David L. Lewis v. Larry Mills

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2012

D AVID L. L EWIS,

Plaintiff-Appellant,

v.

L ARRY M ILLS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 2:09-cv-02090-MPM—Michael P. McCuskey, Judge.

A RGUED N OVEMBER 29, 2011—D ECIDED A PRIL 20, 2012

Before P OSNER and K ANNE, Circuit Judges, and P RATT,

District Judge.Œ

P RATT, District Judge. David L. Lewis is a former part-

time police officer for the Village of Belgium, Illinois—

a town of just over 400 people. On January 6, 2010, Lewis

Œ

The Honorable Tanya Walton Pratt, District Judge for the

United States District Court for the Southern District of

Indiana, is sitting by designation.

2 No. 11-2012

filed a one-count Amended Complaint arising under

28 U.S.C. §§ 1983 and 1988 against four defendants who

allegedly participated in a conspiracy to prosecute him

for various sexual offenses to retaliate against him for

cooperating with an FBI investigation. These four defen-

dants—a truly unique web of characters—consist of:

(1) Larry Mills, the First Assistant State’s Attorney for

Vermilion County, Illinois; (2) Todd Damilano, a Deputy

Sheriff/Investigator for the Vermilion County Sheriff’s

Department (the “Sheriff’s Department”); (3) Scott Corrie,

the former owner of a now-defunct strip club in

Belgium, Illinois, called the Playpen Gentlemen’s Club

(the “Playpen”); and (4) Clint Gray, who is Lewis’s

brother, Corrie’s friend, and an occasional patron of the

Playpen.

Lewis paints a tawdry tale involving drugs, sex, power,

corruption, and revenge, all culminating in a violation

of his First Amendment constitutional rights. The district

court observed that although there was “plenty of smoke”

in this case, there was no “evidentiary fire,” or even an

“evidentiary matchstick.” Citing this lack of evidentiary

support for Lewis’s claims, the district court granted

summary judgment for all four defendants. Lewis has

now appealed, and we affirm.

I. Background

Lewis worked as a part-time police officer in

Belgium, Illinois from October 2003 until February 2007.

Lewis apparently had an unremarkable record until

No. 11-2012 3

March 2006, when numerous women—mostly dancers

at the Playpen— began accusing him of a wide variety

of inappropriate sexual conduct.

Specifically, Lewis’s saga began around 3:10 a.m.

on March 17, 2006. At that time, Lewis—on duty and

in full police uniform—pulled over Danielle Perry, a

Playpen dancer. Soon thereafter, Perry drove off, leaving

Lewis alone alongside his Village of Belgium squad car.

Roughly 20 hours later, at 10:45 p.m., Perry reported to

the Sheriff’s Department that, during the traffic stop,

Lewis grabbed her, forced her to kiss him, and put

his hands down her pants.

The Sheriff’s Department Captain, Rod Kaag, launched

an investigation of Lewis’s alleged conduct. On March 22,

2006, Perry gave a recorded account of what transpired.

On March 23, 2006, Kaag procured a grand jury

subpoena to obtain Perry’s phone records to see if the

records were consistent with her version of events. That

same day, Kaag advised Mills that the Sheriff’s Depart-

ment was launching an investigation against Lewis

based on Perry’s report. Notably, Kaag “did not ask

Mills for guidance, direction or assistance in the investi-

gation.” Moreover, Kaag does “not recall having any

other discussions with Mills in 2006 about Lewis” and

“did not ask Mills to take any prosecutorial action in

2006 vis a vis Lewis.”

In April 2006, two more Playpen dancers reported

allegations of a sexual nature involving Lewis. Lacrisha

Carrigan informed Kaag that, one year earlier, Lewis,

while on duty, showed her pictures of his genitalia next

4 No. 11-2012

to a beer bottle. Rebecca Lee told Investigator Damilano—

who was working under the direction and supervision

of Kaag—that she gave Lewis oral sex to avoid a traffic

ticket. Damilano supplied Kaag with a copy of Lee’s

report. Kaag did not immediately pursue charges against

Lewis because he had concerns that these allegations,

standing alone, “would not be sufficient to convict

Officer Lewis.”

It is perhaps unsurprising that an establishment like

the Playpen—which has since closed—was a haven for

trouble. Indeed, the “secondary effects” of strip clubs

are well-established. See, e.g., Fantasy Ranch, Inc. v. City

of Arlington, 459 F.3d 546, 559 (5th Cir. 2006). Presumably,

that is why, in January 2006, the Belgium Police Chief

Dale Ghibaudy instructed his officers to avoid the

Playpen unless they were responding to a call. However,

in Ghibaudy’s view, this admonition had little deterrent

effect on Lewis. Ghibaudy testified in his deposition

that he believed Lewis repeatedly and grossly violated

this directive.

On January 19, 2007, Audrey White—who worked

for Clint Gray at his restaurant, Fat Boy Subs—lodged

a complaint with Ghibaudy about an incident involving

Lewis that occurred on December 23 and 24, 2006. She

then followed this up with a recorded statement on

January 22, 2007. Specifically, White alleged that, hours

after running into Lewis at the Playpen on the night of

December 23, 2006, Lewis arrived at her home in full

uniform, invited her into his squad car, drove her to

a secluded area, and tried to kiss her.

No. 11-2012 5

In February and March 2007, Damilano interviewed

four more women who claimed that Lewis had sexually

victimized them. Three were Playpen employees (Cheryl

Forshier, Amy Dow, and Jennifer Garrett, who also hap-

pens to be Lewis’s sister-in-law), and one was a Steak n’

Shake employee (Ashley Grider). Following this spate

of allegations, Kaag became “convinced that probable

cause existed to believe that Lewis had victimized

several women and abused his police position with the

Village of Belgium.” Therefore, he and Damilano finally

turned over the results of the investigation to Mills.

But, notably, in the meantime, Mills had become the

subject of a separate investigation involving allegations

of unseemly conduct. Specifically, before 2006, the FBI

began investigating Mills on suspicion that he had pro-

vided favorable deals to criminal defendants in ex-

change for drugs and other favors. On December 13, 2006,

an FBI Special Agent and an Illinois State Police Investi-

gator interviewed Lewis and inquired about Mills. Lewis

responded that he had no firsthand knowledge of any

drug trafficking or drug use by Mills. Lewis did state,

however, that he had heard “rumors” concerning Mills’s

“attendance at parties, cocaine use, and possibly pro-

viding drugs to females with disgruntled husbands

and/or boyfriends.”

At the end of this interview, the FBI agent handed

Lewis his card. At his deposition, the Illinois State

Police Investigator confirmed that Lewis was not a par-

ticularly “significant” or “helpful” witness. After this

interview, Lewis did not have contact with anyone re-

6 No. 11-2012

garding the investigation, at least until after his own

indictment, which is discussed below.

On December 17, 2006, just days after his discussion

with the FBI, Lewis alleges that he had a notable con-

versation with his brother, Clint Gray. Gray approached

Lewis, stating that they needed to talk and “your

badge needs to stay in the car” because “this is between

brother and brother[.]” Gray stated that he had heard

that Lewis had spoken to the FBI and that he was

“making some very powerful and dangerous people

very uncomfortable.” When asked what the FBI knew,

Lewis responded that the “FBI has some concerns

[Mills] is involved in something not exactly on the up

and up with the Playpen.” Gray responded that Mills

“runs this county” because he has “absolute power . . . to

say . . . who does and doesn’t go to trial.” Gray then

explained that in exchange for women and cocaine

from Corrie, Mills prosecuted competing drug dealers.

Gray also added that Lewis could double his annual

income if he went along with this scheme. At the end of

this conversation, Gray allegedly asked Lewis if he was

“in.” Lewis responded that he would not get involved

and that he was going to do his job. Gray ended the

conversation cryptically, warning “you know I can’t

protect you, right.”

Soon after this alleged conversation with Gray, Lewis

claims that Jennifer Garrett, his sister-in-law, told him

that Corrie kept an apartment where Mills and the

Playpen dancers had sex and used cocaine. According

to Lewis, she also stated that she had sex with Damilano

No. 11-2012 7

on multiple occasions. Finally, Garrett allegedly added

that if she had legal problems, all she had to do is tell

law enforcement to contact Damilano.

On March 30, 2007, a Vermilion County grand jury

convened to consider criminal charges against Lewis.

Six women testified under oath about their encounters:

White, Dow, Perry, Garrett, Carrigan, and Grider. Lewis

claims that, immediately before the grand jury hearing,

Mills asked him what he had told the FBI. When Lewis

feigned ignorance, Mills responded, “wrong answer

Dave.” On April 11, 2007, the grand jury charged Lewis

with 49 felony counts involving official misconduct,

armed violence, criminal sexual assault, aggravated

criminal sexual assault, criminal sexual abuse, and ob-

structing justice. Lewis was incarcerated while awaiting

trial.

On April 3, 2008, Lewis’s trial on two of the counts—

one count for official misconduct and one count for

criminal sexual abuse—convened, and he was acquitted.

Notably, at the trial, Dow recanted her earlier grand

jury testimony. Specifically, Dow testified that, in late

2006 or early 2007, Corrie called a meeting with the

female Playpen employees and told them they would not

have to pay “house fees” if they fabricated statements

about Lewis because Lewis’s presence was hampering

Corrie’s drug trade. (Presumably, it’s harder to sell

drugs when cops are milling about.) Dow—not exactly

a model of credibility—later recanted this recantation,

leading to a perjury conviction. For what it’s worth, in

her deposition for this case, Dow stated that her 2007

8 No. 11-2012

grand jury testimony against Lewis was truthful and

that her recantation in April 2008 was false. Dow testi-

fied that she changed her story for Lewis’s trial because

of threats to her children, stating “I’m not going to risk

my kids.”

Thereafter, on June 9, 2008, a special prosecutor

assigned to the case dismissed all of the original charges

in return for Lewis’s agreement to plead guilty to four

class misdemeanors: three counts of official misconduct

and one count of obstruction of justice. These charges

arose from Lewis’s actions toward Audrey White. At

the plea hearing, these two charges were described as

“lesser included offenses of counts already charged.”

Lewis was sentenced to one year in jail and one year of

conditional discharge, but was given credit for time

served and released that same day—after spending

423 days incarcerated. Mills, meanwhile, was never

charged with any crimes.

On January 6, 2010, Lewis filed a one-count Amended

Complaint against Mills, Damilano, Gray, and Corrie.

Each of the four defendants moved for summary judg-

ment. The district judge granted their motions in full,

ruling as follows: (1) Mills is entitled to absolute pros-

ecutorial immunity; (2) Damilano is entitled to qualified

immunity; (3) there is no evidence that Gray conspired

with Mills and Damilano to have Lewis prosecuted; and

(4) notwithstanding Dow’s April 2008 testimony that

Corrie asked the female employees at the Playpen to

fabricate evidence against Lewis, “[t]here is still no evi-

dence that Corrie acted in concert with either Mills or

No. 11-2012 9

Damilano to frame [Lewis] because [Lewis] spoke with

the FBI.” This appeal followed. Additional facts are

added below as needed.

II. Discussion

A grant of summary judgment is reviewed de novo,

construing the facts and drawing all reasonable inferences

in the light most favorable to the non-movant—in this

case, Lewis. Castronovo v. Nat’l Union Fire Ins. Co., 571

F.3d 667, 671 (7th Cir. 2009) (citation omitted). Further,

in a case like this, it is important to remain mindful that

“neither the mere existence of some alleged factual

dispute between the parties . . . nor the existence of some

metaphysical doubt as to the material facts . . . is sufficient

to defeat a motion for summary judgment.” Chiaramonte

v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir. 1997)

(citations and internal quotations omitted).

Lewis’s claim is one for First Amendment retaliation.

Indeed, “[a]n individual may not be subject to criminal

prosecution for exercising his right to free speech.” Peals

v. Terre Haute Police Dep’t, 535 F.3d 621, 626 (7th Cir.

2008) (citation omitted). To establish a prima facie case

for this type of claim, a plaintiff must demonstrate that:

(1) he engaged in constitutionally protected speech;

(2) he suffered a deprivation likely to deter the free

exercise of his First Amendment rights; and (3) his

speech was a motivating factor in the defendant’s re-

taliation. See Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006); see also Surita v. Hyde, 665 F.3d 860, 874 (7th

10 No. 11-2012

Cir. 2011) (The district judge “was not wrong in refer-

encing a burden-shifting test that included a plaintiff’s

burden to show a motivating factor.”). Placing his claim

within this framework, Lewis contends that, in retalia-

tion for his cooperation with the FBI’s investigation and

his refusal to join in Mills’s corruption, the defendants

conspired to convict him of false criminal charges.

A. Mills

Mills argues that he is entitled to absolute prosecu-

torial immunity. It is well-settled that prosecutors have

absolute immunity for their core prosecutorial actions,

see Hartman v. Moore, 547 U.S. 250, 261-62 (2006), but

“the degree of immunity prosecutors are afforded

depends on their activity in a particular case.” Anderson v.

Simon, 217 F.3d 472, 475 (7th Cir. 2000). The Supreme

Court has offered useful guidance in drawing this line

of demarcation. Specifically, prosecutors are entitled to

absolute immunity when they are performing func-

tions—such as determining whether charges should be

brought and initiating a prosecution—“intimately associ-

ated with the judicial phase of the criminal process.”

Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (citation

and internal quotations omitted); see also Spiegel v.

Rabinovitz, 121 F.3d 251, 257 (7th Cir. 1997) (state at-

torney’s decision regarding which of two complaints

should be prosecuted merited absolute prosecutorial

immunity). But, prosecutors are not entitled to absolute

immunity when performing “acts of investigation or

administration.” Buckley, 509 U.S. at 270 (citation and

No. 11-2012 11

internal quotations omitted). In other words, “[w]hen

the functions of prosecutors and detectives are the

same . . . the immunity that protects them is also the

same.” Id. at 276.

So the question arises: did Mills ever deviate from his

prosecutorial functions and cross into the investigatory

realm? Lewis concedes that Mills is immune from

liability “for taking the case to the grand jury, for

pursuing an indictment and for prosecuting Lewis.”

However, Lewis contends that Mills crossed into the

investigatory sphere because he was “involved in the

investigation and the fabrication of evidence against

[Lewis].” Indeed, a showing that a prosecutor in-

vestigated and fabricated evidence against a target

would automatically defeat absolute prosecutorial im-

munity, even if that target was later brought to trial. Id.

(“A prosecutor may not shield his investigative work

with the aegis of absolute immunity merely because,

after a suspect is eventually arrested, indicted, and

tried, that work may be retrospectively described as

‘preparation’ for a possible trial; every prosecutor

might then shield himself from liability for any constitu-

tional wrong against innocent citizens by ensuring

that they go to trial.”).

To bolster his claim against Mills, Lewis emphasizes

three strands of evidence: (1) the testimony of Amy

Dow and the statement of Jennifer Garrett; (2) the time-

line of the investigation of Lewis; and (3) Mills’s

statement to Lewis at the grand jury proceedings. Unfor-

tunately for Lewis, none of this evidence shows that

Mills took an investigative role in his prosecution.

12 No. 11-2012

First, Lewis highlights the ever-vacillating testimony

of Amy Dow—specifically, the testimony from the

April 2008 trial, when she claimed that Corrie wanted

the female employees at the Playpen to fabricate allega-

tions against Lewis. From there, Lewis highlights his

recollection of a conversation he had with Jennifer

Garrett (a conversation that she denies ever occurred),

in which she stated that she and other Playpen dancers

would meet at Corrie’s apartment, use cocaine, and

have sex with Mills. When viewing these statements

together, Lewis argues, they “clearly link Corrie and

Mills to a cocaine conspiracy.”

We are not persuaded that this evidence furthers

Lewis’s cause. Even if Amy Dow’s April 2008 testimony

can be credited (which is unclear, given that it later

formed the basis of a perjury conviction), such testimony

never linked Mills to any scheme to frame Lewis; it

only implicated Corrie. And, even setting aside serious

hearsay concerns, Garrett’s statement may be evidence

that Mills is an unsavory character who associates

with Corrie; however, it does nothing to show Mills’s

participation in an effort to frame Lewis.

Second, Lewis emphasizes the timeline of events. In

doing so, he devotes considerable time to poking holes

in the veracity of Danielle Perry’s allegations—the al-

legations that catalyzed Kaag’s initial investigation of

Lewis. Lewis then emphasizes that no disciplinary

action was taken after Perry, Rebecca Lee, and Lacrisha

Carrigan leveled allegations against him—all before he

spoke to the FBI. Lewis infers that Kaag’s failure to act

No. 11-2012 13

shows that he did not find these allegations to be credible

and therefore did not take them seriously. According

to Lewis, though, this all changed in the wake of his

communications with the FBI. On this point, Lewis

notes that “[t]he investigation that had been dormant

for more than eight months became revived, Lewis was

told by Gray that he was messing with the wrong person

(Mills) and, according to Dow, strippers were given a

financial incentive by Corrie to fabricate evidence

against Lewis.” Lewis argues that this timeline is telling,

and that a reasonable jury could infer that Mills took

part in the investigation and conspired to fabricate evi-

dence against him.

Lewis’s argument is mere speculation, and it is well-

settled that “conjecture alone cannot defeat a summary

judgment motion.” Delapaz v. Richardson, 634 F.3d 895,

901 (7th Cir. 2011) (citation omitted). The evidence

shows that, at all relevant times, non-party Kaag (and

Kaag alone) spearheaded the investigation of Lewis, and

Mills played no meaningful role in this operation. Kaag’s

testimony—which remains undisputed—is that he did

not turn this matter over to Mills until after the investiga-

tion was completed and the case was ready for a grand

jury. There is no evidence, for instance, that Kaag

was taking directions from Mills or that the two had

meaningful communications about Lewis (outside of

their initial perfunctory communication that the Sheriff’s

Department would be investigating Lewis). Moreover,

Lewis’s chronology ignores the fact that, after he

spoke to the FBI in a brief conversation in which nothing

meaningful was conveyed, five additional women came

14 No. 11-2012

forward with allegations against him (White, Forshier,

Grider, Garrett, and Dow). In short, Lewis’s emphasis

on the timeline does not help build a logical bridge that

Mills ever deviated from his core prosecutorial function.

Finally, Lewis highlights the exchange between him

and Mills during the grand jury proceedings, in which

Lewis feigned ignorance about the FBI’s investigation

of Mills, and Mills responded “wrong answer Dave.”

Lewis claims that, from this statement, “[a] jury could

certainly conclude that this bizarre behavior was direct

evidence of Mills framing Lewis.” Emphasizing this

evidence contradicts a concession made earlier in

Lewis’s brief: that Mills is immune from liability “for

taking the case to the grand jury, for pursuing an indict-

ment and for prosecuting Lewis.” Simply stated, when

Mills made this statement, he was in the process of taking

Lewis’s case before a grand jury—a core prosecutorial

function.

In sum, Lewis’s evidence does little to shed light on

his shadowy conspiracy allegations involving Mills.

See Evers v. Reak, 21 Fed. Appx. 447, 450 (7th Cir. 2001)

(“Vague and conclusory allegations of the existence of a

conspiracy are not enough to sustain a plaintiff’s

burden . . . .”). Here, the evidence shows that, to put

it charitably, Mills was far from a saint. What

the evidence does not show, however, is that Mills de-

viated from his prosecutorial role. Accordingly, Mills

is entitled to absolute prosecutorial immunity.

No. 11-2012 15

B. Damilano

As an initial matter, it is worth noting that Lewis’s brief

fails to develop a cogent argument explaining how the

Sheriff’s Department Investigator Damilano fits into

this conspiracy. Instead, Lewis merely writes that, in

light of the above evidence, “a jury could permissibly

conclude that Damilano . . . participated in a conspiracy

to frame Lewis.” Given the cursory nature of this argu-

ment, Lewis comes close to waiving this issue for ap-

peal. See Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344,

349 (7th Cir. 2009) (“[U]nsupported and underdeveloped

arguments are waived.”) (citation and internal quota-

tions omitted).

For the sake of thoroughness, however, we will speak

to this issue briefly. The Supreme Court has noted that,

under certain circumstances, a claim for “retaliatory

inducement to prosecute” can be brought against a non-

prosecutor “who may have influenced the prosecutorial

decision but did not himself make it[.]” Hartman, 547

U.S. at 262. To prevail on this claim, the plaintiff “must

show that the nonprosecuting official acted in retalia-

tion, and must also show that he induced the prosecutor

to bring charges that would not have been initiated with-

out his urging.” Id. As such, “the causal connection re-

quired here is not merely between the retaliatory animus

of one person and that person’s own injurious action,

but between the retaliatory animus of one person and

the action of another.” Id.

Suffice it to say that Lewis has not unearthed any

evidence showing that Damilano possessed the requisite

16 No. 11-2012

animus for this type of claim (let alone evidence of a

causal nexus between Damilano’s animus and Mills’s

decision to prosecute). Rather, the evidence shows that,

at all relevant times, Damilano worked under non-

party Kaag’s supervision. This lack of evidence is fatal

to Lewis’s claim.

C. Gray and Corrie

Lewis again takes a cursory approach to his claims

against non-government defendants Gray and Corrie,

simply writing that, given the evidence described above,

“a jury could permissibly conclude that . . . Corrie and

Gray . . . participated in a conspiracy to frame Lewis.”

Complicating matters, Corrie and Gray did not respond

with an appellate brief. Moreover, in a negligent

fashion, they also failed to respond to this Court’s show

cause order. Therefore, this appeal was submitted for a

decision without the filing of a brief or oral argument on

behalf of Corrie and Gray. Fortunately for them, their

failure does not change the outcome of this case.

As to Gray, there is no evidence linking him to a con-

spiracy. Gray’s alleged involvement consists of warning

Lewis that he was “making some very powerful and

dangerous people very uncomfortable” and that he could

not “protect” Lewis. These statements do not connect

Gray to a scheme to frame Lewis. Therefore, Lewis’s

claim against Gray fails.

Next, unlike his claims against Mills, Damilano, and

Gray, Lewis arguably can point to tangible evidence

No. 11-2012 17

that Corrie was out to get him: specifically, Dow’s

April 2008 testimony, which later formed the basis

of her perjury conviction. Importantly, however, to estab-

lish § 1983 liability through a conspiracy theory, “a

plaintiff must demonstrate that: (1) a state official and

a private individual(s) reached an understanding to

deprive the plaintiff of his constitutional rights, and

(2) those individual(s) were willful participant[s] in joint

activity with the State or its agents.” Reynolds v. Jamison,

488 F.3d 756, 764 (7th Cir. 2007) (citation and internal

quotations omitted); see also Hughes v. Meyer, 880 F.2d

967, 972 (7th Cir. 1989) (for a private party to act under

color of state law, “there must be a conspiracy, an agree-

ment on a joint course of action in which the private

party and the state have a common goal”) (citation

and internal quotations omitted).

Plainly stated, there is no evidence that Corrie acted

in concert with a state official—Mills or Damilano—to

frame Lewis because of his participation in the FBI’s

investigation. Instead, the evidence, assuming it can be

considered, only shows that Corrie wanted to frame

Lewis because his presence at the strip club was

hampering Corrie’s drug business. In other words,

because the claims against Mills and Damilano have

failed, the claim against Corrie necessarily suffers the

same fate.

Finally, although defendants did not make this argu-

ment, the Court would be remiss not to underscore a

notable fact: Lewis pled guilty to class A misdemeanor

charges of obstruction of justice and official misconduct.

18 No. 11-2012

But, here, a judgment in Lewis’s favor would to some

degree vindicate him, given that defendants allegedly

participated in a scheme to fabricate evidence against

him. Importantly, however, such vindication is incon-

sistent with his guilty plea. On this point, it is well-

settled that Heck v. Humphrey, 512 U.S. 447 (1994) bars

a plaintiff from maintaining a § 1983 action where a

judgment in favor of the plaintiff would necessarily

imply that his conviction was invalid. See McCann v.

Neilsen, 466 F.3d 619, 621 (7th Cir. 2006). In other words,

in light of Lewis’s guilty plea, an argument exists that

his claims against defendants were doomed from the

outset. At oral arguments, Lewis’s counsel suggested

that the guilty plea— for four class A misdemeanors—is,

in effect, severable from the far more serious original

49 felony charges. Fortunately, we need not wade

deeply into this issue, given the lack of evidence sup-

porting Lewis’s overarching theory of a conspiracy.

III. Conclusion

For the foregoing reasons, we A FFIRM the decision of

the district court.

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