Roldan v. Cicero

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LUIS ROLDAN,

Plaintiff,

No. 17-cv-03707

v.

Judge John F. Kness

TOWN OF CICERO, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

This § 1983 case arising from Plaintiff’s arrest and (later vacated) conviction

for aggravated sexual assault is now before the Court on Defendants’ motion to

dismiss Plaintiff’s Second Amended Complaint. Plaintiff asserts four claims: (1) a

Fourth Amendment claim for pretrial arrest and detention without probable cause;

(2) a Fourteenth Amendment claim for violation of Plaintiff’s right to due process

resulting in his wrongful conviction; (3) a Monell claim alleging the Town of Cicero’s

pattern or practice of violating the constitutional rights resulted in his conviction;

and (4) a state-law indemnification claim against the Town. (Dkt. 74.)

Defendants ask the Court, for various reasons, to dismiss all of Plaintiff’s

claims. Although some of Defendants’ current arguments do little more than restate

positions the Court previously rejected, others are raised for the first time and have

merit. More specifically, Plaintiff’s claims against newly-added defendants Walberto

Galarza and Frank Savaglio must be dismissed as time-barred. So too must Plaintiff’s

Monell claim be dismissed, as Plaintiff has not adequately alleged a widespread

Fourteenth Amendment claims against the remaining defendants must be allowed to

proceed, for largely the same reasons set forth in this Court’s previous opinions.

Accordingly, and as explained more fully below, the Court grants in part and denies

in part Defendants’ motion to dismiss.

I. BACKGROUND

Because the Court has set forth the alleged facts in this case in two earlier

opinions on motions to dismiss (Dkt. 35, Dkt. 53), this background section will focus

on information that is new to the Second Amended Complaint (Dkt. 74). In deciding

a motion to dismiss, the Court must “accept as true all of the well-pleaded facts in the

complaint and draw all reasonable inferences in favor of the plaintiff.” Calderon-

Ramirez v. McCament, 877 F.3d 272, 274 (7th Cir. 2017) (quoting Kubiak v. City of

Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016)). Thus, the following recitation is drawn

from the allegations of the Second Amended Complaint, which the Court must accept

as true.

On March 6, 2011, Plaintiff Luis Roldan, who was then 21 years old, spent the

day playing drinking games and having sex with an underage girl named “J.T.” (Dkt.

74 ¶¶ 50, 51, 53, 55.) Plaintiff’s hedonic escapade began at a movie theater in Cicero,

where Plaintiff, his friend Abraham Ramos, another individual named Yesenia, and

J.T. tried to decide on what movie to watch. (Id. ¶¶ 47-48.) Failing at that task, the

group went to Ramos’s aunt’s house and began drinking. (Id. ¶¶ 48-51.) Soon they

ran out of liquor. So the group went to Walgreen’s, where Plaintiff and J.T. had sex

in Plaintiff’s car. (Id. ¶¶ 52-53, 55.) After returning to Ramos’s aunt’s house, J.T. and

Ramos had sex as well. (Id. ¶ 58.) Soon afterwards, J.T.’s parents arrived at the home

and found their daughter, who was apparently unconscious. (Id. ¶ 59.) J.T.’s parents

then called the police. (Id.)

Sergeant Frank Savaglio and Detective Walberto Galarza of the Cicero Police

Department responded. (Id. ¶¶ 29, 35.) After a brief investigation that included

questioning Plaintiff and another witness who was present in the neighborhood, one

of the officers—Plaintiff does not allege who—arrested Plaintiff. (Id. ¶¶ 30-41.) Back

at the police station, Detectives Eduardo Zamora and Alfred Auriemma interviewed

J.T., who told them she did not remember anything after going to the movie theater.

(Id. ¶ 42.)1 J.T. also told medical personnel that she remembered drinking, but that

she was not sexually active and did not recall having sexual intercourse that day. (Id.

¶¶ 23-25.) Medical personnel noted the absence of any signs of trauma or defense

wounds. (Id. ¶¶ 20, 28.) Despite this lack of evidence, Plaintiff and Ramos were

charged with criminal sexual assault. (Id. ¶¶ 46, 61.)

Plaintiff says Defendants, lacking a warrant or probable cause, conspired to

press a criminal sexual assault case against Plaintiff by fabricating evidence against

him. (Id. ¶¶ 75-80.) Defendants “prepared police reports containing false account [sic]

of how and where plaintiff was placed under arrest” and “communicated the false

narrative to the prosecutors which resulted in plaintiff’s wrongful detention and

prosecution for the crime he did not commit.” (Id. ¶ 80; see also id. ¶¶ 88, 91 (alleging

Defendants “used the fabricated evidence against the plaintiff” including “falsified”

1 Detectives John Savage, Jason Stroud, and Attilio Fiordirosa are named as individual

defendants in the caption of the complaint, but no allegations are made against them

specifically. These defendants have not, however, brought any motion to dismiss separate

from Defendants’ joint motion.

police reports).) Further, to secure J.T.’s testimony, Defendants entered “an

agreement or an understanding between [Defendants] and J.T. and her family

whereby the defendants agreed to certify to the [United States Customs and

Immigration Services] J.T.’s status as a victim . . . to qualify her as a victim” for the

purposes of obtaining a U-Visa. (Id. ¶ 97.) According to Plaintiff, a U-Visa would have

permitted J.T. to remain in the United States. (Id.) Defendants, however, failed to

disclose that agreement to Plaintiff before or during his criminal trial. (Id. ¶ 108.)

After a bench trial, Plaintiff and Ramos were found guilty and sentenced to,

respectively, 8 and 12 years of incarceration. (Id. ¶ 61.) On September 14, 2015, the

Illinois Appellate Court reversed Plaintiff’s conviction and held the evidence

presented at trial was insufficient to prove Plaintiff’s guilt beyond a reasonable doubt.

(Id. ¶¶ 62, 64.) Five months later, the same court reached the same result as to

Ramos. (Id. ¶ 63.)

II. PROCEDURAL HISTORY

On May 17, 2017, Plaintiff, who was incarcerated for three years before his

sexual assault conviction was overturned on appeal, filed this action against eight

defendants―four individual officers, the Town of Cicero, Cook County, and an

Assistant State’s Attorney. (Dkt. 1.) Plaintiff alleged that the officers arrested him

without probable cause in violation of Plaintiff’s Fourth Amendment rights. (Id. ¶ 45.)

Plaintiff also alleged that that he was wrongfully convicted because Defendants

concealed Brady/Giglio material2 in violation of Plaintiff’s Fourteenth Amendment

2 See Dkt. 35 at 6-7 for further background regarding Brady and Giglio.

right to due process. (Id. ¶¶ 2-3.) Specifically, Plaintiff alleged Defendants failed to

disclose that J.T. believed, based on Defendants’ representations, that she would

receive assistance with a U-Visa (which provides temporary legal status and work

eligibility in the United States) in exchange for her testimony. (Id. ¶ 39.) Plaintiff

further alleged that J.T.’s statement to the officers amounted to fabricated evidence

because the statement was improperly obtained. (Id. ¶¶ 37-39.) Finally, Plaintiff

included a Monell claim alleging that the Town of Cicero and Cook County engaged

in a pattern and practice of depriving criminal defendants of their constitutional

rights. (Id. ¶ 123.)

Defendants moved to dismiss. (Dkt. 25 (Cook County defendants); Dkt. 28

(Town of Cicero defendants).) The Court, by the previously assigned judge, granted

the motions and dismissed the case without prejudice. (Dkt. 35.) Regarding the

Fourth Amendment claim, the Court rejected it because Plaintiff’s allegation that the

officers lacked probable cause was “conclusory.” (Id. at 10.) As to the Fourteenth

Amendment claim, the Court explained that Plaintiff failed to allege defendants had

an “agreement or understanding” with J.T. regarding the U-Visa. (Id. at 7.) Further,

the Court dismissed the fabrication of evidence claim because “[e]ven when a plaintiff

alleges that an officer coerced a witness to give an incriminating statement, that is

not enough to establish that the officer fabricated evidence[.]” (Id. at 8 (citing Avery

v. City of Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017)).) Finally, the Court dismissed

the Monell claim because the dismissal of Plaintiff’s other claims meant that he had

not made out an underlying constitutional violation. (Id. at 12-13.) Because this was

Defendants’ first motion to dismiss, the Court dismissed the complaint without

prejudice.

Seeking to cure the defects of his initial complaint, Plaintiff filed an amended

complaint. (Dkt. 36.) To establish a Fourth Amendment violation, Plaintiff alleged

the individual Defendants (1) “prepared police reports containing false account [sic]

of how and where [P]laintiff was placed under arrest”; (2) “attested through the

official police reports regarding the false account of the circumstances of [P]laintiff’s

arrest”; and (3) “communicated the false narrative to prosecutors which resulted in

[P]laintiff’s wrongful detention and prosecution.” (Id. ¶ 71.) To show Defendants

violated the Fourteenth Amendment as well, Plaintiff claimed Defendants reached

an undisclosed agreement with J.T. to facilitate her application for a U-Visa in

exchange for her testimony. (Id. ¶¶ 83-84.)

Defendants moved to dismiss again. (Dkt. 41.) Defendants contended that

Plaintiff’s Fourth Amendment violation allegations remained conclusory. (Id.)

Further, Defendants argued that Plaintiff failed to allege a Fourth Amendment

“seizure” because he was released on bail rather than detained before trial. (Id. at 6.)

As to the Fourteenth Amendment claim, Defendants argued that Plaintiff had not

adequately alleged that Defendants agreed to certify J.T.’s status as a victim and that

Defendants were precluded by law from disclosing to Plaintiff J.T.’s U-Visa status.

(Id. at 8-9.) Because neither the Fourth or Fourteenth Amendment claim would

survive if the Court accepted those arguments, Defendants argued, the Monell claim

and state-law indemnification claim would have to be dismissed as well. (Id. at 10.)

This time, the Court (again by the previously-assigned judge) granted the

motion in part and denied it in part. (Dkt. 53.) The Court held that Plaintiff’s

fleshed-out allegations cured the conclusory aspects of his original Fourth

Amendment claim. (Id. at 5-6.) Moreover, although Plaintiff had not alleged he was

detained prior to trial, Plaintiff had pleaded that his freedom was restricted by the

conditions of his bail, which was enough to plausibly state a Fourth Amendment

claim. (Id.) As to the Fourteenth Amendment, the Court acknowledged that “Plaintiff

does not allege who participated in the certification process” but he had nonetheless

stated a Brady/Giglio claim by alleging “Defendants came to an agreement [with

J.T.] and failed to disclose that agreement to Plaintiff.” (Id. at 10.) Whether

Defendants were barred by law from disclosing J.T.’s U-Visa status, Defendants were

obligated to disclose their agreement with J.T. (Id.) Because the Fourth and

Fourteenth Amendment claims survived, the Monell claim could not be dismissed

solely based on the lack of an underlying constitutional violation. (Id. at 11.)

On January 13, 2020, Plaintiff moved for leave to file the Second Amended

Complaint. (Dkt. 71.) Three days later, the Court granted that motion over

Defendants’ objection. (Dkt. 73.) Plaintiff filed the Second Amended Complaint on

January 16, 2020 and added Sergeant Galarza and Detective Savaglio as defendants.

(Dkt. 74.) On February 11, 2020, Defendants moved to dismiss the Second Amended

Complaint. (Dkt. 87.) That motion is now fully briefed. (Dkt. 93, Dkt. 102.)

In support of their motion, Defendants contend (1) the newly-added claims

against Sergeant Galarza and Detective Savaglio are barred by the statute of

limitations (Dkt. 87 at 2-3); (2) Plaintiff has not alleged a Fourth Amendment

violation because he has not alleged that the state court placed restrictions on him

while he was out on bail, and the state court records show there were none (id. at 6-

8); (3) Plaintiff’s allegation that Defendants failed to disclose their U-Visa

arrangement with J.T. is insufficient to state a Fourteenth Amendment claim (id. at

3-6); (4) Defendants are entitled to qualified immunity as to the Fourteenth

Amendment claim because Plaintiff’s right to know about the prosecution’s

agreement with J.T. regarding her U-Visa application was not clearly established (id.

at 12-13); and (5) Plaintiff’s Monell allegations are boilerplate and lack the requisite

specificity to survive a motion to dismiss (id. at 9-11).3

III. STANDARD OF REVIEW

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint

generally need only include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement

3 Defendants also add that certain claims are contingent on others and therefore dismissal

of certain claims would result in dismissal of others. Defendants argue (1) the Fourth

Amendment claim is barred by the statute of limitations if the Fourteenth Amendment claim

is dismissed; and (2) the Monell and state-law indemnification claims must be dismissed if

the Fourth and Fourteenth Amendment claims are dismissed, as those claims require an

underlying constitutional violation. (Dkt. 87 at 6, 12, 14.) Because the Court ultimately holds

that the Fourth and Fourteenth Amendment claims must be allowed to proceed, these

potential issues are moot.

must “give 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) (internal

punctuation omitted) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Seventh

Circuit has explained that this rule “reflects a liberal notice pleading regime, which

is intended to ‘focus litigation on the merits of a claim’ rather than on technicalities

that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir.

2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).

A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to

state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police

of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Each complaint “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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

550 U.S. at 570)). These allegations “must be enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555. Although legal conclusions are not

entitled to the assumption of truth, Iqbal, 556 U.S. at 678-79, the Court, in evaluating

a motion to dismiss, must accept as true the complaint’s factual allegations and draw

reasonable inferences in the plaintiff’s favor. Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011).

IV. DISCUSSION

At the outset, the Court must address whether some of Defendants’ attacks on

the Second Amended Complaint are waived before turning to the merits of

Defendants’ arguments in favor of dismissal. Ultimately, the Court holds that (1)

Defendants did not waive any failure-to-state-a-claim arguments that they did not

present in early motions to dismiss; (2) Plaintiff’s claims against Sergeant Galarza

and Detective Savaglio are barred by the statute of limitations; (3) Defendants have

not raised any new arguments that compel dismissal of Plaintiff’s Fourteenth

Amendment claims; (4) Defendants have not raised any new arguments that compel

dismissal of Plaintiff’s Fourth Amendment claims; and (5) Plaintiff’s Monell claim

must be dismissed.

A. Waiver

Rule 12(g)(2) of the Federal Rules of Civil Procedure provides, “[e]xcept as

provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not

make another motion under this rule raising a defense or objection that was available

to the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). Plaintiff

argues this rule precludes Defendants from moving to dismiss the Second Amended

Complaint on grounds they could have raised in their motions to dismiss the original

and first amended complaints. (Dkt. 93 at 12.) On this basis, Plaintiff asks the Court

to reject (1) Defendants’ argument that Plaintiff’s allegations are insufficient to

establish the Town of Cicero engaged in a pattern or practice of constitutional

violations, as required to state a Monell claim and (2) Defendants’ argument that

Plaintiff’s Fourteenth Amendment claims are barred by the doctrine of qualified

immunity. (Id. at 13.)

Defendants’ new arguments are not precluded under Rule 12(g)(2). As an

initial matter, Defendants are permitted to advance new arguments in favor of

dismissal because Plaintiff has filed a new amended complaint. Massey v. Helman,

196 F.3d 727, 735 (7th Cir. 1999) (“[W]hen a plaintiff files an amended complaint, the

new complaint supersedes all previous complaints and controls the case from that

point forward . . . Because a plaintiff’s new complaint wipes away prior pleadings, the

amended complaint opens the door for defendants to raise new and previously

unmentioned affirmative defenses.” (cleaned up)); Chasensky v. Walker, 740 F.3d

1088, 1094 (7th Cir. 2014) (“That the defendants did not raise qualified immunity

earlier in response to [plaintiff’s] original complaint is irrelevant because the

defendants raised the defense of qualified immunity at the very first opportunity after

[plaintiff] filed her amended complaint. They then raised it again later in their

answer to her amended complaint. Accordingly, as a matter of law, defendants did

not waive the defense of qualified immunity” (citing Massey, 196 F.3d at 735)).

To be sure, courts in other circuits “invoke Rule 12(g)(2) to reject new

arguments raised in a motion to dismiss an amended complaint that could have been

raised in a previous motion to dismiss a prior complaint but were not.” ISE Ent. Corp.

v. Longarzo, No. CV 17-9132-MWF (JCX), 2018 WL 5298692, at *4 (C.D. Cal. Apr. 16,

2018) (collecting cases). Once upon a time, that included courts in this district. E.g.,

766347 Ontario Ltd. v. Zurich Cap. Markets, Inc., 274 F. Supp. 2d 926, 930 (N.D. Ill.

2003) (“Rule 12(g) generally precludes a defendant from bringing successive motions

to dismiss raising arguments that the defendant failed to raise at the first available

opportunity”). But Defendants correctly point out that the Seventh Circuit has held

“Rule 12(g)(2) does not prohibit a new Rule 12(b)(6) argument from being raised in a

successive motion” because “Rule 12(h)(2) specifically excepts failure-to-state-a-claim

defenses from the Rule 12(g) consolidation requirement.” Ennenga v. Starns, 677 F.3d

766, 773 (7th Cir. 2012). As a decision of the Court of Appeals, Ennenga is the

controlling law of this circuit, and it forecloses Plaintiff’s argument. This Court will

therefore address Defendants’ new failure-to-state-a-claim arguments, regardless of

whether Defendants could have raised them earlier.

B. Newly-Added Defendants

Newly-added defendants Sergeant Galarza and Detective Savaglio contend

that the claims against them are barred by the statute of limitations. (Dkt. 87 at 2-

3.) Because the statute of limitations is an affirmative defense, it is not usually

resolved on a motion to dismiss. Cancer Found., Inc. v. Cerberus Capital Mgmt., LP,

559 F.3d 671, 674 (7th Cir. 2009) (“Dismissing a complaint as untimely at the

pleading stage is an unusual step, since a complaint need not anticipate and overcome

affirmative defenses, such as the statute of limitations”). But it may be raised in a

motion to dismiss if “the allegations of the complaint itself set forth everything

necessary to satisfy the affirmative defense.” Brooks v. Ross, 578 F.3d 574, 579 (7th

Cir. 2009) (quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)).

The statute of limitations for Section 1983 claims brought in Illinois is two

years. Liberty v. City of Chicago, 860 F.3d 1017, 1019 (7th Cir. 2017). Plaintiff alleges

his conviction was reversed on November 13, 2015. (Dkt. 74 ¶ 4.) Yet Plaintiff did not

file this action against Sergeant Galarzo or Detective Savaglio until January 16,

2020. (Id.) Sergeant Galarza and Detective Savaglio say this is enough to establish

their statute of limitations defense as a matter of law. (Dkt. 87 at 2-3.)

Plaintiff responds that his claims are saved by Rule 15 of the Federal Rules of

Civil Procedure. (Dkt. 93 at 2-3.) As relevant, that rule provides:

An amendment to a pleading relates back to the date of the

original pleading when . . . the amendment changes the

party or the naming of the party against whom a claim is

asserted, if Rule 15(c)(1)(B) is satisfied and if, within the

period provided by Rule 4(m) for serving the summons and

complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be

prejudiced in defending on the merits; and (ii) knew or

should have known the action would have been brought

against it, but for a mistake concerning the proper party’s

identity.

Fed. R. Civ. P. 15(c)(1)(C). The key phrase is “mistake concerning the proper party’s

identity.” Id. As the Supreme Court has held, that provision means “[t]he question

under Rule 15(c)(1)(C)(ii) is not whether [the plaintiff] knew or should have known

the identity of [the newly-named defendant] as the proper defendant, but whether

[that defendant] knew or should have known that it would have been named as a

defendant but for an error.” Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 548 (2010).

The rule thus applies when a defendant is aware (or should be aware) that the

plaintiff has named the wrong party as a defendant, but it does not apply to a

situation where a plaintiff, in the course of litigating his claims, discovers new claims

against new defendants. See Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 596 (7th Cir.

2006) (“[R]elation back on grounds of mistake concerning the identity of the proper

party does not apply where the plaintiff simply lacks knowledge of the proper

defendant” (internal citations and quotations omitted)).

Plaintiff’s addition of Sergeant Galarzo and Detective Savaglio does not relate

back under Rule 15(c)(1)(C)(ii); Plaintiff has not claimed that he named the wrong

parties as defendants or that Sergeant Galarzo and Detective Savaglio should have

known the wrong parties were named. Plaintiff admits that, although the identities

of Galarza and Savaglio “were known to the plaintiff . . . [,] the claims against them

did not becomes apparent until . . . they were deposed.” (Dkt. 93 at 3-4.) This is

precisely the type of situation where courts have held that Rule 15(c)(1)(C) does not

apply. See, e.g., Mehta v. Vill. of Bolingbrook, No. 12 C 6216, 2014 WL 7450304, at *4

(N.D. Ill. Dec. 29, 2014) (“Plaintiffs offer no basis whatsoever that would support a

finding that the newly-named defendants . . . had any awareness, or should have

been aware, that they would have been named as defendants but for a mistake by the

plaintiffs. Thus the claims against the defendants do not relate back to the date the

original complaint was filed”).

Plaintiff had two years under the applicable statute of limitations to sue

Sergeant Galarzo and Detective Savaglio, but Plaintiff does not allege that either

officer committed any constitutional violation within two years of the filing of the

Second Amended Complaint. Because Plaintiff does not identify any valid grounds

for tolling the statute of limitations or relating his allegations back to the date of the

original complaint, his claims against Sergeant Galarzo and Detective Savaglio are

time-barred. Brooks, 578 F.3d at 579.

C. Fourteenth Amendment Claims

Defendants offer three arguments for dismissing Plaintiff’s Fourteenth

Amendment claim: (1) this Court incorrectly held in its earlier motion to dismiss

opinion that Defendants were required under Brady/Giglio to disclose their

agreement with J.T. regarding her U-Visa application (Dkt. 87 at 3-4); (2) even if the

agreement was Brady/Giglio material, Defendants are entitled to qualified

immunity because it was not “clearly established” that the agreement was

Brady/Giglio material at the time they neglected to disclose it (id. at 12-13); and

(3) Plaintiff’s allegations contradict the criminal court transcript and therefore

cannot support his claim (id. at 5-6.). These arguments are addressed in turn.

As to the first argument, Defendants contend that the Court’s earlier ruling

“focused on Defendants’ arguments that under federal regulations . . . they may not

even be provided any information as to what happened in relation to the U-Visa and

that they are not the decisionmaker as to if one is granted.” (Id. at 3 (citing Dkt. 53

at 9-10).) Instead, they say, the Court should have acknowledged “the[ir] argument

goes much further than that” because they are “prohibited by federal law from

disclosing any information related to a U-Visa application.” (Id. at 3-4 (emphasis in

original).)

This argument fails. To begin, the Court’s earlier ruling did address

Defendants’ claim that they were prohibited by federal law from disclosing to Plaintiff

their agreement with J.T. (See Dkt. 53 at 10 (addressing Defendants’ argument that

“federal law prohibits the use or disclosure of pending or approved U-visa applications

unless certain conditions are met”).) It is therefore incorrect that the Court did not

address all of Defendants’ arguments on this subject in its earlier order.

Because the Court ruled on Defendants’ argument that the agreement with

J.T. was not Brady/Giglio material, Defendants are not permitted to raise that

argument in their new motion to dismiss; they must move for reconsideration instead.

See Tuhey v. Ill. Tool Works Inc., No. 17-cv-03313, 2019 WL 1239799, at *2 (N.D. Ill.

Mar. 18, 2019) (holdings in motion to dismiss opinion are law-of-the-case). To prevail

on a motion for reconsideration, Defendants would have to offer “a compelling reason,

such as manifest error or a change in the law, that warrants re-examination.” Minch

v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007). Defendants have not brought a

motion for reconsideration, articulated the standard for such motions, or otherwise

acknowledged that they are seeking relief from the Court’s earlier ruling. Because

their new motion to dismiss is not the correct procedural vehicle for objecting to the

Court’s earlier rulings, and because they have not met the standard for

reconsideration, the Court rejects Defendants’ argument that they were not required

under Brady/Giglio to disclose their agreement with J.T.

Defendants next argue they are entitled to qualified immunity as to Plaintiff’s

Fourteenth Amendment claim. Qualified immunity is grounds for dismissal under

Rule 12(b)(6) “only when the plaintiffs’ well-pleaded allegations, taken as true, do not

‘state a claim of violation of clearly established law.’ ” Hanson v. LeVan, 967 F.3d 584,

590 (7th Cir. 2020) (quoting Behrens v. Pelletier, 516 U.S. 299, 306 (1996)). “Clearly

established” in this context means the question must be “beyond debate.” Mullenix v.

Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

According to Defendants, even if their agreement with J.T. was Brady/Giglio

material that Defendants were required to disclose, Defendants are entitled to

qualified immunity because that requirement was not “beyond debate” at the time of

their alleged violation. (Dkt. 87 at 12-13.)

With full respect for the important protections provided by the qualified

immunity doctrine, the Court finds that the disclosure obligation at issue was beyond

debate at the time disclosure should have been made. Under Giglio, when the

“reliability of a given witness may well be determinative of guilt or innocence,” the

state must disclose to the defense any material evidence “affecting [the] credibility”

of that witness. Giglio v. United States, 405 U.S. 150, 154 (1972) (citing Napue v.

Illinois, 360 U.S. 264, 269 (1959)). There is no dispute that the testimony of J.T.—

the only eyewitness in Plaintiff’s criminal case—was potentially outcome-

determinative. And it cannot be reasonably disputed that any promise of immigration

benefits by the police and prosecution would have provided rich fodder for cross-

examination into whether J.T. shaded her testimony as a perceived quid pro quo.

Thus the only remaining question is whether clearly established law rendered it

“beyond debate” that the agreement required disclosure because it was impeaching

of her credibility.

In the Court’s view, establish authorities rendered this issue beyond debate.

As the Seventh Circuit has repeatedly held, the Constitution requires the government

to disclose the terms of any agreement it has with a witness to provide that witness

with benefits in exchange for testimony. See United States v. Boyd, 55 F.3d 239, 244

(7th Cir. 1995) (“Disclosure of these benefits, of course known to the prosecution (the

source of the benefits), would have helped the defendants by undermining the

credibility of key witnesses against them. The rule of Brady applies to evidence usable

only to impeach the credibility of the prosecution’s witnesses, and not just to direct

evidence of innocence”); United States v. Fallon, 776 F.2d 727, 734 (7th Cir. 1985)

(noting that defendants are entitled to cross-examine witnesses regarding the terms

of any agreement they have with the state); see also United States v. Fregoso-Bonilla,

No. 05-CR-325, 2007 WL 2377306, at *1 (E.D. Wis. Aug. 16, 2007) (“[U]nder Brady

and Giglio, the government must disclose evidence that may be used for impeachment

purposes, including evidence of government favors in exchange for cooperation by a

witness”).

Longstanding Illinois precedent also explains that impeachment evidence

includes “any promises of leniency [that] have been made or any expectations of

special favor [that] exist in the mind of the witness.” People v. Triplett, 485 N.E.2d 9,

15 (Ill. 1985) (quoting People v. Freeman, 426 N.E.2d 1220, 1222 (Ill. App. Ct. 1981));

cf. Freeman, 426 N.E.2d at 1222 (“Defense counsel need not show beforehand that

any promises of leniency have been made” to a witness to impeach that witness’s

credibility; he must only show that the witness believed he would receive leniency).4

Applying this standard, courts in Illinois have for three decades held that a witness’s

status as an illegal alien is impeaching because she “might be vulnerable to pressure,

real or imagined, from the authorities.” People v. Austin, 463 N.E.2d 444, 452 (Ill.

App. Ct. 1984); see also People v. Turcios, 593 N.E.2d 907, 919 (Ill. App. Ct. 1992);

People v. Clamuextle, 626 N.E.2d 741, 747 (Ill. App. Ct. 1994).

Moreover, the State of Illinois has repeatedly conceded the impeaching nature

of an agreement between the state and a witness to help the witness with

immigration issues in exchange for testimony. See, e.g., People v. Roman, 67 N.E.3d

4 State court decisions are as pertinent as federal court decisions when determining

whether an officer acting under color of state law violated a clearly established constitutional

right. See Burgess v. Lowery, 201 F.3d 942, 946 (7th Cir. 2000) (“[T]here is no basis for an a

priori belief that federal judges have a superior perspective on the scope of federal

constitutional rights to that of state judges.”); Sutterfield v. City of Milwaukee, 751 F.3d 542,

573 (7th Cir. 2014) (“In the absence of a controlling decision by the United States Supreme

Court, the Wisconsin cases are thus as relevant as our own precedents in evaluating what a

Milwaukee police officer might have thought the law permitted . . . ”); Stanton v. Sims, 571

U.S. 3, 5-6 (2013) (per curiam) (including decisions of both federal and state courts when

analyzing whether officers violated a clearly established constitutional right).

987, 993 (Ill. App. Ct. 2016) (“The State denies that it promised to assist [the witness]

with immigration and disability benefits issues in exchange for his testimony. The

State concedes, however, that if it had done so, that information could have been the

subject of impeachment on cross-examination, satisfying the first Brady

requirement”); People v. Morales, 164 N.E.3d 1, 9 (Ill. App. Ct. 2019) (“[A]t oral

argument, the State appeared to concede favorability by agreeing that it would have

had the obligation to disclose any immigration deal it had with [the witness], if such

a deal existed. We agree”).

In the light of these federal and state authorities, it was clearly established at

the pertinent time that Defendants were required to disclose their agreement to

assist J.T. and her family in immigration proceedings. See, e.g., United States v.

Blanco, 392 F.3d 382, 392 (9th Cir. 2004) (“It is obvious . . . that the government

suppressed information that should have been turned over to [the defense] under

Brady and Giglio” because “[a]ny competent lawyer would have known that [the

witness’s] special immigration treatment by the INS and the DEA was highly

relevant impeachment material”); United States v. Sipe, 388 F.3d 471, 490-91 (5th

Cir. 2004) (holding that government was required to divulge immigration benefits

provided to alien-witnesses where “the aliens’ testimony formed the heart of the

government’s case” because “[t]he aliens could be grilled on the benefits they received

from the government in exchange for their testimony”); United States v. Bin Laden,

397 F. Supp. 2d 465, 506 (S.D.N.Y. 2005) (recognizing that an agreement to exchange

immigration benefits for testimony is impeaching).

Defendants seek to avoid this outcome by pointing to a line of cases from other

states that stand for the proposition that a U-Visa application is not Brady/Giglio

material. (Dkt. 102 at 4 (citing Gomez v. State of Florida, 245 So.3d 950, 954 (4th

Dist. Fl. 2018); State v. Buccheri-Bianca, 312 P.3d 123, 126-127 (Ariz. Ct. App. 2013);

State v. Quintero¸ No. 35752-0-III, 2020 WL 64935, at *5-6 (Wash. Ct. App. Jan. 9,

2020); State v. Mahe, No. 27309, 2017 WL 3971652, at *3 n.1 (Ohio Ct. App. Sept. 8,

2017); State v. Morales, No. C–120670, 2014 WL 467331, at *4-6 (Ohio Ct. App. Feb.

5, 2014)).) At the outset, these cases might be entirely inapposite in Illinois when

contrasted with the Illinois Appellate Court’s decisions in Austin, 463 N.E.2d at 452,

Turcios, 593 N.E.2d at 919, and Clamuextle, 626 N.E.2d at 747. But more to the point,

the cases cited by Defendants concerned disclosure of a U-Visa application, not

disclosure of an agreement between the prosecution and its witness to exchange

immigration assistance for testimony. Irrespective of whether the agreement

concerned a U-Visa application or some other type of immigration benefit, it is, in the

Court’s view, “beyond debate” that the agreement itself is Brady/Giglio material. Cf.

Taylor v. Ways, 999 F.3d 478, 492 (7th Cir. 2021) (“[W]hile precedent tied to

particularized facts can indicate that a point of law is clearly established, the

Supreme Court does not demand a case directly on point”); Smith v. Finkley et al., —

F.4th —, No. 20-1754, 2021 WL 3660880, at *12 (7th Cir. Aug. 18, 2021)

(constitutional right “is clearly established if the right in question [is] sufficiently

clear that a reasonable official would understand that what he is doing violates that

right”) (cleaned up).

Third, and finally, the Court will not, as Defendants request, dismiss Plaintiff’s

Fourteenth Amendment claims because his allegations are contradicted by the state

court trial transcript. (Dkt. 87 at 5-6.) Plaintiff alleges that “Defendants in fact

testified under oath at the underlying criminal prosecution before a judge

consistently with the false police reports.” (Dkt. 74 ¶ 112.) Defendants argue this is

inaccurate because the transcript shows only Detective Galarza, not all of the

Defendants, testified at the trial. (Dkt. 87 at 5.) Plaintiff ripostes that, in fact, the

transcript shows both Detective Galarza and Detective John Savage testified at the

trial; thus, the allegation in paragraph 112 of the Second Amended Complaint is

accurate. (Dkt. 93 at 7.) Each side is, in its own way, wrong. Defendants are incorrect

that only Detective Galarza testified. But that does not make Plaintiff’s group-pled

allegation that all Defendants “testified under oath” accurate. Bank of Am., N.A. v.

Knight, 725 F.3d 815, 818 (7th Cir. 2013) (“Each defendant is entitled to know what

he or she did that is asserted to be wrongful”). In fact, not all Defendants named in

this case testified under oath. To the extent Defendants seek to limit Plaintiff’s false

testimony claims to those Defendants who actually testified, that goes without

saying. But, in view of the fact that the bulk of Plaintiff’s Fourteenth Amendment

claims relate to Defendants’ failure to disclose their agreement with J.T., Plaintiff’s

inartful pleading is not enough to dismiss entirely Plaintiff’s Fourteenth Amendment

claim.

D. Fourth Amendment Claims

Plaintiff was released on bail before the trial in his criminal case began. (See

Dkt. 93 at 8.) Yet, in the Second Amended Complaint, Plaintiff did not include any

allegations regarding the conditions of bail. As a result, Defendants moved to dismiss

Plaintiff’s Fourth Amendment claims as barred by the statute of limitations. (Dkt. 53

at 7.) Specifically, Defendants argued that Plaintiff’s failure to include the conditions

of his pretrial release amounted to an admission that the “seizure” ended before his

trial and that, therefore, his Fourth Amendment claims accrued more than two years

before he asserted them in this case. (Id.) In its last motion to dismiss opinion, the

previously-assigned judge noted that, depending on what the conditions of his release

were, Plaintiff’s pretrial release may not have terminated the “seizure.” (Id. at 6

(citing Mitchell v. City of Elgin, 912 F.3d 1012, 1013 (7th Cir. 2019)).) Because

Plaintiff was not required to anticipate affirmative defenses such as the statute of

limitations, the Court explained, Plaintiff was not required to plead what the

conditions of his release were; Plaintiff’s claim, therefore, was not time-barred. (Id.

at 7.)

In their current motion to dismiss, Defendants try to relitigate that holding. In

support, they ask the Court to take judicial notice of state trial court documents they

say demonstrate Plaintiff was released on bail without significant conditions. (Dkt.

87 at 6-8.) For his part, Plaintiff responds that the trial court documents do not mean

what Defendants say they mean, and that he has presented other evidence in

discovery demonstrating as much. (Dkt. 93 at 10.)

At this preliminary stage, the Court is not equipped to resolve this dispute one

way or another. Cf. Rickels v. Rzeszewski, 43 F.3d 1474 (7th Cir. 1994) (recognizing

that there was no need to submit evidence at motion to dismiss phase); see also Smith

v. City of Chicago, 3 F.4th 332, 340-42 (7th Cir. 2021) (Although “standard bond

conditions . . . d[o] not constitute an ongoing seizure,” courts must take a “case-by-

case approach” because, depending on the circumstances, bail conditions “might

constitute a Fourth Amendment seizure”). And to reiterate, a successive motion to

dismiss is not a proper vehicle for objecting to this Court’s earlier ruling on this issue.

(See Section IV.C. above (citing Tuhey, 2019 WL 1239799, at *2; Minch, 486 F.3d at

301).) If Defendants believe they have uncovered evidence sufficient to prove their

statute of limitations defense to Plaintiff’s Fourth Amendment claims, they will have

ample opportunity later to present that evidence.

E. Monell Claim

Defendants argue Plaintiff’s Monell claim should be dismissed because it is

supported only by “boilerplate allegations.” (Dkt. 87 at 9.) Defendants did not raise

this argument in a previous motion to dismiss; thus it is properly before the Court.

(See Section IV.A. above.) Plaintiff responds that the following factual allegations are

sufficient to state a Monell claim:

Officer Galarza testified under oath that he was told to

keep his report “vague” (Dkt. 74, ¶ 90); that Officer

Savaglio learned the whereabout of the plaintiff by himself

and went to plaintiff’s house alone (Id. ¶¶ 31-34); that

Officer Galarza contradicted Savaglio’s testimony by

testifying that he and Savaglio went to plaintiff’s house

together and it was he who had arrested the plaintiff and

he had handcuffed the plaintiff. (Id. ¶¶ 35, 39); and that

Savaglio had testified that plaintiff was never handcuffed

and was transported to the police station uncuffed. (Id. ¶¶

40-41).

(Dkt. 93 at 13 (cleaned up).) Plaintiff says these factual allegations support his

ultimate conclusion that the Town of Cicero had de facto policies, practices, and

customs including:

i. filing false reports and giving false statements and

pursuing and obtaining wrongful prosecutions and false

imprisonments on the basis of such reports and

statements; ii. the failure to properly train, supervise,

discipline, transfer, monitor, counsel and/or otherwise

control police officers, particularly those who were

repeatedly accused of wrongful imprisonments, malicious

prosecutions and wrongful convictions and of making false

reports and statements; iii. the police code of silence,

specifically in cases where police officers refused to report

or otherwise covered up instances of police misconduct,

and/or the fabrication, suppression and destruction of

evidence of which they were aware, despite their obligation

under the law and police regulations to do so; iv. covering

up, suppressing and withholding exonerating, exculpatory,

and/or other evidence favorable to criminal defendants.

(Id. at 12-13 (quoting Dkt. 74 ¶ 117).)

These allegations are insufficient to state a Monell claim. To state a valid

claim, Plaintiff must plausibly allege that the violation of his constitutional rights

was caused by (1) an express government policy; (2) a widespread and persistent

practice that amounted to a custom approaching the force of law; or (3) an official

with final policymaking authority. Glisson v. Indiana Dep’t of Corrs., 849 F.3d 372,

379 (7th Cir. 2017) (en banc) (citing Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658, 690-91 (1978)). Monell must not, however, be transmogrified into a form

of respondeat superior liability. See Howell v. Wexford Health Sources, Inc., 987 F.3d

647, 654 (7th Cir. 2021). One key to avoiding this impermissible result is “to

distinguish between the isolated wrongdoing of one or a few rogue employees and

other, more widespread practices.” Id.

Plaintiff does not allege an express government policy or an official with final

policymaking authority. This leaves only a widespread and persistent practice theory.

To determine whether a plaintiff has sufficiently pleaded a widespread practice, the

Court looks to “the instances of misconduct alleged, the circumstances surrounding

the alleged constitutional injury, and additional facts probative of a widespread

practice or custom.” Williams v. City of Chicago, 315 F. Supp. 3d 1060, 1079 (N.D. Ill.

2018). Plaintiff is not required to make allegations regarding others’ experiences.

White v. City of Chicago, 829 F.3d 837, 844 (7th Cir. 2016). But the widespread

practice must “permeate[] a critical mass of [the] institutional body.” Rossi v. City of

Chicago, 790 F.3d 729, 737 (7th Cir. 2015). Misbehavior by one or a group of officials

thus is relevant only where “it can be tied to the policy, customs, or practices of the

institution as a whole.” Id.

Plaintiff has not tied his allegations regarding the individual defendant officers

to a widespread practice that permeates a critical mass of the Town’s police

department as a whole. Plaintiff alleges the Town failed to train officers “repeatedly

accused of wrongful imprisonments, malicious prosecutions and wrongful convictions

and of making false reports and statements” (Dkt. 74 ¶ 117), but he does not allege

that the individual officer Defendants (or any other officers) were “repeatedly

accused” of those things. Likewise, he complains of a “police code of silence” (id.) but

does not explain how that applies to his case or any other. Finally, although Plaintiff

has alleged that the officers in his case fabricated a police report and failed to disclose

an agreement he wished to use as impeachment, there is nothing in the Second

Amended Complaint that ties these discrete allegations to a widespread practice.

Plaintiff has therefore failed to state a plausible Monell claim.

V. CONCLUSION

For the reasons provided above, Defendants’ motion to dismiss is granted in

part and denied in part. Plaintiff's claims against Defendants Galarza and Savaglio

are barred by the statute of limitations and are therefore dismissed with prejudice.

See Newell v. Velacruz, 695 F. App’x 973 (7th Cir. 2017) (nonprecedential disposition).

Although this is Defendants’ third motion to dismiss, this is the first time they have

argued that Plaintiffs allegations are too boilerplate to state a Monell claim.

Accordingly, the Court must afford Plaintiff an opportunity to amend his complaint

to cure the defects in his Monell claim. See NewSpin Sports, LLC v. Arrow Electronics,

Inc., 910 F.3d 293, 310 (7th Cir. 2018) (Plaintiffs “should be given at least one

opportunity to try to amend [t]he[i]r complaint before the entire action is dismissed”).

If Plaintiff wishes to rehabilitate his Monell claim, he has 30 days from the entry of

this order to file an amended complaint. Defendants’ motion is denied with respect to

all of Plaintiff's other claims.

SO ORDERED in 17-cv-03707.

Date: August 19, 2021 (pad) Yue.

JOHN F. KNESS

United States District Judge

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