that extent is
denied.
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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. The Court
disagrees and denies both Motions. The Complaint sets forth the
facts sufficiently to place the Defendants on notice of
Plaintiff’s claims and to allow them to file appropriate
Motions. 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.
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9, The Motions to Strike and for a More Definite
Statement are denied.
2D
IT IS SO ORDERED. tthe —
Harry D. Leinenweber, Judge
United States District Court
Dated: 7/11/2018
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