Houston v. Village Of Calumet Park

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Joshua Houston, )

)

Plaintiff, )

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)

)

)

v. ) No. 16 C 8646

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Village of Calumet Park, et )

al., )

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Defendants. )

Memorandum Opinion and Order

In September of 2014, plaintiff Joshua Houston was arrested

and charged with the murder of Anthony McMillen. He was

incarcerated for seventeen months before prosecutors dismissed the

charge on the eve of trial, after witnesses recanted their

testimony or refused to testify against him. Houston then filed

this action claiming that the defendant police officers conspired

to frame him for McMillen’s murder and caused him to be arrested

and imprisoned in violation of his rights under the Fourth

Amendments of the United States Constitution and Illinois common

law.1 He names as defendants the Cities of Oak Forest and Blue

1 The SAC also makes a stray reference to the Fifth and Fourteenth

Amendments, but I do not read the complaint as articulating a claim

under these amendments. Indeed, Manuel v. City of Joliet, 137 S.Ct.

911 (2017), “makes clear that the Fourth Amendment, not the Due

Island, Illinois; the Villages of Calumet Park, Burnham, Lansing,

and South Holland, Illinois; and individual officers of these

municipalities whose conduct he claims was unlawful. Before me is

defendants’ joint motion to dismiss the complaint in its entirety.

For the reasons that follow, the motion is granted.

I.

According to the second amended complaint (“SAC”) filed on

April 20, 2017, plaintiff—whom the complaint describes only as “an

eighteen-year old black student”—was standing with his friends,

Keenan Holden, Antoine Hull, Devonte Jenkins, Jarod Houston,

Marshawn Johnson, and Eric Neely, on a sidewalk near 126th Street

and Elizabeth Street in the Village of Calumet Park on September

1, 2014. SAC at ¶¶ 1-2. A car approached the group, and Holden

spit on the driver through the open window. Shortly thereafter,

the driver’s brother, Anthony McMillen, approached the group and

asked, “who spit on my sister?” As McMillen reached toward his

waistband, someone from the group shot and killed him. Id. at

¶¶ 31, 33.

The gravamen of plaintiff’s complaint is that defendants knew

he was not the shooter but decided to pin the crime on him anyway.

The SAC channels this theory into ten separate counts, captioned

as follows: Count I-Fourth Amendment Unlawful Pretrial Detention;

Process Clause, governs a claim for wrongful pretrial detention.”

Lewis v. City of Chicago, 914 F.3d 472, 475 (7th Cir. 2019).

Count II-Fourth Amendment False Arrest; Count III-Fourth Amendment

Malicious Prosecution; Count IV-Failure to Intervene 42 U.S.C.

§ 1983; Count V-Conspiracy 42 U.S.C. § 1983; Count VI-Malicious

Prosecution; Count VII-Intentional Infliction of Emotional

Distress; Count VIII-Conspiracy; Count IX-Respondeat Superior; and

Count X-Indemnification. In support of these claims, plaintiff

recounts the following facts.

At the Calumet City Police Department’s request, the South

Suburban Major Crime Task Force (“SSMCTF”)—an organization that

comprises over fifty-four South Suburban Police Departments—began

investigating McMillen’s murder by dispatching various officers to

the scene. Defendant David Nedved interviewed witness Tabitha

Burton. Id. at ¶ 43. Burton reported that after hearing yelling

outside her Elizabeth Street home, she looked out her front window

and observed a black man walk in front of a black Monte Carlo and

fire a gun at McMillen. She then saw the shooter and another black

man run eastbound toward the alley between two homes. A third

individual—“a male black with dreadlocks”—then approached McMillen

and shot him in the head before leaving the scene in the Monte

Carlo. Id. at ¶¶ 44-45.

Nedved and defendant Chuck Leyden also interviewed Sandra

Brown, another resident of Elizabeth Street. SAC at ¶ 55. Brown

allegedly told the officers that after hearing gunshots, she looked

out her front window and saw two black men running northbound,

away from her house, with one suspect holding a gun. SAC at ¶¶ 55-

56. The officers’ interview notes state that Brown did not know if

she could identify the individual with the gun. Id. at 56.

According to the SAC, Nedved and Leyden “changed” Brown’s

observations in their police report to state that the men she saw

were running southbound, not northbound, and that they ran past

the side of her house. The reason for these changes, plaintiff

claims, is that defendants “knew” Brown “could not ‘positively’

identify the suspects if they were running northbound away from

her house.” Id. at ¶ 58. The report states that Brown described

two light-skinned individuals, 5’8” to 5’10” tall, with short hair,

one of whom was holding a handgun. Id. at ¶ 59.2

The following day, September 2, 2014, both Burton and Brown

viewed photograph spreads and physical lineups to try to identify

suspects. Burton was brought to the Calumet Park Police Department,

where she allegedly saw plaintiff’s brother, Jarod Houston,3 and

2 The SAC describes statements by a third witness, Theophilus

Stanton, who allegedly reported hearing four gunshots then seeing

three individuals with dreadlocks flee from the scene. SAC at

¶¶ 38-42. But none of the officers sued in this case is alleged to

have had any contact with Stanton or even to have known the

contents of his statements. Accordingly, even assuming that

Stanton’s statements are exculpatory, they do not support

plaintiff’s theory that defendants knew he was not McMillen’s

killer or his argument that they “withheld” Stanton’s observations

from the grand jury. See Resp. at 4-5. Indeed, I can discern no

way in which the statements plaintiff attributes to Stanton are

relevant to his claim against any defendant.

3 The SAC does not say who Jarod Houston is, but defendants’ motions

describes him as plaintiff’s brother. Plaintiff’s counsel

told “Officer Summers” and “ASA Spirrizi” (neither a defendant

here) that Jarod “look[ed] just like” the man with dreadlocks who

shot McMillen and drove off in the Monte Carlo.4 SAC at ¶ 48.

Burton viewed a physical lineup that included plaintiff, but she

did not identify him as one of the shooters. Id. at ¶ 52. Brown,

for her part, viewed two photograph spreads that included plaintiff

but did not identify him as the individual she saw holding a gun.

Id. at ¶¶ 60-61. Thereafter, however, Brown picked plaintiff out

of a physical lineup as the person she saw with the gun. Id. at

¶ 62.

According to the complaint, however, these identification

procedures were manipulated to make it more likely that Burton and

Brown would identify plaintiff as the shooter. Plaintiff claims

that Nedved “prevented Ms. Burton from participating in a

photograph or physical lineup that included Jarod Houston despite

her positively identifying him as one of the shooters” and also

“prevented [her] from participating in a photograph or a physical

lineup that included Keenan Holden, Eric Neely, or Devonte Jenkins

because [he] knew she would identify one of them as the shooter.”

Id. at ¶¶ 50, 53. Similarly, Officers Nedved and Leyden “prevented”

confirmed at oral argument that the two are brothers. Tr. of

06/13/2019 Hr’g. at 14:6-7.

4 Plaintiff does not allege that Burton told any defendant that

Jarod looked like the shooter or assert any factual basis for

inferring that any defendant knew about Burton’s statement to

Summers and Spirrizi.

Brown from viewing photographs or a physical lineup that included

Holden, Neely, or Jenkins “because she would likely identify one

of them as the suspect holding the gun.” Id. at ¶ 63. And during

the physical lineup before Brown, Nedved and Leyden “called

Plaintiff individually to the two-way mirror in an overly

suggestive and coercive manner,” leading to Brown’s identification

of him as the gun-holder. Id. at ¶ 62. Plaintiff claims that these

identification procedures were part of “a concerted effort to

falsely arrest and charge Plaintiff with the murder of McMillen.”

Id. at ¶¶ 63-64.

According to the SAC, SSMCTF officers interrogated Keenan

Holden several times during their investigation. During his

initial interview on the day of the incident, Holden admitted to

defendant Gregory Okon and other officers that he had spit on the

woman in the car, but he denied any knowledge of the shooting. SAC

at ¶ 66. Okon allegedly “threatened Holden with physical violence

and stated that he would be charged with McMillen’s murder if he

did not ‘identify’ the shooter.” SAC at ¶ 67. Thereafter, Holden

stated that as he was leaving the scene, he saw plaintiff fire a

blue steel revolver at McMillen. Holden also stated that he and

plaintiff left the scene in a vehicle, and that plaintiff discarded

the gun on Racine Avenue. Id. at ¶ 68. Plaintiff claims that these

statements were false, and that “continued investigation” by Okon

and others revealed inaccuracies in Holden’s account. Id. at ¶ 69.

(The complaint does not say when these “inaccuracies” were

discovered.)

In the afternoon of September 2, 2014, defendant Calumet Park

Police Officer Mario Smith and other officers arrested plaintiff

for murder. SAC at ¶ 81. Plaintiff was transported for questioning

to the Blue Island Police Department, where he consistently “denied

any involvement in the shooting death of McMillen.” Id. at ¶ 83.

Meanwhile, in further interviews conducted the evening of

September 2, 2014, Holden allegedly provided “an accurate

statement of what occurred,” telling officers (though not any named

in this suit) that “Debo,” i.e., Jenkins, fired a gun at McMillen

before fleeing in a vehicle along with Johnson, Hull, and one

Malcolm Shorters. Id. at ¶¶ 70-72. Realizing that Holden’s

“accurate statement” would “jeopardize their decision to arrest

Plaintiff as the shooter,” however, defendants Okon, Daley, and

Rodriguez continued Holden’s interrogation the following day,

September 3, 2014. Id. at ¶ 75. During that interrogation, these

defendants “threatened Holden with physical violence and stated

that he would be charged with murder if he failed to identify

Plaintiff as the shooter,” and they allegedly fed him a

“description of the alleged murder weapon” based on a photograph

recovered from another suspect’s cellphone. Id. at ¶ 76-77. (The

SAC does not say what statements, if any, Holden made as a result

of these threats and suggestions.) Electronic searches conducted

between September 2 and September 4, 2014, of various individuals’

cellular phones allegedly produced no evidence that plaintiff was

the shooter. Id. at ¶ 84.

On September 4, 2014, the Cook County State’s Attorney’s

Office (“CCSAO”) approved a murder charge against plaintiff. SAC

at ¶ 86. According to the SAC, “[t]he CCSAO decision to approve

murder charges against Plaintiff was a result of Defendants[’]

purposeful and malicious conduct of falsifying reports,

fabricating evidence, and deliberately withholding or concealing

exculpatory evidence in a concerted effort to mislead and misdirect

the criminal prosecution of Plaintiff.” Id. The prosecutor

subpoenaed Burton, Brown, and Holden to testify at plaintiff’s

trial on January 13, 2016; but on the day of trial, each of these

witnesses “either recanted their prior statements or restated

Plaintiff’s lack of involvement in the shooting.” Id. at ¶ 89.

Accordingly, the CCSAO dismissed all charges against him. This

lawsuit followed.

II.

A central theme of defendants’ motion to dismiss is that the

allegations in the SAC establish affirmatively that probable cause

existed for plaintiff’s arrest and detention, eviscerating the

bulk of his claims. Indeed, probable cause “is an absolute defense

to any claim under Section 1983 against police officers for

wrongful arrest, false imprisonment, or malicious prosecution.”

Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006); see

also Stokes v. Bd. of Educ. of the City of Chicago, 599 F.3d 617,

626 (7th Cir. 2010) (same under Illinois law). That the officers

“allegedly acted upon a malicious motive” does not alter this rule.

Mustafa, 442 F.3d at 547. A plaintiff asserting such claims may

plead herself out of court by alleging facts that establish the

existence of probable cause. See Mayo and Burt v. LaSalle Cnty.,

et al., No. 18 CV 01342, 2019 WL 3202809, at *6 (N.D. Ill. July

15, 2019) (Tharp, J.).

Probable cause ‘is a common-sense inquiry requiring only a

probability of criminal activity; it exists whenever an officer or

a court has enough information to warrant a prudent person to

believe criminal conduct has occurred.’” Leaver v. Shortess, 844

F.3d 665, 669 (7th Cir. 2016) (quoting Whitlock v. Brown, 596 F.3d

406, 411 (7th Cir. 2010)). “The officers must have more than a

bare suspicion that they have the right guy, but they need not

have enough evidence to support a conviction or even to show that

their belief is more likely true than false.” Fox v. Hayes, 600

F.3d 819, 833 (7th Cir. 2010). Indeed, probable cause is a “low

bar,” Rainsberger v. Benner, 913 F.3d 640, 649 (2019). The

testimony of even one reasonably believable eyewitness is

generally sufficient. See, e.g., Gramenos v. Jewel Companies,

Inc., 797 F.2d 432, 439 (7th Cir. 1986). The probable cause

analysis focuses on what officers knew at the time of the arrest.

“The fact that an officer later discovers additional evidence

unknown to her at the time of the arrest, even if it tends to

negate probable cause, is irrelevant.” Reynolds v. Jamison, 488

F.3d 756, 765 (7th Cir. 2007).

While not all of the events alleged in the complaint can be

placed in precise sequential order, plaintiff’s recitation

establishes that by the time he was arrested on the afternoon of

September 2, 2014, defendants had the following information

pointing to his involvement in McMillen’s murder: McMillen was

shot during an altercation with a group of friends that included

plaintiff;5 at least one witness, Sandra Brown, had reported

hearing gunshots and then seeing an individual whose description

matched plaintiff’s—more on that issue shortly—holding a gun and

fleeing the scene; and Keenan Holden had told Officer Okon and

5 At oral argument, plaintiff’s counsel suggested that plaintiff

was not actually present at the time of the shooting, but that is

not a reasonable interpretation of his allegations. The SAC’s

summary of events leading up to McMillen’s shooting begins at

paragraph 29, which states: “On September 1, 2014, Plaintiff Joshua

Houston was an eighteen-year old black student. In the afternoon,

he left his home in Calumet Park to accompany friends located at

an address near 126th Street and Elizabeth Street in Calumet Park,

Illinois.” The next several paragraphs identify the friends who

were present at that location; summarize the altercation; and

assert that “someone from the group” of named friends shot and

killed McMillen. SAC at ¶¶ 30-33. Plaintiff states in ¶ 34 that he

was “in no way involved in the verbal argument [with] McMillen or

his subsequent shooting,” but he does not allege that he was not

present at the time. The most natural reading of these allegations

is that plaintiff was present for the altercation but did not argue

with or shoot McMillen. Indeed, absent some allegation suggesting

that plaintiff left the scene prior to McMillen’s shooting, that

is the only reasonable interpretation.

others that he saw plaintiff shoot at McMillen and provided other

details about plaintiff’s involvement the crime. Plaintiff does

not dispute that taken at face value, these allegations suffice to

establish probable cause for his arrest. He argues, however, that

defendants also had exculpatory information (i.e., eyewitness

accounts suggesting that someone whose appearance did not match

plaintiff’s shot McMillan), and that the incriminating evidence

was the product of defendants’ unlawful manipulation and

fabrication whose purpose was to suggest falsely that plaintiff

was McMillen’s shooter.

It is true that an officer cannot falsify evidence, then turn

around and rely on that evidence to support a judicial finding of

probable cause. See Lewis v. City of Chicago, 914 F.3d 472, 476

(7th Cir. 2019). But that is not the story that emerges from the

SAC. The allegations instead describe inconclusive witness

statements with conflicting accounts of the individual(s) seen

holding and/or firing a gun then leaps to the conclusion that

defendants somehow “knew” which of the potential suspects was the

true killer. Departing from that unsupported premise, the SAC

engineers a conspiracy on the theory that any evidence tending to

incriminate plaintiff must have been the product of defendants’

unlawful manipulation of the investigation to further their

presumptive plot to frame him.

While nothing in the complaint suggests why defendants would

rig the investigation to finger plaintiff for a crime they knew he

didn’t commit, plaintiff’s counsel offered a theory at oral

argument. He stated: “I believe the police knew who the shooter

was, and they manipulated evidence, manipulated reports,

manipulated testimony in an effort to use [plaintiff] as a guinea

pig in their investigation.” Tr. of 06/13/2019 Hr’g., at 6. Counsel

continued:

I speculate that the police charged Mr. Houston with an

offense with the hope that he would either implicate the

real shooter or that either someone else would come

forward with the hope to not have Mr. Houston prosecuted

for a crime he didn’t commit, or that the actual shooter

would come forward and not have Mr. Houston

prosecuted...for a crime that he didn’t commit.

Id. at 12. But this admittedly speculative theory runs into several

hurdles.

The most obvious is that it rests on factual foundations that

are not pled in the complaint and paints an incomplete picture of

the facts that are alleged. Counsel argued that although “every

eyewitness said that the person who shot the individual had long

dreadlocks,” defendants nevertheless homed in on plaintiff, who

had “short hair.” Hr’g. Tr. at 5. The SAC does not support either

part of this argument. First, it says nothing about plaintiff’s

hair. Second, even assuming that plaintiff’s hair was “short,”

that feature does not exclude him from the universe of possible

shooters. Indeed, “Debo,” who plaintiff claims Holden identified

as McMillen’s shooter in his “accurate statement” to officers on

September 2, also had short hair. SAC at ¶¶ 30, 70. And while it

is true that Tabitha Burton—the only witness who allegedly saw

shots fired—described a dreadlocked shooter, she also saw a second

shooter, described only as “a male black.” SAC at ¶¶ 44-45, 48.

Meanwhile, Sandra Brown described seeing two “light skinned”

individuals running from the scene, both of whom had short hair,

and one of whom was “holding a handgun.” Id. at ¶¶ 56, 59. Based

on counsel’s representations at oral argument, that description

closely matches plaintiff’s appearance.6 In short, the eyewitness

descriptions of the suspects simply are not the compelling proof

plaintiff’s counsel suggests that defendants “knew” someone other

than plaintiff was McMillen’s shooter.7

The speculative nature of plaintiff’s claims is likewise

clear from his allegations that Nedved and Leyden: 1) “changed”

Brown’s witness statement to make it appear as though she had

gotten a good look at the suspects; and 2) “prevented” Brown from

viewing a lineup that included other suspects they believed she

would identify, while singling out plaintiff in “an overly

suggestive and coercive” physical lineup. Plaintiff offers no

6 Counsel described plaintiff as a “lighter-skinned individual”

with “short hair.” Tr. of 06/13/2019 Hr’g. at 5:10-14.

7 Although plaintiff’s counsel stopped short of identifying the

individual(s) plaintiff believes shot McMillen, the theory I

derive from his allegations is that both Jenkins and Jarod Houston

fired at McMillen, with Houston delivering the fatal shot to the

head.

factual basis for inferring that Nedved and Leyden reported Brown’s

observations inaccurately.8 And his suggestion that they “changed”

her statement for the purpose of bolstering her anticipated future

identification of plaintiff as the individual she saw holding a

gun rests on multiple layers of conjecture. When plaintiff’s

assumption about defendants’ “preordained” plan is stripped away,

all that is left of these allegations is that Nedved and Leyden

recorded the suspects as fleeing in the wrong direction and that

Holden, Neely, and Jenkins were not included in the lineups Brown

viewed. These facts do not raise a plausible inference that

defendants participated in a conspiracy to manipulate the evidence

to incriminate plaintiff.

The same is true of the SAC’s allegations that Okon, Daley,

and Rodriguez coerced Holden into falsely implicating plaintiff in

McMillen’s murder. At the outset, “threatening” Holden with

prosecution does not amount to unlawful coercion given the SAC’s

allegations about Holden’s involvement in the altercation with

McMillen. See United States v. Miller, 450 F.3d 270, 272 (7th Cir.

2006), abrogated on other grounds by Kimbrough v. U.S., 552 U.S.

85 (2007). And while police officers obviously are not permitted

to use or threaten physical violence to coerce a witness statement,

the SAC does not allege that Holden made any incriminating

8 Indeed, the SAC does not make clear what plaintiff believes Brown

told these defendants.

statements bearing on the probable cause analysis as a result of

coercion by Daley or Rodriguez, who allegedly interrogated Holden

for the first time on September 3, 2014—after plaintiff’s arrest.

And while plaintiff does allege that Holden incriminated plaintiff

as a result of Okon’s coercion on September 1-2, coerced testimony

“may be true or false,” Petty v. City of Chicago, 754 F.3d 416,

422 (7th Cir. 2014) (quoting Fields v. Wharrie, 740 F.3d 1107 (7th

Cir. 2014), and nothing in the SAC (other than plaintiff’s

speculation) suggests that defendants knew Holden’s incriminatory

statements were false. See also Beauchamp v. City of Noblesville,

Inc., 320 F.3d 733, 743 (7th Cir. 2003) (“the police are under no

constitutional obligation to exclude all suggestions that the

witness...is not telling the truth.”).

At all events, defendants need not have believed that

plaintiff was “the shooter” to have had probable cause to arrest

and detain him in connection with the incident. As defendants point

out, the Illinois Accountability Statute provides that “[a] person

is legally accountable for the conduct of another when ... [e]ither

before or during the commission of an offense, and with the intent

to promote or facilitate such commission, he solicits, aids, abets,

agrees or attempts to aid, such other person in the planning or

commission of the offense.” 720 Ill. Comp. Stat. Ann. 5/5–2(c)

(West 2003). Assuming the accuracy of counsel’s representations

about plaintiff’s physical appearance, it was reasonable for

defendants to believe, based on Brown’s description and Keenan’s

statements, that plaintiff was holding and perhaps shot a gun in

the course of Keenan’s murder, even without clear evidence that

plaintiff shot the fatal bullet(s). That is sufficient to establish

probable cause for his arrest. See Monroe v. Davis, 712 F.3d 1106,

1120 (7th Cir. 2013) (evidence of intent to aid in the commission

of a crime supports liability under accountability theory).

The pleading standards of Rule 8 are not high, but they

require a plaintiff to plead “factual content that allows the court

to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Lewis v. City of Chicago, 914 F.3d 472,

476 (7th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). Well-pleaded facts in the complaint are taken as true,

but speculative or conclusory allegations “merely reciting the

elements of the claim are not entitled to this presumption of

truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.

2011). If the inference that defendants have engaged in wrongdoing

derives from complex factual allegations, the plaintiff must

inform the defendants “how, in the plaintiff’s mind at least, the

dots should be connected.” Swanson v. Citibank, N.A., 614 F.3d

400, 404 (7th Cir. 2010). Because the only thing connecting the

“dots” of plaintiff’s claims is his speculation about defendants’

collective knowledge and intent, the SAC fails to “raise a right

to relief above the speculative level.” Bell Atl. v. Twombly, 550

U.S. 544, 555 (2007). Untethered from plaintiff’s unsupported

assumptions, the alleged facts pointing to plaintiff’s involvement

in McMillen’s murder establish probable cause for his arrest and

prosecution. This conclusion is fatal to each of plaintiff's

substantive claims. And absent an underlying violation,

plaintiff's derivative claims fall away as well.

IIl.

For the foregoing reasons, defendants’ motion to dismiss is

granted in its entirety.?

ENTER ORDER:

Elaine E. Bucklo

United States District Judge

Dated: July 26, 2019

° Any motion to amend the complaint shall be filed within fourteen

days of this order. If no motion is filed within that time, the

case will be dismissed with prejudice.

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