Ienco, Joseph P. v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2395

Joseph Ienco,

Plaintiff-Appellant,

v.

City of Chicago, a municipal corporation,

P.O. Kenneth Angarone, individually

and in his official capacity as a member

of the Chicago Police Department, and

P.O. Thomas McGann, individually and

in his official capacity as a member

of the Chicago Police Department,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 3831--Ruben Castillo, Judge.

Argued February 13, 2002--Decided April 12, 2002

Before Coffey, Manion, and Williams,

Circuit Judges.

Williams, Circuit Judge. Joseph Ienco

was convicted of various federal weapons

and extortion charges in April 1995.

After raising several successful

constitutional challenges to the manner

of his arrest, his conviction was

overturned and the indictment was

dismissed. Seeking compensation for what

he believed to be a wrongful prosecution

caused by the actions of defendants City

of Chicago ("the City") and two City

police officers, Ienco brought an action

under 42 U.S.C. sec. 1983. The district

court, in granting summary judgment for

defendants, concluded that Ienco’s state

and federal malicious prosecution claims

failed on the merits as a matter of law,

because he could not prove that the

defendants denied his substantive due

process rights. Ienco appeals. During the

pendency of his appeal, we decided

Newsome v. McCabe, 256 F.3d 747 (7th Cir.

2001), which held that federal malicious

prosecution claims should not be examined

under a theory of substantive due

process, but must instead be analyzed

under the due process clause directly. In

light of Newsome, we reverse judgment as

to the individual officers but affirm

judgment as to the City.

I. BACKGROUND

A. Facts

Joseph Ienco operated as a real estate

broker and rent collector, along with his

associate Gregory Iovine. On the side,

Ienco doubled as a debt collection

enforcer. In August 1994, Ienco and

Iovine were sent to collect payment from

a Chicago businessman, Jerome Greenberg,

who apparently owed a debt to Ienco’s

boss, a clothing importer. Ienco and

Iovine traveled to Chicago and secured a

hotel room and rental car. Shortly

thereafter, they paid a visit to

Greenberg at his Chicago office, where

they talked tough with Greenberg about

the money that he owed to Ienco’s boss.

Ienco and Iovine left, intending to

return to Greenberg’s office to engage in

more aggressively threatening behavior,

primarily with the aid of firearms and

explosives.

When Ienco and Iovine returned to

Greenberg’s building, Greenberg saw them

and called the police. Defendant Chicago

police officers Kenneth Angarone and

Thomas McGann soon arrived at the scene.

What happened next is the source of much

dispute. In brief, Ienco claimed that the

officers conducted an unlawful search and

seizure. The officers claimed that they

received consent for all search and

seizure activity. What is not in dispute

is that the search and seizure of Ienco

and his associate began a chain of events

that led the officers to discover that

Ienco and Iovine’s rental vehicle

contained a variety of dangerous weapons.

Acting with Iovine’s tacit approval,

government agents also discovered more

incriminating evidence in Ienco and

Iovine’s hotel room.

B. District Court Procedural History

Ienco was charged with various federal

crimes regarding his cache of illegal

weapons and explosives and his attempts

at extortion. As one might expect, he

moved to suppress the physical evidence

seized following his arrest, arguing that

it was the product of an illegal search

and seizure. At trial, these issues were

initially discussed at length in a

suppression hearing before Judge Duff.

Judge Duff denied the motion to suppress,

finding that the testimony of Officer

Angarone was "complete, consistent,

informed, careful, [and] professional."

As a result of the denial of the motion

to suppress, Iovine became a witness

against Ienco--who was promptly convicted

at trial. Officer Angarone testified at

the suppression hearing and at trial.

Officer McGann offered a stipulation for

the suppression hearing and proffered

testimony that was not introduced at

trial. Ienco was sentenced to 425 months

in prison, and he appealed.

In United States v. Ienco, 92 F.3d 564

(7th Cir. 1996) ("Ienco I"), we reversed

and remanded, finding that the district

court committed several prejudicial

errors, which required a new suppression

hearing and trial. Pursuant to Circuit

Rule 36, we assigned the matter to Judge

Coar.

Judge Coar conducted a thorough review

of the record on the motion to suppress.

Both officers testified at the new

suppression hearing. After weighing all

available information, Judge Coar found

numerous inconsistencies in the officers’

stories, concluding that "[i]n short,

Angarone and McGann lied."/1

Appropriately, he suppressed the

evidence. The government appealed./2

We affirmed. In United States v. Ienco,

182 F.3d 517 (7th Cir. 1999) ("Ienco

III"), we found that suppression of all

physical evidence was warranted, because

the officers lacked reasonable suspicion

for a Terry stop and also unlawfully

arrested Ienco. See, e.g., Terry v. Ohio,

392 U.S. 1, 21-22 (1968). We did not

extensively address Judge Coar’s factual

findings that the officers lied. However,

we did note that the government did not

appeal Judge Coar’s findings of fact as

to what actually occurred, effectively

conceding that the officers’ testimony

was not to be believed. See Ienco III,

182 F.3d at 524, n. 4.

After our decision in Ienco III, the

government dismissed the indictment.

Shortly thereafter, Ienco brought

thecurrent action. Although Ienco

initially alleged a host of

constitutional violations, he eventually

focused on a single issue: whether the

defendants were liable under a malicious

prosecution theory pursuant to Illinois

state and federal law.

The district court, applying our

precedent, concluded on summary judgment

that the undisputed material facts in

this case did not permit Ienco to pursue

a malicious prosecution theory against

either the officers or the City. The

district court correctly found that Ienco

failed to prove that the proceedings were

terminated in a manner indicative of his

innocence, as required by state law. See

Joiner v. Benton Community Bank, 81

Ill.2d 40, 45 (1980). Since it was

settled that a valid state claim was a

necessary prerequisite for a Section 1983

claim of malicious prosecution, the

district court held that the resolution

of the state law claim resolved Ienco’s

federal claims as well. See Cervantes v.

Jones, 188 F.3d 805, 809 (7th Cir. 1999);

Washington v. Summerville, 127 F.3d 552,

557 (7th Cir. 1997). Because Ienco’s

Section 1983 claim was thus entirely

foreclosed, summary judgment was entered

for the defendants. This appeal followed.

II. ANALYSIS

We review the district court’s decision

granting summary judgment de novo. Grube

v. Lau Indus., Inc., 257 F.3d 723, 727

(7th Cir. 2001). As we must, we review

the evidence in the light most favorable

to Ienco as the nonmoving party, and we

make all reasonable and justifiable

inferences in his favor. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

A. Newsome and Ienco’s Malicious

Prosecution Claim

The standards for a successful Section

1983 action against local police officers

or a municipality are well known. To

prove the officers’ liability, Ienco must

show that (1) he was deprived of a

federal right and (2) that the

deprivation was imposed upon him by one

or more persons acting under color of

state law. See Gomez v. Toledo, 446 U.S.

635, 640 (1980). To establish liability

for the City of Chicago, Ienco must prove

that: (1) he suffered a deprivation of a

federal right; (2) as a result of either

an express municipal policy, widespread

custom, or deliberate act of a decision-

maker with final policy-making authority

for the City; which (3) was the proximate

cause of his injury. See Monell v. New

York City Department of Social Services,

436 U.S. 658, 690-91 (1978); Frake v.

City of Chicago, 210 F.3d 779, 781 (7th

Cir. 2000).

At the outset, there is much agreement

about Ienco’s claims before us. First,

all parties agree that the state law

claims were properly decided by the

district court. This is clear, because

Ienco cannot meet his burden of proving

under Illinois law that the criminal

proceedings terminated in a manner

indicative of his innocence. Likewise,

the parties agree that our intervening

decision in Newsome v. McCabe, 256 F.3d

747 (7th Cir. 2001), discussed below, ef

fectively bars Ienco’s malicious

prosecution claim as presented to the

district court on summary judgment.

Therefore, the principal question

remaining is whether Ienco’s allegations,

coupled with our intervening decision in

Newsome, provide Ienco with opportunity

to pursue a constitutional remedy

sufficient to defeat summary judgment. As

we explain below, we conclude that such a

remedy exists. We must also address

whether, at this stage, the officers are

entitled to absolute or qualified

immunity. As we also explain below, we

find that they are not.

The unique procedural posture of this

case requires some elaboration. As the

law existed at the time this case was

filed, the district court’s disposition

of the state law malicious prosecution

claim would have ended the analysis, and

summary judgment would have been properly

awarded to the defendants. However, after

the district court granted summary

judgment in favor of the officers, we

decided Newsome./3

In Newsome, we withdrew dicta in four of

our previous opinions/4--which had each

been understood to permit Section 1983

malicious prosecution claims but bar

similar claims asserting that defendants’

actions violated due process rights.

Newsome clarified the proper analysis, by

holding that Section 1983 provides a

remedy for certain forms of trial-based

government misconduct based on violations

of due process--not claims of malicious

prosecution. Specifically, we held that

"claims of malicious prosecution should

be analyzed not under the substantive due

process approach [embodied by the

malicious prosecution formula], but under

the language of the Constitution itself."

Newsome, 256 F.3d at 751. Newsome teaches

that, under these circumstances, the

plaintiff must allege that the officers

withheld information or evidence

necessary for the fair and impartial

trial guaranteed by the U.S.

Constitution. Ultimately, we held that

Newsome’s constitutional claim of

malicious prosecution failed as a matter

of law. Nonetheless, we recognized that

Newsome did have a federal due process

claim--that taking the facts as alleged

"he did not receive a fair trial if the

prosecutors withheld material exculpatory

details." Newsome, 256 F.3d at 752.

Because our decisions prior to Newsome

had been reasonably read to foreclose a

due process action under facts similar to

those in this case, we did not penalize

Newsome for failing to convincingly argue

such a cause of action at summary

judgment. Similarly, under the facts of

this case and the law at the time, Ienco

had only one valid constitutional claim

to pursue--malicious prosecution./5

After Newsome, Ienco still has only one

timely constitutional claim to pursue--

but it is for a violation of his due

process rights under the 14th Amendment.

Because Newsome was an intervening change

in the law that benefits Ienco, he is

entitled to take advantage of it on

remand. See, e.g., Molnar v. Booth, 229

F.3d 593, 599 (7th Cir. 2000). On remand,

Ienco should be permitted to amend his

complaint to include allegations relevant

to a viable due process claim under

Newsome.

B. Officers’ Defenses--Waiver and

Immunity

Notwithstanding our disposition of

Ienco’s constitutional remedy, the

defendant officers contend that summary

judgment was appropriate for three

additional reasons, because: (1) Ienco

failed to present a due process argument

to the court below; (2) the officers are

entitled to absolute testimonial

immunity; and (3) the officers’ conduct

was not explicitly proscribed by our

previous opinions./6 We reject each of

these contentions in turn.

1. Waiver of due process claim

Although the officers contend that Ienco

did not properly raise his due process

claim, we disagree. First, Ienco’s

complaint was sufficiently detailed to

put the defendants on notice of his due

process claim, and he explicitly alleged

that "the acts complained of deprived

plaintiff of his right . . . not to be

deprived of liberty without due process

of law." Complt. at 98. The defendants’

response and motion to dismiss explicitly

recognized Ienco’s due process claim,

because they responded that "plaintiff

cannot base his claim against City upon

allegations of a due process violation."

City resp. at 7.

Further, as the district court

recognized in its detailed and thorough

opinion, it would have been a futile

effort for Ienco to seriously pursue a

due process claim prior to Newsome./7

To that end, after the initial stages of

this case were heard before the district

court, Ienco conceded that Smart v. Board

of Trustees v. Univ. of Illinois, 34 F.3d

432 (7th Cir. 1994) effectively

prohibited a malicious prosecution

claimant from proceeding under the due

process clause directly--a path that we

explicitly set out for the first time in

Newsome. See Smart, 34 F.3d at 434

(holding that a malicious prosecution

claimant’s "only constitutional remedy is

under the Fourth Amendment (as made

applicable to the states by the

Fourteenth) and not under the due process

clause directly"). Under these

circumstances, we decline to hold that

Ienco waived his due process claim.

2. Absolute Immunity

Next, the officers claim that they are

entitled to absolute immunity because

their alleged perjury is protected as a

matter of law--both before and during

Ienco’s criminal trial proceedings. See

Briscoe v. LaHue, 460 U.S. 325 (1983).

Ienco contends that this view of the case

is too narrow: he alleges that the

officers actively withheld testimony and

evidence--thus placing their conduct

outside of the safety of trial-based

immunity. We agree with the officers’

general statement of law. Nonetheless, as

Ienco properly contends, our inquiry does

not end there.

If Ienco were merely claiming damages

based upon the officers’ perjured

testimony, the officers would be entitled

to absolute immunity. See Curtis v.

Bembenek, 48 F.3d 281, 285 (7th Cir.

1995). However, Ienco’s claims are not

based upon the officers’ perjured

testimony. Instead, he argues that the

officers withheld exculpatory information

and lied to the federal prosecutors who

successfully indicted him. Neither the

withholding of exculpatory information

nor the initiation of constitutionally

infirm criminal proceedings is protected

by absolute immunity. See, e.g., Brady v.

Maryland, 373 U.S. 83 (1963); Jones v.

City of Chicago, 856 F.2d 985 (7th Cir.

1988)./8 Therefore, no absolute

testimonial immunity attaches to the

actions of the officers outside of trial,

and they are proper defendants in this

action./9

3. Qualified Immunity

Finally, there is the familiar matter of

qualified immunity. To determine if

immunity attaches to the actions of the

officers, we undertake the two-part

qualified immunity test described most

recently in Saucier v. Katz, 533 U.S. 194

(2001). As Saucier teaches, first we ask

whether Ienco has made out a violation of

a constitutional right. Second, we ask

whether that right was clearly

established at the time that the disputed

conduct took place.

As to the first prong of Saucier, we

note that Judge Coar’s meticulous and

unchallenged factual findings demonstrate

that the officers engaged in conduct that

violated the Fourth Amendment and could

also have violated Ienco’s 14th Amendment

due process rights. See Jones v. City of

Chicago, 856 F.2d at 994 (noting "at some

point after a person is arrested, the

question whether his continued

confinement or prosecution is

unconstitutional passes over from the

Fourth Amendment to the due process

clause"). Ienco’s Fourth Amendment claims

expired two years after his arrest. See

Newsome, 256 F.3d at 749. Accordingly,

his due process claims are limited to the

officers’ actions (or non-actions) that

occurred following his arrest and only to

those actions that were not protected by

testimonial immunity. As to Saucier’s

second prong, if Ienco’s allegations are

proved, the officers’ conduct violated

clearly established federal law which was

known or should have been known by a

reasonable officer in 1995. See, e.g.,

Jones v. City of Chicago, 856 F.2d at

992. Therefore, in order to determine if

the officers are entitled to qualified

immunity, we remand this fact-intensive

issue to the district court to determine

if the officers engaged in conduct that

violated Ienco’s due process rights.

C. City’s Liability

Given our reversal of summary judgment

as to the officers, Ienco contends that

we must similarly reverse the district

court’s judgment in favor of the City. He

is mistaken. In order to establish

municipal liability under Section 1983,

the plaintiff must prove that a "custom

or policy of the City was a cause of the

plaintiff’s injury." Jones v. City of

Chicago, 856 F.2d at 995; see also

Cornfield by Lewis v. Consolidated High

School Dist. No. 230, 991 F.2d 1316 (7th

Cir. 1993).

True, Ienco’s complaint made bare-bones

allegations about the City’s customs and

policies--in general. However, Ienco

introduced no material evidence at

summary judgment that Officers Angarone

or McGann were acting pursuant to an

official custom or policy of the City of

Chicago. We also note that nowhere has

Ienco suggested that the actions of

Officers Angarone or McGann extended

beyond their role in his particular case.

See Williams v. Heavener, 217 F.3d 529,

532 (7th Cir. 2000) ("Ordinarily, one

incident is not sufficient to establish a

custom that can give rise to Monell

liability.") Therefore, we affirm

judgment as to the City.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the

judgment of the district court as to the

City of Chicago, and REVERSE the judgment

of the district court as to Officers

Angarone and McGann and REMAND the case

for further proceedings.

FOOTNOTES

/1 In the criminal case, the City chose not to

dispute Judge Coar’s findings of fact on appeal.

Likewise, in this case, the government’s admis-

sions, both for summary judgment and at oral

argument, leave us with no doubt that at least

some portion of the officers’ testimony was

fabricated.

/2 Although we entered an intervening opinion on

certain evidentiary matters, United States v.

Ienco, 126 F.3d 1016 (7th Cir. 1997) ("Ienco

II"), those matters were ultimately resolved by

the final appeal.

/3 Newsome explicitly rejected portions of four of

our recent opinions. As such, the District Court

should not be faulted for following the law as we

had previously explained it. See Reed v. City of

Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996)

(noting that the question of which constitutional

amendment was implicated in a Section 1983 mali-

cious prosecution claim was still "somewhat

unclear").

/4 Cervantes v. Jones, 188 F.3d 805, 809 (7th Cir.

1999); Sneed v. Rybicki, 146 F.3d 478, 480 (7th

Cir. 1998); Washington v. Summerville, 127 F.3d

552, 558-59 (7th Cir. 1997); Reed v. Chicago, 77

F.3d 1049, 1051 (7th Cir. 1996). Our decisions in

each of those cases attempted to decipher the

Supreme Court’s opinion in Albright v. Oliver,

510 U.S. 266 (1994), a subject addressed at

length in Newsome, 256 F.3d at 750-51.

/5 Our district courts consistently interpreted our

opinions prior to Newsome in accordance with

Ienco’s strategy in the district court below.

See, e.g., Ewing v. O’Brien, 60 F.Supp.2d 813,

817 (N.D. Ill. 1999) ("no court has yet agreed

with the notion that reconciling Albright with

Seventh Circuit precedent forecloses a malicious

prosecution claim under sec.1983").

/6 It is not seriously disputed that Ienco’s due

process claim arose only when proceedings were

terminated in his favor. As such, the timeliness

of his claim is not at issue. See Sneed v.

Rybicki, 146 F.3d 478 (7th Cir. 1998).

/7 See Memorandum of Summary Judgment, fn. 1.

/8 Contrary to counsel’s argument before us, the

concerns raised in Buckley v. Fitzsimmons, 20

F.3d 789 (7th Cir. 1994), are not implicated

here. Unlike the facts in Buckley, Ienco alleges

that the officers misled Ienco as well as the

prosecutors and the Federal Bureau of Investiga-

tion. Such conduct is not protected by absolute

immunity.

/9 Because plaintiff’s claims ultimately rest in

part on conduct that occurred before and after

trial, we need not decide at this point whether

and to what extent the complaining witness excep-

tion applies. The district court is best equipped

to handle this fact-intensive issue. See Cervan-

tes v. Jones, 188 F.3d 805, 809-10 (7th Cir.

1999) (discussing police officer immunity when

officers act as complaining witnesses at trial).