Carroll for depriving Bergstrom of his due process right to a fair trial and for conspiracy to
deprive him of that right. We dismiss Count I with respect to Commander Carroll to the extent
that it is based on the Fourth Amendment and in its entirety with respect to Metra. Second, we
dismiss Count II in its entirety with respect to all Defendants—including those who did not join
the present motion to dismiss. Third, we find that Counts III and V state a claim against
Commander Carroll and Metra. Finally, we dismiss Count IV only with respect to Commander
Carroll and Metra.

The parties are authorized to proceed with discovery and are again requested to reevaluate
their final settlement positions. A status hearing will be heard in open court on January 13, 2004

at 9:45 a.m.

ENTERED:
La ol EEE

Judge Ruben Castillo
United States District Court

Dated: December 5, 2003



is not required to plead facts or legal theories or cases or statutes, but merely to describe his
claim briefly and simply.” Shah v. Inter-Continental Hotel Chi. Operating Corp., 314 F.3d 278,
282 (7th Cir. 2002).
ANALYSIS

Bergstrom’s complaint contains five counts. Count lis a 42 U.S.C. § 1983 claim alleging
that Defendants deprived Bergstrom of his Fourth and Fourteenth Amendment rights by falsely
arresting him, falsely imprisoning him and conspiring to falsely arrest and imprison him. Count
Tis a second 42 U.S.C. § 1983 claim alleging that Defendants deprived Bergstrom of his
Fourteenth Amendment rights by prosecuting him maliciously. Counts II] through V are Illinois
state-law claims of malicious prosecution, false arrest and intentional infliction of emotional
distress. Metra and Commander Carroll are named in all five counts.
I. 42 U.S.C. § 1983 Claims: Counts I-II

A. Commander Carroll

To state a section 1983 claim against Commander Carroll, Bergstrom must allege that:
“(1) the conduct complained of was committed by a person acting under color of state law; and
(2) the activity deprived [him] of rights, privileges, or immunities secured by the Constitution or
laws of the United States.” Case v. Milewski, 327 F.3d 564, 566 (7th Cir. 2003). Bergstrom
alleges that Commander Carroll made false statements to Blue Island police officers, withheld
exculpatory evidence and testified falsely at Bergstrom’s criminal trial. Bergstrom further
alleges that Commander Carroll conspired with the other Defendants to deprive him of his
constitutional rights. Finally, Bergstrom alleges that these actions contributed to his false arrest,

false imprisonment and malicious prosecution.


already found that Bergstrom sufficiently alleged that Commander Carroll deprived him of his
right to a fair trial, we find that Bergstrom alleged that Commander Carroll also conspired to
deprive him of that right.

B. Metra

Municipal corporations, like Metra‘, cannot be liable under section 1983 under the theory
of respondeat superior. McCormick v. City of Chi., 230 F.3d 319, 324 (7th Cir. 2000). Thus, in
order to state a section 1983 claim against Metra, Bergstrom must allege that he was deprived of
a constitutional right by: (1) an express policy, (2) a widespread practice that is so well-settled as
to constitute a custom with the force of law, or (3) a person with final policymaking authority,
Id. Bergstrom alleges that:

{Defendant Metra] acted in consort and conspiracy and in furtherance of a common

plan with the other Defendants and pursuant to its widespread custom and policy to

violate the constitutional rights of Plaintiff Bergstrom by withholding evidence that

was favorable to and would exonerate Plaintiff of the criminal charges pending

against him.
(R. 1, Compl. 130.)

Even though Bergstrom alleges that Metra acted “pursuant to a widespread custom and
policy,” he has not alleged an actual custom or policy. He has only alleged that Metra had a
“widespread policy and custom to violate his constitutional rights.” A plaintiff must allege that a

municipal defendant had a policy or custom which deprived him of his constitutional rights, not

that the municipal defendant had a policy of depriving him of his constitutional rights; such an

* Metra is a public corporation created under the Regional Transportation Authority Act,
70 Ill. Comp. Stat. 3615/1.01 et seg. Defendants acknowledge in their briefs that Metra, a
municipal corporation, can be liable under section 1983. (R. 26, Defs.” Mot. 4 10; R. 30, Defs.’
Reply § B.)


Bergstrom also alleges that Commander Carroll’s actions prolonged his unlawful seizure.
The Fourth Amendment, however, does not create a right to be free from state actions that
perpetuate lawful arrests. Gauger v. Hendle, No. 02-C-3841, 2003 WL 22455958, at *4 (7th Cir.
Oct. 30, 2003) (citing McCulloch v. Gadert, 344 F.3d 655, 660-61 (7th Cir. 2003) (interpreting
Reed v. City of Chi., 77 F.3d 1049, 1052 n.3 (7th Cir. 1996), and Lee v. City of Chi., 330 F.3d
456, 463 n.3 (7th Cir. 2003)), As a seizure does not continue past the Gerstein hearing, in which
a court determines whether probable cause existed for a warrantless arrest, see Gerstein v. Pugh,
420 U.S. 103, 126 (1975), Commander Carroll’s actions, even if they prolonged Bergstrom’s
seizure, did not deprive Bergstrom of any Fourth Amendment right.

The Gauger court noted that in light of Newsome v. McCabe, 256 F.3d 747, 750-51 (7th
Cir. 2001) (holding that section 1983 claims alleging due process violations stemming from
malicious prosecution are unavailable when a state malicious prosecution action exists), the
Fourth Amendment may apply after a Gerstein hearing to avoid the “shocking” result that a
police frame-up that results in conviction does not constitute a constitutional tort. Gauger, 2003
WL 22455958, at *4. As the Seventh Circuit has not yet reexamined this issue, we adhere to the
current rule that the Fourth Amendment does not apply to acts that prolong a lawful arrest.

2. Fourteenth Amendment
Broadly reading Bergstrom’s section 1983 claims, we conclude that he has alleged that

Commander Carroll deprived him of his due process rights in three ways: (1) by extending the

{{ 31-36). If these statements were made after his arrest, then Commander Carroll cannot be
liable for his false arrest. Thus, we hold in the alternative that Bergstrom failed to properly
allege that Commander Carroll caused him to be arrested without probable cause.

6


1. Fourth Amendment

In order to state a section 1983 claim alleging deprivation of his Fourth Amendment right
not to be arrested without probable cause, Bergstrom need only plead that a person acting under
color of state law, typically a law enforcement officer, arrested him without probable cause.
Ernst y. Anderson, No. 02-C-4884, 2003 WL 174193, at *6 (N.D. Ill. Jan 27, 2003). Commander
Carroll asserts that Bergstrom has not stated a claim against him because he did not personally
arrest Bergstrom. The Seventh Circuit, however, in Yeksigian v, Nappi, 900 F.2d 101, 104 (7th
Cir. 1990), held that a city supervisor acted under color of state law when he called the police to
request that they arrest one of his employees. Yeksigian carved out a narrow exception to the
general rule that an individual does not act under color of state law by merely supplying false
information to an arresting officer. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352
(7th Cir. 1985).

Bergstrom’s complaint alleges that “Defendant Commander Carroll of the Metra police
falsely claimed that Plaintiff Bergstrom drove and was assigned to Metra Squad Unit 16, well
knowing that Plaintiff Bergstrom was assigned to and always drove Metra Squad Unit 11.”

(R. 1, Compl. | 41.) Importantly, Bergstrom does not allege that Commander Carroll called the
police and requested that they arrest him. Therefore, the Yeksigian exception does not apply.
Accordingly, Commander Carroll did not act under color of state law when he made false

statements to the police.’

' The complaint does not indicate whether Commander Carroll’s statements were made
prior to or after Bergstrom’s arrest. It would be unreasonable for this Court to infer that they
were made prior to his arrest. Bergstrom explains the events surrounding his arrest in great detail
and never alleges it was caused by Commander Carroll’s false statements. Additionally, he
discusses Commander Carroll’s actions, (R. 1, Compl. {{] 41-42), separately from his arrest, (id.

5


Court as Bergstrom has also alleged that Commander Carroll withheld exculpatory evidence.
Under Brady v. Maryland, 373 USS. 83, 87 (1963), the government must disclose evidence
favorable to the defense where the evidence is material to either the defendant’s guilt or
punishment. See also United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002). Because
Bergstrom alleged that Commander Carroll withheld exculpatory evidence, he has stated a
section 1983 claim against Commander Carroll for violating his due process right to a fair trial.
3. Conspiracy

Plaintiff also alleges that Commander Carroll conspired with the other Defendants to
deprive him of his F ‘ourteenth Amendment right to a fair trial? (R. 1, § 130.) To state a section
1983 conspiracy claim, Bergstrom must allege: (1) an express or implied agreement among
Defendants to deprive him of his constitutional rights, (2) that Defendants made overt acts in
furtherance of the agreement, and (3) that the agreement actually deprived him of a constitutional
right. Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Yet Bergstrom only needs to
“indicate the parties, general purpose, and approximate date” of the conspiracy. Walker v.
Thompson, 288 F.3d 1005, 1007-08 (7th Cir. 2002) (stating that conspiracy actions should not be
dismissed because they are “conclusory” or because they fail to specify an overt act). Bergstrom
has alleged the parties (all the Defendants), the general purpose (to violate his constitutional

tights), and the approximate date (June 2002 to April 2003) of the conspiracy. Thus, as we have

out of its way to reaffirm the cause of action for framing someone for a crime he did not
commit”). This Court is mindful that Gauger should be interpreted so as to avoid the “shocking”
result that a police frame-up is not a constitutional tort. Gauger, 2003 WL 22455958, at *4.

3 Bergstrom actually alleges that Metra conspired with the other Defendants, but this
allegation implicitly states that Commander Carroll conspired with the other Defendants as well.

8



Minate Order Fora (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge asti Sitting Judge if Other
or Magistrate Judge Ruben Castillo than Assigned Judge

CASE NUMBER 03 C 3896 DATE 12/5/2003

CASE Walter C. Bergstrom, Jr. vs. John McSweeney, et al.

TITLE .

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY: a
(a0) Oo Filed motion of { use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) oO Answer brief to motion due . Reply to answer brief due
(4) a Ruling/Hearing on __ set for at :
(5) | Status hearing set for 1/13/2004 at 9:45 A.M..
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
1) o Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) ies This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CLocal Rule 41.1 COFRCP41(a\(1) OFRCP41(a)(2).
ao) i [Other docket entry] | Enter Memorandum Opinion and Order. Defendants’ motion to dismiss
(26-1] is granted in part and denied in part. Parties are granted leave to proceed with all discovery.

(1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

. . Number

No notices required. number of notices

Notices mailed by judge’s staff.

Notified counsel by telephone. DEC, 0.8 2003
v | Docketing to mail notices.

Mail AO 450 form, te

gyuisia SA
Copy to judge/magistrate judge. 1ynos ry ta

courtroom
deputy's
initials

gph ia $- T3080
OT Bsus tish n

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mailing Ceputy initials



maliciously continued the proceedings against him by making false statements and withholding
evidence. These actions could amount to advice and cooperation, so Bergstrom has stated a
malicious prosecution claim against Commander Carroll.

Bergstrom has also stated a claim against Metra because under Illinois law it could be liable
for Commander Carroll’s actions through respondeat superior. See Mitchell v. Norman James
Constr. Co., 684 N.E.2d 872, 878 (Ill. App. Ct. 1997) (“It is well settled that, under the doctrine of
respondeat superior, an employer may be liable for the negligent, wilful, malicious, or even criminal
acts of its employees when such acts are committed in the course of employment and in furtherance
of the business of the employer.”). Thus, unlike Bergstrom’s section 1983 claims, his Illinois state-
law claims can be brought against Metra under respondeat superior.

B. False Arrest

Count IV is an Illinois false arrest claim. To state a claim for false arrest under Illinois law,
Bergstrom must allege that Defendants arrested or procured his arrest without probable cause.
Meerbrey v, Marshall Fields & Co., 564 N.E.2d 1222, 1231 (Ill. 1990); Johnson v. Target Stores,
Jnc.,791 N.E.2d 1206, 1220 (Ill. App. Ct. 2003). Bergstrom has not alleged that Commander Carroll
arrested him, nor has he alleged that he procured his arrest by making false statements. We have
already determined that it would be unreasonable to infer that Commander Carroll’s statements were
made prior to Bergstrom’s arrest. Thus, Bergstrom has not stated a false arrest claim against
Commander Carroll or vicariously against Metra.

C. Intentional Infliction of Emotional Distress

Count V is an Illinois intentional infliction of emotional distress claim. In order fo state an

intentional infliction of emotional distress claim under Illinois law, Bergstrom must allege that (1)

11


allegation is akin to alleging that a single incident is a policy. See Strauss v. City of Chi., 760
F.2d 765, 767 (7th Cir. 1985) (affirming dismissal because “nothing in the complaint suggests
that the incident was other than an isolated one unrelated to municipal policy”); Brown vy. Knapp,
156 F. Supp. 2d 732, 737 (N.D. Ill. 2001). Accepting the existence of such a narrowly-focused
policy would be tantamount to permitting liability via respondeat superior. Strauss, 760 F.2d at
768. Thus, we find that Bergstrom has not alleged that Metra deprived him of a constitutional
right or conspired to do so. Accordingly, we dismiss Metra from Counts I and IL.*
I. Illinois Claims: Counts II-V

A. Malicious Prosecution

Count III is an Illinois malicious prosecution claim. To state a claim for malicious
prosecution under Illinois law, Bergstrom must allege that: (1) Defendants instituted or continued
the underlying suit maliciously and without probable cause; (2) the action terminated favorably to
him; and (3) he suffered some special injury beyond the usual expense, time and annoyance of
defending himself. Cult Awareness Network v. Church of Scientology Int'l, 685 N.E.2d 1347, 1350
(iil. 1997). The only disputed issue is whether Bergstrom alleged that Defendants instituted or
continued the proceedings.

Police officers can only be liable for malicious prosecution if their “participation in it [was]
so active and positive a character as to amount to advice and cooperation.” Denton v. Allstate Ins.

Co., 504 N.E.2d 756, 760 (Ill. App. Ct. 1986). Bergstrom alleges that Commander Carroll

5 We also dismiss the remaining Defendants who did not join this motion from Count I
because it is a section 1983 malicious prosecution claim, which is barred by Newsome. Thus, we
dismiss Count II in its entirety.

10


time that he was imprisoned; (2) by causing him to be prosecuted maliciously; and (3) by
depriving him of a fair trial. The first two ways do not state a claim.

A due process claim cannot be maintained when a specific constitutional provision

(here the Fourth Amendment) protects the right allegedly violated. United States v.

Lanier, 520 U.S. 259, 272 n.7 (1997); Graham v. Connor, 490 U.S. 386, 394 (1989).

Moreover, to the extent [the plaintiff] maintains that [the defendant] denied him of

due process by causing him to suffer “[a] deprivation of liberty from a prosecution

and a contrived conviction . . . deliberately obtained from the use of false evidence,”

his claim is, in essence, one for malicious prosecution, rather than a due process

violation. As we emphasized in [Newsome, 256 F.3d at 750], “the existence of a tort

claim under state law knocks out any constitutional theory of malicious prosecution”

and Illinois has a common law tort action for malicious prosecution.
McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003). Thus, Bergstrom’s claim that his
continued imprisonment deprived him of his due process rights is barred because that right is
already protected by his Fourth Amendment right not to be arrested without probable cause.
Further, his claim that he was maliciously prosecuted in violation of his due process rights cannot
be brought because the existence of the same cause of action under Illinois law bars its assertion
under section 1983.

We do find, however, that Bergstrom has alleged that Commander Carroll deprived
Bergstrom of his right to a fair trial by making false statements and withholding exculpatory
evidence. The Gauger court stated that police officers who make false statements to prosecutors

are not withholding exculpatory evidence (the truth) when the defendant knows the statements

are false? Gauger, 2003 WL 22455958, at “4-5. This issue, however, is not squarely before the

? Gauger, thus, appears to limits both Newsome, 256 F.3d at 752 (stating that police
officers can be liable if they are “not candid with prosecutors”), and Jones v. City of Chicago,
856 F.2d 985, 994 (7th Cir. 1988) (stating that police officers can be liable if they were
“instrumental in the plaintiff's continued confinement or prosecution” because they “deliberately
supplied misleading information”). But see Hobley v. Chi. Police Commander Burge, No. 03-C-
3678, 2003 WL 22682362, at *8 (N.D. Ill. Nov. 12, 2003) (stating that the Gauger court “went

7


(id. 66.) Commander Carroll gave Bergstrom permission to keep the contraband until he could
turn it over to the evidence depository at the Metra facility in downtown Chicago. (Jd. { 67.)
After Bergstrom was arrested, he gave Blue Island police officers permission to search his
personal vehicle. (Id. 63.) They recovered an evidence envelope containing controlled
substances suspected to be cocaine and marijuana. (Id. 64-65.) Even though Blue Island
police officer Bernadine Rzab had spoken with Commander Carroll, who was aware of
Bergstrom’s possession of this evidence envelope, Bergstrom was prosecuted for possession of a
controlled substance and official misconduct. (/d. {| 69, 71.) Once again, Bergstrom alleges that
Blue Island police officers testified falsely before the grand jury and at his trial. (/d. 473.)

Bergstrom attempted to commit suicide while he was imprisoned awaiting trial at the
Blue Island police department. (/d. {| 117.) He claims that his attempted suicide was caused by
Blue Island police officers’ failure to adequately monitor and supervise him during his
incarceration. (/d.) Ultimately, Bergstrom was found not guilty in both cases and the remaining
charges against him were dropped. (/d. 4] 121.)

LEGAL STANDARDS

This Court will only grant a motion to dismiss if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Swierkiewicz v. Sorema N.A., 534 U.S.
506 (2002). This Court will accept all well-pleaded allegations as true and draw all reasonable
inferences in favor of the plaintiff. Thompson v. Ill. Dep't of Prof’! Regulation, 300 F.3d 750,
753 (7th Cir. 2002). A complaint states a claim if it gives the defendant “fair notice of what the

plaintiff's claim is and the grounds upon which it rests.” Conley, 355 U.S. at 47. “The plaintiff


The Blue Island Case

On or about June 9, 2001, Blue Island police officers received a report that a uniformed
police officer robbed a Hispanic man of $300. (Id. 27.) The victim reported that the officer
was bald, wore a light blue shirt and drove a Chevrolet Caprice squad car, which was marked as
“Metra Unit No. 16” and had licence plates ending in the numbers “13” or “17.” (Cd. J 26-30.)
The victim alleged that his stolen $300 comprised $10 bills, $20 bills and one $50 bill. (id. J 30.)

Blue Island police officers arrested Bergstrom, a Metra police officer, for this robbery.
(Ud. {§ 20, 31.) Bergstrom has blue eyes, straight teeth, a medium build and a shaved head.

(id. 25.) As a Metra police officer, he wore a dark, navy blue uniform and drove a Ford Crown
Victoria squad car, which was marked with the number “11” and gold “Metra Police” decals and
had a license plate numbered “M114947.” (dd. §f[ 22-24.) Incident to his arrest, Blue Island
police officers found $610 in Bergstrom’s breast pocket, which Bergstrom claims he had in order
to pay his son’s dentist bills. (/d. 4 33-35.) The $610 recovered from Bergstrom did not include
the same denominations that were taken from the robbery victim. (Id. | 33.)

In connection with this robbery, Bergstrom was prosecuted for armed robbery, aggravated
robbery and official misconduct. (/d. { 38.) Bergstrom claims that Blue Island police officers
testified falsely against him before the grand jury and at his trial and that Commander Carroll
made false statements about him, withheld evidence that would have exonerated him and falsely
testified that he always drove Metra squad car “16.” Ud. 9§ 40, 42.)

Unlawful Possession of Controlled Substances Case
On June 1, 2001, Bergstrom informed Commander Carroll, his supervisor, in writing that

he had found several small bags containing contraband on the rear seat of his squad car.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
WALTER C. BERGSTROM, JR., )
)
Plaintiff, )
) No. 03 C 3896
v. )
) Judge Ruben Castillo
JOHN McSWEENEY, et al., ) poe
)
Defendants. ) KETED
DEC 0 8 2004

MEMORANDUM OPINION AND ORDER

Plaintiff Walter C. Bergstrom filed a five-count complaint against Defendants City of
Blue Island, Village of Dixmoor and V illage of Posen, various law enforcement officials from
those three municipalities, the Northeast Regional Commuter Railroad Corporation d/b/a Metra
and Metra Police Commander Donald Carroll. Presently before this Court is Defendants Metra
and Commander Carroll’s motion to dismiss. For the reasons provided below, we partially grant
and partially deny Defendants’ motion. (R. 26-1.)

RELEVANT FACTS

Bergstrom’s claims stem from six criminal cases that were brought against him in the
Illinois Circuit Court of Cook County, which we refer to as the Blue Island case, the Illinois State
Police case, the Possession of Unlawful Substances case, the Dixmoor case, the Posen case, and
the Witness Intimidation case. In each case, Bergstrom claims that Defendants held him in jail
and caused charges to be brought against him even though they knew that the charges were false.
Metra and Commander Carroll were only involved in the Blue Island case and the Unlawful

Possession of Controlled Substances case.

3o-



Defendants’ extreme and outrageous conduct caused him severe emotional distress and (2)
Defendants intended to inflict severe emotional distress or knew that such distress was highly
probable. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). “(T]he tort does not extend to ‘mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”” Jd. (quoting
Restatement (Second) of Torts § 46, cmt. d (1965)). “Liability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable ina civilized community.”
Restatement (Second) of Torts § 46, cmt. d (1965). Bergstrom has alleged all of the requisite
elements, so he has stated a claim against Commander Carroll and vicariously against Metra.

Finally, Metra argues that Bergstrom’s intentional infliction of emotional distress claim
against it is time-barred. All personal injury claims against Metra must be “commenced within one
year from the date that the cause of action accrued.” 70 Ill. Comp. Stat. 3615/5.03. Bergstrom filed
his complaint on June 6, 2003, so his claim would be time-barred if it accrued on or before June 5,
2002. As Bergstrom’s intentional infliction of emotional distress claim incorporates the conduct
underlying his malicious prosecution claim, the cause of action did not accrue until the state criminal
proceedings against him were terminated. Carroccia v. Anderson, 249 F. Supp. 2d 1016, 1028 (N.D.
Ill. 2003). The criminal proceedings against him did not start until the end of October 2002, so his
intentional infliction of emotional distress claim did not accrue on or before June 5, 2002.
Accordingly, Bergstrom’s claim against Metra is not time-barred.

CONCLUSION
Commander Carroll and Metra’s motion to dismiss is partially granted and partially

denied. (R. 26-1.) First, we find that Count I states a section 1983 claim against Commander

12