Hill v. City Of Chicago

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DWAYNE HILL,

Plaintiff, No. 19 C 6080

v. Judge Thomas M. Durkin

CITY OF CHICAGO, CHICAGO POLICE

OFFICERS ROBERTO GARCIA, JOSE

GOMEZ, JONATHAN APACIBLE, GEORGE

LOPEZ, WAYNE RASCHKE, THOMAS

CRAIN, JEFFREY ADAMIK, and UNKNOWN

OFFICERS,

Defendants.

RICKEY FOUNTAIN,

Plaintiff,

v.

CITY OF CHICAGO, CHICAGO POLICE No. 19 C 6081

OFFICERS ROBERTO GARCIA, JOSE

GOMEZ, JONATHAN APACIBLE, GEORGE Judge Thomas M. Durkin

LOPEZ, WAYNE RASCHKE, THOMAS

CRAIN, JEFFREY ADAMIK, and UNKNOWN

OFFICERS,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Dwayne Hill and Rickey Fountain allege that officers from the

Chicago Police Department secured their wrongful convictions through a series of

constitutional violations related to fabricating evidence and withholding exculpatory

evidence. The City of Chicago and the defendant officers moved to dismiss Plaintiffs’

ten-count complaints in their entirety [No. 19-cv-6080, R. 36; No. 19-cv-6081, R. 36].

Although Hill and Fountain filed separate cases, the Defendants’ motion addressed

both complaints together (as does this order). The Defendants’ motion is granted in

part and denied in part.

Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Background

On July 15, 2009, Demetrius Harris was in his van at the intersection of

Kolmar and Van Buren in Chicago. No. 19-cv-6090, R.1 ¶ 12. A black car approached

the intersection and Harris observed a gun pointing out of the window. Id. ¶ 13. Ten

shots were fired, and Harris was struck by at least one bullet. Id. ¶¶ 14-15. Harris

fled the scene and later went to the hospital for treatment. Id. ¶ 14. He eventually

recovered and was discharged. Id. ¶ 15.

Harris’s friend Andy Wallace witnessed the shooting. Id. ¶ 16. He observed a

light-skinned African American man with dreadlocks lean out of the vehicle and shoot

the gun. Id. Harris spoke with Wallace by telephone a few days after the shooting

and said he did not know who shot him. Id. ¶ 17.

While Harris remained hospitalized and heavily medicated, Defendant

Officers Roberto Garcia and Jose Gomez manipulated Harris into falsely identifying

Dwayne Hill as the shooter and Rickey Fountain as the getaway driver. Id. ¶ 19. Once

the hospital released Harris, he recanted any statements that implicated Hill and

Fountain and said he did not know who committed the shooting. Id. ¶ 20.

Hill was arrested on September 2, 2009. Id. ¶ 21. The next day, Defendant

Officers Lopez and Jonathan Apacible went to Steven McKinnie’s (Harris’s cousin)

home and took him to the police station against his will to discuss the Harris shooting.

Id. ¶ 23. McKinnie did not witness the shooting, did not know Hill or Fountain when

the shooting occurred, and did not talk to the police on the incident date. Id. ¶ 22; No.

19-cv-6081, R. 1 ¶ 22. Once in custody, Defendant Officers Wayne Raschke and

Thomas Crain questioned McKinnie. No. 19-cv-6080, R.1 ¶ 25. McKinnie told

Raschke and Crain that he knew nothing about the shooting, at which point the

officers closed and locked the interrogation room door. Id. ¶ 26. When McKinnie asked

to leave, the officers told him they could hold him for up to 48 hours and handcuffed

him to a bench in the room. Id. ¶ 27.

McKinnie had separately been arrested on gun and drug crimes in 2009 but

had been released without charges. Id. ¶ 29. The Defendant officers threatened to

pursue those charges if McKinnie did not identify Hill and Fountain as the shooters.

Id.

Defendant Officers Raschke, Crain, Lopez, and Apacible then coerced

McKinnie into falsely implicating Hill and Fountain in the shooting. Id. ¶ 25; No. 19-

cv-6081, R. 1 ¶ 25. Specifically, the defendants fabricated a false narrative in which

McKinnie witnessed the shooting, flagged down Apacible and Lopez, jumped into

Apacible’s squad car, and excitedly told them that “Pig and Weezy” (nicknames for

Hill and Fountain) had shot Harris. No. 19-cv-6080, R.1 ¶ 28. According to the false

narrative, McKinnie then came to the police station on July 15, 2009, at which point

Defendant Jeffrey Adamik interviewed McKinnie about the shooting for five or ten

minutes before he was let go. Id.

At the bench trial, Harris’s and McKinnie’s statements were the only evidence

linking Hill and Fountain to the shooting. Id. ¶ 31; No. 19-cv-6081, R. 1 ¶ 31. On the

first day of trial, Harris testified consistently with his recantation affidavit, stating

that he did not remember speaking with the police at the hospital because he was

heavily medicated and did not know who shot him. Id. ¶ 32. On the second day of

trial, Harris recanted his recantation, describing that he had been threatened and

now wished to inculpate Hill and Fountain. Id. McKinnie testified that he did not

know Hill or Fountain, did not know who shot Harris, and spoke to the police for the

first time on September 3, 2009 when they forced him to come to the station. Id. ¶ 34;

No. 19-cv-6081, R. 1 ¶ 34. Defendant Officers Apacible, Raschke, and Adamik testified

that McKinnie witnessed the shooting and immediately came forward. No. 19-cv-

6080, R. 1 ¶ 35. The judge convicted Hill and Fountain based on Harris’s and

McKinnie’s pretrial statements. No. 19-cv-6080, R. 1 ¶ 36. Plaintiffs were sentenced

to 26 years in prison. Id. ¶ 37; No. 19-cv-6081, R. 1 ¶ 37.

During post-conviction proceedings, Hill and Fountain presented alibi

evidence, McKinnie’s statements at trial, and exculpatory evidence from Andy

Wallace. No. 19-cv-6080, R. 1 ¶ 38; No. 19-cv-6081, R. 1 ¶ 38. The State did not oppose

Hill’s and Fountain’s request to vacate their convictions, which were overturned on

September 12, 2018. No. 19-cv-6080, R. 1 ¶ 39; No. 19-cv-6081, R. 1 ¶ 39. In total, Hill

spent seven years incarcerated and Fountain spent nearly six. No. 19-cv-6080, R. 1 ¶

1; No. 19-cv-6081, R. 1 ¶ 1.

Plaintiffs allege that the Chicago Police Department has a widespread practice

of fabricating evidence and suppressing exculpatory evidence. No. 19-cv-6080, R. 1 ¶

44. Specifically, Plaintiffs point to Federal Bureau of Investigation Report FD-302,

which states that Chicago police officers would feed information to witnesses, coerce

them into sticking to a detective’s theory of the case, physically abuse witnesses, and

work with witnesses to develop and rehearse false narratives. Id. ¶ 47. The Plaintiffs

also allege that since 1986 Chicago police officers fabricated false evidence or

suppressed exculpatory evidence in no fewer than 70 cases, and that the department

systematically withheld exculpatory evidence from the State’s Attorney’s Office. Id.

¶¶ 44, 48. The plaintiffs also maintain that Chicago Police Department supervisors

condoned and facilitated a code of silence that allowed officers to act with impunity,

and failed to adequately train, supervise, and discipline its officers. Id. ¶¶ 56, 60.

Hill and Fountain sued the Defendant officers and the City of Chicago on

September 11, 2019 for 42 U.S.C. § 1983 violations of due process (Count I), loss of

liberty (Count II), conspiracy (Count III), failure to intervene (Count IV), and Monell

liability (Count V). The Plaintiffs also sued for intentional infliction of emotional

distress (Count VI), malicious prosecution (Count VII), civil conspiracy (Count VIII),

respondeat superior (Count IX), and indemnification (Count X). The Defendants

moved to dismiss all claims.

Analysis

I. Due Process (Count I)

Plaintiffs allege that Defendants violated their due process rights by

fabricating testimony and withholding exculpatory evidence. Defendants make two

arguments for why Plaintiffs fail to state a claim. First, Defendants point out that

while fabricating evidence may provide the basis for a due process claim, coercing

testimony does not. See Avery v. City of Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017)

(drawing distinction between fabricated and coerced evidence). At best, Defendants

argue, the complaints merely allege coercion. But the complaints specifically allege

that Defendants fabricated a false narrative in which McKinnie witnessed the

shooting and immediately reported it to police. Moreover, the complaints contend that

this evidence “resulted directly in the unjust criminal conviction of Plaintiff[s].” No.

19-cv-6080, R. 1 ¶ 68; No. 19-cv-6081, R. 1 ¶ 68. This is enough to sustain a due

process claim for fabrication of evidence. See Avery, 847 F.3d at 439 (“convictions

premised on deliberately falsified evidence will always violate the defendant’s right

to due process.”).

Relatedly, Defendants argue that Plaintiffs fail to identify any exculpatory

evidence that the officers withheld and thus fail to state a due process claim under

Brady v. Maryland, 373 U.S. 83 (1963). Failure to disclose material impeachment

evidence may violate an accused’s right to due process under Brady, see Avery, 847

F.3d at 443-44, including if “government officials suppressed evidence of fabrication.”

Lewis v. City of Chicago, 914 F.3d 472, 480 (7th Cir. 2019). However, “evidence cannot

be said to have been suppressed in violation of Brady if it was already known to the

defendant.” Avery, 847 F.3d at 443. Defendants contend that Plaintiffs knew during

trial that Harris’s and McKinnie’s pretrial statements were unreliable and thus

Brady does not apply. But knowing that statements are unreliable is different than

knowing the means by which those statements were obtained. See id. (reversing

summary judgment for defendant on Brady claim and stating that “[Plaintiff] knew

that the informants’ statements were false, but he did not know about the pressure

tactics and inducements the detectives used to obtain them.”). The complaint does

not directly address whether Plaintiffs knew about the tactics used to extract false

statements from McKinnie. But the complaint alleges that the Defendants testified

consistent with the fabricated narrative, that the judge convicted Plaintiffs based on

Harris’s and McKinnie’s pretrial statements, and that the suppressed evidence would

have demonstrated Plaintiffs’ innocence. This is enough to draw a reasonable

inference in the Plaintiffs’ favor – as the Court must at this stage – that they were

unaware of the means by which the officers allegedly extracted McKinnie’s

statements. Combined with Plaintiffs’ allegations of fabricated evidence, this is

enough to sustain a due process claim. See Goudy v. Cummings, 922 F.3d 834, 838

(7th Cir. 2019) (“It is important to clarify that although the parties occasionally refer

to [plaintiff’s] ‘Brady claims’ or ‘identification procedure claim,’ his allegations do not

give rise to separate claims under section 1983. [Plaintiff] has presented a single

claim: that the defendants are liable for causing him to receive an unfair trial in

violation of his due process rights.”). Defendants’ motion to dismiss Count I is denied.1

1 Defendants also assert that Plaintiffs are judicially estopped from arguing the police

coerced Harris into blaming them for the shooting. Judicial estoppel is an affirmative

defense around which the law does not require a plaintiff to plead. See Thompson v.

O’Bryant, 2008 WL 1924954, at *2 (N.D. Ill. Apr. 30, 2008). Thus, the Court does not

consider the argument here.

II. Manuel Loss of Liberty (Count II)2

Defendants next move to dismiss Plaintiffs’ unlawful pretrial detention claims

as time-barred. In Illinois, section 1983 claims have a two-year statute of limitations.

Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993). Defendants contend that

Plaintiffs’ claims accrued no later than the date of their convictions, January 31,

2013. Plaintiffs maintain that their claims did not accrue until their convictions were

overturned in September 2018. See Heck v. Humphrey, 512 U.S. 477, 486-89 (1994)

(holding that if a criminal defendant’s success on a civil claim would necessarily imply

the invalidity of a criminal conviction, the civil action does not accrue until the

conviction is invalidated). But the Heck bar does not toll the statute of limitations on

Fourth Amendment unlawful pretrial detention claims. Brown v. City of Chicago,

2019 WL 4958214, at *3 (N.D. Ill. Oct. 8, 2019) (“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.”). McDonough v. Smith, 139 S. Ct. 2149 (2019), does not change this result. As

Brown points out, McDonough was concerned with avoiding “collateral attacks on

criminal judgments through civil litigation.” Brown, 2019 WL 4958214, at *3 (quoting

McDonough, 139 S. Ct. at 2157). And “unlike fair trial claims, Fourth Amendment

claims as a group do not necessarily imply the invalidity of a criminal conviction, and

2 Plaintiffs style Count II as a “Manuel Loss of Liberty Claim.” This refers to Manuel

v. City of Joliet, 137 S. Ct. 911 (2017), which held that the Fourth Amendment

governs claims for unlawful pretrial detention even beyond the start of legal process.

Id. at 920.

so such claims are not suspended under the Heck bar to suit.” Dominguez v. Hendley,

545 F.3d 585, 589 (7th Cir. 2008). Rather, the Seventh Circuit recently clarified that

a wrongful pretrial detention claim accrues upon conviction (if not sooner). Knox v.

Curtis, 771 Fed. Appx. 656, 658 (7th Cir. 2019) (“[plaintiff’s] claim that he was

arrested and detained without probable cause accrued either in August 2017 (when

he was released on bond), or in November 2017 (when he was convicted).”) (internal

citations omitted); see also Brown, 2019 WL 4958214, at *3 (concluding the same).

Accordingly, the Plaintiffs’ wrongful pretrial detention claims accrued no later than

January 31, 2013, and the statute of limitations has long since run. Defendants’

motion to dismiss Count II of the complaints is granted.

III. § 1983 Conspiracy (Count III) and Failure to Intervene (Count IV)

The Defendants first argue that Plaintiffs’ section 1983 conspiracy and failure

to intervene claims (as well as the due process, loss of liberty, and malicious

prosecution claims) must be dismissed to the extent they are based on the Defendants’

trial testimony. The Plaintiffs clarify in their response that this is not part of their

claims. The Court thus need not consider this argument.

The Defendants also argue that Plaintiffs’ section 1983 conspiracy and failure

to intervene claims must be dismissed because they fail to allege an underlying

constitutional violation. See Coleman v. City of Peoria, 925 F.3d 336, 351 (7th Cir.

2019) (“conspiracy, failure to intervene, and municipal liability claims each depend

on proof of an underlying constitutional violation.”). As previously discussed, the

Plaintiffs have stated a claim for a violation of their due process rights. As such, this

argument fails. The Defendants’ advance no other reasons why Counts III and IV

should be dismissed. Accordingly, their motion is denied as to those counts.

IV. Monell Liability (Count V)

To establish a governmental entity’s liability under Monell v. Dep’t. of Soc.

Servs. of the City of New York, 436 U.S. 658 (1978), a plaintiff must establish the

existence of: (1) an express policy; (2) an unofficial governmental practice or custom

that is widespread and well-settled, or (3) an act by an official with final policymaking

authority. See Thomas v. Cook County Sherriff’s Dep’t., 604 F.3d 293, 303 (7th Cir.

2010). The policy or custom must be “the moving force” behind the constitutional

violation. Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir.

2007). The gravamen of a Monell claim “is not individual misconduct by police officers

(that is covered elsewhere in § 1983), but a widespread practice that permeates a

critical mass of the institutional body.” Rossi v. City of Chicago, 790 F.3d 729, 737

(7th Cir. 2015). For this reason, “misbehavior by one or a group of officials is only

relevant where it can be tied to the policy, customs, or practices of the institution as

a whole.” Id.

Plaintiffs appear to rely on a widespread practice theory of liability. To be

successful on such a claim, “the plaintiff must demonstrate that there is a policy at

issue rather than a random event. This may take the form of an implicit policy or gap

in expressed policies, or ‘a series of violations to lay the premise of deliberate

indifference.’” Thomas, 604 F.3d at 303 (internal citations omitted) (quoting Palmer

v. Marion County, 327 F.3d 588, 596 (7th Cir. 2003)). Defendants contend that

Plaintiffs fail to allege the policy at issue, or that any such policy has a causal link to

their claims. In so arguing, Defendants set the bar too high for a motion to dismiss.

True, Plaintiffs allege several practices and customs unrelated to the claims in this

case. But the complaint also alleges that the Chicago Police Department had a

widespread practice of suppressing and manufacturing evidence and contriving false

narratives against innocent persons that they coerced witnesses into adopting. See,

e.g., No. 19-cv-6080, R. 1 ¶ 46. The complaint then supports those allegations by

stating that at least 70 cases have come to light since 1986 in which Chicago Police

Department officers have fabricated evidence or suppressed exculpatory evidence

that led to convictions, id. ¶ 44, describing a Federal Bureau of Investigation report

that discusses Chicago police detectives feeding information to witnesses and working

with them to rehearse false narratives, id. ¶ 47, and describing the department’s

pattern of suppressing exculpatory information which they support by citing to

several other cases, id. ¶¶ 50-53. Moreover, the complaint alleges that the Defendants

acted in accordance with these widespread practices in securing the wrongful

conviction of Plaintiffs. This is enough to make the Plaintiffs’ Monell claim plausible.

Defendants’ motion to dismiss Count V is denied.

V. Intentional Infliction of Emotional Distress (Count VI)

Defendants also move to dismiss Count VI for intentional infliction of

emotional distress (IIED). As with Plaintiffs’ Fourth Amendment claims, the first

issue is whether the claims are timely. In Illinois, an IIED claim against a local entity

or its employees has a one year-statute of limitations. See 745 ILCS 10/8-101(a).

Defendants argue that Plaintiffs’ claims accrued in 2009 when they were arrested

and are now time-barred. R. 38 at 12 (citing Bridewell v. Eberle, 730 F.3d 672, 678

(7th Cir. 2013); Stapinski v. Masterson, 2017 WL 497772, at *4 (N.D. Ill. Feb. 7, 2017);

Friends-Smiley v. City of Chicago, 2016 WL 6092637, at *2 (N.D. Ill. Oct. 19, 2016)).

For their part, Plaintiffs contend that their claims did not accrue until after their

convictions were overturned. R. 44 at 17-18 (collecting cases).

Smith v. Burge, 222 F. Supp. 3d 669 (N.D. Ill. 2016) (St. Eve, J.), is instructive.

The defendants in Smith moved to dismiss the plaintiff’s IIED claim as untimely

under Bridewell. See Bridewell, 730 F.3d at 678 (holding IIED claim accrues on date

of arrest). But Smith distinguished Bridewell because the Bridewell plaintiff was

never convicted and thus the case did not implicate the Heck bar. Rather, the court

explained that the case more closely aligned with Parish v. Elkhart, 614 F.3d 677 (7th

Cir. 2010), which held that the plaintiff could not bring his IIED claim until the

criminal proceedings ended in his favor. See 614 F.3d at 684. Smith explained that,

as in Parish, the plaintiff’s IIED claim was timely because it was based on the

defendants’ coercion and fabrication of testimony that was used to procure his

conviction, and that alleging those facts before the conviction was vacated would have

directly attacked the conviction’s validity in violation of Heck. Smith, 222 F. Supp. 3d

at 693.

Similar considerations apply here. The Plaintiffs clearly state in their response

to the Defendants’ motion that their IIED claims are based on the fabrication of

evidence that led to their convictions. R. 44 at 16 (“Fabricating evidence to secure a

wrongful conviction is undoubtedly sufficiently outrageous to state a claim for IIED.”)

(emphasis added). Plaintiffs could not bring claims for fabricating a case until their

convictions were overturned. See Parish, 614 F.3d at 684 (“The factual allegations

that Parish was innocent and that the officers committed perjury, falsified evidence,

coerced witnesses to commit perjury, and withheld exculpatory evidence are all

challenges to the conviction that would only have been proper while the conviction

was still outstanding if Parish brought them through proscribed post-conviction relief

channels.”). To be sure, “misconduct by the police does not (at least, need not) imply

the invalidity of any particular conviction.” Moore v. Burge, 771 F.3d 444, 446 (7th

Cir. 2014). Indeed, Plaintiffs’ IIED claims would not be timely if they were based

solely on the Defendants’ interrogation tactics independent of their convictions. But

the wrongful conviction is the crux of Plaintiffs’ claims. As such, Plaintiffs’ IIED

claims implicate Heck, could not be brought until September 2018 when their

convictions were overturned, and are now timely. See Brown v. City of Chicago, 2019

WL 4694685, at *7 (N.D. Ill. Sept. 26, 2019) (holding IIED claim timely due to Heck).

Defendants also argue that the complaint fails to describe behavior sufficiently

outrageous to state a claim for IIED. But the complaint’s allegations that Defendants

fabricated evidence of Plaintiffs’ guilt and withheld exculpatory evidence is enough

to support their claims. See Carroccia v. Anderson, 249 F. Supp. 2d 1016, 1028 (N.D.

Ill. 2003) (“If, as alleged, defendants fabricated false or misleading evidence of

[plaintiff’s] guilt or concealed exculpatory evidence from prosecutors, that behavior is

sufficiently ‘outrageous’ to support a claim for intentional infliction of emotional

distress.”). Plaintiffs have pleaded enough to pass muster under 12(b)(6). Defendants’

motion to dismiss Count VI is denied.

VI. Malicious Prosecution (Count VII)

Defendants next move to dismiss Plaintiffs’ claims for malicious prosecution.

The elements of a malicious prosecution claim in Illinois are: “(1) the commencement

or continuance by the defendant of an original judicial proceeding against the

plaintiff; (2) termination of the original proceeding in favor of the plaintiff; (3) absence

of probable cause for the proceeding; (4) malice; and (5) special damages.”

Grundhoefer v. Sorin, 20 N.E.3d 775, 780 (Ill. App. Ct. 2014). Defendants argue that

Plaintiffs cannot sustain their claims because the judges in each of their cases found

there was probable cause to detain them. But Plaintiffs can still demonstrate that no

probable cause existed if the judges’ findings were based on fabricated evidence

supplied by the defendant officers. See Alexander v. United States, 721 F.3d 418, 423

(7th Cir. 2013) (“Knowingly false statements by the affiant cannot support a finding

of probable cause, and as we read the complaint, that is all there was.”); Tucker v.

Lally, 2020 WL 60205, at *4 (N.D. Ill. Jan. 6, 2020) (“False statements and fabricated

evidence cannot serve as the basis for probable cause.”); Manuel, 137 S. Ct. at 918-19

(when a judge’s probable-cause determination is predicated solely on a police officer’s

false statements it does not satisfy the Fourth Amendment’s probable-cause

requirement.). Here, the complaint alleges that the Defendants fabricated the only

evidence linking Plaintiffs to the crime. Accepting that as true, as the law requires at

this stage, the Court cannot conclude there was probable cause as a matter of law.

Defendants’ motion to dismiss Count VII is denied.

VII. Civil Conspiracy (Count VIII)

Defendants move to dismiss Plaintiffs’ state-law conspiracy claims as

duplicative of their malicious prosecution and IIED claims. Plaintiffs argue that their

conspiracy claims go beyond what the law requires to prove IIED or malicious

prosecution and thus are not duplicative. The Court declines to dismiss the claims at

this stage. “Illinois recognizes civil conspiracy as a distinct cause of action,” and

“dismissal of a conspiracy count as duplicative of other theories of recovery alleged in

the complaint [would be] premature.” Black v. Wrigley, 2017 WL 8186996, at *14

(N.D. Ill. Dec. 8, 2017) (alteration in original) (quoting Dowd & Dowd, Ltd. v. Gleason,

693 N.E.2d 358, 371 (Ill. 1998)); see also Cameron v. City of Chicago, 2017 WL

3421474, at *5 (N.D. Ill. Aug. 9, 2017) (declining to dismiss state-law conspiracy claim

as duplicative of malicious prosecution claim). Defendants’ motion to dismiss Count

VIII is denied.

VIII. Respondeat Superior (Count IX) and Indemnification (Count X)

Defendants move to dismiss Counts IX and X to the extent Plaintiffs’ other

state-law claims are subject to dismissal. As discussed, Plaintiffs’ state-law claims

are moving forward. Accordingly, Defendants’ motion to dismiss Counts IX and X is

denied.

Conclusion

For the reasons stated above, the Court grants Defendants’ motion to dismiss

Count IT of the complaints. Defendants’ motion [R. 36] is denied in all other respects.

ENTERED:

Krmiae M Luther.

Honorable Thomas M. Durkin

United States District Judge

Dated: January 31, 2020

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