Armstrong v. Vera E McDonnell

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CRAIG ARMSTRONG, )

)

Plaintiff, ) No. 1:19-CV-04827

)

v. )

) Judge Edmond E. Chang

VERA E. MCDONNELL, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Craig Armstrong was arrested in 2005 for failing to provide a change

of address as allegedly required by the Illinois Sex Offender Registration Act.1 R. 76,

Second Am. Compl. (SAC) ¶¶ 14–15.2 He pleaded guilty and was sentenced to one

year in prison. Id. ¶ 22. But his conviction was vacated in 2018 after Armstrong dis-

covered that he actually was not considered a sex offender under Illinois law. Id.

¶¶ 23–24. He now brings this lawsuit against the state prosecutors, Vera McDonnell

(who is now retired) and Jorge Villareal, and the Cook County Sherriff’s Deputies,

Erik Roedel and Mark Caridei, who arrested and prosecuted Armstrong. Id. ¶¶ 5–8.

He also sues Cook County for indemnification. Id. ¶¶ 9,74–76. Armstrong alleges vi-

olations of his constitutional rights under 42 U.S.C § 1983, as well as malicious pros-

ecution under Illinois tort law. Id. ¶¶ 26–73. The Defendants move to dismiss all

1The Court has subject matter jurisdiction under 28 U.S.C. § 1331, and supplemental

jurisdiction over the state law claims under 28 U.S.C. § 1367.

2Citations to the record are “R.” followed by the docket entry number and, if needed,

a page or paragraph number.

counts. R. 84, Mot. Dismiss. For the reasons explained in this Opinion, the motion to

dismiss is granted in part and denied in part.3

I. Background

For purposes of this motion, the Court accepts all well-pleaded allegations as

true and draws all reasonable inferences in Armstrong’s favor. Hayes v. City of Chi-

cago, 670 F.3d 810, 813 (7th Cir. 2012). In December 1997, Armstrong pleaded guilty

to unlawful restraint in DeKalb County, Illinois Circuit Court. SAC ¶¶ 11–12. During

the state court’s plea colloquy and acceptance of the plea, the court did not tell Arm-

strong that he was required to register as a sex offender, nor did the court make any

mention of the Illinois Sex Offender Registration Act. Id. ¶ 12.

Fast forwarding to 2005, Armstrong was arrested in Cook County by Sherriff’s

Deputies Roedel and Caridei. Roedel and Caridei represented to Armstrong that he

qualified as a sex offender and thus had violated the Sex Offender Registration Act

when he failed to provide a change of address. SAC ¶¶ 14–15. Armstrong told the

Defendants that he was not a sex offender, but they ignored him and did not include

Armstrong’s denial in their reports. Id. ¶ 16. Assistant State’s Attorneys McDonnell

33The parties mistakenly refer to the operative complaint as the “second” amended

complaint when, in reality, it constitutes the third amended complaint. To clarify, Armstrong

filed his original pro se complaint on July 15, 2019. R. 1. It was dismissed without prejudice

four days later on July 19. R. 6. Armstrong filed a pro se amended complaint on October 25,

2019. R. 8. The Court then recruited pro bono counsel to evaluate whether to propose a second

amended complaint. R. 15. Armstrong’s counsel did file a second amended complaint on Au-

gust 2, 2020. R. 29. Finally, on October 21, 2021, Armstrong filed what should have been

titled his “third” amended complaint but inadvertently mislabeled it as the second amended

complaint. The Court will use the nomenclature employed by the parties, referring to the

operative complaint as the second amended complaint.

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and Villareal then filed charges against Armstrong for failing to report a change of

address. Id. ¶ 21.

Unsure if he was a sex offender, and based on the representations made by the

Defendants, Armstrong pleaded guilty and was sentenced to one year in prison. SAC

¶ 22. He later discovered that he actually was not a sex offender, and he successfully

moved to have the conviction vacated; the state court vacated the conviction in Feb-

ruary 2018. Id. ¶¶ 23–24.

II. Legal Standard

Under Federal Rule of Civil Procedure 8(a)(2), 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 must “give the de-

fendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).4 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 Po-

lice of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain

4This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,

18 Journal of Appellate Practice and Process 143 (2017).

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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) (cleaned up). These allegations

“must be enough to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555. The allegations that are entitled to the assumption of truth are those

that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.

III. Analysis

A. Prosecutorial Absolute Immunity

In Counts 1 and 4, Armstrong alleges that State’s Attorneys McDonnell and

Villareal fabricated evidence against him. SAC ¶¶ 26–27, 32–33. He also advances

Brady claims against McDonnell and Villareal for suppression of exculpatory evi-

dence in Counts 5 and 8.5 Id. ¶¶ 34–35, 40–41. These claims are brought under § 1983

as violations of Fourteenth Amendment due process. McDonnell and Villareal argue

that Armstrong fails to sufficiently allege that they acted outside of their prosecuto-

rial functions, which are protected by absolute immunity. Mot. Dismiss at 6.

Prosecutors enjoy absolute immunity from suit when they are “acting within

the scope of their prosecutorial duties.” Bianchi v. McQueen, 818 F.3d 309, 318 (7th

Cir. 2016) (quoting Imbler v. Pachtman, 424 U.S. 409, 420 (1976)). The test to deter-

mine whether prosecutors are entitled to absolute immunity or, alternatively, quali-

fied immunity is functional—rather than looking at mere labels. Buckley v.

5Armstrong mistakenly labels his Count 8 as a Due Process Fabrication Claim against

Defendant Jorge Villareal. Based on the allegations contained in Count 8, its placement

alongside Brady claims against the other Defendants, and the fact that Count 4 already al-

leges a fabrication-of-evidence claim against Villareal, Count 8 clearly constitutes a Brady

suppression-of-exculpatory-evidence claim against Villareal. SAC ¶¶ 40–41.

4

Fitzsimmons, 509 U.S. 259, 269 (1993). The right question to ask is whether the rel-

evant actions of prosecutors were investigatory—like those performed by police offic-

ers and other law enforcement—or prosecutorial, that is, as advocates for the State.

Id. at 273. “There is a difference between the advocate’s role in evaluating evidence

and interviewing witnesses as he prepares for trial, on the one hand, and the detec-

tive’s role in searching for the clues and corroboration that might give him probable

cause to recommend that a suspect be arrested, on the other hand.” Id. So, when

prosecutors act like investigators or police officers, they are entitled only to qualified

immunity; when they act as advocates, they receive absolute immunity.

Armstrong argues that he sufficiently alleged that State’s Attorneys McDon-

nell and Villareal acted beyond the scope of their prosecutorial absolute immunity.

R. 95, Pl.’s Resp. at 5–7. But Armstrong is wrong. Armstrong alleges that State’s At-

torney Villareal falsely represented to the grand jury that Armstrong was a sex of-

fender and that Villareal instigated, without probable cause and based on false infor-

mation provided by him, the charging of Armstrong. SAC ¶¶ 18, 21. As to State’s

Attorney McDonnell, Armstrong alleges that she investigated the case and falsely

alleged and represented that he was a sex offender. Id. ¶¶ 17, 19. Armstrong also

alleges that McDonnell instigated, without probable cause and based on false infor-

mation provided by her, the charging of Armstrong. Id. ¶ 21.

But all of those alleged acts qualify as acts in pursuit of prosecutorial functions.

First, presenting to a grand jury, as Villareal did, is a core prosecutorial function

clearly protected by absolute immunity. See Bianchi, 818 F.3d at 318–19. Second, the

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remaining allegations about McDonnell and Villareal are insufficient to put McDon-

nell and Villareal on notice of anything other than yet more core prosecutorial func-

tions. Armstrong alleges that McDonnell and Villareal instigated his charging based

on false information provided by them but does not notice what the false information

was, or whether that information was presented by them in a pre-prosecutorial, in-

vestigatory role not protected by absolute immunity. Similarly, Armstrong’s bare al-

legation that McDonnell investigated the case does not sufficiently describe what she

did—as a factual matter—that might have been outside of her prosecutorial func-

tions. Simply stating that McDonnell investigated the case—to imply that she acted

as an investigator and exceeded her prosecutorial functions—is a bare legal conclu-

sion that the Court is not required to accept as true.6 See Iqbal, 556 U.S. at 678–79.

Armstrong also argues that his allegations are sufficient because he alleged

that McDonnell and Villareal arrested him without probable cause, an action unpro-

tected by absolute immunity. Pl.’s Resp. 6. But again, his simple statement that he

was arrested without probable cause, without any other allegations of fact, consti-

tutes a bare legal conclusion.7 See Iqbal, 556 U.S. at 678–79. In short, Armstrong’s

6Armstrong also proposes that McDonnell and Villareal failed to properly investigate

the case against him and thus did not act like prosecutors. Pl.’s Resp. at 6. But the relevant

inquiry on the immunity test is not whether McDonnell and Villareal properly investigated;

instead, the question is whether they ever carried out investigations beyond their prosecuto-

rial functions. See Buckley, 509 U.S. at 273.

7Armstrong and the Defendants argue about whether Armstrong’s original pro se com-

plaint contains sufficient allegations of fact to describe a lack of probable cause upon arrest.

Mot. Dismiss at 6–7; Pl.’s Resp. at 6. But the past complaints, including the original pro se

complaint, have been entirely superseded by the later pleadings and cannot be considered by

the Court. See Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 782–83 (7th Cir. 2013) (“[F]acts

or admissions from an earlier complaint that are not included in a later complaint cannot be

considered on a motion to dismiss.”).

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allegations do not provide McDonnell and Villareal any context to understand what

they did that was outside of their prosecutorial functions—all of which are protected

by absolute immunity.

The due process claims in Counts 1, 4, 5, and 8 against McDonnell and Villareal

are dismissed without prejudice. If Armstrong can fix his allegations about the State’s

Attorneys and navigate around absolute immunity, then he may propose the filing of

another amended complaint.

B. Fabrication of Evidence

In Counts 2 and 3, Armstrong claims that Sherriff’s Deputies Roedel and Car-

idei fabricated evidence against him in violation of his Fourteenth Amendment due

process rights. SAC ¶¶ 28–31. Roedel and Caridei move to dismiss those counts be-

cause, they argue, Armstrong offers only conclusory statements and does not allege

that the deputies knew that their representations that he was a sex offender were

false. Mot. Dismiss at 10.

Fabricating or manufacturing evidence—including false testimony—that is

then used to deprive an individual of his liberty constitutes a violation of Fourteenth

Amendment due process. Coleman v. City of Peoria, Illinois, 925 F.3d 336, 344 (7th

Cir. 2019); Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012). Armstrong

argues that he has sufficiently alleged fabrication-of-evidence claims against Roedel

and Caridei. Pl.’s Resp. at 7–8. Specifically, Armstrong alleges that Roedel and Car-

idei falsely represented that he was a registered sex offender and that he told them

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that he was not, but that Roedel and Caridei ignored him and did not include his

denial in their reports. SAC ¶¶ 15–16.

Those allegations are enough at the pleading stage. First, Armstrong’s allega-

tion that Roedel and Caridei falsely represented that he was a sex offender clearly

implies that Armstrong is asserting that the deputies knew that the representation

was false. Roedel and Caridei argue otherwise, Mot. Dismiss at 8–9, but as Armstrong

points out, that argument only attacks Armstrong’s grammatical and word-place-

ment choices rather than the substance of his allegations. Pl.’s Resp. at 7–8. To say

that Roedel and Caridei falsely represented his sex offender status is close enough—

at the pleading stage—to asserting that they knowingly lied about his sex offender

status.8

Second, when giving Armstrong the benefit of reasonable inferences, the alle-

gations about Roedel and Caridei did—or failed to do—during the investigation add

to the sufficiency of the claim. It is reasonable to infer, especially given that Arm-

strong told them that he was not a sex offender, that Roedel and Caridei would have

investigated his sex-offender status and realized that he was not a sex offender, and

yet chose to proceed with a fabrication anyway. This inference is supported by the

8Roedel and Caridei again refer to Armstrong’s original pro se complaint to argue that

Armstrong himself admits in that complaint that the Sherriff’s Deputies genuinely believed

that Armstrong was, in fact, a sex offender, and thus did not know that their representations

were false. Mot. Dismiss at 9–10. But the Court cannot refer to Armstrong’s original pro se

complaint, because it has been superseded by later pleadings—at least for purposes of eval-

uating the dismissal motion. See Chuhak & Tecson, P.C., 725 F.3d at 782–83. Having said

that, Armstrong ought to be realistic about how damaging the earlier allegation would be at

trial, and ought to more generally assess how he would prove the knowledge-of-falsity alle-

gation when the burden of proof is on him and he does not get the benefit of viewing the

evidence in the light most favorable to him.

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alleged facts, accepted on a motion to dismiss, that they ignored Armstrong’s asser-

tion that he was not a sex offender and indeed even purposely did not include his

denial in their reports to aid in their alleged fabrication. The fabrication-of-evidence

claims in Counts 2 and 3 against Roedel and Caridei survive.

C. Brady

In Counts 6 and 7, Armstrong alleges that deputies Roedel and Caridei sup-

pressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

SAC ¶¶ 36–39. Roedel and Caridei move to dismiss the Brady claims, arguing that

Armstrong possessed the allegedly suppressed information, namely, that he was not

a sex offender. Mot. Dismiss at 11–12. The deputies also contend that the Brady

claims are insufficiently alleged because they are threadbare recitals of the cause of

action. Lastly, the deputies argue (in their reply brief) that Armstrong failed to plead

that the evidence that he was not a sex offender was not otherwise available to him.9

R. 96, Defs.’ Reply at 8–9.

To win a Brady claim (bearing in mind that this is just the pleading stage), “a

plaintiff must demonstrate that the evidence in question was favorable to him, the

police suppressed the favorable evidence, and prejudice ensued because the sup-

pressed evidence was material.” Anderson v. City of Rockford, 932 F.3d 494, 504 (7th

9Even if persuasive, this last argument is likely waived because it was only raised in

the reply brief. See Dexia Crédit Local v. Rogan, 629 F.3d 612, 625 (7th Cir. 2010) (“[A]rgu-

ments raised for the first time in a reply brief are waived.”). With that said, Armstrong might

have difficulty showing that the exculpatory evidence was not otherwise available to him

given that he was obviously present at his own 1997 plea colloquy and that he had a lawyer

and subpoena power to request information about the unlawful-restraint plea before he

pleaded guilty to failing to report a change of address.

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Cir. 2019) (cleaned up). Suppressed means that evidence was kept from a criminal

defendant until it was too late to make use of it and the evidence was not otherwise

available to the defendant through the exercise of reasonable diligence. Collier v. Da-

vis, 301 F.3d 843, 850 (7th Cir. 2002) (cleaned up). “Evidence cannot be said to have

been suppressed in violation of Brady if it was already known to the defendant.” Avery

v. City of Milwaukee, 847 F.3d 433, 443 (7th Cir. 2017) (cleaned up).

Here, the deputies argue that Armstrong pleaded himself out of Brady claims,

because Armstrong alleges that he told the deputies that he was not a sex offender,

SAC ¶ 16, and thus by necessity he must already have known of the exculpatory evi-

dence that was supposedly suppressed. Mot. Dismiss at 11. Armstrong responds that

he did not allege that had possession of any exculpatory evidence. Pl.’s Resp. at 8–9.

Armstrong is correct. Taking reasonable inferences in Armstrong’s favor, Armstrong

does not acknowledge that he knew, as a matter of law, that he was not a sex offender.

SAC ¶ 16. Otherwise, he would not have pleaded guilty to failing to report a change

of address. SAC ¶ 22. Yes, Armstrong denied being a sex offender, but that denial

does not unavoidably translate to an admission that he possessed legal evidence that

he was not a sex offender.

The Brady allegations do fail, however, to point out what exculpatory evidence

was withheld from Armstrong. Armstrong simply claims, without any other factual

allegations, that the Defendants “withheld from Craig Armstrong the exculpatory in-

formation that he was not a sex offender.” SAC ¶ 20 (emphasis added). It is not pos-

sible to identify what specific piece or pieces of exculpatory evidence the Court is

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being asked to consider as suppressed. “Exculpatory information” is merely a generic

label. In other words, Roedel and Caride have not received sufficient notice of what it

is that they are accused of hiding. Armstrong could have pleaded, for example, that

he personally did not remember the details of his 1997 unlawful restraint guilty plea,

and that the Defendants suppressed the plea colloquy in which the state judge did

not tell Armstrong that he was required to register as a sex offender.

Instead of setting forth facts, Armstrong instead simply provides conclusory

allegations tracking the legal elements of a Brady claim. See Iqbal, 556 U.S. at 678

(explaining that a complaint must contain more than “naked assertion[s] devoid of

further factual enhancement”) (cleaned up)). Because Armstrong alleges no facts to

support a generic and bare legal conclusion that exculpatory evidence was withheld

from him, Counts 6 and 7 are dismissed without prejudice.

D. State Law

Finally, Counts 9 to 12 consist of Illinois malicious-prosecution claims against

the Assistant State’s Attorneys and the Sherriff’s Deputies. SAC ¶¶ 42–73. In Count

13, Armstrong requests indemnification from Cook County for the actions of its em-

ployees while acting within the scope of their employment. SAC ¶¶ 74–76. Given that

all of the federal claims against Assistant State’s Attorneys McDonnell and Villareal

have been dismissed without prejudice, the Court will relinquish supplemental juris-

diction of state law claims against them and Cook County as their employer if Arm-

strong is unable to successfully file a new amended complaint. See Dietchweiler by

Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (explaining that “when the

11

federal claims are dismissed before trial, there is a presumption that the court will

relinquish jurisdiction over any remaining state law claims” (cleaned up)). If Arm-

strong does file a new amended complaint, then McDonnell and Villareal will have

the chance to move to dismiss all claims against them, including the state claims.

In contrast, because the § 1983 fabrication-of-evidence claims survive against

Sherriff’s Deputies Roedel and Caridei, the Court will retain supplemental jurisdic-

tion over the state law claims against Roedel and Caridei, as well as the indemnifi-

cation claim against Cook County as their employer.

IV. Conclusion

The Defendants’ motion to dismiss is granted in part and denied in part. The

following claims are dismissed without prejudice: the fabrication-of-evidence claims

against McDonnell and Villareal (Counts 1 and 4) and all Brady suppression claims

(Counts 5, 6, 7, and 8). What remains currently intact are the fabrication claims

against Roedel and Caridei (Counts 2 and 3); the Illinois malicious-prosecution claims

(Counts 9 to 12); and the indemnification claim against Cook County (Count 13). Arm-

strong may file another amended complaint by October 17, 2022. If Armstrong does

not file an amended complaint, then the dismissals without prejudice will convert to

dismissals with prejudice. If and when all federal claims against McDonnell and Vil-

lareal are dismissed with prejudice, then the Court will also relinquish jurisdiction

12

over the state law claims against McDonnell and Villareal, as well as Cook County as

their employer.

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: September 29, 2022

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