IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ERIC CAINE,

 Plaintiff,

 v.

JON BURGE, JAMES PIENTA, RAYMOND

MADIGAN, WILLIAM MARLEY,

WILLIAM PEDERSON, DANIEL

MCWEENY, CITY OF CHICAGO and

UNIDENTIFIED EMPLOYEES OF THE

CITY OF CHICAGO,

 Defendants.

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11 C 8996

 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Eric Caine served twenty-five years in prison for a murder conviction which was

later vacated. He now sues the City of Chicago, former City of Chicago police officers Jon

Burge, James Pienta, Raymond Madigan, William Marley, William Pederson, Daniel

McWeeny, and unidentified employees of the City of Chicago (collectively “the

Defendants”) alleging that he was tortured into confessing to the murder. Caine now seeks

redress in this Court for the allegedly unconstitutional acts of the individual Defendants

in connection with his arrest, torture and prosecution. He also seeks redress from the City

ofChicago for sanctioning, through official policy or custom, the allegedly unconstitutional

acts of the individual Defendants. Caine asserts claims under 42 U.S.C. § 1983 for the

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denial of due process (Count I); for being coerced into giving a false confession in violation

of the Fourteenth Amendment (Count III); for being coerced into giving a false confession

in violation of the Fifth Amendment (Count IV); for a violation of the equal protection of

the laws (Count V); for conspiracy under 42 U.S.C. § 1985 (Count VI); for conspiracy under

42 U.S.C. § 1983 (Count VII); and for a failure to intervene (Count IX). In addition, Caine

brings supplemental state-law claims for malicious prosecution (Count X); intentional

infliction of emotional distress (Count XI); respondeat superior (Count XII); and

indemnification (Count XIII). Defendants move to dismiss certaincountsofhisComplaint. 1

I. Background

In deciding the instant Motion, the Court assumes the veracity of the well-plead

allegations in the Complaint and construes all reasonable inferences in Caine’s favor. See

Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007) (citing Savory v. Lyons, 469 F.3d

667, 670 (7th Cir. 2006)). On April 19, 1986, an elderly Hispanic couple, Rafaela and Vincent

Sanchez, were discovered dead in their Chicago home. Among the officers present at the

crime scene was Chicago Police Lieutenant Jon Burge, who was also the Chicago Police

Department’s Area Two Commander at the time. On April 22, 1986, Area Two detectives

arrested Michael Arbuckle in connection with the murders. While at Area Two, Arbuckle

was placed in an office and questioned about the murders by Burge and Gang Crimes

Caine has dropped Count II for false imprisonment and Count VIII for denial of 1

access to the courts.

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Officer Kolowitz. The officers told Arbuckle that the person they really wanted to arrest

was Aaron Patterson and they attempted to get Arbuckle to implicate Patterson in the

Sanchez murders. When Arbuckle refused, Burge threatened him with the death penalty

and told him that he would get him to cooperate one way or another. The next morning,

Burge questioned Arbuckle againand threatened him that he would get some drug dealers

to testify against him for the murders if he refused to cooperate. Despite Burge’s threats,

Arbuckle denied any involvement in the murders and refused to implicate Patterson.

On April 30, 1986, Chicago police arrested Aaron Patterson in connection with the

Sanchez murders. Defendants Pienta, Marley, and Pederson transferred him to Area Two

headquarters. Later than day, Defendants Pienta, Marley, Pederson and other Defendant

Officers questioned him about the Sanchez murders in an interrogation room while he was

hand-cuffed to the wall. In the evening, Pienta told Patterson that he was “tired of this

bullshit.” Patterson denied any involvement in the murders. Pienta left the interrogation

room and returned with a gray plastic typewriter cover. At the time Patterson was handcuffed behind his back. Pienta, Marley, and Pederson, together with other Defendant

Officers, turned off the lights, placed the plastic cover over Patterson’s head, and struck

him repeatedly in the chest. The typewrite cover was held against his mouth and nose,

constricting his breathing for over a minute. According to Patterson, when he still did not

confess he was beaten and suffocated a second time by the same officers. Afraid that he

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would be suffocated to death, Patterson acquiesced and told the Officers that he would do

“anything you say” in order to make the torture stop.

Patterson says that while alone in the interrogation room, he scratched into the

bench that he was tortured and that his statement to the police was false. Later, Assistant

State’s Attorney Kip Owen and Burge came to speak with him. Patterson asked Owen to

force Burge to leave, and when Owen agreed, Patterson told Owen that he wanted a lawyer

and had nothing to say. Owen immediately opened the door, revealing Burge on the other

side. Owen told Burge that Patterson refused to give a statement. When Owen left the

room, Burge entered, screaming “You’re fucking up,” pulled out his revolver and placed

it on top of the table. According to Patterson, Burge told him that “if you don’t do what

we tell you to, you’re going to get something worse than before. . .it will have been a snap

compared to what you will get.” Burge continued to threaten Patterson, telling him that

he could do anything he wanted to do to him.

Later, Assistant State’s Attorney Peter Troy entered the interrogation room with

Madigan. Patterson told them that he would confess if he could call his family and an

attorney. Troy and Madigan agreed. After Patterson made the calls he refused to make

a statement or sign a statement written by Troy. Madigan, accompanied by Troy, then beat

Patterson again. Defendant McWeeny then entered the room and explained that he was

one of the “good cops” at Area Two; one who did not torture detainees. McWeeny urged

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Patterson to cooperate because the other detectives “could do something serious to him if

he didn’t.” After McWeeny left, Patterson scratched another message into the bench,

saying that he signed a false statement to murders and that “Tonto” on the statement is the

code word. A third message was scratched into the doorframe of the interrogation room. 

The message simply said, “Aaron lied.” All of Patterson’s etchings were later documented

in a memorandum by Pienta to Burge. On May 1, 1986, at 2:45 p.m., according to Patterson,

he finally broke down in the face of continuing torture and made a false oral statement

implicating himself in the Sanchez murders and claiming that Caine was present at the

murder scene.

On May 1, 1986, Defendants Pienta and Pederson, and Area Two Sergeant Wilson

arrested Caine based solely on Patterson’s statement. No other evidence pointedto Caine’s

involvement in the Sanchez murders. During the ride to the police station, Caine

repeatedly denied any involvement in the murders. Pienta told Caine that they would

have killed him during the arrest but for Caine’s mother’s friendship with Sgt. Wilson. 

When brought to Area Two headquarters, Pienta and Marley interrogated Caine. Pienta

told Caine that Patterson had confessed to the murders. Caine insisted that he knew

nothing about the killings.

At 11:45 p.m., Pienta brought Caine into Patterson’s interrogation room. When

Caine saw Patterson he looked like he had been beaten. When Caine was returned to his

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own interrogation room, Pienta struck Caine in the chest and told him that he would get

the same treatment as Patterson unless he was “cool.” Caine spent the night locked in an

interrogation room at Area Two headquarters.

While interrogating Caine the next day, Madigan began describing themurders. For

a long period of time, while Caine remained silent, Madigan repeated key points of the

confession that he wanted Caine to recite. Shortly thereafter, Madigan presented Caine

with his notes for Caine to study and so that he could sign them as his own statement. 

When Caine refused to sign the false confession, Madigan struck Caine with a cupped hand

on the side of his head. Caine heard a loud pop and felt a rush of pain. Caine cried out and

doubled over in agony, as Madigan tried to quiet him. The strike to Caine’s head ruptured

his eardrum.

Tired, fearful, and in pain from his ruptured eardrum, Caine signed the notes

because he feared additional violence and wanted to go home. Later that day, Caine was

brought into a room with Assistant State’s Attorneys Peter Troy and William Lacey and 

Madigan. At 5:15 a.m. the next morning, in excruciating pain from being struck in the head

and held all night, Caine signed the false confession.

No evidence other than Caine’s and Patterson’s false and coerced confessions was

ever introduced at Caine’s trial. The police found fingerprints at the crime scene that did

not match Caine or Patterson or any of the victims. Caine testified in his own defense at

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his trial and continued to maintain his innocence. Caine also testified about the physical

violence that he suffered at the hands of Madigan and Pienta while being interrogated. The

jury nevertheless convicted Caine of murder, home invasion and residential burglary. 

Caine was sentenced to a term of life imprisonment. 

Caine’s jury did not hear testimony from Mack Ray at Caine’s trial. Ray

subsequently testified that Wayne Washington confessed to him that he and his brother

Willie Washington actually committed the Sanchez murders. Unknown to Caine, and

following his coerced confession, according to Ray, Ray went to the police station at 103rd

Street and tried to tell several detectives that Washington had confessed to the murders. 

But the detectives threatened Ray and said he would “end up dead” if he did not stay

quiet. In fear that something would happen to him if he interfered, Ray left town. Willie

Washington lived next door to the Sanchezes. Washington has since been convicted of

several other incidents of felony residential burglary and home invasion. Washington is

currently serving a 30-year sentence for a home invasion in which he broke into the home

of his neighbor and stabbed her nine times in the neck, seven times in the upper spine,

eight times in the chest, and once in the hand. Caine’s jury never heard this exculpatory

evidence from Ray because the Defendant Officers withheld it from Caine, his defense

team, and the Cook County State’s Attorney’s Office.

In January, 2003, then Governor of Illinois George Ryan granted Patterson and three

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other death row inmates allegedly tortured by Burge and other Area Two detectives

pardons on the basis of their innocence. On March 16, 2011, Caine’s conviction was 2

vacated. The State immediately dismissed the charges and Caine was subsequently

released from jail after spending twenty-five years in custody. 

Caine alleges that the violations occurred at Burge’s direction and that Burge was

deliberately indifferent to them. Absent knowing participation from the command

personnel responsible for supervising the Defendant Officers, specifically Burge who was

the Area Two Commander, the misconduct could not have happened according to Caine. 

Caine also alleges that there was a policy and practice on the part of the Chicago Police

Department, including the Defendant Officers, to systematically suppress Brady material

by intentionally secreting discoverable information in so-called “street files.” These

clandestine street files were then routinely withheld from the State’s Attorney’s Office and

from criminal defendants, and were subsequently destroyed. Consistent with this policy

and practice, the Defendants in this case concealed exculpatory evidence within street files

that were never disclosed to Caine’s criminal defense team and that have since been

destroyed. Caine claims that this street files practice was consciously approved by the

The Court takes judicial notice of Patterson v. Burge, 328 F. Supp. 2d 878, 885 2

(N.D. Ill. 2004), in which the district court found that Patterson was pardoned by

Governor Ryan on the basis of his actual innocence. This Court may take judicial notice

of public court documents in deciding a motion to dismiss without converting it into a

motion for summary judgment. See Hensen v. CSC Credit Services, 29 F.3d 280, 284 (7th

Cir. 1994).

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highest level of policymakers in the Police Department and was a proximate cause of his

injuries. The street files practice was enjoined by a court order and supposedly

discontinued prior to the investigation of the Sanchez murders. However, contrary to the

Department’s public pronouncements, the street files practice continued through and

including the Sanchez investigation. Caine alleges that all of the individual Defendants

acted under color of law and within the scope of their employment while engaging in the

illegal acts that Caine alleges they committed against him.

II. Standard of Review

When considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all the

well-plead facts alleged in the complaint and construes all reasonable inferences in favor

of the non-moving party. See Killingsworth, 507 F.3d at 618 (citing Savory, 469 F.3d at 670);

accord Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To properly state a valid claim, the

complaint must contain a “short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Detailed factual allegations” are not required,

but the plaintiff must allege facts that, when “accepted as true ... ‘state a claim to relief that

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

v. Twombly, 550 U.S. 544, 555 (2007)). To determine whether a complaint meets this

standard the “reviewing court [must] draw on its judicial experience and common sense.” 

Iqbal, 556 U.S. at 678. If the factual allegations are well-plead, the Court assumes their

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veracity and then proceeds to determine whether they plausibly give rise to an entitlement

to relief. See Id. at 679. A claim has facial plausibility when its factual content allows the

Court to draw a reasonable inference that the defendant is liable for the misconduct

alleged. See Id. at 678. 

III. Discussion

The Defendants do not seek to dismiss Caine’s Complaint in its entirety. Instead

they object to certain Counts in the Complaint. The Defendants seek to dismiss Count I,

alleging it contains a claim for relief for malicious prosecution, which is not a cognizable

constitutional tort actionable under 42 U.S.C. § 1983. Next, they seek to dismiss Count IV, 3

alleging that Caine’s Fifth Amendment claim is time-barred. They seek to dismiss Counts

VI and VII, alleging that the Plaintiff’s conspiracy claims fail to state a claim. The

Defendants also seek to dismiss portions of Count V, alleging an equal protection violation

and Count IX, the failure to intervene claim, alleging that they are time-barred or otherwise

subject to dismissal. The Defendants also argue that to the extent Counts I through IX are

based on insufficient constitutional claims against the individual Defendants, the City

cannot be held liable under Monell, and that therefore the Monell claims should be

dismissed. Finally, the Defendants argue that to the extent that the Complaint seeks to

The Defendants initially argued that Count III, alleging that Caine’s confession 3

was coerced in violation of the Fourteenth Amendment, was time-barred. They have

since withdrawn their objection to Count III based on the rule of Heck v. Humphrey, 512

U.S. 477 (1994). 

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impose vicarious liability on the City in Count XII, under the doctrine of respondeat superior,

and Count XIII, on the basis of the Illinois indemnity law, those Counts should be

dismissed as untimely or otherwise improper. 

A. Count I: Due Process

The Defendants argue that Count I, which alleges a due process violation, contains

an impermissible claim for relief, specifically a malicious prosecution allegation. The

Defendants concede that portions of Count I contain a valid and plausible claim for a

violation of due process based on the suppression of potentially material exculpatory

evidence which violates the Fourteenth Amendment’s Due Process Clause under Brady v.

Maryland, 373 U.S. 83 (1963), and its progeny. But they argue that Count I also contains

what is in actuality a claim for malicious prosecution, which is not a cognizable federal

constitutional tort actionable through a cause of action under 42 U.S.C. § 1983. In

particular, Defendants focus on Paragraph 64 of the Complaint, which states: “In the

manner more fully described above, the Defendants deliberately withheld exculpatory

evidence, and fabricated false reports and other evidence, thereby misleading the criminal

prosecution of Plaintiff. Absent this misconduct, the prosecution of Plaintiff could not and

would not have been pursued.” Defendants specifically object to the portion of the claim

that alleges that Defendants “fabricated false reports and other evidence.” They argue that

this is a claim for malicious prosecution, and not one for due process, and as such it is

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prohibited by the Seventh Circuit’s rejection of a constitutional tort for malicious

prosecution in cases in which state law provides an adequate remedy, as Illinois does. See,

e.g., Newsome v. McCabe, 256 F.3d 747, 750-751 (7th Cir. 2001) (“[T]he existence of a tort

claim under state law knocks out any constitutional theory of malicious prosecution...[W]e

have recognized that Albright scotches any constitutional tort of malicious prosecution

when state courts are open.”); accord Miller v. Rosenberg, 749 N.E.2d 946, 951-952 (Ill. 2001)

(affirming the existence of a cause of action for malicious prosecution in Illinois).

Courts may dismiss a portion of a claim for relief contained within a count of a

complaint when that portion is contrary to law. See Haroco, Inc. v. American Nat. Bank and

Trust Co. of Chicago, 747 F.2d 384, 405 (7th Cir. 1984) (upholding the dismissal of a portion

of a count in a complaint alleging that the defendant conducted its own affairs through a

pattern of racketeering activity); see, e.g., Frederic v. Northwestern Memorial Hospital, No. 04

C 4443, 2005 WL 1563136, *3 (N.D. Ill. June 7, 2005) (dismissing Title VII portion of a count

in a complaint that alleged retaliation); Sienko v. Village of Woodridge, No. 96 C 1429, 1996

WL 396107, *4 (N.D. Ill. July 12, 1996) (dismissing a portion of a count in a complaint). 

Defendants are correct that Plaintiff cannot bring a claim for a violation of due

process “by combining what are essentially claims for false arrest under the Fourth

Amendment and state law malicious prosecution into a sort of hybrid substantive due

process claim under the Fourteenth Amendment.” McCann v. Mangialardi, 337 F.3d 782,

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786 (7th Cir. 2003). In McCann, the Seventh Circuit rejected an argument similar to the one

Caine is attempting to make here. In that case, the plaintiff alleged that the defendant

violated his right to due process by “causing him to suffer a deprivation of liberty from a

prosecution and contrived conviction. . . deliberately obtained from the use of false

evidence.” Id. at 786. The court held that such a claim is one for malicious prosecution, and

not a due process violation. See Id. 

In Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009), the plaintiff alleged City

of Chicago police officers had deprived him of due process of law by “not disclosing

known exculpatory evidence, perjuring themselves, submitting false charges as contained

in the criminal complaints, submitting false police reports, and otherwise acting to deny

plaintiff a fair trial.” The court held that Brooks’s allegations that criminal proceedings

were instituted against him based on false evidence or testimony was, in essence, a claim

for malicious prosecution, rather than a due process violation. See Id. As such, Brooks was

barred from bringing his claim for a due process violation against the defendant officers. 

See Id; accord Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010) (plaintiff’s due process claim

consisted of “nothing more than a hybrid” of his false arrest and malicious prosecution

claims and was barred). 

What Caine alleges in Count I is, in part, that the Defendants fabricated reports and

evidence resulting in a wrongful prosecution of Caine. An attempt to plead such acts as

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violations of due process is foreclosed and does not give rise to an entitlement for relief

under § 1983. See McCann, 337 F.3d at 786; Brooks, 564 F.3d at 833; Fox, 600 F.3d at 841.

Caine argues that allegations of fabrication and falsification of reports could be

considered “omissions” of material information that could plausibly give rise to a Brady

claim. Allegations that police officers failed to provide favorable or exculpatory

information by disclosing or admitting that fabricationsoccurred does not give rise to a due

process violation. See Harris v. Kuba, 486 F.3d 1010, 1017 (7th Cir. 2007) (The plaintiff

“essentially seeks an extension of Brady to provide relief if a police officer makes a false

statement to a prosecutor by arguing that an officer is ‘suppressing’ evidence of the truth

by making false statements. This court has already foreclosed this extension.”); Sornberger

v. City of Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006) (“Nor can Brady serve as the basis of

a cause of action against the officers for failing to disclose these circumstances [a coerced

confession] to the prosecutor. . .The Constitution does not require that police testify

truthfully; rather the constitutional rule is that the defendant is entitled to a trial that will

enable jurors todeterminewhere the truth lies.”) (emphasis in original) (internal quotations

omitted); Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003) (“We find the proposed

extension of Brady [to require the police to render truthful records of interrogations to the

prosecutors] difficult even to understand. It implies that the state has a duty not merely

to disclose but also to create truthful exculpatory evidence.”). Nor is Caine’s argument

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persuasive that if the Court were to dismiss the relevant portions of Count I it would

thereby renderthe fabrication evidence entirely out of the case. Caine has brought a statelaw malicious prosecution claim in Count X, and under Newsome such a cause of action is

the proper vehicle for allegations that the police fabricated evidence or falsified reports. 

As the Defendants concede, Count I plausibly gives rise to a due process claim. However,

Caine cannot bootstrap onto a proper due process claim a cause of action for malicious

prosecution. Therefore, the Court dismisses that portion of Count I that seeks to hold the

Defendants liable for “fabricat[ing] false reports and other evidence.” 

B. Count IV: Coerced Confession in Violation of the Fifth Amendment

Defendants seek to dismiss Count IV as time-barred. Section 1983 does not contain

an express statute of limitations. In order to determine the statute of limitations in a suit

arising under § 1983, the Court must look to the forum state’s statute of limitations for

personal injury claims. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Ashafa v. City of Chicago,

146 F.3d 459, 461 (7th Cir. 1998) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). Though

state law determines the limitations period, federal law controls when the claim accrues. 

See Wallace, 549 U.S. at 388 (“While we have never stated so expressly, the accrual date of

a § 1983 cause of action is a question of federal law that is not resolved by reference to state

law.”) (emphasis in original); Sellers v. Perry, 80 F.3d 243, 245 (7th Cir. 1996). The statute

of limitations for § 1983 cases filed in Illinois is two years as provided for in 735 ILCS

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§ 5/13-202. See Brooks, 564 F.3d at 832; Ashafa, 146 F.3d at 462. Under federal law, a § 1983

claim accrues “when the plaintiff has a complete and present cause of action, that is, when

the plaintiff can file suit and obtain relief.” Wallace, 549 U.S. at 388 (quoting Area Laundry

& Dry Cleaning Pension Trust Fund v. Ferbar Corp. of California, 522 U.S. 192, 201 (1997))

(internal citations and quotations omitted).

Caine argues that his Fifth Amendment claimthat his confession was coerced should

be governed by the rule in Heck, 512 U.S. at 486-487, in which the Supreme Court held that

a constitutional claim cannot be brought in federal court until after the conviction is

invalidated if a successful constitutional claim would undermine the conviction. Accrual

of such causes of action is thus deferred to the time when the plaintiff’s conviction is

nullified. Id. at 486-490. Defendants argue that Caine’s position in attempting to tie Count

III, alleging that the Defendants coerced a confession in violation of the Fourteenth

Amendment, to Count IV by virtue of the rule in Heck suggests that the conviction itself is

the constitutional injury caused by the Defendants’ alleged violation of Caine’s Fifth

Amendment rights. If this is the case, Defendants argue, then there is no meaningful

difference between the claims in Counts III and IV, and the relief sought is duplicative. 

Defendants argue that if the deferral rule of Heck applies to Count IV then it should be

dismissed as duplicative of Count III.

A plaintiff can seek damages under § 1983 for a violation of his Fifth Amendment

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right against self-incrimination when his confession is obtained without the requisite

Miranda warnings and subsequently is used against him in criminal proceedings. See

Sorenberger v. City of Knoxville, 434 F.3d at 1026-1027. In Sorenberger, the Seventh Circuit

found that the accrual of the plaintiff’s cause of action in that case occurred at the time that

the confession was first introduced as evidence of the plaintiff’s guilt during criminal

proceedings. See Id. (“This use of [Plaintiff’s] confession, if the confession is indeed found

to have been elicited without Miranda warnings, allows a suit for damages under § 1983.”). 

In Wallace v. City of Chicago, 440 F.3d 421 (7th Cir. 2006), aff’d sub nom., Wallace v. Kato,

549 U.S. 384 (2007), the Seventh Circuit held that many constitutional tort claims “accrue

at the time of the injury,” rather than “after the criminal conviction has been set aside.” 

Wallace, 440 F.3d at 427. In affirming the Seventh Circuit, the Supreme Court retreated

from the Heck deferral rule in many cases of constitutional torts, rejecting a principle “that

an action which would impugn an anticipated future conviction cannot be brought until that

conviction occurs and is set aside.” Wallace, 549 U.S. at 393. At least one court in this

District has held that Wallace applies to the accrual time for Fifth Amendment claims, and

that the claim accrues at the time of the injury (that is, when the confession is first used in

criminal proceedings)rather than after the criminal conviction has been set aside. See, e.g.,

Lanza v. City of Chicago, No. 08 C 5103, 2009 WL 1543680, *3 (N.D. Ill. June 2, 2009)

(Anderson, J.) (citing Wallace, 549 U.S. at 388) (“[Plaintiff’s] Fifth Amendment claim is

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barred by the two-year statute of limitations because the Supreme Court has held that a

plaintiff’s Section 1983 claim accrues at the moment the alleged constitutional violation

occurs.”) 

In this case, Caine’s confession was allegedly coerced in May 1986. Although the

Complaint is silent with respect to whether Caine challenged the confession in any pretrial

proceedings such as a motion to suppress, the Court takes notice of People v. Caine, 630

N.E.2d 1037 (Ill. App. Ct. 1994). Caine challenged his confession as coerced through a

4

motion to suppress at the trial court stage which the court denied. Id. at 601-606. Thus,

Caine knew at least by the time he filed his motion to suppress that his allegedly coerced

confession was being used against him. It was certainly used against him in his criminal

trial in 1989. Caine’s Fifth Amendment § 1983 coerced confession claim therefore accrued

in 1989, and he had two years from that time to commence a timely civil action. See, e.g.,

Lanza, 2009 WL 1543680, *3 (Anderson, J.) (citing Wallace, 549 U.S. at 388) (“[Plaintiff]

learned of the coerced confession at his 2001 probable cause hearing and moved to have

it suppressed at a hearing in 2002. Therefore, [Plaintiff] had a complete cause of action in

either 2001 or 2002 and knew orreasonably should have known of the use of the confession

against him at that time.”); Hudson v. Cassidy, No. 05 C 5623, 2006 WL 3524420, *7 (N.D. Ill.

The Court takes judicial notice of People v. Caine, 630 N.E.2d 1037 (Ill. App. Ct. 4

1994). This Court may take judicial notice of public court documents in deciding a

motion to dismiss without converting it into a motion for summary judgment. See

Hensen, 29 F.3d at 284.

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Dec. 5, 2006) (Schenkier, M.J.) (“Plaintiff was on notice as early as January 2000, when the

suppression hearing commenced, that the State sought to use the confession (which

[Plaintiff] says was illegally coerced) against him in the criminal proceeding. Thus, any

fifth amendment claim resulting from an attempt to use that confession accrued as early

as January 2000. This suit was filed nearly six years after that date, on September 29,

2005.”). Caine did not file his Complaint in this case until December 20, 2011, roughly 22

years after the accrual of his Fifth Amendment claim. Count IV therefore is dismissed as

untimely.

C. Counts VI and VII: Section 1985 and Section 1983 Conspiracy

Defendants argue that Caine’s allegations of conspiracy to deprive him of the equal

protection of the laws, his constitutional rights, and exculpatory materials to which he was

lawfully entitled under 42 U.S.C. § 1985 and 42 U.S.C. § 1983 are insufficiently vague and

too speculative to give rise to an entitlement to relief. In addition, they argue that Caine

has not plead the necessary underlying violations of his constitutional rights to support a

claim for conspiracy. 

Although claims for conspiracy are subject to slightly higher pleading standards

than are normally required under Rule 8 of the Federal Rules of Civil Procedure, all that

a complaint alleging a § 1985 and § 1983 conspiracy needs to aver is the parties to the

alleged conspiracy, the general purpose of the alleged conspiracy, and the approximate

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date of the alleged conspiracy. See Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009)

(“Even before Bell Atlantic Corp. v Twombly and Ashcroft v. Iqbal, a bare allegation of

conspiracy was not enough to survive a motion to dismiss for failure to state a claim. It

was too facile an allegation. But it was a narrow exception to the notice-pleading standard

of Rule 8 of the civil rules—a rare example of a judicially imposed requirement to plead

facts in a complaint governed by Rule 8.”) (internal citations and quotations omitted);

Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 2006) (citing, inter alia, Walker v. Thompson, 288

F.3d 1005, 1007 (7th Cir. 2002); Ryan v. Mary Immaculate Queen Center, 188 F.3d 857, 858-860

(7th Cir. 1999)) (“Although conspiracy is not something that Rule 9(b) of the Federal Rules

of Civil Procedure requires be proved with particularity, and so a plain and short statement

will do, it differs from other claims in having a degree of vagueness that makes a bare claim

of ‘conspiracy’ wholly uninformative to the defendant. Federal pleading entitles a

defendant to notice of the plaintiff’s claim so that he can prepare responsive pleadings. 

That is why courts require the plaintiff to allege the parties, the general purpose, and the

approximate date of the conspiracy.”) (internal citations and quotations omitted).

Here, Caine’s Complaint meets the requisite pleading standards for claims of

conspiracy. Caine identifies the parties engaged in the alleged conspiracy–the six

individually named Defendants and presently unidentified officers who may have

participated in the conspiracy that led to Caine’s wrongful conviction. In addition, Caine

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alleges the general purpose of the conspiracy; namely, to secure the wrongful prosecution

and conviction of Caine for a crime he did not commit and to use unlawful means to

accomplish those ends. Finally, Caine alleges the approximate dates of the conspiracy. He

alleges that the conspiracy to frame him began immediately after the April 16, 1986 Sanchez

murders and that it was part of a larger conspiracy to frame and torture Black men than

lasted through the 1980s. He further identifies specific acts that the individual Defendants

took in furtherance of their conspiracy to deprive him of the equal protection of the laws,

his constitutional rights, and exculpatory materials to which he was lawfully entitled, and

he places those allegation in the context of the general conspiracy at Area Two to frame

innocent Black men, often through the use of torture. In addition, Caine’s Complaint

adequately puts the Defendants on notice of the alleged claims against them. Thus, Caine’s

§ 1985 and § 1983 conspiracy claims contained in Counts VI and VII are sufficient to

withstand the Defendants’ Motion to Dismiss. See, e.g., Tillman v. Burge, 813 F. Supp. 2d

946, 976-977 (N.D. Ill. 2011) (Pallmeyer, J.) (declining to dismiss § 1985 and § 1983

conspiracy claims where the plaintiff alleged specific instances of misconduct by the

defendants and alleged that the misconduct was part of a larger pattern of abuse, torture

and misconduct directed towards Black men); Fields v. City of Chicago, 805 F. Supp. 2d 536,

544 (N.D. Ill. 2011) (Kennelly, J.) (refusing to dismiss conspiracy claims where the plaintiff’s

complaint provided sufficient notice to the defendants of the claims alleged against them);

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Patterson v. Burge, 328 F. Supp. 2d 878, 903 (N.D. Ill. 2004) (Gottschall, J.) (refusing to

dismiss allegations of conspiracy made by Caine’s co-defendant in the Sanchez murders). 

The Defendants’ Motion to Dismiss Counts VI and VII is denied.

D. Count V: Equal Protection and Count IX: Failure to Intervene

The Defendants argue that to the extent that Counts V and IX are based on

allegations that are time-barred or otherwise subject to dismissal, those portions of these

Counts are likewise subject to dismissal. A plaintiff cannot assert an equal protection claim

for allegations that are time-barred. See Garrison v. Burke, 165 F.3d 565, 571 (7th Cir. 1999). 

Where a Complaint alleges a number of acts, a plaintiff cannot assert a § 1983 action for an

equal protection violation for those acts which are time-barred or otherwise subject to

dismissal. Here, the Court has concluded that Count I impermissibly contains allegations

that Defendants fabricated and falsified evidence, and therefore dismissed those parts of

that Count. In addition, Count IV, alleging that the Defendants coerced a confession in

violation of the Fifth Amendment, is time-barred. These allegations cannot form part of

Caine’s claim that the Defendants deprived him of the equal protection of the laws. With

the exception of allegations arising out of Count I and Count IV, Caine may proceed on his

equal protection claim contained in Count V. 

To recover on a failure to intervene claim, the plaintiff must allege that the

Defendants violated his constitutional rights. See Harper v. Albert, 400 F.3d 1052, 1064 (7th

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Cir. 2005) (“In order for there to be a failure to intervene, it logically follows that there must

exist an underlying constitutional violation.”). The Complaint sufficiently alleges

deprivations of Caine’s constitutional rights that can form the basis of a failure to intervene

claim. For example, the Defendants admit that Caine has a plausible claim for relief in

Count I for violations of his right to due process of law under the Fourteenth Amendment. 

This alone can form the basis of a failure to intervene claim. See Yang v. Hardin, 37 F.3d 282,

284 (7th Cir. 1994) (“An officer who is present and fails to intervene to prevent other law

enforcement officers from infringing the constitutional rights of citizens is liable under

§ 1983 if that officer had reason to know that: (1) excessive force was being used; (2) a

citizen has been unjustifiably arrested, or (3) any constitutional violation has been

committed by a law enforcement official; and the officer had a realistic opportunity to

intervene to prevent the harm from occurring.”). However, the allegations of fabricated

and falsified evidence contained in Count I, which states a prohibited claim for malicious

prosecution, and the allegations of a coerced confession in violation of the Fifth

Amendment contained in Count IV, which is time-barred, cannot form part of Caine’s

failure to intervene claim contained in Count IX.

E. The Monell Claims and Vicarious Liability

Caine alleges in each of his Counts arising under federal law that the Defendants

acted under color of law and pursuant to an official custom or policy of the City of Chicago,

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thus giving rise to municipal liability under Monell v. Department of Social Services of City of

New York, 436 U.S. 658 (1978). The Defendants argue that to the extent that Counts II, III,

IV, VI, VII, and VIII should be dismissed, the Monell claims arising out of those Counts

should likewise be dismissed. A Monell claim depends upon the validity of the underlying

substantive claim. See Bielanski v. County of Kane, 550 F.3d 632, 645 (7th Cir. 2008) (“Because

[Plaintiff’s]Monell claim depended entirely on the validity of her first two claims, we affirm

the dismissal of the Monell claim as well.”). The Court has found that the allegation that

the individual Defendants fabricated evidence or falsified reports contained in Count I is

prohibited by the rule prohibiting a constitutional tort of malicious prosecution. See

Newsome, 256 F.3d at 750-751. The Court has also found that Claim IV is time-barred. 

Thus, the allegations arising out of these claims cannot form the basis for municipal liability

under Monell. Caine can proceed with his Monell claims pursuant to Count I, Count III,

Count V, Count VI, Count VII, and Count IX.

The Defendants similarly argue that to the extent that Caine seeks relief from the

City vicariously in Count XII (state-law respondeat superior) and Count XIII (state-law

indemnity), those claims should be dismissed to the extent that the underlying Counts are

time-barred or subject to dismissal. Section 2-109 of the Tort Immunity Act provides that

a “local public entity is not liable for any injury resulting from an act or omission of its

employees where the employee is not liable.” 745 ILCS 10/2-109. Thus, where a municipal

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employee is not liable, the municipal entity for which that employee works is similarly

absolved from liability by virtue of the Act. Therefore, the City cannot be held vicariously

liable under the doctrine of respondeat superior, nor can the City be required to pay

indemnity, for the allegations of fabricated or falsified evidence in Count I or the

allegations of Count IV. Caine may proceed with Counts XII and XIII for the allegedly

illegal acts of the Defendants contained in the Counts of his Complaint that are not timebarred or otherwise subject to dismissal.

IV. Conclusion

Forthe reasons set forth above, the Defendants’ Joint Motion to Dismiss Portions of

Plaintiff’s Complaint is granted in part and denied in part. The Court dismisses that

portion of CourtI which alleges that the Defendants fabricated orfalsified evidence. Count

IV of the Complaint is dismissed as untimely. Counts II and VIII are dismissed pursuant

to Caine’s stipulation that he no longer wishes to prosecute them. Caine may proceed on

Counts VI and VII, as they are properly before the Court and not subject to dismissal. To

the extent that Counts V and IX rely on the allegations of other claims in the Complaint,

they cannot be predicated on that part of Count I which is dismissed or on Count IV. 

Similarly, Caine may seek to impose Monell liability on the City of Chicago pursuant to

Counts I, III, V, VI, VII, and IX, but as to Count I he may not do so on the basis of

allegations of falsified orfabricated evidence. Finally, for state-lawvicarious liability under

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Counts XII and XIII, Caine cannot seek redress for that portion of Count I that is dismissed

or for Count IV, which is time-barred. 

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: June 27, 2012

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