Brown v. City Of Chicago

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ARTHUR BROWN, )

)

Plaintiff, )

)

v. ) No. 18 C 7064

)

CITY OF CHICAGO, former Chicago ) Judge Rebecca R. Pallmeyer

Police Officers, Special Representative )

for JOSEPH CAMPBELL,Special )

Representative for DAVID KUTZ, )

and Special Representative for )

JOSEPH FINE, Former Assistant )

State's Attorney JOEL WHITEHOUSE, )

and other as-yet-unidentified employees )

of the City of Chicago, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Arthur Brown was convicted of one count of arson and two counts of murder in

1990 and again in 2008, after he was granted a new trial. When this second set of convictions

was invalidated in 2017, the State of Illinois chose not to retry Brown, and he has now been

granted a Certificate of Innocence. In this action, Plaintiff asserts federal and state-law claims

against the City of Chicago, three Chicago Police Department (“CPD”) detectives, a former

Assistant State’s Attorney, and other City employees yet to be named. Specifically, the complaint

alleges that CPD detectives Joseph Campbell, David Kutz, and Joseph Fine fabricated evidence

against Plaintiff, depriving him of his constitutional right to a fair trial and resulting in his wrongful

conviction (Count I); participated in a conspiracy to deprive Plaintiff of his constitutional rights

(Count III); failed to intervene to prevent violations of Plaintiff’s constitutional rights (Count IV);

advanced a malicious prosecution of Plaintiff in violation of federal constitutional (Count VI) and

state law (Count VII); intentionally inflicted emotional distress upon Plaintiff (Count VIII); and

engaged in an unlawful civil conspiracy under state law (Count IX). In addition, Plaintiff alleges

that Campbell and Fine, along with former Assistant State’s Attorney Joel Whitehouse, violated

Plaintiff’s Fifth and Fourteenth Amendment rights to be free from compulsory self-incrimination

and deprivation of liberty without due process of law, by fabricating or coercing inculpatory

evidence used against Plaintiff in his criminal proceedings (Count II). Defendants Campbell, Fine,

and Kutz have all died in recent years; representatives of their estates have been substituted as

defendants (“Estate Defendants”).

Plaintiff has alleged that the City of Chicago is liable for the alleged wrongdoing of the

individual Defendants, under the doctrine of Monell v. Dep’t of Social Servs. of City of New York,

436 U.S. 658 (1978) (Count V), respondeat superior (Count X), and state law indemnification

(Count XI). Last month this court ruled on the City’s motion to dismiss Counts VI and VIII entirely,

and Counts I through V to the extent they sought damages from Plaintiff’s 1990 trial and

convictions. The court dismissed the federal malicious prosecution claim but otherwise denied the

City’s motion. See Brown v. City of Chicago, No. 18 C 7064, 2019 WL 4694685 (N.D. Ill. Sept.

26, 2019). Now, the Estate Defendants have filed a motion to dismiss some of these claims as

well. For the reasons stated below, the Estate Defendants’ motion is granted in part and denied

in part.

DISCUSSION

The Estate Defendants have moved to dismiss Counts I through V and Count VIII as they

relate to Plaintiff’s 1990 trial, Count I as it relates to Plaintiff’s 2008 trial, and Count VI entirely.1

1 The Estate Defendants also moved to dismiss any claims related to false testimony

given at trial and the use of excessive force. As Plaintiff correctly notes, his Second Amended

Complaint does not bring such claims. (Pl.’s Resp. to Estate Defs.’ Mot. to Dismiss [99] at 9.) The

Estate Defendants’ reply in support of its motion also dropped any mention of these claims. (See

Estate Defs.’ Reply in Support of Mot. to Dismiss [103] at 14.)

The court recounted the allegations of Plaintiff’s complaint and addressed some of the arguments

raised here in its earlier opinion concerning the City’s motion to dismiss. See generally Brown,

2019 WL 4694685. The court assumes familiarity with that earlier opinion and addresses the

current motion only briefly.

I. Counts I–V, VIII Associated with Plaintiff’s 1990 Trial

In their motion to dismiss, the Estate Defendants adopted and incorporated the City of

Chicago’s arguments that Counts I through V and Count VIII should be dismissed as time-barred

to the extent they sought damages from Plaintiff’s 1990 trial and convictions. The court, however,

denied the City’s motion to dismiss these counts, relying on a recent Supreme Court case,

McDonough v. Smith, 139 S. Ct. 2149 (2019), and a Seventh Circuit opinion that embraced

McDonough’s reasoning, Camm v. Faith, __ F.3d __, No. 18-1440, 2019 WL 4267769 (7th Cir.

Sept. 10, 2019). See Brown, 2019 WL 4694685, at *4–5. In its reply brief—which was filed before

the court ruled on the City’s motion—the Estate Defendants contend that neither McDonough nor

Camm apply. The court will briefly address these arguments.

Defendants assert that McDonough’s holding that a fabrication-of-evidence claim does not

accrue until the plaintiff’s acquittal is so narrow that it applies only to the facts of that case. But

even if that is true, the reasoning the Supreme Court offered in arriving at its holding has a broader

reach. McDonough, 139 S. Ct. at 2158–59, was based on “familiar principles” that “respect[ ] the

autonomy of state courts” by avoiding parallel civil and criminal litigation. See also id. at 2157

(noting that McDonough, like Heck v. Humphrey, 512 U.S. 477 (1994), was motivated by concerns

of finality and consistency “that have motivated this Court to refrain from multiplying avenues for

collateral attack on criminal judgments through civil tort vehicles such as § 1983”). Such “familiar

principles” were embraced by the Seventh Circuit in Camm, 2019 WL 4267769, at *11, which held

that, like the fabrication-of-evidence claim in McDonough, a claim brought under Brady v.

Maryland, 373 U.S. 83 (1963), did not accrue until the criminal proceedings ended in the

defendant’s favor. The Estate Defendants also argue that Camm is inapplicable because it is

inconsistent with the earlier Johnson v. Winstead, 900 F.3d 428 (7th Cir. 2018), and that the latter

remains controlling. In its ruling on the City’s motion to dismiss, Brown, 2019 WL 4694685, at *5,

the court recognized this tension but opted not to follow Winstead in light of its conflict with

McDonough and Camm. As the court observed, following Winstead would require Mr. Brown to

“have filed his suit [related to the 1990 trial] at the same time that the State was preparing to

prosecute him again—the exact situation McDonough cautioned against.” Id.; see also id.

(“Plaintiff should not have been expected to have brought this claim in 2005 while awaiting

retrial.”). Thus, consistent with the reasoning offered in McDonough and endorsed by Camm, the

court reiterates its decision not to dismiss Counts I through V and Count VIII as they relate to

Plaintiff’s 1990 trial and convictions.

II. Count I Associated with Plaintiff’s 2008 Trial

The Estate Defendants have also moved to dismiss Count I to the extent it seeks damages

associated with Plaintiff’s 2008 trial and convictions. Count I states a fabrication-of-evidence

claim. In particular, Plaintiff alleges that Defendants fabricated five items of evidence: (i) Brown’s

confession, (ii) Brown’s confrontation with Michael Harper at the police station, (iii) Cecil

Hingston’s statement that he sold gas in a gas can to two black males driving a white Ford Bronco,

(iv) Brown’s friendship with Mr. Harper, and (v) Brown’s promise to help Mr. Harper start a fire in

exchange for x-rated videotapes. But Defendants argue that Plaintiff has failed to specifically

identify the evidence used against him at his 1990 trial, the evidence used at his 2008 trial, and

the evidence used only to secure his pretrial detention. The Estate Defendants assert that Plaintiff

would not have any claim for fabricated evidence that was not admitted at one of his trials. See

Fields v. Wharrie, 740 F.3d 1107, 1114 (7th Cir. 2014) (“For if the evidence hadn’t been used

against the defendant, he would not have been harmed by it, and without a harm there is . . . no

tort.”). Moreover, Defendants argue, Plaintiff’s failure to distinguish fabricated evidence

introduced at his 2008 trial from what was introduced at his 1990 trial renders as inadequately

pleaded the fabrication-of-evidence claims related to his 2008 trial.

In his response (Pl.’s Resp. in Opp’n to Estate Defs.’ Mot. to Dismiss [99] at 7), Plaintiff

notes that his complaint alleges that all five of the items of evidence listed above were introduced

at trial. (See Second Am. Compl. [70] ¶ 42.) (“At trial, the State presented the evidence discussed

above, including the false ‘confession’ of Mr. Brown and the evidence used to explain and

corroborate the ‘confession.’”) Thus, Plaintiff does not appear to assert any claim for the

fabrication of evidence that was not introduced at trial; indeed, the allegations recounted in Count I

are inconsistent with such a claim.

As for whether Plaintiff’s fabrication-of-evidence claim is adequately pleaded, the key

issue is whether the allegation “give[s] the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Estate Defendants contend that Plaintiff’s failure

to distinguish what evidence was used at the 2008 trial from that admitted at the 1990 trial leaves

them “to speculate as to whether Plaintiff has sufficiently pleaded any due process claims in

connection with Plaintiff’s 2008 trial.” (Estate Defs.’ Mot. to Dismiss [87] at 10.) The complaint is

unambiguous that the five items of fabricated evidence discussed above were presented at the

1990 trial. (Second Am. Compl. [70] ¶ 42.) (“At trial, the State presented the evidence discussed

above . . . .”) True, the complaint is less clear about whether all five items or only the fabricated

confession were presented at the 2008 trial, but the fabrication-of-evidence claims associated

with that second trial concern—at most—the same evidence from the first trial. And because, as

previously noted, the court has permitted the claims related to the 1990 trial to proceed,

Defendants have “fair notice” about the fabrication-of-evidence claims that Plaintiff might pursue

with respect to the 2008 trial. For these reasons, Defendants’ motion to dismiss Count I as it

relates to Plaintiff’s 2008 trial is denied.

III. Count VI

Count VI states a claim for federal malicious prosecution. The court dismissed this count

in its ruling on the City’s motion to dismiss because the Seventh Circuit does not recognize such

a claim. See Brown, 2019 WL 4694686, at *5. The Estate Defendants have also moved to dismiss

Count VI to the extent Plaintiff has restated the claim as one for pretrial detention without probable

cause. But the court also rejected Plaintiff’s attempt to restate this count as a Fourth Amendment

claim in its earlier ruling. Id. at *6. (“[A] claim for detention without probable cause is inconsistent

with the allegations in Count VI, all of which concern the institution of judicial proceedings against

Plaintiff and not his detention.”).

Moreover, any unlawful pretrial detention claim that Plaintiff might have asserted would be

time-barred under Seventh Circuit precedent holding that such a claim is not subject to the

delayed accrual rule from Heck. See Knox v. Curtis, 771 Fed. Appx. 650, 658–59 (7th Cir. 2019)

(holding that the plaintiff’s challenge to his pretrial trial detention was not subject to Heck).

Plaintiff’s reliance on Manuel v. City of Joliet, 903 F.3d 667 (7th Cir. 2018) (“Manuel II”), is

misplaced. While the Seventh Circuit in Manuel II, 903 F.3d at 670, held that a claim for pretrial

detention without probable cause begins to accrue when the pretrial detention ends, Knox, 771

Fed. Appx. at 658, clarified that pretrial detention can be considered as ending upon conviction.

See also Manuel v. City of Joliet, 137 S. Ct. 911, 920 n.8 (2017) (“Manuel II”) (“[O]nce a trial has

occurred, the Fourth Amendment drops out.”). Thus, Plaintiff’s Fourth Amendment claims for his

detention before his 1990 and 2008 trials needed to be filed in 1992 and 2010, respectively.

McDonough does not save Plaintiff’s claim for pretrial detention without probable cause either.

As already noted, McDonough, 139 S. Ct. at 2157, is grounded in a concern for avoiding “collateral

attacks on criminal judgments through civil litigation.” A Fourth Amendment claim does not

constitute such a collateral attack. See Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008)

(“Even if no conviction could have been obtained in the absence of the violation, the Supreme

Court has held that, unlike fair trial claims, Fourth Amendment claims as a group do not

necessarily imply the invalidity of a criminal conviction, and so such claims are not suspended

under the Heck bar to suit.”). The delayed accrual embraced by the Supreme Court in McDonough

is not implicated here.”

For these reasons, Count Vl—whether a federal malicious prosecution claim or a claim

for pretrial detention without probable cause—is dismissed.

CONCLUSION

Defendants’ motion to dismiss [87] is granted in part and denied in part. Count VI remains

dismissed. The Estate Defendants’ motion to dismiss Counts | through V and Count VIII is

denied.

ENTER:

Date: October 8, 2019 CB ‘a 4

REBECCA R. PALLMEYER

United States District Judge

2 Despite Plaintiff's reliance on it, the Seventh Circuit’s opinion in Lewis v. City of Chicago,

914 F.3d 472 (7th Cir. 2019), is also not implicated. In that case, the plaintiff had not been

convicted, and so the court did not address the accrual question under consideration here. See

id. at 476-78.