Bouto v. Guevara

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROBERT BOUTO,

Plaintiff, No. 19-cv-02441

v. Judge John F. Kness

REYNALDO GUEVARA, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

This case arises out of the 1993 murder of Salvador Ruvalcaba and the ensuing

prosecution of Plaintiff Robert Bouto for the murder. Plaintiff spent nearly 23 years

incarcerated for Ruvalcaba’s murder but the conviction was eventually vacated and

dismissed, and Plaintiff received a Certificate of Innocence. Plaintiff now brings the

present suit against: (1) Reynaldo Guevara, Edward Mingey, Kenneth Pang, Alan

Pergande, Richard Maher, Louis Marron, JoAnn Halvorsen, as Special Administrator

for Ernest Halvorsen (deceased), and other unknown law enforcement officers

(collectively, “Defendant Officers”); (2) the City of Chicago (the “City”); (3) former

Assistant State’s Attorney Kevin Hughes (“Defendant Hughes”); and (4) Cook County

(the “County”). Plaintiff alleges that the investigation and municipal policies that led

to his wrongful conviction were constitutionally flawed, entitling Plaintiff to a

significant damages award.

Before the Court are the Defendants’ motions to dismiss Plaintiff’s complaint.

(Dkts. 270–71.) For the reasons that follow: (1) the Defendant Officers and the City’s

partial motion (Dkt. 270) to dismiss is granted in part and denied in part; and (2) the

County and Defendant Hughes’ motion (Dkt. 271) to dismiss is granted in part and

denied in part.

I. BACKGROUND

As alleged in the Third Amended Complaint (“TAC”), this suit arises out of the

1993 murder of Salvador Ruvalcaba and the ensuing prosecution of Plaintiff Robert

Bouto (“Plaintiff”). (Dkt. 256 ¶ 1.) On May 14, 1993, Salvador Ruvalcaba was walking

with members of the Spanish Cobras street gang when he was shot and killed near

Roosevelt High School in Chicago. (Id. ¶¶ 20–21.) In the immediate aftermath of the

shooting, police officers interviewed associated gang members who were present, as

well as several neighborhood witnesses. (Id. ¶ 28.) Some witnesses described the

shooter as “a 16- to 17-year-old Hispanic” rival gang member with a ponytail, about

5’7” tall and 140 pounds, and that he wore a blue hoodie, long black shorts, and white

shoes. (Id. ¶ 29.) Other witnesses described the offender similarly, with the only

difference being height (5’5”), weight (120 pounds), shirt color (black t-shirt), and the

added detail that the suspect was clean-shaven. (Id. ¶ 30.) But no witness was able

to identify the shooter by name, and at least two witnesses (acquainted with Plaintiff)

did not identify Plaintiff as the shooter. (Id. ¶ 22.)

Police officers searched for potential suspects near the school. (Id. ¶¶ 33–35.)

As officers looked for suspects, Plaintiff was found and detained about four blocks

from the scene by Defendant Officers Pergande and Pang, and he was “ordered” into

a police car. (Id. ¶¶ 36–37.) Defendant Officer Pergande informed Plaintiff that he

was being taken into custody because he matched the shooter’s description. (Id.

¶¶ 38–45.)

After his arrest, Plaintiff was driven to the crime scene along with other

potential suspects to be identified by witnesses at a “show-up.” (Id. ¶ 57.) Plaintiff

alleges that he was the only detainee who “bore any resemblance to the descriptions

of the shooter,” and that these similarities were “minimal” as he had no ponytail, was

significantly taller than the shooter (5’10”), did not have on white shoes, and was not

“clean shaven.” (Id. ¶¶ 40–45.) Rather, Plaintiff contends that he did not fit the

description “other than wearing a blue hooded shirt and dark ¾-length shorts.” (Id.

¶¶ 39, 65–66.)

As the Defendant Officers presented a handcuffed Plaintiff to witnesses at this

“show-up,” Defendant Officers Pergande, Pang, Guevara, and Halvorsen advised the

witnesses that the presented suspects contained the “murderer,” and that the

“offender was in custody.” (Id. ¶¶ 60–64.) After these instructions, Plaintiff was

identified by two witnesses: Carl Richmond (Richmond) and Rey Lozada (Lozada).

(Id. ¶ 66.)

Plaintiff was then transported to the police station and placed in a line-up,

where Defendant Officers Guevara and Halvorsen showed other witnesses

photographs of Plaintiff and allegedly instructed witnesses to select Plaintiff as the

shooter. (Id. ¶¶ 72–73.) Plaintiff alleges that he was the only one in the line-up

wearing clothes matching the shooter’s description and that Defendant Officers

instructed witnesses Margaret and Michael Fleming to identify the shooter solely by

his clothing. (Id. ¶¶ 75, 79–81.) Plaintiff was then identified by four witnesses at the

line-up: Richmond, Lozada, Margaret Fleming, and Michael Fleming. (Id. ¶¶ 76, 85.)

Assistant State’s Attorney Sally Bray initially declined to approve charges

against Plaintiff after reviewing the available evidence and determining that the

evidence collected at that point was insufficient. (Id. ¶¶ 108–13.) Undeterred, the

Defendant Officers allegedly manufactured additional evidence to facilitate the

approval of charges against Plaintiff. (Id. ¶¶ 115–39.) Part of the ruse included a

purported “jailhouse confession,” in which Plaintiff supposedly confessed to the

murder to two other detainees, Francisco Vicente (Vicente) and Edwin Maldonado

(Maldonado). (Id. ¶ 120.) Plaintiff contends that Vicente—a heroin addict facing up

to one hundred years of incarceration on robbery charges—was detained by

Defendant Officers Guevara and/or Halvorsen for hours, threatened, had force used

against him, and was promised assistance with his charges. (Id. ¶ 130.) So that

Vicente’s false narrative would appear more credible, Plaintiff alleges that Defendant

Officers Guevara and/or Halvorsen gave Vicente details regarding the Ruvalcaba

shooting, as well as a handwritten statement with Plaintiff’s sham confession. (Id.

¶¶ 131–32.)

Plaintiff further asserts that Defendant Officers Guevara and/or Halvorsen

conspired with Defendant Assistant State’s Attorney Kevin Hughes (Defendant

Hughes) to record Vicente’s false statements, as Defendant Hughes documented that

Vicente himself provided the contents of the statement. (Id. ¶¶ 133–38.) Defendant

Hughes then approved charges against Plaintiff based on the fabricated confession.

(Id. ¶¶ 141–44.)

Based generally on the foregoing evidence, including the witnesses’

identification of Plaintiff as the shooter from the show- and line-ups, Plaintiff was

convicted and sentenced to forty-five years of imprisonment. (Id. ¶¶ 221–25.) But due

to continued allegations of Defendant Officer Guevara’s misconduct, the City of

Chicago commissioned Sidley Austin to conduct an independent investigation

evaluating the credibility of Plaintiff’s conviction, which concluded that Plaintiff had

been wrongfully convicted. (Id. ¶¶ 227–29.) In 2018, the Cook County Circuit Court

vacated Plaintiff’s 1996 conviction for Ruvalcaba’s murder and the City dismissed the

charges. (Id. ¶¶ 233–35.) Plaintiff received a Certificate of Innocence in 2019. (Id.

¶ 235.)

After receiving his Certificate, Plaintiff filed the present suit alleging that the

investigation and municipal policies that led to his wrongful conviction were

constitutionally flawed (see Dkt. 256 at 55) against: (1) Reynaldo Guevara, Edward

Mingey, Kenneth Pang, Alan Pergande, Richard Maher, Louis Marron, JoAnn

Halvorsen, as Special Administrator for Ernest Halvorsen (deceased), and other

unknown law enforcement officers (collectively, “Defendant Officers”); (2) the City of

Chicago (the “City”); (3) former Assistant State’s Attorney Kevin Hughes (“Defendant

Hughes”); and (4) Cook County (the “County”). (See Dkt. 1.)

Plaintiff brings eight-counts of 42 U.S.C. § 1983 violations, as well as five state

law counts for intentional infliction of emotional distress, malicious prosecution,

respondeat superior, civil conspiracy, and indemnification. The Defendants move to

dismiss. (See Dkts. 270–71.)

II. STANDARD OF REVIEW

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 Ord. of Police

of Chi. 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 Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). These allegations “must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put another

way, the complaint must present a “short, plain, and plausible factual narrative that

conveys a story that holds together.” Kaminski v. Elite Staffing, Inc., 23 F.4th 774,

777 (7th Cir. 2022). In evaluating a motion to dismiss, the Court must accept as true

the factual allegations and draw reasonable inferences in the plaintiff’s favor. Iqbal,

556 U.S. at 678. But even though factual allegations are entitled to the assumption

of truth, mere legal conclusions are not. Id. at 678−79.

The statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c).

Plaintiffs “need not anticipate and attempt to plead around all potential defenses.”

Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). A plaintiff

can plead himself or herself out of court on a statute of limitation basis, however, if

the face of the complaint reveals that the claim is time-barred. Jay E. Hayden Found.

v. First Neighbor Bank, N.A., 610 F.3d 382, 383 (7th Cir. 2010). A motion to dismiss

based on failure to comply with the statute of limitations should be granted “only

where the allegations of the complaint itself set forth everything necessary to satisfy

the affirmative defense.” Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770

F.3d 610, 613–14 (7th Cir. 2014) (cleaned up). If there is any set of facts, consistent

with the complaint, “that would defeat a statute-of-limitations defense, questions of

timeliness are left for summary judgment (or ultimately trial), at which point the

district court may determine compliance with the statute of limitations based on a

more complete factual record.” Sidney Hillman Health Ctr. of Rochester v. Abbott

Lab’ys, Inc., 782 F.3d 922, 928 (7th Cir. 2015). If, however, the “allegations of the

complaint itself set forth everything necessary” to determine the timeliness of

Plaintiff’s claims, the statute of limitations defense may be raised and decided on a

motion to dismiss. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005).

III. DISCUSSION

Defendants contend that the TAC must be dismissed. (See generally Dkts. 270–

71.) Defendants, however, were not entirely pellucid when presenting their dismissal

arguments. For some counts, all Defendant Officers seemingly challenge the given

count.1 Some counts are not challenged at all.2 For other counts, however, only a

1 (See, e.g., Dkt. 270 at 13 (“Plaintiff Fails to State a Brady Violation (Count II) Against

All Defendant Officers.”); id. at 17 (“Plaintiff’s Destruction of Evidence Claim (Count III) Is

Not Plausible And Must Be Dismissed.”).)

2 For instance, Defendant Officers and the City do not challenge Count VII (see Dkt. 270

at 27) or Count XI (see id.), so the Court does not address these Counts.

select subset of Defendants pursue dismissal.3 This opinion, therefore, approaches

the motions as follows: where Defendant Officers and the City use general language,

dismissal is construed as being sought by all Defendants. Where only select

Defendants seek dismissal, the Court construes this as a concession that the claim is

viable against the Defendants not identified as challenging the relevant count.

A. Fabrication of Evidence against Defendant Officers (Count I)

In Count I, Plaintiff alleges that the Defendants violated the Due Process

Clause of the Fourteenth Amendment by depriving him of “his constitutional right to

a fair trial” by fabricating evidence. (Dkt. 256 at 56.) The Due Process Clause of the

Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. This

provision protects “criminal defendants from being deprived of their liberty based on

various kinds of police misconduct.” Fletcher v. Bogucki, 2021 WL 4477968, at * 3

(N.D. Ill. Sept. 30, 2021). Violative conduct includes a police officer who

“manufactures false evidence against a criminal defendant,” if that evidence is later

used to deprive the defendant of his liberty in some way. Whitlock v. Brueggemann,

682 F.3d 567, 580 (7th Cir. 2012); see also Bianchi v. McQueen, 818 F.3d 309, 319 (7th

Cir. 2016). As a result, to establish a claim for evidence fabrication, the claimant must

3 (See, e.g., id. at 20 (“Plaintiff’s Manuel Pre-trial Detention Claim (Count IV) against

Maher and Marron should be dismissed.”); id. at 23 (“Plaintiff Has Failed to State an IIED

Claim Against Defendants Marron and Maher.”); id. at 24 (“Plaintiff Does Not Sufficiently

Plead a Malicious Prosecution Claim Against Defendant Mingey.”).) Defendant Officers and

the City attempt to explain its rationale for the approach it took, (see Dkt. 294 at 7), but the

explanation provided is unhelpful because it does not clarify whether the allegations in the

TAC are all or partially viable for the unnamed Defendants (see Dkt. 294 at 7, Dkt. 270 at

27.)

be “convicted and imprisoned based on knowingly falsified evidence, violating his

right to a fair trial and thus depriving him of liberty without due process.” Patrick v.

City of Chicago, 974 F.3d 824, 835 (7th Cir. 2020).

Plaintiff alleges that the Defendants violated his due process rights because of

the following fabrications: (1) witnesses Vicente and Maldonado’s statements

inculpating Plaintiff; (2) the Spanish Cobra witnesses’ identification of Plaintiff;

(3) the neighborhood witnesses’ identification of Plaintiff’s clothes; and (4) police

reports. (Dkt. 256 at 56–57.) Plaintiff also alleges that Defendants: (1) used

suggestive identification procedures to falsify evidence; (2) obtained Plaintiff’s charge

and conviction by using that false evidence; (3) failed to correct fabricated evidence;

and (4) knew that the false evidence was used. (Id. at 56.)

Defendant Officers first contend that Count I must be dismissed because

neither Vicente nor Maldonado testified at trial. (Dkt. 270 at 11.) Although evidence

fabrication claims generally arise from the use of fabricated evidence at trial, falsified

evidence need not be presented at trial to state an actionable claim. See Armstrong v.

Daily, 786 F.3d 529, 551 (7th Cir. 2015). Evidence fabrication claims may also be

based on pre-trial detention resulting from the use of fabricated evidence to secure

an indictment. See Fields v. Wharrie, 740 F.3d 1107, 1112 (7th Cir. 2014) (Fields II)

(“[T]he fabrication of evidence harmed the defendant before and not just during the

trial, because it was used to help indict him.”). Plaintiff alleges the fabrication of

evidence claim based in part on his pretrial detention, not just misconduct at trial.

(See Dkt. 256 at 16–17, 23–24, 56–57.) This is sufficient for purposes of a motion to

dismiss. As a result, the Court declines to dismiss the due process claim in Count I

with respect to Vicente and Maldonado’s statements.

Defendant Officers Maher and Marron contend that since they are alleged to

have interacted with only Vicente, Count I fails against them in its entirety. (Dkt.

270 at 12; see also Dkt. 271 at 8–10.) This argument is unpersuasive because Plaintiff

alleges Officers Maher and Marron were involved directly with the conjuring false

statements from Vicente and Maldonado. The Court declines to dismiss Count I

against Defendant Officers Maher and Marron.

In addition, Defendant Hughes and the County argue that Defendant Hughes

is entitled to absolute immunity because his conduct was prosecutorial in nature.

(Dkt. 271 at 5, 10.) Whether Defendant Hughes enjoys absolute immunity against

Plaintiff’s claims is a close call. Prosecutors are “absolutely immune from suit for all

actions and decisions undertaken in furtherance of [their] prosecutorial duties.”

Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012) (Fields I). Put another way,

absolute prosecutorial immunity encompasses prosecutorial conduct that is

“intimately associated with the judicial phase of the criminal process.” Buckley v.

Fitzsimmons, 509 U.S. 259, 270 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409,

430 (1976)); see also Fields I, 672 F.3d at 510 (absolute immunity covers “any action

directly relevant to a prosecutor’s ability to conduct a trial.”). But this immunity does

not extend to “job responsibilities that are not prosecutorial in nature.” Fields I, 672

F.3d at 511. Accordingly, the immunity’s reach recognizes “a difference between the

advocate’s role in evaluating evidence and interviewing witnesses” while preparing

for trial, “and the detective’s role in searching for the clues and corroboration that

might give him probable cause to recommend that a suspect be arrested.” Buckley,

509 U.S. at 273. As a result, the degree of immunity prosecutors are afforded “depends

on their activity in a particular case.” Lewis v. Mills, 677 F.3d 324, 330 (7th Cir. 2012)

(quoting Anderson v. Simon, 217 F.3d 472, 475 (7th Cir. 2000)).

Whether an action taken by a prosecutor “falls within the scope of his

prosecutorial duties depends upon its function.” Fields I, 672 F.3d at 510. Courts must

consider whether “the prosecutor is, at the time, acting as an officer of the court, as

well as on his action’s relatedness to the judicial phase of the criminal process.” Id.

Where the “prosecutor performs the investigative functions normally performed by a

detective or police officer,” absolute prosecutorial immunity is no shield to liability,

although qualified immunity might be. Buckley, 509 U.S. at 273.

Defendant Hughes analogizes Plaintiff’s TAC to Hunt v. Jaglowski, wherein

the Seventh Circuit found that absolute immunity barred the claimant’s Section 1983

count against a prosecutor. 926 F.2d 689 (7th Cir. 1991); (Dkt. 271 at 6–7; Dkt. 291

at 3–4.) In Hunt, the plaintiff alleged that the prosecutor assigned to his case assisted

the police in obtaining a false confession for an armed robbery and murder. Hunt, 926

F.2d at 691. The police allegedly interrogated and beat the plaintiff and deprived him

of sleep for over thirty hours. Id. at 693. At one point in his interrogation, the

prosecutor left the room, and the plaintiff testified that one of his interrogators

threatened to resume the beatings unless he gave his false confession to the

prosecutor. Id. at 691–92. Under duress, the plaintiff confessed. Id. The prosecutor

then reentered the room and took the plaintiff’s confession.

The Seventh Circuit determined that the prosecutor was entitled to absolute

immunity from the plaintiff’s resulting lawsuit because he:

was not present at the time Hunt was arrested and taken to Area 5; [he]

was not present during the polygraph test nor the lineup; [he] was not

present when Hunt claims he was beaten; and [he] was not present at

the particular time Hunt alleges he gave his coerced confession.

Id. at 693. The Seventh Circuit found that such an act was one toward “initiating a

prosecution and in presenting the State’s case,” so the prosecutor was entitled to

absolute immunity. Id. (cleaned up).

At this stage, Plaintiff’s allegations are enough to survive a motion to dismiss

because the Defendant Officers allegedly were present or involved with Defendant

Hughes. In other words, Plaintiff alleges that Defendant Hughes “conspired with the

Defendant Officers . . . to conceal and fabricate evidence, manipulate witness

testimony, and maliciously prosecute Plaintiff for Salvador Ruvalcaba’s murder.”

(Dkt. 256 at 4.) Plaintiff also contends that Defendant Hughes conspired with

Defendant Officers “to record a false statement on Vicente’s behalf.” (Id. at 18.) In

addition, Plaintiff asserts that Defendant Hughes “purposefully allowed Defendants

Guevara and/or Halvorsen to dictate Vicente’s statement and recorded Guevara

and/or Halvorsen’s account of Vicente’s statement.” (Id. at 19.) Plaintiff alleges that

Defendant Hughes then created a document he knew was false, to credibly support

the future charges against Plaintiff, which he approved himself. (Id.) Throughout the

TAC, Plaintiff’s allegations raise an inference that Defendant Hughes was acting in

an investigatory, rather than prosecutorial, function, and therefore is not protected

by absolute prosecutorial immunity. See Patrick v. City of Chicago, 213 F. Supp. 3d

1033, 1045–46 (N.D. Ill. 2016) (distinguishing Hunt on the basis that the plaintiff

alleged that the prosecutor was present during, and helped police officer obtain, a

coerced confession). If the evidence produced in discovery shows, however, that

Defendant Hughes did not actually participate in the alleged conduct but instead was

present only to a statement from a witness, he may be entitled to summary judgment

on grounds of absolute immunity. See Tillman v. Burge, 813 F. Supp. 2d 946, 973–94

(N.D. Ill. 2011) (citing Hunt, 926 F.2d at 693). As a result, the Court declines to find

at this stage that Defendant Hughes is entitled to absolute prosecutorial immunity.

B. Brady Violations against Defendant Officers (Count II)

In Count II, Plaintiff alleges that Defendant Officers committed Brady

violations by deliberately withholding exculpatory evidence from Plaintiff and the

prosecutors, “thereby misleading and misdirecting the criminal prosecution of

Plaintiff.” Brady v. Maryland, 373 U.S. 83 (1963); (Dkt. 256 at 57–58.) For instance,

Plaintiff pleads that Defendants failed to conduct either a gunshot residue or a

polygraph test, failed to document Plaintiff’s requests for testing, withheld and

suppressed documentation of exculpatory witness statements and an excessive force

complaint, and intentionally erased a the memory of Plaintiff’s pager. (Id. at 13–17.)

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

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.

A plaintiff must show three elements “in order to prove a Brady violation:

(1) the evidence at issue was favorable to the accused, either because it is exculpatory

or because it is impeaching; (2) the evidence must have been suppressed by the state,

either willfully or inadvertently; and (3) the evidence must have been material,

meaning there is a reasonable probability that the result of the proceeding would

have been different.” Beaman v. Freesmeyer, 776 F.3d 500, 506 (7th Cir. 2015). Under

the last element, a plaintiff “need only show that the new evidence undermines the

confidence of the verdict.” Id. (citation omitted); see also Wearry v. Cain, 577 U.S. 385,

392 (2016) (per curiam) (petitioner “must show only that the new evidence is

sufficient to ‘undermine confidence’ in the verdict.”).

Defendant Officers first contend that Plaintiff’s Brady claim related to witness

interviews is foreclosed by the Seventh Circuit’s decision in Saunders-El v. Rohde,

778 F.3d 556 (7th Cir. 2015), because Plaintiff bases his Brady claim on Defendant

Officers’ suppressing “information about their coercion of witnesses through

manipulation and suggestion that resulted in fabricated statements.” (Dkt. 270 at 14,

16.) Defendant Officers also contend that “erasing” Plaintiff’s alibi witnesses’ phone

number from Plaintiff’s pager is not a Brady violation because the phone number was

not exculpatory evidence. (Dkt. 270 at 14–15.) Defendant Officers further contend

that Plaintiff cannot support a Brady violation because he was fully aware of the

suppressed evidence and had the ability to contact her. (Id. at 15 (citing Gauger v.

Hendle, 349 F.3d 354, 360 (7th Cir. 2003) (there is no Brady violation where Plaintiff

knows of the evidence) (overruled in part on other grounds by Wallace v. City of

Chicago, 440 F.3d 421, 423 (7th Cir. 2006)).) Finally, Defendant Officers contend that

the excessive force complaint in which Plaintiff was a witness could not be suppressed

in violation of Brady because Plaintiff and his attorneys had the information about

the excessive force complaint, and used this information to question a witness. (Dkt.

270 at 16–17.)

Plaintiff’s allegations in the TAC are sufficient to state a plausible Brady

claim. As an initial matter, Brady evidence is assessed cumulatively, not in the

piecemeal episodes presented by Defendants. See Goudy v. Basinger, 604 F.3d 394,

400–01 (7th Cir. 2010). For instance, in the context of police officers’ failure to disclose

the methods of an interview, the Seventh Circuit in Saunders–El explained:

In the end, Saunders–El seeks to charge the officers with a Brady

violation for keeping quiet about their wrongdoing, not for failing to

disclose any existing piece of evidence to the prosecution. But our case

law makes clear that Brady does not require the creation of exculpatory

evidence, nor does it compel police officers to accurately disclose the

circumstances of their investigations to the prosecution. Accordingly,

Saunders–El’s Brady claim is more appropriately characterized as a

claim for malicious prosecution—that is, a claim that the officers

commenced his prosecution without probable cause—which cannot form

the basis of a constitutional tort.

Id. at 562 (emphasis in original). The Seventh Circuit in Saunders–El relied on earlier

Seventh Circuit cases, including Sornberger v. City of Knoxville, 434 F.3d 1006, 1029

(7th Cir. 2006), in which the Seventh Circuit concluded that Brady cannot be a basis

for a claim against police officers who fail to disclose the circumstances of a plaintiff's

interrogation. Id. The Seventh Circuit also relied on Gauger, 349 F.3d at 360, where

a panel of the court rejected “the plaintiff’s argument that Brady requires police to

disclose truthful versions of statements made during interrogations.” Id.

But here, Plaintiff’s Brady claim is based on more than just the Defendant

Officers’ failure to disclose their unlawful interrogation tactics. In addition to this

failure, Plaintiff alleges that Defendant Officers suppressed information in Plaintiff’s

pager regarding contact with his alibi witness. (Dkt. 256 at 14, 57–58.) Plaintiff also

claims that Defendant Officers suppressed the implements of their coercion, such as

inducing a witness to lie through physical force, threats, and undisclosed promises.

(Id. at 17–20, 57–58.) Plaintiff also alleges that Defendant Officers engaged in

unconstitutional practices, such as showing photographs of Plaintiff to eyewitnesses

before lineups and instructing them that Plaintiff was the shooter. (Id. at 11, 57–58.)

Plaintiff further alleges that Defendant Officers suppressed evidence that Plaintiff’s

hands were free of gunshot residue when he was arrested shortly after the murder,

and that Plaintiff had requested a gunshot residue test and was denied, even though

such a test was easily available. (Id. at 14–15, 57–58.)

Plaintiff’s allegations are not merely allegations that Defendants withheld

information about their improper tactics, but rather that they created notes and/or

reports documenting exculpatory witness statements and their own misconduct,

which they then suppressed. Moreover, Plaintiff alleges that Defendant Officers

suppressed documentation that they knew Plaintiff was a witness to a misconduct

investigation against some of them, and suppressed documentation that the arresting

officers on the murder Plaintiff was convicted of learned about that investigation two

days before Plaintiff was arrested. (Id. at 8, 13.)

Courts in this district have concluded that similar allegations state a Brady

claim based on events that transpired outside of the interrogation room. See, e.g.,

Ruiz-Cortez v. City of Chicago, 2016 WL 6270768, at *16 (N.D. Ill. Oct. 26, 2016)

(allegations of “pattern of misconduct and obstruction of justice” was sufficient Brady

claim); Tillman, 813 F. Supp. 2d at 962 (allegations of “ ‘suppressing, destroying, and

preventing the discovery’ of exculpatory evidence, including that of ‘the instruments

of torture,’ ” and “obstructing and improperly influencing investigations” are

“circumstances that substantially exceed what Tillman was aware of based on his

presence at the interrogation”); Cannon v. Burge, 2006 WL 273544, at *12 (N.D. Ill.

Feb. 2, 2006) (“Plaintiff's knowledge of what transpired in the interrogation room does

not relieve the City Defendants of their obligation under Brady to disclose

exculpatory evidence regarding what transpired outside the interrogation room, or

preclude the Court from finding the existence of a Brady violation.”); Patterson v.

Burge, 328 F. Supp. 2d 878, 889 (N.D. Ill. 2004) (“[I]n addition to charging defendants

with hiding the fact that his confession was coerced and fabricated . . . Patterson

accuses defendants of obstructing justice and violating his right to a fair trial through

actions they took outside the interrogation room.”).

Viewing Plaintiff’s allegations and all reasonable inferences in his favor, the

allegations plausibly allege that Defendant Officers conduct was “so egregious that

no reasonable person could have believed that it would not violate established rights.”

Beaman, 776 F.3d at 508–09. As a result, individually, and cumulatively, Plaintiff

states a plausible Brady claim. Defendant Officers’ motion to dismiss Count II is

denied.

C. Destruction of Evidence Claim against Defendant Officers

(Count III)

In Count III, Plaintiff alleges that Defendant Officers deprived Plaintiff of his

constitutional right to a fair trial by deliberately, and in bad faith, “causing the loss

of and/or failing to preserve evidence that Plaintiff could have used to prove his

innocence.” (Dkt. 256 at 58–59.) Defendant Officers argue that Plaintiff fails to state

a viable destruction of evidence claim because “the allegedly destroyed phone number

was neither exculpatory nor of a character that Plaintiff could not obtain comparable

evidence.” (Dkt. 270 at 17–19.) Plaintiff counters that he has plausibly alleged a

destruction of evidence claim against Defendant Officers. (See Dkt. 285 at 23–24.)

The suppression by the prosecution “of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373

U.S. at 87. The duty of production extends to the executive branch, including the

police. See Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir. 2008); see also Harris

v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007) (police officers “they must turn over

potentially exculpatory evidence when they turn over investigative files to the

prosecution”). In addition, the duty to refrain from “bad-faith destruction flows

necessarily, and obviously, from [Brady’s] familiar holding that suppression of

material exculpatory evidence violates due process.” Armstrong, 786 F.3d at 550.

A destruction of evidence claim has two essential elements: “(1) the defendant

destroyed exculpatory evidence in bad faith or engaged in other misconduct (2) that

caused a deprivation of the plaintiff's liberty.” Id. at 551. Bad faith “requires more

than carelessness, it requires a ‘conscious effort to suppress exculpatory evidence.’ ”

United States v. Fletcher, 634 F.3d 395, 408 (7th Cir. 2011) (quoting United States v.

Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000)). Bad faith is sufficiently pled

when the allegations paint the defendant as pursuing the plaintiff through any

means necessary. Armstrong, 786 F.3d at 547. The alleged exculpatory value of the

destroyed evidence need only be potential or apparent. Id. at 552; see also id. at 548–

49 (plaintiff’s inability to show that destroyed evidence was actually exculpatory did

not defeat his due process claim). Moreover, a plaintiff’s awareness of the destroyed

evidence and their ability to obtain the information encompassed in that evidence

from another source are irrelevant. Id. at 551.

Plaintiff states a viable destruction of evidence claim against Defendant

Officers. Plaintiff alleges that Defendant Officers intentionally, and in bad faith,

destroyed Plaintiff’s pager, which contained the phone number of an alibi witness.

(Dkt. 256 at 14, 58–59.) Plaintiff alleges that Defendants failed to preserve evidence

of a lack of gunshot residue on Plaintiff’s hands, even though it was “easily available

to them.” (Id. at 14–15.) At this stage, Plaintiff’s claim is plausible. As a result,

Defendant Officers’ motion to dismiss Count III is denied.

D. Wrongful Pretrial Detention (Count IV)

In Count IV, Plaintiff alleges that he was wrongfully detained pretrial in

violation “of his rights secured by the Fourth Amendment and the procedural and

substantive due process components of the Fourteenth Amendment.” (Dkt. 256 at 59–

61.) Defendant Officers argue that Plaintiff’s claim is untimely. (Dkt. 270 at 19–20.)

Plaintiff counters that the claim is timely because the “claim did not accrue until the

wrongful deprivation of his liberty came to an end, i.e. after Plaintiff’s wrongful

conviction was vacated.” (Dkt. 285 at 24–26.)

A claim of arrest without probable cause is one challenging an unlawful

pretrial detention, and that claim accrues when the detention ceases. See Lewis v.

City of Chicago, 914 F.3d 472, 476–78 (7th Cir. 2019). Plaintiff was convicted in May

1993, “which is as long as any ‘pretrial’ detention could have lasted.” Marshall v.

Elgin Police Dep’t & Detective Houghton, 2023 WL 4102997, at *2 (7th Cir. June 21,

2023). Even if Plaintiff was in jail the entire time, his initial complaint filed in 2019—

well more than two years after the date of conviction—is untimely. See id. Plaintiff’s

argument has squarely been rejected by the Seventh Circuit a number of times. See

id. As a result, Defendant Officers’ motion to dismiss the wrongful pretrial detention

claim in Count IV is granted. Because the statute of limitations is a bar against all

Defendants, the dismissal applies across the board. Because this flaw cannot be cured

by repleading, the dismissal is with prejudice. See Haywood v. Massage Envy

Franchising, LLC, 887 F.3d 329, 335 (7th Cir. 2018).

E. Conspiracy to Deprive Constitutional Rights and Failure to

Intervene (Counts V and VI)

In Count V, Plaintiff alleges that Defendants “reached an agreement among

themselves to frame Plaintiff for a crime he did not commit . . . by fabricating

evidence that would be used to convict Plaintiff; and by withholding exculpatory

information from Plaintiff’s defense and the prosecution.” (Dkt. 256 at 61–62.) In

Count VI, Plaintiff alleges that during the violations alleged in the TAC, “one or more

of the Defendants stood by without intervening to prevent the violation of Plaintiff’s

constitutional rights, even though they had the opportunity to do so.” (Id. at 62.)

Defendant Officers argue that the claims fail because Plaintiff fails to adequately

plead an underlying constitutional violation against Defendant Officers Maher and

Marron. (Dkt. 270 at 22–23.) In addition, Defendant Hughes and the County argue

that the failure to intervene claim fails because Defendant Hughes is entitled to

qualified immunity. (Dkt. 271 at 10–12.) Plaintiff counters that he plausibly alleged

conspiracy and failure to intervene claims against Defendant Officers Maher and

Marron. (See Dkt. 285 at 28.) In addition, Plaintiff counters that Defendant Hughes

is not entitled to qualified immunity with respect to the failure to intervene claim.

(Id. at 35–37.)

1. Defendant Officers

A Section 1983 plaintiff may recover from a defendant who conspired to violate

plaintiff's constitutional rights. To establish conspiracy liability under Section 1983,

a plaintiff must show that “(1) the individuals reached an agreement to deprive him

of his constitutional rights, and (2) overt acts in furtherance actually deprived him of

those rights.” Beaman, 776 F.3d at 510 (citing Scherer v. Balkema, 840 F.2d 437, 442

(7th Cir. 1988)). In other words, a plaintiff must “ ‘show an underlying constitutional

violation’ and ‘demonstrate that the defendants agreed to inflict the constitutional

harm.’ ” Daugherty v. Page, 906 F.3d 606, 612 (7th Cir. 2018) (quoting Hurt v. Wise,

880 F.3d 831, 842 (7th Cir. 2018)).

A Section 1983 plaintiff may recover from a defendant who fails to intervene,

and that failure renders them culpable. To prevail on a failure-to-intervene claim, a

plaintiff must show that Defendants “(1) had a reason to know that a fellow officer

committed a constitutional violation, and (2) had a realistic opportunity to intervene

to prevent the harm from occurring.” Hill v. Cook Cnty., 463 F. Supp. 3d 820, 840

(N.D. Ill. 2020) (cleaned up). As discussed above, Plaintiff states a viable claim

against Defendant Officers Maher and Marron, so Defendant Officers’ premise that

the TAC relies on deficient claims is incorrect, and the court declines to dismiss

Counts V or VI with respect to the Defendant Officers.

2. Defendant Hughes

On the other hand, the Court finds that Defendant Hughes is entitled to

qualified immunity with respect to Count VI. To reiterate, the doctrine of qualified

immunity “protects government officials from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (quotation marks omitted). Qualified immunity shields government

officials performing discretionary functions from civil damages liability “as long as

their actions could reasonably have been thought consistent with the rights they are

alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified

immunity protects “all but the plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “Once the defense of qualified

immunity is raised, ‘it becomes the plaintiff's burden to defeat it.’ ” Estate of Escobedo

v. Martin, 702 F.3d 388, 404 (7th Cir. 2012) (quoting Wheeler v. Lawson, 539 F.3d

629, 639 (7th Cir. 2008)).

Qualified immunity includes two inquiries. The first question is whether the

officer violated a constitutional right. Reed v. Palmer, 906 F.3d 540, 546 (7th Cir.

2018) (internal quotations and citations omitted). The second question is whether the

“right at issue was ‘clearly established’ at the time of [the] alleged misconduct.”

Pearson, 555 U.S. at 232. The Court can decide to answer one question or both, and

in which order. Id. at 242 (“[T]he judges of the district courts . . . are in the best

position to determine the order of decisionmaking that will best facilitate the fair and

efficient disposition of each case.”).

The Court begins with whether the right at issue was clearly established at

the time of the alleged misconduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In

determining what constitutes clearly established law, the Court first looks to

Supreme Court precedent and then to the Seventh Circuit. Abbott v. Sangamon Cnty.,

Ill., 705 F.3d 706, 731 (7th Cir. 2013) (quotations and citations omitted). When there

is no direct controlling authority, the Court may rely on decisions from other circuits

to the extent that they constitute “a clear trend in the case law that [it] can say with

fair assurance that the recognition of the right by a controlling precedent was merely

a question of time.” Id. (quotations and citations omitted).

A plaintiff “can demonstrate that the right was clearly established by

presenting a closely analogous case that establishes that the Defendants’ conduct was

unconstitutional or by presenting evidence that the Defendant’s conduct was so

patently violative of the constitutional right that reasonable officials would know

without guidance from a court.” Estate of Escobedo v. Bender, 600 F.3d 770, 780 (7th

Cir. 2010) (citations omitted).

Clearly established law comes from holdings, not dicta. Cf. Woods v. Donald,

575 U.S. 312, 315 (2015) (“ ‘[C]learly established Federal law’ for purposes of [28

U.S.C.] § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court’s

decisions.”); Ashcroft v. al-Kidd, 563 U.S. 731, 741–42 (2011) (a district court’s

“footnoted dictum” did not clearly establish the law for purposes of qualified

immunity). Dictum is not law, and hence cannot be clearly established law.

It was “not clearly established in 1993”—the year of Plaintiff’s allegations—

that “prosecutors acting as investigators had a duty to intervene when their fellow

officers committed constitutional wrongs.” Serrano v. Guevara, 315 F. Supp. 3d 1026,

1038 (N.D. Ill. 2018). None of the cases cited by Plaintiff stand to the contrary.

To be sure, the Seventh Circuit has long-established that police officers have a

duty to intervene against their fellow officers who violated the constitutional rights

of third parties. See Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972) (“[O]ne who is

given a badge of authority of a police officer may not ignore the duty imposed by his

office and fail to stop other officers who summarily punish a third person in his

presence or otherwise within his knowledge.”). And in Whitlock v. Brueggemann, the

Seventh Circuit established that a prosecutor acting as an investigator would be held

to the same standard as a police officer. 682 F.3d at 583 (“[A] prosecutor whose

investigatory conduct is the proximate cause of the due process violation that occurs

when the false evidence is introduced at trial is held to the same standard of liability

as a police officer who does the same thing.”). But this decision is from 2012, “so it

had no impact on the notice available to prosecutors in 1993.” Serrano, 315 F. Supp.3d

at 1039. Defendant Hughes cannot be held to a standard that became clearly

established decades after his alleged wrongdoing.

Because Plaintiff has failed to identify any controlling precedent (or persuasive

noncontrolling authority) rendering it “beyond debate” that any reasonable

prosecutor would know that their inactions violated the constitutional rights of a

third party, Defendant Hughes is entitled to qualified immunity. See al-Kidd, 563

U.S. at 741. Count VI is dismissed. Because the dismissal is based on qualified

immunity, the dismissal is with prejudice. See Hinnen v. Kelly, 992 F.2d 140, 144 (7th

Cir. 1993).

F. Intentional Infliction of Emotional Distress (Count VIII)

In Count VIII, Plaintiff alleges a claim for intentional infliction of emotional

distress (“IIED”) against Defendants. (Dkt. 256 at 64–65.) Plaintiff alleges that

Defendants engaged in extreme and outrageous conduct that they either intended

“would cause severe emotional distress to Plaintiff or knew that there was a high

probability that their conduct would cause severe emotional distress to Plaintiff.” (Id.

at 64–65.) Defendant Officers argue that the claim fails against Defendant Officers

Marron and Maher because it is untimely. (Dkt. 270 at 23–24.) In addition, Defendant

Hughes and the County also argue that the claim fails because it is untimely. (Dkt.

271 at 12–13.) Defendant Hughes and the County also contend that the claim fails on

the merits, as Defendant Hughes, is only alleged to have fabricated the witnesses’

statement, and he did not testify at trial. (Id. at 12–13.) Plaintiff counters that Heck

v. Humphrey’s delayed accrual rule applies to his IIED claim, thus making it timely

against all Defendants. 512 U.S. 477 (1994); (see Dkt. 285 at 28–31.)

A cause of action for “intentional infliction of emotional distress in the course

of arrest and prosecution accrues on the date of arrest.” Bridewell v. Eberle, 730 F.3d

672, 678 (7th Cir. 2013). A wrongful conviction can be the source of the extreme

emotional distress required for an IIED claim. See Parish v. City of Elkhart, 614 F.3d

677, 683 (7th Cir. 2010). That said, there is a split in authority among district courts

in this Circuit as to whether Illinois recognizes the delayed accrual rule for IIED

claims. A number of cases hold they do not. See, e.g., Batchelor v. City of Chicago,

2020 WL 509034, at *4 (N.D. Ill. Jan. 31, 2020). In contrast, a number of courts have

held that they do recognize it. See, e.g., Treadwell v. Salgado, 2021 WL 3129290, at

*4 (N.D. Ill. July 23, 2021) (collecting cases). One judge of the Seventh Circuit has

described Illinois courts as “embrac[ing]” Heck’s delayed accrual rule. See Northfield

Ins. Co. v. City of Waukegan, 701 F.3d 1124, 1137 (7th Cir. 2012) (Hamilton, J.,

concurring). The reasoning is 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, 2020 WL 509031, at *5 (N.D. Ill. Jan. 31, 2020).

Plaintiff makes such allegations. As alleged in the TAC, Plaintiff’s IIED claims

are based on the same conduct that led to his conviction. (See, e.g., Dkt. 256 at 16–19,

22–24, 56.) Alleging those facts before his conviction was vacated would have directly

attacked the validity of the convictions—in violation of Heck v. Humphrey, 512 U.S.

477 (1994). Courts in this District have found similar IIED allegations, which attack

the validity of convictions, to be subject to Heck’s delayed accrual rule. See, e.g., Smith

v. Burge, 222 F. Supp. 3d 669, 693 (N.D. Ill. 2016) (plaintiff’s claims accrued when his

conviction was set aside because “[p]laintiff base[d] his IIED claim on [d]efendants

coercing his confession by torture, constructing and fabricating his confession, and

procuring his prosecution, conviction, and imprisonment via his coerced and

fabricated confession”). Accordingly, the Court joins the other decisions in this

District that have found, under similar circumstances, that a plaintiff cannot bring

an IIED claim based on conduct that led to a conviction until that conviction has been

overturned. See, e.g., Andersen v. City of Chicago, 2019 WL 6327226, at *6 (N.D. Ill.

Nov. 26, 2019). The Court declines to dismiss Count VIII against Defendants.

G. State Law Malicious Prosecution (Count IX)

In Count IX, Plaintiff alleges that all of the “individual Defendants caused

Plaintiff to be improperly subjected to judicial proceedings for which there was no

probable cause, [and these] judicial proceedings were instituted and continued with

malice and resulted in injury to Plaintiff.” (Dkt. 256 at 65–66.) Defendant Officers

argue that the claim fails because Plaintiff fails to adequately plead a malicious

prosecution claim against Defendant Officer Mingey because there are no allegations

that he was involved in commencing or continuing the prosecution. (Dkt. 270 at 24–

25.) In addition, Defendant Hughes and the County also argue that the Court should

decline to exercise supplemental jurisdiction over this claim (assuming their other

arguments were successful). (Dkt. 271 at 14–15.) Plaintiff counters that he has

plausibly alleged that Defendant Officer Mingey was involved in “the commencement

or continuation of a criminal proceeding.” (Dkt. 285 at 31.) In addition, Plaintiff

contends that the Court should exercise supplemental jurisdiction with respect to

Defendant Hughes since federal claims survive against him. (Id. at 37.)

To state a claim for malicious prosecution under Illinois law, “a plaintiff must

allege that: (1) he was subjected to judicial proceedings; (2) for which there was no

probable cause; (3) the defendants instituted or continued the proceedings

maliciously; (4) the proceedings were terminated in the plaintiff's favor; and (5) there

was an injury.” Sneed v. Rybicki, 146 F.3d 478, 480–81 (7th Cir. 1998) (cleaned up);

Hurlbert v. Charles, 938 N.E.2d 507, 512 (Ill. 2010). If any element is missing, the

claim fails. See Ross v. Mauro Chevrolet, 861 N.E.2d 313, 319 (Ill. App. Ct. 2006).

Plaintiff’s malicious prosecution allegations are sufficient. An individual can

be liable for “commencing or continuing a malicious prosecution even if that person

does not ultimately wield prosecutorial power or actively deceive[s] prosecutors.”

Beaman v. Freesmeyer, 131 N.E.3d 488, 499 (Ill. 2019). The presumption of

prosecutorial independence “can be overcome by showing that the defendant

improperly exerted pressure on the prosecutor, knowingly provided misinformation

to him or her, concealed exculpatory evidence, or otherwise engaged in wrongful or

bad-faith conduct instrumental in the initiation of the prosecution.” Id.; see also

Johnson v. Winstead, 447 F. Supp. 3d 715, 721 (N.D. Ill. 2019).

Plaintiff alleges that Defendant Officer Mingey supervised other Defendant

Officers “at all relevant times” and “facilitated, condoned and approved the

constitutional violations committed by” them. (Dkt. 256 at 4.) Plaintiff alleges that

Defendant Officer Mingey not only supervised the identification procedures, but he

also approved of them and facilitated their occurrences. (Id. at 4, 11, 13.) Plaintiff

alleges that Defendant Officer Mingey participated in nefarious scheme with the

witness Vicente. (Id. at 27–28.) And Plaintiff also alleges that Defendant Officer

Mingey was the watch commander for the department on the day of the murder

investigation. (Id. at 13.) In sum, Plaintiff alleges facts that suggest actions or

statements made or undertaken by Defendant Officer Mingey reflected that he

exerted influence over commencing or continuing the criminal proceedings against

Plaintiff. At this stage, this is more than sufficient. As a result, the Court declines to

dismiss Count IX against Defendant Officer Mingey, as Plaintiff states a plausible

claim against Defendants. In addition, because Plaintiff has alleged sufficient federal

claims, the Court will retain supplemental jurisdiction over this claim with respect

to Defendant Hughes.

H. Respondeat Superior and Indemnification (Counts X and XII)

In Count X, Plaintiff alleges a respondeat superior claim against the City and

the County. (Dkt. 256 at 66.) In Count XII, Plaintiff alleges an indemnification claim

against the City and the County. (Dkt. 256 at 67–68.) The City argues that the claims

fail because they are derivative of claims against Defendant Officers that fail. (Dkt.

270 at 29.) In addition, the County argues that that the claims fail because they are

derivative of claims against Defendant Hughes that. (Dkt. 271 at 13–14.) Given that

claims against Defendant Officers and Defendant Hughes survive, the Court declines

to dismiss Counts X and XII at this time.

I. First Amendment Retaliation (Count XIII)

Finally, in Count XIII, Plaintiff alleges a First Amendment retaliation claim

against Defendant Officers. (Dkt. 256 at 68–69.) Defendant Officers argue that the

claim fails because it is untimely as well as fails to state a claim for relief because

“failed to allege any of these Defendants were aware that Plaintiff was a witness to

an excessive force complaint.” (Dkt. 270 at 20–21.) Plaintiff counters that he has

plausibly alleged a timely claim against Defendant Officers. (See Dkt. 285 at 26–28.)

As the Seventh Circuit has held, generally the statute of limitations clock

begins to run on First Amendment retaliation claims “immediately after the

retaliatory act occurred.” Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016).

Plaintiff contends that the Court should extend Heck’s delayed accrual rule to First

Amendment retaliation claims. (Dkt. 285 at 27.) The Court declines this invitation,

particularly since the Seventh Circuit has squarely rejected this invitation, holding a

First Amendment retaliation claim does not require a favorable termination of the

underlying action. See Towne v. Donnelly, 44 F.4th 666, 673–74 (7th Cir. 2022) (First

Amendment retaliatory prosecution claim accrued when charges that the plaintiff

believed to be retaliatory were filed). To bring a retaliatory prosecution claim under

the First Amendment, a plaintiff need only plead and prove an absence of probable

cause for the underlying charge. See Hartman v. Moore, 547 U.S. 250, 265–66 (2006)

A plaintiff’s allegations thus do not necessarily impugn or implicate the entire

prosecution. In addition, a plaintiff need not assert or establish that he was confined

or deprived of liberty as a result of the charges., See, e.g., FKFJ, Inc. v. Vill. of Worth,

11 F.4th 574, 585 (7th Cir. 2021) (setting forth elements of First Amendment

retaliation claim). Indeed, in Gekas, the Seventh Circuit stated that “First

Amendment retaliation claims and malicious prosecution claims are fundamentally

different causes of action.” Gekas, 814 F.3d at 894.

Charges were filed against Plaintiff in 1993. The applicable statute of

limitations is two years. Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011) (citing

735 ILCS 5/13–202 and Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th Cir.

2007)). As a result, Defendant Officers’ motion to dismiss Count XIII is granted.

Because the statute of limitations is a bar against all Defendants, the dismissal

applies across the board. Because this flaw cannot be cured by repleading, the

dismissal is with prejudice. See Haywood, 887 F.3d at 335.

IV. CONCLUSION

Defendants’ motions to dismiss (Dkts. 270—71) are granted in part and denied

in part. Defendants’ motions to dismiss Count I are denied. Defendant Officers’

motion to dismiss Count IT is denied. Defendant Officers’ motion to dismiss Count III

is denied. Defendant Officers’ motion to dismiss the wrongful pretrial detention claim

in Count IV is granted. Defendants’ motions to dismiss Counts V and VI are granted

in part and denied in part. The Court declines to dismiss Counts V or VI with respect

to the Defendant Officers. Count VI, however, is dismissed with prejudice as to

Defendant Hughes. Defendants’ motions to dismiss Count VIII are denied. Defendant

Officers’ motion to dismiss Count IX is denied. Defendants’ motions to dismiss Counts

X and XII are denied. Defendant Officers’ motion to dismiss Count XIII is granted

SO ORDERED in No. 19-cv-02441.

Date: September 30, 2024 _ LUE) Heme

JOHN F. KNESS

United States District Judge

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