Baker v. City of Chicago

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BEN BAKER and CLARISSA GLENN, )

)

Plaintiffs, )

) No. 16-cv-08940

v. )

) Judge Andrea R. Wood

CITY OF CHICAGO, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Ben Baker and Clarissa Glenn allege that a group of Chicago Police Department

(“CPD”) officers led by former sergeant Ronald Watts concocted a scheme to frame Baker for

drug crimes. As part of the scheme, in March 2005, officers planted heroin and cocaine on Baker

before arresting him. Then, in December 2005, officers arrested Baker and Glenn after planting

narcotics in their truck. After Baker was convicted on the March 2005 charges, both Baker and

Glenn pleaded guilty to the December 2005 charges to avoid a prison sentence for Glenn. An

investigation by the Federal Bureau of Investigation (“FBI”) subsequently revealed that Watts

and his team had engaged in bribery and other forms of corruption, and Baker and Glenn

successfully sought to have their convictions overturned. Baker and Glenn then brought this

lawsuit against a number of current and former CPD officers, asserting eleven claims: federal

claims alleging violation of due process rights, malicious prosecution, violation of First

Amendment rights, failure to intervene, and conspiracy, all pursuant to 42 U.S.C. § 1983 (Counts

I, II, III, IV, and V); state law claims for malicious prosecution, intentional infliction of

emotional distress, conspiracy, and loss of consortium (Counts VI, VII, VIII, and IX); and state

law claims against the City of Chicago (“City”) only, seeking to hold the City responsible for the

actions of Watts and his team based on a theory of respondeat superior and the state

indemnification statute (Counts X and XI). Defendants have jointly moved to dismiss all claims

pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 67.) For reasons stated below,

the motion is granted with respect to the federal malicious prosecution claim only.

BACKGROUND

For purposes of the motion to dismiss, the Court accepts as true all well-pleaded

allegations in the First Amended Complaint (“FAC”) and draws all reasonable inferences from

those allegations in Plaintiffs’ favor. See Williamson v. Curran, 714 F.3d 432, 435 (7th Cir.

2013). The FAC alleges as follows.

In 2004, Baker and Glenn lived in an area of Chicago patrolled by a tactical team of CPD

officers led by then-Sergeant Watts. (FAC ¶¶ 17–18, Dkt. No. 24.) After Baker refused to pay

Watts a bribe, Watts and CPD Officers Kallatt Mohammed and Alvin Jones illegally entered and

searched Baker’s home before falsely charging him with possessing “drugs in a mailbox.” (Id.

¶¶ 24–30.) Watts, Mohammed, Jones, and Kenneth Young, Jr. worked together to create false

police reports substantiating the possession charge. (Id. ¶ 31.) After Young provided fabricated

testimony intended to implicate Baker but also suggesting that the search of Baker’s mailbox

was unlawful, Baker’s attorney filed a motion to suppress the evidence of drugs found in the

mailbox and the prosecutor dismissed the case. (Id. ¶¶ 39, 41–42.) Jones later told Baker that he

only “beat the case” because of Young’s testimony, and that next time, “they” would make

charges against Baker “stick.” (Id. ¶¶ 44–45.)

Then, on March 23, 2005, CPD Officers Douglas Nichols, Jr. and Manuel Leano arrested

Baker without probable cause as he was leaving his home. (Id. ¶¶ 47–49.) Jones and Watts

arrived on the scene shortly thereafter and conferred with Nichols and Leano, at which point

Jones told Baker, “I told you we were going to get you.” (Id. ¶ 52.) After Leano and Nichols

took Baker to the police station, those officers, along with Watts, Jones, Robert Gonzalez, Brian

Bolton, Elsworth Smith, Miguel Cabrales, and Michael Stevens,1 created false police reports

regarding Baker’s alleged possession of drugs. (Id. ¶¶ 53–54.) None of those officers disclosed

that they had fabricated evidence and falsified police reports. (Id. ¶ 63.) Moreover, Nichols,

Gonzalez, Jones, and Watts lied under oath at Baker’s trial. (Id. ¶¶ 59–62.) As a result of the

fabricated evidence and false testimony, on June 9, 2006, Baker was convicted of two counts of

possession of controlled substances and sentenced to fourteen years of imprisonment on each

count. (Id. ¶ 67.)

Plaintiffs complained to the CPD about the misconduct by the aforementioned Defendant

Officers.2 (Id. ¶ 68.) But none of their complaints resulted in discipline because the City had a

policy of resolving such disputes in favor of its officers. (Id. ¶¶ 132–33.) After learning about

Plaintiffs’ efforts to have Defendant Officers disciplined, Jones, Mohammed, and Watts

threatened Glenn with jail time if she was not careful. (Id. ¶ 70.) On December 11, 2005, Watts

and Jones arrested both Baker and Glenn in a parking lot near their residence. (Id. ¶¶ 71, 79.)

Watts and Jones searched Baker and Glenn’s truck and, finding nothing, planted narcotics in the

truck and took Baker and Glenn into custody. (Id. ¶¶ 78–79.) Watts, Jones, Mohammed, Leano,

Smith, D. Soltis, Gonzalez, and Edward W. Griffin3 created false police reports regarding the

arrest. (Id. ¶ 80.) None of those officers disclosed that they had fabricated evidence and falsified

police reports. (Id. ¶ 85.) Because Baker had been wrongfully convicted before and they believed

1 Stevens has been voluntarily dismissed as a defendant. (Dkt. No. 117.)

2 “Defendant Officers,” as used herein, refers to Watts, Jones, Mohammed, Leano, Smith, D. Soltis,

Gonzalez, Cabrales, Nichols, Bolton, Young, and Smith, collectively.

3 Griffin has been voluntarily dismissed as a defendant. (Dkt. No. 117.)

a judge would credit the officers’ account over theirs, Baker and Glenn accepted plea deals so

that Glenn could avoid a prison sentence and stay with the couple’s children. (Id. ¶¶ 92–97.)

An FBI investigation of Watts and his tactical team eventually exposed their participation

in extortion, theft, and planting drugs on suspects, among other misconduct. (Id. ¶¶ 106–08.)

Watts and Mohammed pleaded guilty to federal criminal charges and were imprisoned. (Id.

¶ 110.) After the indictment, however, City officials attempted to downplay the magnitude of

Watts’s criminal enterprise. (Id. ¶¶ 114–15.) Furthermore, according to Plaintiffs, a “code of

silence” enforced throughout the CPD taught officers to conceal each other’s misconduct. (Id.

¶¶ 116–17.) Those who violated the code faced serious penalties: officers who cooperated with

the FBI investigation of Watts’s team endured retaliation and threats to their lives. (Id. ¶¶ 117–

18, 120, 123–24.) Moreover, Watts and a CPD supervisory officer told another officer who

confronted Watts about his misconduct that the officer’s life was in danger if he did not “keep

his mouth shut.” (Id. ¶¶ 126–29.) The City never investigated Defendant Officers despite a clear

pattern of misconduct; instead, the City deferred to the FBI investigation. (Id. ¶¶ 134–36.)

Despite having reason to believe that Watts’s team was committing crimes, the City allowed the

abuse to occur and withheld information about the misconduct. (Id. ¶¶ 138–40.) During the

relevant time, Defendants Karen Rowan and Debra Kirby served as Assistant Deputy

Superintendents of the CPD, and Philip J. Cline served as Superintendent of the CPD.4

(Id. ¶¶ 13–15.)

Baker filed a post-conviction petition after Watts and Mohammed were “publicly

exposed as criminals.” (Id. ¶¶ 141–42.) After the charges relating to Baker’s March 2005 arrest

were dismissed on January 14, 2016, both Baker and Glenn sought to overturn their guilty pleas

4 Rowan, Kirby, and Cline are referred to herein, collectively, as “Defendant Supervisory Officers.”

relating to the December 2005 arrest. (Id. ¶¶ 143–44.) The Circuit Court of Cook County vacated

both convictions on March 23, 2016. (Id. ¶ 145.) After their convictions were vacated, Plaintiffs

filed this suit against Defendant Officers, Defendant Supervisory Officers, and the City on

September 15, 2016.

DISCUSSION

Defendants have moved to dismiss the entire FAC pursuant to Rule 12(b)(6) for failure to

state a claim. Such a motion challenges the sufficiency of the complaint, not its merits. Gibson v.

City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).To survive a Rule 12(b)(6) motion, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must provide “only enough detail to give the

defendant fair notice of what the claim is and the grounds upon which it rests, and, through his

allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.”

Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 764 (7th Cir. 2010) (internal quotation marks

and citation omitted). But while a complaint need not include detailed factual allegations, the

plaintiff nonetheless must plead “‘factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.’” McReynolds v. Merrill Lynch

& Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012) (quoting Iqbal, 556 U.S. at 678).

I. Due Process and Malicious Prosecution Claims

A. Federal Due Process Claims (Count I)

In Count I, Plaintiffs assert federal due process claims based on the Fourteenth

Amendment. Specifically, Plaintiffs allege that Defendant Officers fabricated evidence and

withheld exculpatory evidence for the purpose of framing Plaintiffs and ensuring their

convictions, thereby violating their due process rights. In addition, according to Plaintiffs,

Defendant Supervisory Officers knew about a pattern of such misconduct by Defendant Officers

yet deliberately allowed those officers to continue their abuses, placing Plaintiffs and others at

risk of having their rights violated. In seeking dismissal of Plaintiffs’ due process claims,

Defendants argue that Plaintiffs are effectively alleging improper federal malicious prosecution

claims, and further, that silence with respect to evidence fabrication does not constitute an

actionable claim under Brady v. Maryland, 373 U.S. 83 (1963).

Courts in this Circuit recognize a standalone federal due process claim for evidence

fabrication—separate and apart from any malicious prosecution claim—when fabricated

evidence is used to obtain a wrongful conviction or deprive a person of his liberty. See Avery v.

City of Milwaukee, 847 F.3d 433, 441 (7th Cir. 2017); see also Saunders-El v. Rohde, 778 F.3d

556, 559–60 (7th Cir. 2015) (finding that the district court erred in concluding categorically that

allegations of evidence fabrication cannot form the basis for a federal due process claim); Petty

v. City of Chicago, 754 F.3d 416, 422–23 (7th Cir. 2014) (explaining the difference between an

evidence fabrication claim, which may form the basis for a due process violation, and a coercion

claim, which may not); see also Whitlock v. Brueggeman, 682 F.3d 567, 580 (7th Cir. 2012)

(“We have consistently held that a police officer who manufactures false evidence against a

criminal defendant violates due process if that evidence is later used to deprive the defendant of

her liberty in some way.”).

Based on the allegations in the FAC, Plaintiffs have sufficiently pleaded due process

violations based on fabrication of evidence. Plaintiffs allege that Defendant Officers planted

drugs on Plaintiffs’ property and persons and falsified police reports stating that Plaintiffs were

found in possession of drugs, in order to frame Plaintiffs for crimes they did not commit.

Fabricated evidence was presented at Baker’s trial where he was convicted on charges stemming

from his March 2005 arrest, and fabricated evidence compelled Baker and Glenn to plead guilty

to charges stemming from their December 2005 arrests. Under Seventh Circuit precedent, such

allegations state valid claims for due process violations wholly apart from any purported Brady

violations for failure to disclose the fabrication. As the Seventh Circuit explained in

differentiating claims of evidence fabrication from claims of coerced testimony:

Armed with the Brady disclosure, the accused can impeach the coerced testimony

by pointing to the tactics the officers used to extract it, and the jury has a fair

opportunity to find the truth.

The same cannot be said for fabricated evidence. Falsified evidence will

never help a jury perform its essential truth-seeking function. That is why

convictions premised on deliberately falsified evidence will always violate the

defendant’s right to due process. What’s relevant is not the label on the claim, but

whether the officers created evidence that they knew to be false.

Avery, 847 F.3d at 439–40 (internal quotation marks and citation omitted). In short, it does not

matter whether Plaintiffs label their due process claims as “evidence fabrication” claims, Brady

violations, or something else. Defendant Officers allegedly created evidence they knew to be

false and then used that evidence to secure Plaintiffs’ convictions for crimes they did not

commit. These allegations are sufficient to support actionable due process claims.

Plaintiffs also suggest a Brady theory for their due process claims. A police officer’s

failure to disclose material exculpatory evidence to a criminal defendant or the prosecutor may

result in a violation of the defendant’s due process rights. See Brady, 373 U.S. at 87–88

(explaining that the state violates the constitutional due process requirement by failing to

disclose material exculpatory evidence to defendants); Harris v. Kuba¸ 486 F.3d 1010, 1014 (7th

Cir. 2007) (explaining that police must disclose exculpatory evidence to prosecutors). To

establish a Brady claim against officers, a plaintiff must show (1) the evidence at issue was

favorable to the plaintiff; (2) the officers concealed the evidence; and (3) the concealed evidence

resulted in prejudice to the plaintiff. Harris, 486 F.3d at 1014. A Brady violation may provide

the basis for a due process claim when officers fail to disclose exculpatory evidence that the

plaintiff needs to impeach fabricated evidence at trial. See Avery, 847 F.3d at 443. This is so

even if the plaintiff knew that the evidence was fabricated. That the plaintiff knew evidence was

fabricated at the time does not preclude a Brady-based due process claim if the officers failed to

disclose circumstances pertaining to the fabrication that would have enabled the plaintiff to

challenge the validity of the evidence at trial. Id.

To the extent Plaintiffs intend to present their due process claims under a Brady theory,

they have alleged enough to proceed past the pleadings stage. Plaintiffs allege that Defendants

withheld evidence that Watts and his team planted drugs and falsified police reports, as well as

information about those officers’ “pattern of misdeeds” in the form of citizen complaints of

misconduct. It is reasonable to infer that Plaintiffs could have used this information to impeach

the state’s evidence against them. Without it, Plaintiffs had to rely only on their own denials that

they possessed drugs without support for any other explanation as to why drugs were found in

their possession. Drawing all inferences in Plaintiffs’ favor, it is reasonable to infer that

knowledge of Watts’s and the other officers’ misdeeds would have cast sufficient doubt upon the

evidence in Plaintiffs’ cases that the outcomes would have been different. Baker’s trial on

charges stemming from his March 2005 arrest might have ended in an acquittal, and both

Plaintiffs would have been on better footing to refuse a plea deal, go to trial, and obtain

acquittals with respect to the charges stemming from the December 2005 arrests.

Defendants contend that they are entitled to qualified immunity as to any claims based on

a Brady violation. They offer three reasons. First, Defendants contend that because police

officers have no constitutional duty to disclose their own misconduct, any alleged failure by

Defendants to disclose the fabricated evidence against Plaintiffs did not violate a clearly

established constitutional right. Second, Defendants argue that they are entitled to qualified

immunity with respect to any failure to disclose prior bad acts of Defendant Officers who did not

testify at Baker’s 2006 trial. And finally, Defendants assert that Brady does not impose

disclosure requirements in connection with guilty pleas, and thus Defendants are entitled to

qualified immunity in connection with Plaintiffs’ claims arising out of the convictions arising out

of the December 2005 arrests.

“Qualified immunity attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Lewis v. City of Chicago, 914 F.3d 472, 477 (7th Cir. 2019) (quoting Kisela v. Hughes, 138 S.

Ct. 1148, 1151 (2018) (per curiam)). To determine whether qualified immunity applies, the

Court undertakes a two-part inquiry: first, whether the facts alleged or shown by the plaintiff

make out a violation of a constitutional right, and second, whether that right was clearly

established at the time of the defendant’s alleged misconduct. Id. It is rare, however, for a

complaint to be dismissed on qualified immunity grounds under Rule 12(b)(6) because the

defense frequently depends heavily on the facts of the particular case, and plaintiffs are not

required to anticipate and overcome the qualified immunity defense in their pleadings. Reed v.

Palmer, 906 F.3d 540, 548 (7th Cir. 2018); see also Hanson v. LeVan, 967 F.3d 584, 589 (7th

Cir. 2020).

In this case, the Court agrees with Plaintiffs that qualified immunity cannot be decided at

the pleadings stage. On a Rule 12(b)(6) motion, qualified immunity must be considered taking

Plaintiffs’ well-pleaded allegations as true. Hanson, 967 F.3d at 590. “A complaint may be

dismissed under Rule 12(b)(6) on qualified immunity grounds where the plaintiff asserts the

violation of a broad constitutional right that had not been articulated at the time the violation is

alleged to have occurred.” Id. at 590 (citing Reed, 906 F.3d at 548.) But here, a reasonable

person would have known at the time that failure to disclose material exculpatory evidence to a

criminal defendant violated a clearly established constitutional right of that defendant. See

Brady, 373 U.S. at 87–88. As the broad constitutional right had been articulated at the time of the

violation, the qualified immunity inquiry requires a closer examination of the facts to determine

whether a reasonable person would have known that his conduct violated a clearly established

right under the circumstances of this case. See Whitlock, 682 F.3d at 575–76. In particular,

qualified immunity in this case likely turns on details regarding the contents of the withheld

evidence that are not yet part of the evidentiary record. Plaintiffs are entitled to develop a record

as to the circumstances surrounding the evidence fabrication so that they may argue what

information they could have used in defense of the criminal charges, how they would have used

that evidence, and whether it would have had an impact on their convictions. Similarly, whether

or not the exculpatory evidence would have been admissible at trial is not a matter to be

determined on the pleadings. Again, as qualified immunity constitutes an affirmative defense,

Plaintiffs were not required to plead around it in their FAC.

For all the reasons stated above, Defendants’ motion to dismiss is denied as to Count I.

B. Federal Malicious Prosecution Claims (Count II)

In Count II, Plaintiffs assert federal malicious prosecution claims based on the Fourth

Amendment. In response to Defendants’ motion to dismiss, Plaintiffs acknowledge that Seventh

Circuit precedent at the time they filed this action precluded these claims. But according to

Plaintiffs, the Supreme Court overturned that precedent in Manuel v. City of Joliet, Illinois, 137

S. Ct. 911 (2017), thus opening the door for their federal malicious prosecution claims to

proceed.

Despite Plaintiffs’ suggestion to the contrary, however, Newsome v. McCabe, 256 F.3d

747 (7th Cir. 2001), plainly bars any federal claims that sound in malicious prosecution where, as

here, there is an adequate state law remedy. See id. at 750 (explaining that “the existence of a tort

claim under state law knocks out any constitutional theory of malicious prosecution”); see also

Saunders-El, 778 F.3d at 560 (reiterating that Newsome establishes that allegations sounding in

malicious prosecution must be brought pursuant to state law). Neither the Supreme Court nor the

Seventh Circuit has disturbed that status quo with more recent rulings. While it is true that the

Supreme Court in Manuel partially abrogated Newsome in finding that the Fourth Amendment

can support a claim for unlawful pretrial detention beyond the start of legal process, see Manuel,

137 S. Ct. at 916, Newsome’s conclusions regarding the viability of federal malicious

prosecution claims remain good law in this Circuit. See, e.g., Lewis, 914 F.3d at 479; Seymour v.

Vill. of Glenview, No. 18 C 6174, 2019 WL 1505411, at *4 (N.D. Ill. April 5, 2019) (dismissing

Fourth Amendment malicious prosecution claim because “there is no such thing”); Lattimore v.

Klein, No. 17-cv-8683, 2019 WL 1028121, at *4 (N.D. Ill. March 4, 2019) (“As the Supreme

Court and Seventh Circuit have now made clear, however, there is no such thing as a ‘Fourth

Amendment malicious prosecution’ claim. Rather, to the extent that the plaintiffs allege that they

were detained in custody based on fabricated evidence . . . they have a Fourth Amendment claim

for a seizure unsupported by probable cause, not a ‘malicious prosecution’ claim.”); Andersen v.

Vill. of Glenview, No. 17-cv-05761, 2018 WL 6192171, at *13 (N.D. Ill. Nov. 28, 2018)

(rejecting any federal malicious prosecution claim under the Fourth or Fourteenth Amendment

because “as the Seventh Circuit has repeatedly explained, there is no free-standing constitutional

tort of malicious prosecution”) (internal quotation marks omitted). Accordingly, Plaintiffs cannot

proceed with their federal malicious prosecution claims in Count II. Those claims are dismissed.

C. State Law Malicious Prosecution Claim (Count VI)

Plaintiffs assert state law claims for malicious prosecution in Count VI. To succeed on a

malicious prosecution claim in Illinois, a plaintiff must show: “(1) the commencement or

continuance of an original criminal or civil judicial proceeding by the defendant; (2) the

termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause; (4)

malice; and (5) damages.” Szczesniak v. CJC Auto Parts, Inc., 21 N.E.3d 486, 490 (Ill. App. Ct.

2014).

In this case, Plaintiffs allege that Defendant Officers caused them to be prosecuted by

providing false reports and falsely claiming that there was probable cause to arrest them, thus

satisfying the first and third elements of their state law malicious prosecution claims. (See

Compl. ¶¶ 48, 54, 78–80.) The Circuit Court of Cook County vacated Baker’s and Glenn’s

convictions on January 14, 2016 and March 23, 2016, satisfying the second element. (Id. ¶ 145.)

The Court may reasonably infer malice from the allegations regarding Defendant Officers’

statements and actions—Plaintiffs allege that Defendant Officers framed Plaintiffs in retaliation

for their complaints and Baker’s refusal to pay a bribe. (Id. ¶ 83.) Additionally, both Plaintiffs

purport to have been threatened by various police officers for failing to pay the demanded bribe

and making complaints against Defendant Officers. (Id. ¶¶ 45, 52, 70.) Plaintiffs also allege that

they suffered damages in the form of loss of liberty, as well as physical and emotional suffering.

(Id. ¶ 234.) These allegations are sufficient at the pleading stage to sustain state law claims for

malicious prosecution.

Defendants assert that any claims based on the July 2004 arrest are hopelessly time-

barred because Baker’s 2004 trial stemming from that arrest did not end in a conviction. See,

e.g., Anderson v. Catholic Bishop of Chi., 759 F.3d 645, 648–49, 651–53) (7th Cir. 2014).5

Under Illinois law, a malicious prosecution claim accrues when the underlying criminal

proceeding terminates in the plaintiff’s favor. See Ferguson v. City of Chicago, 820 N.E.2d 455,

459 (Ill. 2004). And so Defendants are correct in noting that if Plaintiffs were pursuing malicious

prosecution claims based on charges from Baker’s July 2004 arrest, those claims would likely be

time-barred. But Plaintiffs are not pursuing malicious prosecution claims based on the July 2004

arrest. Plaintiffs’ claims instead originate from the March 2005 and December 2005 arrests—

which led to convictions that were vacated in January 2016 and March 2016. As Plaintiffs filed

this lawsuit on September 15, 2016—i.e., less than one year after the criminal proceedings were

terminated in their favor—their state law malicious prosecution claims were timely filed.

Since Plaintiffs have adequately pleaded state law claims for malicious prosecution and

those claims are not time-barred, the Court denies Defendants’ motion to dismiss Count VI.

5 Because a plaintiff’s failure to file a lawsuit within the limitations period constitutes an affirmative

defense, a Rule 12(b)(6) motion is not usually the proper vehicle for raising such an argument. See

Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613 (7th Cir. 2014) (citing United

States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004)). But a court may grant a motion to dismiss on

statute of limitations grounds when a plaintiff pleads facts effectively establishing the defense. Hollander

v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006).

II. First Amendment Claims (Count III)

In Count III, Plaintiffs assert First Amendment retaliation claims. Specifically, Plaintiffs

claim that Defendant Officers framed and arrested them in retaliation for Plaintiffs’ attempts to

expose Defendant Officers’ misconduct. “An act taken in retaliation for the exercise of a

constitutionally protected right violates the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618

(7th Cir. 2000). To plead a prima facie case of First Amendment retaliation, Plaintiffs must

allege that (1) they engaged in constitutionally protected activity, in this case, speech; (2) but for

the protected speech, Defendant Officers would not have taken the alleged retaliatory action

against them; and (3) Plaintiffs suffered a deprivation likely to deter future First Amendment

activity. See Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 501 (7th Cir. 2010). “It

is not enough to show that an official acted with a retaliatory motive and that the plaintiff was

injured—the motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning

that the adverse action against the plaintiff would not have been taken absent the retaliatory

motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019).

Defendants advance a single argument for dismissal of Plaintiffs’ First Amendment

claims: the claims are time-barred. Since the statute of limitations provides an affirmative

defense, the complaint must plainly reveal that an action is untimely before a court will grant

dismissal based on a Rule 12(b)(6) motion. See Leavell v. Kieffer, 189 F.3d 492, 495 (7th Cir.

1999). In Illinois, the limitations period for § 1983 claims is two years. Draper v. Martin, 664

F.3d 1110, 1113 (7th Cir. 2011). Moreover, the statute of limitations for First Amendment

retaliation claims generally begins to run immediately following the alleged retaliatory act. See

Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016). Given that the alleged retaliatory acts in

this case occurred in 2004 and 2005, Plaintiffs’ First Amendment claims would be time-barred if

the statute of limitations began to run at the time of the arrests. Plaintiffs contend, however, that

their claims did not accrue until their convictions were vacated, citing the deferred-accrual rule

of Heck v. Humphrey, 512 U.S. 477 (1994).

“Heck holds that a plaintiff may not maintain a § 1983 action where a judgment in his

favor would necessarily imply the invalidity of a previous criminal conviction that has not been

reversed, expunged, or called into question by the issuance of a federal court writ of habeas

corpus.” McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006) (citing Heck, 512 U.S. at 487).

Thus, “a claim that implies the invalidity of a criminal conviction does not accrue, and the statute

of limitations does not begin to run, until the conviction is set aside by the judiciary or the

defendant receives a pardon.” Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014); see id.

(explaining that, to the extent the plaintiffs argued that police violated their rights by giving false

testimony, or that during trial prosecutors withheld material exculpatory evidence about

misconduct during their interrogations, Heck bars relief until the conviction is set aside).

Notably, Heck’s deferred-accrual rule only applies to claims that imply the invalidity of a

criminal conviction; thus, “claims based on out-of-court events, such as the gathering of

evidence, accrue as soon as the constitutional violation occurs.” Id. at 446. See also Wallace v.

Kato, 549 U.S. 384, 396 (2007) (holding that “the statute of limitations upon a § 1983 claim

seeking damages for false arrest in violation of the Fourth Amendment, where the arrest is

followed by criminal proceedings, begins to run at the time the claimant becomes detained

pursuant to legal process); Rosado v. Gonzalez, 832 F.3d 714, 716 (7th Cir. 2016) (citing

Wallace); Neita v. City of Chicago, 830 F.3d 494, 498 (7th Cir. 2016); Parish v. City of Elkhart,

614 F.3d 677, 681 (7th Cir. 2010).

Here, however, Plaintiffs claim that Defendant Officers retaliated against them by

framing them for crimes they did not commit and using fabricated evidence to secure wrongful

convictions. Thus, Plaintiffs’ First Amendment claims rest on the fundamental assertion that they

did not possess any drugs and therefore were not guilty of the offenses of conviction. There is no

way for Plaintiffs to plead their First Amendment claims—let alone prove those claims—without

attacking the validity of their convictions. See Van Gilder v. Baker, 435 F.3d 689, 691 (7th Cir.

2006) (“To properly apply Heck’s bar against certain damage actions, a district court must

analyze the relationship between the plaintiff’s § 1983 claim and the charge on which he was

convicted.”); see also Calabrese v. Fox, 338 F.Supp.3d 775, 790 (N.D. Ill. 2017) (explaining

that, while not all false arrest claims are barred by Heck, the bar does apply to false arrest claims

where “‘specific factual allegations in the complaint are necessarily inconsistent with the validity

of the conviction’”) (quoting McCann, 466 F.3d at 621). Put another way, if Plaintiffs had

attempted to bring their First Amendment claims while their convictions still stood firm, the

claims would have been barred by Heck.

Accordingly, the time for Plaintiffs to bring their First Amendment claims did not begin

to run until their convictions were vacated in 2016. Count III thus survives Defendants’

challenge based on the statute of limitations.

III. Failure to Intervene Claims (Count IV)

In Count IV, Plaintiffs assert claims for failure to intervene under § 1983. A state actor’s

failure to intervene in the commission of a constitutional violation may render him culpable

under § 1983 if (1) he knew that the constitutional violation was committed, and (2) he had a

realistic opportunity to prevent it. Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017).

There must be an underlying constitutional violation for there to be a failure to intervene. Harper

v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005).

Defendants’ argument for dismissal of Plaintiffs’ failure to intervene claims rests on the

proposition that Plaintiffs cannot establish an underlying constitutional violation. As discussed

above, however, the Court finds that Plaintiffs have stated due process and First Amendment

retaliation claims. The Court may reasonably infer from the allegations in the FAC that

Defendant Officers and Defendant Supervisory Officers knew that Plaintiffs’ constitutional

rights were being violated through the fabrication of evidence, including the planting of drugs on

Plaintiffs’ persons and property and the falsification of police reports, and that Watts and his

team regularly engaged in such misconduct. Moreover, Plaintiffs have plausibly alleged that

Defendant Officers and Defendant Supervisory Officers had the opportunity to put a stop to the

misconduct by refusing to participate or cover it up, by discipling the responsible officers, or by

seeking outside help. Yet they failed to do so. The Court therefore denies Defendants’ motion to

dismiss Count IV.

IV. Federal and State Conspiracy Claims (Counts V and VIII)

Plaintiffs assert federal conspiracy claims under § 1983 in Count V and state common

law conspiracy claims in Count VII. To state § 1983 conspiracy claims, Plaintiffs must allege

facts sufficient to show (1) Defendants reached an agreement to deprive Plaintiffs of their

constitutional rights, and (2) overt acts in furtherance of the conspiracy that actually deprived

Plaintiffs of those rights. See Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015).

Plaintiffs must also allege the parties, the general purpose, and the approximate date of the

conspiracy. Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006). Similarly, to plead

conspiracy claims successfully under Illinois state law, Plaintiffs must allege: “(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. Johnson, 807 N.E.2d 461,

470 (Ill. 2004).

In seeking dismissal of their conspiracy claims, Defendants criticize Plaintiffs for relying

on what Defendants characterize as simple labels, conclusions, and a formulaic recitation of the

elements. The Court disagrees. In fact, Plaintiffs’ FAC provides a detailed factual narrative

describing how Defendant Officers agreed to plant drugs on Plaintiffs to frame them for crimes,

covered up their misconduct by submitting falsified reports, and provided false evidence and

testimony with the goal of ensuring that Plaintiffs were convicted and, in Baker’s case,

imprisoned for crimes they did not commit. Plaintiffs do not merely parrot legal conclusions;

rather, they allege with sufficient specificity a conspiracy to punish Baker for refusing to give

Watts a bribe and to punish both Baker and Glenn for daring to complain about police

misconduct. Viewing the facts and all reasonable inferences in Plaintiffs’ favor, they have

plausibly alleged both federal and state law conspiracy claims. Defendants’ motion to dismiss is

thus denied as to Counts V and VIII.

V. Intentional Infliction of Emotional Distress Claims (Count VII)

In Count VII, Plaintiffs assert state law claims for intentional infliction of emotional

distress or “IIED.” To state an IIED claim under Illinois law, a plaintiff must allege that “(1) the

defendant’s conduct was extreme and outrageous; (2) the defendant either intended that his

conduct should inflict severe emotional distress, or knew that there was a high probability that

his conduct would cause severe emotional distress; [and] (3) the defendant’s conduct in fact

caused severe emotional distress.” Doe v. Calumet City, 641 N.E.2d 498, 506 (Ill. 1994)

(overruled on other grounds by DeSmet ex. rel. Estate of Hays v. County of Rock Island, 848

N.E.2d 1030 (Ill. 2006)). In this case, Plaintiffs allege that Defendant Officers’ abuse of their

power and authority as described in the FAC satisfies these elements. For purposes of the present

motion, Defendants do not disagree. Instead, they seek dismissal of the claim based on the statute

of limitations.

The parties agree that the statute of limitations for Plaintiffs’ IIED claim is one year. See

745 ILCS 10/8-101. As with the First Amendment claims, however, the parties disagree on when

Plaintiffs’ IIED claims accrued such that the statute of limitations began to run. Defendants again

contend that the limitations period began to run when Plaintiffs’ were arrested by Defendant

Officers; Plaintiffs, on the other hand, argue that under Heck, the limitations period did not begin

to run until their convictions were vacated in 2016. See Moore, 771 F.3d at 446.

Defendants rely for their position on Bridewell v. Eberle, 730 F.3d 672 (7th Cir. 2013). In

Bridewell, the Seventh Circuit affirmed the district court’s dismissal on statute of limitations

grounds of the plaintiff’s IIED claim, explaining that “a claim of intentional infliction of

emotional distress in the course of arrest and prosecution accrues on the date of the arrest.” Id. at

678. But the Bridewell court was not asked to address the Heck bar, as the plaintiff there was not

convicted. And several courts in this District have since concluded that when an IIED claim is

based on the same misconduct that procured the plaintiff’s conviction, the statute of limitations

does not begin to run until the wrongful conviction has been overturned. See, e.g., Hill v. City of

Chicago, Nos. 19 C 6080 & No. 19 C 6081, 2020 WL 509031, at *5 (N.D. Ill. Jan. 31, 2020);

Andersen v. City of Chicago, No. 16-cv-1963, 2019 WL 6327226, at * 6 (N.D. Ill. Nov. 26,

2019); Brown v. City of Chicago, No. 18 C 7064, 2019 WL 4694685, at *6 (N.D. Ill. Sept. 26,

2019). But see Batchelor v. City of Chicago, No. 18-cv-08513, 2020 WL 509034, at *4 (N.D. Ill.

Jan. 31, 2020); Friends-Smiley v. City of Chicago, No. 16-cv-5646, 2016 WL 6092637, at *2

(N.D. Ill. Oct. 19, 2016) (collecting cases).

As alleged, Plaintiffs’ IIED claims are based on the very same fabrication of evidence

that led to their convictions. Alleging those facts before their convictions were vacated would

have directly attacked the validity of the convictions in violation of Heck. Accordingly, this

Court concurs with others in this District that have found under similar circumstances that a

plaintiff cannot bring an IIED claim based on the fabrication of evidence that led to a conviction

until that conviction has been overturned. See Hill, 2020 WL 509031, at *3 (finding that, because

the plaintiffs’ wrongful convictions were the crux of their IIED claims, those claims could not be

brought until the convictions were overturned; therefore, that is when the statute of limitations

began to run); Andersen, 2019 WL 6327226, at *6 (finding that the plaintiff’s IIED claim

directly attacked his conviction and therefore did not accrue until his conviction was overturned).

Thus, Plaintiffs’ claims did not accrue until January 2016 and March 2016, and were timely filed

on September 15, 2016. Defendants’ motion to dismiss Count VII is therefore denied.

VI. Loss of Consortium (Count IX)

Defendants also seek dismissal of Plaintiffs’ loss of consortium claims in Count IX.

Under Illinois law, when one spouse is injured, the other may recover from the tortfeasor in a

separate cause of action for the resulting loss of support, society, and companionship. See Pease

v. Ace Hardware Home Ctr. of Round Lake No. 252c, 498 N.E.2d 343, 349 (Ill. 1986) (setting

out the elements of a loss of consortium claim). Defendants here do not present any argument for

dismissal directed toward the substance of Plaintiffs’ loss of consortium claims. Instead,

Defendants simply contend that because the loss of consortium claims are “derivative” of the

other claims and those other claims should be dismissed, the loss of consortium claims should be

dismissed as well. Since the underlying claims have not all been dismissed, the loss of

consortium claims survive. The Court thus denies Defendants’ motion to dismiss Count IX.

VII. Claims against the City

Plaintiffs also seek to hold the City responsible for the actions of Defendant Officers and

Defendant Supervisory Officers based on Monell and respondeat superior theories of liability,

and also to impose an indemnification obligation on the City.

A. Monell

Under Monell v. Department of Social Services of New York, a municipality may be held

liable under § 1983 only “when execution of a government’s policy or custom . . . inflicts the

injury that the government as an entity is responsible for under § 1983.” 436 U.S. 658, 694

(1978). To state a Monell claim, a plaintiff must allege: “(1) that he suffered a constitutional

injury, and (2) that the City authorized or maintained a custom of approving the unconstitutional

conduct.” Petty, 754 F.3d at 424.

As discussed above, Plaintiffs have sufficiently alleged constitutional injuries in the

forms of due process violations and First Amendment retaliation claims. Moreover, the FAC

contains numerous specific factual allegations tending to show that the City authorized or had a

custom of approving the unconstitutional conduct. Specifically, Plaintiffs allege that the City and

its officials had notice of a widespread practice of misconduct of the very sort suffered by

Plaintiffs carried out by its police officers generally, and Watts and his team specifically;

nonetheless, the City failed to investigate citizen complaints and abdicated its responsibility to

train, supervise, discipline, and control its officers. Plaintiffs also allege that the City authorized

and maintained a code of silence across its police department that discouraged officers from

revealing misconduct. (See FAC ¶ 116–120.) Plaintiffs offer concrete examples of acts of

retaliation committed against Officers Spaulding, Echeverria, and Spaargaren after they

attempted to report Watts and his team for their misconduct. (Id. ¶¶ 123–25, 128–30.) These

allegations are further supported with references to comments by the Police Superintendent at

public hearings (see id. ¶ 169), data from the City itself (id. ¶¶ 175–78), findings by the

Committee on Police and Fire of the Chicago City Counsel and Justice Coalition of Greater

Chicago (id. ¶¶ 170, 171), and examples of criminal prosecutions of other CPD officers (id.

¶¶ 181–91).While some of the information alleged likely would not be admissible at trial, it

nonetheless bolsters the otherwise well-pleaded allegations that the City maintained an

unconstitutional policy or custom. Defendants’ motion to dismiss any Monell-based claims

against the City is accordingly denied.

B. Respondeat Superior and Indemnification (Counts X and XI)

Defendants also seek dismissal of Plaintiffs’ claims against the City to the extent those

claims are based on a theory of respondeat superior or state indemnification law, as set out in

Counts X and XI. Defendants contend that because the underlying substantive claims should be

dismissed, there is no basis for respondent superior recovery or indemnification. Given that the

Court has allowed the underlying state law claims to survive, these theories of vicarious relief

survive as well. The Court therefore denies Defendants’ motion to dismiss to the extent it is

directed towards the theories of liability set out in Counts X and XI.

VIII. Lack of Personal Involvement

Lastly, Defendants contend that the § 1983 claims against certain Defendant Officers and

Defendant Supervisory Officers should be dismissed because the FAC does not adequately allege

their personal involvement in the constitutional violations. Indeed, liability under § 1983 requires

personal involvement in a constitutional violation by the defendant. Palmer v. Marion County,

327 F.3d 588, 594 (7th Cir. 2003). Moreover, “[b]ecause § 1983 does not allow actions against

individuals merely for their supervisory role of others, individual liability under 42 U.S.C.

§ 1983 can only be based on a finding that the defendant caused the deprivation at issue.” Id. at

594 (internal citations and quotation marks omitted). If a supervisor did not personally engage in

the misconduct of his subordinates, then “[t]o be liable, a supervisor must know about the

conduct and facilitate it, approve it, condone it, or turn a blind eye.” Doe v. Purdue Univ., 928

F.3d 652, 664 (7th Cir. 2019) (internal quotation marks and citations omitted).

Defendants argue that the allegations against Defendant Officers Cabrales and Soltis are

insufficient to support their personal involvement in the claimed constitutional violations.6 The

Court disagrees. The FAC specifically alleges that Cabrales worked with other Defendant

Officers in connection with Baker’s March 2005 arrest “to create police reports that were false

and contained fabricated statements about Mr. Baker’s alleged possession of controlled

substances.” (FAC ¶ 54.) Meanwhile, Soltis is alleged to have worked with other Defendant

Officers “to create false police reports about the [December 2005] arrest to make it appear that

Mr. Baker and Ms. Glenn had committed crimes, when, in fact, they had not.” (FAC ¶ 80.) It is

true that these allegations regarding the two officers’ involvement are relatively thin. Accepted

as true, however, they are sufficient to establish each officer’s personal involvement in the

alleged due process violation, conspiracy, and failure to intervene.

Similarly, Defendants contend that the FAC fails to state claims under § 1983 against

Defendant Supervisory Officers Cline, Rowan, and Kirby because the allegations do not

6 Defendants raised the same argument as to Defendant Officers Stevens and Griffin prior to their

voluntary dismissal from the case.

sufficiently show their personal involvement in any constitutional violations or any other basis to

impose liability against them as supervisors.

In response, Plaintiffs do not claim that Defendant Supervisory Officers personally

carried out the misconduct surrounding Plaintiffs’ arrests and prosecutions. Instead, Plaintiffs

seek to hold Defendant Supervisory Officers liable based on a theory that they knew about the

misconduct by Watts and his team and facilitated, approved, condoned, or turned a blind eye to

it. See Doe, 928 F.3d at 664. On this point, Defendants urge the Court to find that Plaintiffs have

actually “pleaded themselves out of court” as to their supervisory liability claims. (Def. Joint

Mem. in Support of Mot. to Dismiss at 30, Dkt. No. 67.) According to Defendants, the

allegations in the FAC establish that Defendant Supervisory Officers knew about the misconduct

by Watts and his team, knew about and participated in the FBI’s criminal investigation of that

conduct, and made a determination to defer conducting their own investigation in light of the

FBI’s efforts. Accepted as true, Defendants claim, these allegations show that far from being

deliberately indifferent to Defendant Officers’ misconduct, Defendant Supervisory Officers

recognized and combatted the misconduct by supporting and participating in the criminal

investigation.

The Court disagrees with Defendants’ characterization of the allegations in the FAC

against Defendant Supervisory Officers and finds those allegations sufficient at the pleadings

stage. The FAC does allege that the FBI investigation “took place with the knowledge and

occasional participation of the Chicago Police Department’s Internal Affairs Department” and

that the Internal Affairs Department “was kept abreast of the FBI investigation.” (FAC ¶¶ 102–

03.) But, as Plaintiffs point out, far from alleging that CPD officers assisted and participated in a

joint investigation with the FBI, the FAC asserts that officers who cooperated with the criminal

investigation suffered severe intimidation, ostracization, and retaliation. (See, e.g., FAC ¶¶ 121–

30 (describing instances in which officers who cooperated with the FBI investigation were

retaliated against)). The existence of the FBI investigation may influence a factfinder’s

evaluation of whether Defendant Supervisory Officers in fact facilitated, approved, condoned, or

turned a blind eye to misconduct by Watts and his team. But a criminal investigation by an

outside agency serves a very different purpose than internal discipline, training, and review.

Perhaps a jury ultimately will agree with Defendants that Defendant Supervisory Officers acted

within constitutional bounds by deferring to the FBI investigation. But that determination will

likely turn on facts beyond the pleadings—including evidence establishing exactly what

Defendant Supervisory Officers Cline, Rowan, and Kirby knew about Watts’s team’s conduct,

when they knew it, and what they could have done about it.7 With a more developed record at the

summary judgment stage or trial, Defendants ultimately may be proved correct in their

characterization of Defendant Supervisory Officers’ actions. But the claims against those officers

survive a motion to dismiss.

7 The multitude of factual issues regarding the knowledge and actions of Defendant Supervisory Officers

also demonstrates why this is not one of the minority of cases in which qualified immunity can be

determined based on the pleadings.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss the FAC (Dkt. No. 67) is

granted in part and denied in part. The motion is granted with respect to Count II, which is

dismissed with prejudice, and otherwise denied.

ENTERED:

Dated: August 31, 2020 tMnid.

Andrea R. Wood

United States District Judge

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