some special injury beyond the usual expense, time or annoyance in defending the lawsuit. Cult

Awareness Network v. Church of Scientology International, 685 N.E.2d 1347, 1350 (Ill. 1997).

As the Officers correctly point out, neither the May 12, 1997, charges nor the VOP charges were
resolved in plaintiff's favor, entitling the Officers to summary judgment on plaintiffs malicious

prosecution claim.

As noted earlier, the May 12, 1997, charge was terminated by the granting of the
prosecutor’s motion to nolle prosequi the charges against plaintiff. “A nolle prosequi may serve
as a favorable termination unless the prosecution was abandoned for reasons not indicative of the
innocence of the accused.” Cult Awareness, 685 N.E.2d at 1354 (citing Swick v. Liautaud, 662
N.E.2d 1238 (Ill. 1996)). The burden of proof of a favorable termination, however, remains with
the plaintiff. Swick, 662 N.E.2d at 1243. Thus, “[o]nly when a plaintiff establishes that the nolle
prosequi was entered for reasons consistent with his innocence does the plaintiff meet his burden

of proof.” Id. A nolle prosequi is not indicative of innocence when it “is the result of an

agreement or compromise with the accused...” Id.

Both the prosecutor and Brandstrader have testified that plaintiff's May 12, 1997, charge
was nolled as a result of a plea bargain. According to Brandstrader’s affidavit, the prosecutor
“offered to allow [plaintiff] to plead guilty to either one of the remaining two charges (the June 8
or May 12 charges), and that after the guilty plea, [the prosecutor] would move for a nolle
prosequi on the other charge.” Brandstrader further maintains that he informed plaintiff of the
plea negotiations and offer. Consistent with Brandstrader’s and the prosecutor’s version of
events, the criminal court transcript reflects that only after plaintiff's guilty plea regarding the

June 8 charges did the prosecutor move to nolle the May 12 charges.

19



jurisdiction....”). Plaintiff's July 14, 1997, arrest resulted in a conviction, and plaintiff also pled
guilty to the June 8, 1997, PCS charges against him. Neither of these dispositions has been
disturbed on appeal or in other collateral proceedings, and thus these convictions constitute
violations of plaintiff's probation. Although the VOP charge was withdrawn prior to those
dispositions, and the criminal court never reached the merits of plaintiff's VOP charge, it is
undisputed that plaintiff in fact violated the terms of his probation. The court therefore declines
to confer RICO standing on the basis of attorneys’ fees stemming from the VOP charge.

Similarly, plaintiff's attorneys’ fees relating to the May 12, 1997, charge that was nolled
are also not properly considered a business or property injury that confers RICO standing.
According to the Officers, “plaintiffs claim that he would have incurred a lesser amount of fees
if there had been three charges, instead of four, is conjecture.” Indeed, it is undisputed that
plaintiffs fee arrangements with attorneys Alexander and Brandstrader did not specify that any
particular portion of their fees would be attributable to a particular pending criminal charge;
rather, each attorney charged plaintiff $10,000 to work on all four pending charges. Further,
Brandstrader’s affidavit, which has not been refuted by plaintiff, establishes that all of
Brandstrader’s work on plaintiff's behalf “applied either to the trial arising out of the July 14
charges, or to the consolidated criminal charges as a whole.” Thus, none of Alexander’s and
Brandstrader’s fees are attributable solely to the May 12, 1997, charge.

In response, plaintiff simply asserts that he would have incurred fewer fees if there had
been fewer criminal charges against him, and suggests that the precise amount of the reduction in
fees that would have resulted had the May 12, 1997, charge not been brought is a question of fact

that falls within the province of the jury.

13


Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/8-101.
CONCLUSION

For the foregoing reasons, the Officers’ motion for summary judgment is granted in its
entirety, resolving Counts I, II, IV, and V of plaintiff's second amended complaint. Although the
City did not join the Officers’ motion for summary judgment, the Officers’ motion notes that if
they are entitled to summary judgment on Count II, then the City is also entitled to summary
judgment on Count III, which is directed solely against the City for having a policy of violating
First Amendment rights. Plaintiff has not responded to this argument, which appears to be
meritorious. Thus, the court also grants summary judgment to the City with respect to Count III,

as well. The Officers’ motion to strike plaintiff's affidavit is denied as moot.

ENTER: September 26, 2003

“debe. (CBG

Robert W. Gettleman
United States District Judge

23



On July 14, 1997, Officers Green and Smith, who were assigned to the 1 1" District
Tactical Unit, arrested plaintiff for PCS. At the time of the May 12, 1997, June 8, 1997, and July
14, 1997, arrests, plaintiff was on probation as a result of his 12-month probation sentence on his
1996 PCS conviction. On June 10, 1997, a prosecutor filed a Violation of Probation charge
(“VOP”) with regard to that 1996 conviction.

At his deposition, plaintiff testified that in late August 1997, Officers Koyle and Kozenko
stopped, searched and handcuffed plaintiff, questioned him about the Perkins’ case, and then
drove him around the corner to where Officers McCarthy and Bullington were waiting. At that
point, the officers allegedly discussed the fact that a woman who viewed the arrest yelled
something at the them from her window. The officers then released plaintiff, telling him it was
his lucky day. Although the officers did not brandish any weapons, plaintiff testified that he
believed they “were probably going to take my life that night.”

On September 5, 1997, Officer Hofer (along with another officer who is not a defendant
in the instant case) arrested plaintiff on an outstanding warrant. On September 21, 1997, plaintiff
was arrested for disorderly conduct by Officers McCarthy and Bullington. The ensuing criminal
case relating to that arrest was dismissed with leave to reinstate on November 10, 1997.

Plaintiff was taken into custody in December 1997. On April 2, 1998, attorney Daniel
Alexander filed an appearance in criminal court on plaintiff's behalf. On or before October 5,
1998, Alexander filed a motion to suppress in connection with the charges stemming from
plaintiff's July 14, 1997, arrest, arguing lack of probable cause. Alexander also filed a second

motion to suppress with respect to the VOP charge, which incorporated the October 5, 1998,



Although plaintiff admits that his discussion with his criminal defense attorney addressed
the prosecutor dropping the May 12 charges and plaintiff pleading guilty to the June 8 charges,
plaintiff maintains that “[t]here was never any agreement to drop the May 12, 1997, charge in
exchange for the plea on the June 8, 1997, case.” Plaintiff further asserts in his affidavit that he
“heard ASA Clauss tell Brandstrader that he knew the May 12, 1997 case ‘was not a good case’

and that he didn’t ‘think [he] could win it.”

The Officers maintain that plaintiff's self-serving affidavit, unsupported by the record, is
inadmissible to create an issue of fact and fails to meet the evidentiary standards for admissible
testimony. Further, the Officers argue that “what plaintiff's criminal defense attorney told
plaintiff is irrelevant both as to the reasons why the prosecutor moved to nolle the May 12, 1997
charges and the undisputed actual terms of the plea agreement between the prosecutor and the

criminal defense attorney.”

As noted earlier, plaintiff bears the burden of demonstrating that the circumstances
surrounding the entry of the nolle prosequi order were consistent with his innocence. The court
concludes that plaintiffs affidavit, specifically paragraphs 4, 5 and 6 thereof, does not refute the
undisputed terms of the agreement between the prosecutor and Brandstrader, which were that the
prosecutor would drop one of the two remaining charges against plaintiff in return for a guilty
plea on the other charge. Whether or not Brandstrader communicated this agreement to his client
goes to whether the plea was knowing and voluntary, rather than whether the nolle prosequi was
entered for reasons consistent with plaintiff's innocence. This conclusion is bolstered by the fact
that the criminal court also concluded that there was probable cause as to the May 12 arrest, and
that the court entered the nolle prosequi only after plaintiff pled guilty to the June 8 charges. Put

20


5. TIED

The Officers contend that plaintiff's IIED claim is time-barred for the same reasons as
plaintiff's malicious prosecution claim. Plaintiff, relying on the court’s opinion in Evans I,
maintains that his ITED claim is timely.

In Evans I, this court stated, “Plaintiff's ITED claim incorporates the same conduct of the

Officers that supports his [] malicious prosecution claim. Thus, as with plaintiff's malicious
prosecution claim, ‘the clock did not start running on plaintiffs intentional infliction of

emotional distress claim until the state criminal proceedings were terminated.’” (Quoting Treece

y. Village of Naperville, 903 F. Supp. 1251, 1259 (N.D.IIL. 1995).) Of course, as noted earlier,
the factually developed record demonstrates that the criminal proceedings at issue in the instant
case were not resolved in plaintiff's favor. Accordingly, the Officers’ conduct with respect to the
criminal proceedings (specifically, their arrests of plaintiff and their subsequent testimony in
resulting criminal proceedings), cannot properly be characterized as extreme and outrageous

conduct that would support a claim for emotional distress. See Public Finance Corp. v. Davis

360 N.E.2d 765, 767 (Ill. 1976) (“Liability [for intentional infliction of emotional distress] has
been found only where the conduct has been so outrageous in character and extreme in degree as
to go beyond all possible bounds of decency.") (Quoting Restatement (Second) of Torts § 46,

comment D (1965).)

As for the alleged harassment and strip searches of plaintiff, those claims accrued back in
1997, more than two years before the filing of the instant suit. Plaintiff's ITED claim arising from

those incidents is therefore barred by the applicable one-year statute of limitations under the

22


complaints against the Officers, and (4) plaintiff's release from custody - with his alleged
inability to speak out regarding his cousin’s death and the alleged harassment that took place
during 1997. Accordingly, plaintiff may not invoke the 2001 incident as a continuing violation

to resuscitate his otherwise untimely claims.

Although the court held in Evans III that it was “conceivable” that plaintiff would be
able to establish a continuing violation, and thus denied defendants’ motion to dismiss plaintiff's
First Amendment claim, that decision was animated by the liberal federal pleading standards
applied to motions to dismiss. As noted earlier, to survive a motion for summary judgment, in
contrast, plaintiff must come forward with some evidence that creates a triable issue of material

fact, which he has failed to do.

The fact that the criminal proceedings instituted against plaintiff continued through early
2001 does not compel a contrary outcome. Plaintiff maintains that, like his malicious
prosecution claim, he must plead that the criminal proceedings were terminated in his favor in
order to state a First Amendment retaliation claim against the Officers, and thus the statute of
limitations does not begin to run until the prosecutions are abandoned or terminated. The court

disagrees.

Although the parties have not cited to any controlling precedent articulating the elements
of a First Amendment retaliation claim in the context of a criminal prosecution, the Seventh
Circuit has stated on more than one occasion that “an act in retaliation for the exercise of a
constitutionally protected right is actionable under Section 1983 even if the act, when taken for a

different reason, would have been proper.” Buise v. Hudkins, 584 F.2d 223, 229 (7" Cir. 1978);

17



L Collateral Estoppel

The Officers maintain that plaintiff is collaterally estopped from litigating his RICO, First
Amendment, and IIED claims in the instant case because he already litigated those issues in
connection with the criminal proceedings brought against him. According to the Officers:

[Plaintiff’s] Motion to Suppress raised the issues of harassment, intimidation and

retaliation for plaintiff being a witness against the Officers in connection with Ms.

Perkin’s death. In denying the Motion to Suppress, the criminal court necessarily

rejected the claims of a pattern of harassment, intimidation or retaliation for being

a witness against the Officers... All plaintiff does here is convert his Motion to

Suppress into a federal complaint, cloaking it with the language of RICO, First

Amendment, and IIED. Asserting the same issues as a different cause of action

does not preclude application of collateral estoppel; it is the essence of collateral

estoppel.

Under Illinois law, a party is precluded from relitigating an issue in a subsequent
proceeding when: (1) the party against whom the estoppel is asserted was a party to the prior
adjudication; (2) the issues which form the basis of the estoppel were actually litigated and
decided on the merits in the prior suit; (3) the resolution of the particular issues was necessary to
the court’s judgments; and (4) those issues are identical to the issues raised in the subsequent
suit. Cook County v. Midcon Corp., 773 F.2d 892, 898 (7" Cir. 1985).

Plaintiff does not dispute that he was a party to the prior adjudication, or that the instant
suit involves many of the same issues of harassment and retaliation about which the criminal
court heard extensive testimony. Rather, plaintiff emphasizes that he filed two distinct motions
to suppress in criminal court: (1) the October 5, 1998, motion to suppress with respect to the
July 14, 1997, PCS charge, and (2) his subsequent motion to suppress with respect to the VOP

charge. The first suppression motion, relating to the July 14, 1997, charge, was based on a lack

of probable cause and was ultimately denied on February 25, 2000. The subsequent motion to


minimum sentence on the plea. As is my duty and obligation, I informed my

client of the plea negotiations and offer. After talking to my client, I related to

Mr. Clauss that Mr. Evans agreed to plead guilty to the June 8 charge.

Plaintiff does not dispute that on March 17, 2000, he pled guilty to the June 8 charge and
that Clauss subsequently moved to nolle prosequi the May 12 charge.’ Plaintiff was then
sentenced to four years upon the recommendation of the parties, which was the minimum
allowable sentence. Notwithstanding Clauss’ and Brandstrader’s affidavits to the contrary,
however, plaintiff disputes that there was any agreement to drop the May 12, 1997, charge in
exchange for the plea in the June 8, 1997, charge. Plaintiff was given credit for time served and
was released on March 17, 2000.

Plaintiff was unemployed from 1994 through the time of his incarceration. After his
release, however, he obtained employment and is currently earning $250 per week.

Alexander charged plaintiff $10,000 in fees to resolve all pending criminal charges,
including the VOP charge, without reference to specific cases. Plaintiff has not yet paid
Alexander’s fees, however, had no written fee agreement, and has not received any bills or
invoices.

Brandstrader also charged plaintiff $13,500 in fees. According to Brandstrader’s
affidavit, he agreed to charge plaintiff a set fee of $10,000 for all four pending criminal matters,

but did not itemize or attribute any portion of the fees to a particular charge. Brandstrader further

noted that none of those fees was solely attributable to the criminal charges arising out of the

According to Clauss’ affidavit, he did not move to nolle prosequi the May 12, 1997,
charges against plaintiff due to any indication of innocence. To the contrary, Clauss believes that
if the May 12, 1997, charges against plaintiff had gone to trial, it would have resulted in a
conviction against him. Indeed, plaintiff's co-arrestee on the May 12, 1997, charges was found
guilty.



motion to suppress for lack of probable cause and added allegations that the July 14, 1997, arrest
giving rise to the VOP “was part of a pattern of police harassment” against plaintiff.

After hearing testimony from several witnesses regarding plaintiff's motion to suppress
with respect to the VOP charge, the court denied the government’s motion for a directed finding
against plaintiff. That suppression motion was continued, but never decided, because the VOP
charge was withdrawn by the state on January 14, 2000, by which time plaintiff had served all of
the time allowed on his 1996 conviction. That same day, the court entered an order resolving the
VOP charge as “PTU,” or “Probation Terminated Unsatisfactory.”

On July 16, 1999, attorney Thomas Brandstrader filed an appearance with the criminal
court, substituting for Alexander. On February 25, 2000, Brandstrader argued the October 5,
1998, motion to suppress for lack of probable cause with respect to the July 14, 1997, arrest,
which was denied. After a bench trial, during which Brandstrader did not put on any witnesses
and stipulated to the facts that the criminal court heard regarding the motion to suppress, the
criminal court found plaintiff guilty of the July 14, 1997, charges. Brandstrader subsequently
appealed the conviction (specifically the denial of plaintiffs motion to suppress), which was
affirmed by the state appellate court.

Brandstrader and Assistant State’s Attorney Brian Clauss then entered into plea
negotiations regarding the May 12, 1997, and June 8, 1997, charges. According to
Brandstrader’s affidavit:

[Mr. Clauss] offered to allow my client to plead guilty to either one of the

remaining two charges (the June 8 or the May 12 charges), and that after the guilty

plea, Mr. Clauss would move for a nolle prosequi on the other charge. Mr. Clauss

offered to allow my client to choose on which of the remaining two charges Mr.
Evans would plead guilty. The prosecutor also offered to recommend the


Matzker v. Herr, 748 F.2d 1142, 1150 (7" Cir. 1984) (limited on other grounds). Thus, to state a
claim for retaliation in violation of the First Amendment, a complaint need not allege that the
proceedings were unsupported by probable cause or that criminal proceedings were terminated in
plaintiff's favor. See, e.g., Lackey v. County of Bernalillo, No. 97-2265, 1999 WL 2461, at *3
(10th Cir. Jan. 5, 1999) (“To prevail on a claim of unconstitutional retaliation in violation of the
First Amendment, a plaintiff must establish (1) he was engaged in constitutionally protected
activity, (2) defendant's actions caused him to suffer an injury that likely would chill a person of
ordinary firmness from continuing to engage in that activity, and (3) defendant's adverse action
was substantially motivated as a response to the plaintiff's exercise of constitutionally protected
conduct.”).’ The statute of limitations on plaintiff's First Amendment retaliation claim therefore
began to run prior to the termination of the criminal proceedings against him, and the Officers are
entitled to summary judgment on Count II.

4. Malicious Prosecution

To prevail on his claim of malicious prosecution under Illinois law,’ plaintiff must
establish that: (1) the defendant(s) brought the underlying suit maliciously and without probable

cause; (2) the action terminated in a manner favorable to plaintiff; and (3) the plaintiff suffered

Even assuming arguendo that termination of proceedings in his favor is a required
element of a First Amendment retaliation claim in the instant context, as discussed in Section 4
(below), the record demonstrates that none of the criminal proceedings in the instant case was
terminated in plaintiff's favor: the July 14, 1997, arrest resulted in a conviction; plaintiff pled
guilty to the June 8, 1997, charges; the prosecutor entered a nolle prosequi with respect to the
May 12, 1997, charges; and the VOP charge was withdrawn after plaintiff had already served the
maximum time allowed under his 1996 conviction.

°In Evans I, the court dismissed all claims for malicious prosecution except for state law
claims based upon the May 12, 1997, charge and the VOP charge. See Evans J, 2001 WL
1028401, at *9 (citing Newsome v. McCabe, 256 F.3d 747 (7" Cir. 2001)).

18



officer then said, “I’m going to catch that fucking guy.” The Officers deny these statements,
however.

As noted earlier, plaintiffs second amended complaint asserts RICO, First Amendment,
malicious prosecution, and IIED claims against the Officers and City arising from the facts
described herein. The Officers have moved for summary judgment on all of plaintiff's claims
against them pursuant to Fed. R. Civ. P. 56. Specifically, the Officers maintain that: (1) under
the principles of collateral estoppel, the Officers are entitled to summary judgment with respect
to plaintiff’s RICO, First Amendment, and IIED claims; (2) plaintiff has not suffered a “business
injury” and thus lacks standing to assert a RICO claim, and has otherwise failed to establish the
“pattern of racketeering” and “enterprise” elements of his RICO claim; (3) plaintiff's speech was
not regarding a matter of public concern and also was not “chilled,” both of which defeat
plaintiffs First Amendment claim; (4) neither the May 12, 1997, charge nor the VOP charge
were resolved in plaintiff's favor, defeating plaintiff's claim of malicious prosecution with
respect to those charges, and (5) plaintiff's First Amendment and IIED claims are time-barred.

DISCUSSION

A movant is entitled to summary judgment under Fed. R. Civ. P. 56 when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits, show
that there is no genuine issue of material fact and the movant is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Admissible

evidence must be evaluated in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc,

477 US. 242, 255 (1986).


“
Minute Order Form (06/97)

‘i y \p United States District Court, Northern District of Minois

Name of Assigned Judge Sitting Judge if Other

or Magistrate Judge Robert W. Gettleman than Assigned Judge

CASE NUMBER 00 C 7222 DATE] September 26, 2003
CASE Ronnie Evans v_ City of Chicago, et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motiondue
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) o Hearing
(5) im) Status hearing
(6) Oo Pretrial conference[held/continued to] [sct for/re-set for] on set for at
(7) oO Trial[set for/re-set for] on at
(8) a {Bench/Jury trial] [Hearing] held/continued t to at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OGeneralRule21 CIFRCP41(a)(1) CIFRCP41(a)(2).

ao) [Other docket entry]

Memorandum opinion and order entered. Defendant Officers’ motion for summary
judgment is granted in its entirety, resolving counts I, II, IV and V of plaintiff’s second
amended complaint. The Court also grants summary judgment to defendant City with
respect to count III]. Defendant Officers’ motion to strike affidavit is denied as moot.

aly {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

notices required.
No notices req umber of notices

X_ | Notices mailed by judge’s staff. SEP 2003

Notified counsel by telephone.

date dockered,

Docketing to mail notices,
Mail AO 450 form.

ocketing dMpuly initials

Copy to judge/magistrate judge.

~ uy dare mailed notice
courtroom cs FAI ud
GDS deputy’s
initials :
\Date/time receiyed in’ *
central Clerk's Oftee railing dopuy initials



Section 1962(d) provides that “it shall be unlawful for any person to conspire to violate

any of the provisions of subsection (a), (b), or (c) of this section.”

In order to have standing under RICO, plaintiff must have sustained an injury to his
business or property that was proximately caused by some act of the Officers that was an “act of
racketeering or otherwise unlawful under [RICO].” Beck v. Prupis, 529 U.S. 494, 495 (2000).

See also 18 U.S.C. § 1964(c) (conferring RICO standing on any person “injured in his business

or property by reason of a violation of Section 1962"). In Evans I, this court held that plaintiff's

allegations that he lost thousands of dollars in wages while he was incarcerated and that he had to
pay thousands of dollars in attorneys’ fees as a result of defendants’ conspiracy constitute
“injuries to plaintiff's property that can be shown to have been proximately caused by the

Officers’ allegedly unlawful conduct.” Evans I, 2001 WL 1028401, at *5.

With the benefit of discovery, the Officers now maintain that plaintiff cannot prove any
actual loss of income due to his incarceration and that lost income potential cannot establish
RICO standing. The court agrees. Plaintiff does not dispute that he was not gainfully employed
during the three years before his 1997 incarceration. Thus, any alleged loss of income resulting
from plaintiff's incarceration is speculative, at best. Because it is well-established that RICO
claims must be based on concrete, rather than speculative, injuries, plaintiff’s lost income
potential based on earnings since his release is insufficient to confer RICO standing. See, e.g.,

Steele v. Hospital Corp. of America, 36 F.3d 69 (9" Cir. 1994) (“[S]peculative injuries do not

serve to confer standing under RICO, unless they become concrete and actual.”); Anderson v.

Lincoln Insurance Agency, Inc., 2003 WL 291928, at *3 (N.D.Ill. Feb. 10, 2003) (“Plaintiffs

cannot allege any out-of-pocket or other concrete financial loss and, thus, have no standing under

11



suppress, relating to the VOP charge, incorporated the former motion to suppress and included
additional allegations of harassment and retaliation.

Although the criminal court held multiple, protracted hearings with respect to the motion
to suppress in the VOP case and the related allegations of harassment and retaliation, the court
never reached the merits of that motion because the VOP charge was withdrawn. Accordingly,
the issues of harassment and retaliation which form the basis of the Officers’ assertion of
collateral estoppel were never decided on the merits.* Thus, plaintiff is not collaterally estopped
from raising those issues in the instant case.

2. RICO

The Officers contend that they are entitled to summary judgment with respect to
plaintiff's RICO claim because: (1) plaintiff has not suffered a “business injury” sufficient to
confer RICO standing; (2) plaintiff has not demonstrated that Officers Hofer, Hladick, Green and
Smith each committed two predicate acts; and (3) plaintiff has not produced sufficient evidence
of a RICO “enterprise” or “pattern of racketeering activity.” Because the first issue is
dispositive, the court declines to address the other issues raised by the Officers.

In his second amended complaint, plaintiff bases his RICO claim on 18 U.S.C. §§
1962(c) and (d). Section 1962(c) makes it unlawful for,

any person employed by or associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or collection of unlawful debt.

‘ Although the criminal court never conclusively reached the merits of plaintiffs motion
to suppress with respect to the VOP charge, it bears emphasizing that the criminal court actually
denied the government’s motion for a directed finding at the close of plaintiff's argument with
respect to that motion.

10



May 12, 1997, arrest that Clauss moved to nolle prosequi. Rather, Brandstrader’s work “applied
either to the trial arising out of the July 14 charges, or to the consolidated criminal charges as a
whole.” Brandstrader received a $10,000 check for these fees from plaintiff's aunt. Plaintiff
further incurred a subsequent fee of $3,500, which was attributable to an (ultimately
unsuccessful) appeal of the conviction arising from July 14, 1997, charge, which was never paid
to Brandstrader. At his deposition, Brandstrader acknowledged that had there been only one case
pending against plaintiff, as opposed to four, it is “fair to say” that his fee would have been
lower.

At unspecified times, plaintiff complained about the Officers’ treatment of Perkins and/or
himself to the FBI, Operation Push, Congressmen Danny Davis and Bobby Rush, and the U.S.
Attorney. Plaintiff provided statements to OPS on May 16, 1997, and August 26, 1997,
regarding his May 12, 1997, arrest and the Spring 1997 strip search incident. Plaintiff also
appeared on television in 2002 with his attorney to talk about his allegations in the instant case.
Although plaintiff maintains that “he was never intimidated into changing his version of the
killing of his cousin or the harassment of himself, and he never withdrew his complaints against
the defendant officers,” plaintiff asserts that his 28-month incarceration limited his ability to
speak out.

According to the affidavit of Jerome Hudson, whose relationship to plaintiff is unclear, in
September 2001, two police officers approached Hudson on his porch, grabbed, him, handcuffed
him, and asked him, “Have you seen Ronnie?” When Hudson asked, “Who is Ronnie?” the

heavyset officer yelled at him, “Don’t play with me.” According to Hudson’s affidavit, the



simply, plaintiff has not offered evidence that would create a triable issue of material fact as to

whether the May 12 charges were nolled for reasons consistent with his innocence.

The court draws the same conclusion with respect to plaintiff's VOP charge. As noted
earlier, the prosecutor testified that the VOP charge was withdrawn by the government on
January 14, 2000, because, by that time, plaintiff had already served all of the time allowed on
his 1996 conviction. Rather than refuting the prosecutor’s testimony on that issue, plaintiff
submitted portions of Brandstrader’s deposition testimony, which were consistent with the
account provided by the prosecutor.'° Further, after withdrawal of the VOP charge, the court
entered an order resolving the VOP charge as “PTU,” or “Probation Terminated Unsatisfactory.”
Viewing the record as a whole, no reasonable jury could conclude that the circumstances
surrounding the withdrawal of the VOP charge were consistent with plaintiff’s innocence.

It is also worth noting that plaintiffs July 14, 1997, arrest subsequently resulted in a
conviction, and plaintiff also pled guilty to the June 8, 1997, PCS charges against him. Although
the VOP charge was withdrawn prior to those dispositions, it is undisputed that plaintiff in fact
violated the terms of his probation. Thus, as to his VOP charge, plaintiff has also failed to
establish the first element of his malicious prosecution claim, namely that the VOP charge was
brought without probable cause. The Officers are therefore entitled to summary judgment on

Count IV.

‘According to Brandstrader, the prosecutor told him off the record that the State
withdrew the VOP charge because “[t]he probation is over with - already over with, something
like that.”

21


Bullington ordered him to take off his clothes and that Officer Coyle or Officer Kozenko spread
plaintiffs buttocks and shined a flashlight up his anus.

On May 12, 1997, Officers McCarthy, Bullington, Coyle and Kozenko arrested plaintiff,
Doris Jones, and Anthony Gray and charged them with possession of a controlled substance
PCS”). Plaintiff maintains that, during that arrest, Bullington, Coyle, and Kozenko physically
abused him, and then beat him in the parking lot of the police station. According to plaintiff,
after his arrest, he was stripped naked and beaten in the 11" District police station, Plaintiff
further maintains that Officer Bullington then took him around the station and told officers in the
station that plaintiff likes to go on television and that they should arrest him whenever they see
him.

Plaintiff was released on bond shortly thereafter. On June 10, 1997, the criminal court
found probable cause for the May 12, 1997, arrests of Jones and plaintiff. In approximately May
or June 1997, Officer Hofer stopped plaintiff and questioned him about his relationship to the
Perkins family. In his affidavit, plaintiff states that Officer Hofer frisked him and questioned him
about the lawsuit during this encounter. Plaintiff further testified at his deposition that in late
May or early June of 1997, Officers McCarthy and Bullington approached plaintiff while he was
on his front porch drinking beer and then spilled out his beer. According to plaintiff, Officer
Bullington also made a motion as though he was going to hit plaintiff but stopped himself.

On June 8, 1997, Officer Hladick, a beat officer assigned to the 11" District, arrested
plaintiff for PCS. Shortly thereafter, plaintiff claims that Officers Hladick and one of his partners
drove down plaintiff's crowded street and announced over their loudspeaker, “Ronnie Evans, we

are coming to get you.”


As noted earlier, RICO standing must be based on concrete, rather than speculative,
injuries. Aside from his own affidavit,’ plaintiff has not provided any fee agreements, itemized
bills, or testimony from Alexander or Brandstrader to support his assertion that his fees would
have been lower if there had been three, rather than four, charges brought against him. Although
the court is mindful of its obligation to draw all reasonable inferences in plaintiffs favor
regarding the instant motion for summary judgment, plaintiff must still produce sufficient
evidence to create a genuine issue of material fact to defeat the motion. Plaintiff's self-serving
affidavit, unsupported by evidence in the record, is certainly not sufficient to defeat summary

judgment. See, e.g., Shank v. William R. Hague, Inc., 192 F.3d 675 (7" Cir. 1999) (plaintiff's

affidavit insufficient to create a genuine issue of material fact in absence of evidence in the

record to support the assertions contained therein); Karazanos v. Navistar Intern. Transp. Corp.

948 F.2d 332, 337 (7" Cir. 1991)(“[A] plaintiff's speculation is not a sufficient defense to a
summary judgment motion.”). Accordingly, the Officers’ motion for summary judgment is

granted with respect to plaintiff's RICO claim.

‘Specifically, paragraph 7 of plaintiff's affidavit, which addresses his incurred attorneys’
fees, provides: “The $10,000 legal fee which was paid to Brandstrader (which I borrowed from
my aunt) was intended to cover three jury trials and the VOP case. Brandstrader appeared in
court several times on all four pending charges before putting on the suppression hearing relative
to the July 14, 1997 arrest. Had there been less than four cases pending, I would have paid
Brandstrader less money. The $10,000 legal fee to Alexander was for all four cases and
compensated him for the many court appearances and pleadings he filed with respect to all four
cases against me. Had there been less than four cases, I would have incurred less than a $10,000
debt to attorney Alexander.” Yet, when plaintiff took Brandstrader’s deposition, plaintiff's
attorney asked him only whether his fee would have been lower had there been only one case
involved (as opposed to three), to which Brandstrader replied, “I guess that’s fair to say. Yes.”
Accordingly, plaintiff's affidavit, which implies that Brandstrader’s fee would have been less had
there been three cases rather than four, is unsupported by the record.

14


then supplying testimony in support of, baseless claims designed to retaliate
against him for exercising his constitutional right to speak freely about a matter of
public concern. [Emphasis added.]

The only incident in 2001 regarding the Officers’ alleged harassment of plaintiff involved
plaintiff's acquaintance, Jermaine Hudson. According to Hudson’s affidavit, two (unnamed)
uniformed police officers approached him on his porch, asking if he had seen plaintiff. When
Hudson asked who plaintiff was, one of officers said, “Don’t play with me.... I’m going to catch

that fucking guy.”

The continuing violation doctrine is not a tolling mechanism, but rather governs the time
at which a cause of action accrues. Heard v. Sheahan, 253 F.3d 316, 319-320 (7" Cir. 2001).
“The continuing violation doctrine applies when the unlawfulness of defendant's actions becomes
apparent only after the cumulation of a series of related events; it does not apply to a series of
related, but discrete, discriminatory acts.” Patterson v. County of Cook, 2003 WL 21418337, at
*2 (N.DIIIL June 17, 2003) (citing Clark v. City of Braidwood, 318 F.3d 764, 767 (7" Cir. 2003);

Tinner v. United Ins. Co. of Am., 308 F.3d 697, 708-09 (7th Cir. 2002)).

In the instant case, plaintiff was on notice that his First Amendment rights were allegedly
being violated back in 1997 when he was stopped, arrested, and harassed. Indeed, plaintiff filed
a motion to suppress with respect to his VOP charge in October 1998, essentially raising
identical allegations of harassment and retaliation as those at issue in the instant case. Aside
from alleging that the 2001 incident occurred, and providing Hudson’s affidavit in support
thereof, however, plaintiff has failed to produce any evidence connecting the 2001 incident -
which occurred after, (1) the termination of the Perkins’ lawsuit in which plaintiff testified, (2)

the termination of the criminal proceedings brought against plaintiff, (3) plaintiff's filing of

16



FACTS’

On September 6, 1996, plaintiff was convicted of possession of a controlled substance
(“PCS”) and received a sentence of probation for twelve months. Plaintiff knew that if he
violated the conditions of his probation (by committing another crime, for example), his
probation could be revoked and he could be remanded to jail on his 1996 PCS conviction.

On March 22, 1997, plaintiff's cousin, Frankie Ann Perkins, died while being taken into
police custody for a drug offense by two of the defendants, Officers McCarthy and Hofer.
Plaintiff subsequently appeared on a local news program and claimed that he had witnessed
police officers strangle his cousin to death. The Chicago Police Department then opened an
investigation into Perkins’ death, which was converted into an investigation by the Office of
Professional Standards (“OPS”). On September 2, 1997, plaintiff made a statement to OPS,
stating that the arresting officers had struggled with his cousin, choked her and dragged her.

On April 7, 1997, the Estate of Frankie Ann Perkins filed a lawsuit against the City of
Chicago and Officers Hofer and McCarthy, which was dismissed on September 20, 1999,
pursuant to a settlement agreement. In April 1997, approximately two weeks after Perkins’
death, Officers McCarthy and Bullington stopped plaintiff and asked him why he lied on
television. Approximately two weeks later, Officers McCarthy and Bullington stopped plaintiff
on the block where he lived and put him against a fence, searched him and stated that they knew
he was on probation. Within a month of Perkins’ death, Officers McCarthy, Bullington, Coyle

and Kozenko pulled up to a vacant lot adjacent to plaintiff's home. Plaintiff asserts that Officer

Unless otherwise noted, the following facts, taken from the parties’ L. R. 56.1
Statements and attached exhibits, are not in dispute.

2


p

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RONNIE EVANS,

Plaintiff,
No. 00C 7222
Vv.
Judge Robert W. Gettleman
CITY OF CHICAGO, and Chicago Police Officers
JOSEPH MCCARTHY, Star 7818, ROBERT
HOFER, Star 3860, R. BULLINGTON, Star 8684,
MICHAEL KOZENKO, Star 7577, J. HLADICK,
Star 18980, RICHARD COYLE, Star 13046,
MARK SMITH, Star 12935, and TONY GREEN,
Star 18670,

we SSS ES SS Sree

Defendants. ¥ :
<p 2608
MEMORANDUM OPINION AND ORDER )

In his second amended complaint,' plaintiff Ronnie Evans seeks damages against
eight Chicago police officers (collectively “the Officers”) and the City of Chicago (“the City”),
alleging: (1) racketeering activity in violation of The Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§1961-1968, against the Officers (Count I); (2) violations
of his First Amendment rights against the Officers and the City (Counts II and III, respectively); (3)
a state law claim for malicious prosecution against the City and the Officers (Count IV); and (4) a
state law claim for intentional infliction of emotional distress (“IIED”) against the City and the
Officers (Count V). The Officers have moved for summary judgment on Counts I, II, IV, and V.

For the reasons stated herein, the Officers’ motion is granted in its entirety.

'The procedural history of the instant case is chronicled in Evans v. City of Chicago, No.
00C7222, 2001 WL 1028401 (N.D.II. Sept. 6, 2001) (“Evans I”), Evans v. City of Chicago, No.
00C7222, 2001 WL 1654769 (N.D.IU. Dec. 20, 2001) (“Evans II”), and Evans v. City of
Chicago, No. 00C7222 (N.D.III. January 18, 2002) (order denying defendant City of Chicago’s
motion to dismiss plaintiff's First Amendment claim) (“Evans III”).

\\r



RICO.”); Pelfresne v, Village of Rosemont, 22 F. Supp. 2d 756, 765 (N.D. II]. 1998) (Plaintiffs

may not establish RICO standing by “rely[ing] on injuries that have not yet occurred.”).

Whether plaintiff's incurred attorneys’ fees are sufficient to confer RICO standing is a
more difficult question, however. According to plaintiff, he would owe less in attorneys’ fees
had there been fewer cases pending against him. The Officers respond, “Plain and simple,
plaintiff cannot prove that he incurred any attorneys’ fees exclusive of the June 8, 1997, July 14,
1997 or VOP charges, all resolved against plaintiff. Since the fees cannot be separated from fees
incurred on plaintiff’s valid convictions, the fees cannot confer standing for RICO.”

Plaintiff concedes that he did not incur attorneys’ fees as a result of the numerous
incidents of harassment that did not result in the filing of criminal charges against him. Further,
plaintiff apparently acknowledges that fees incurred as a result of lawful convictions -
specifically, his conviction relating to his July 14, 1997, arrest and his guilty plea relating to his
June 8, 1997, arrest - do not qualify as a business injury sufficient to confer RICO standing.*
Thus, the question that the court must resolve is whether the fees relating to the two charges
against plaintiff which did not result in convictions - specifically, (1) the VOP charge which was
withdrawn and resulted in the entry of a “PTU,” and (2) the May 12, 1997, charge which was

nolled - establish RICO standing.

Plaintiff admits that he violated his probation by committing a crime during the

probationary period. See also 730 ILCS 5/5-6-3(a)(1) (“The conditions of probation and of

conditional discharge shall be that the person: (1) not violate any criminal statute of any

According to plaintiff, “The jury can decide how much of the fees incurred are related to
the RICO activity and how much are related to the two cases where convictions resulted.”

12


3. § 1983/First Amendment

According to the Officers, plaintiff's First Amendment claim fails because it is barred by
the statute of limitations.’ Section 1983 claims arising in Illinois are governed by a two-year
statute of limitations. Kelly v. City of Chicago, 4 F.3d 509, 511 (7" Cir. 1993). Plaintiff does
not dispute that, aside from criminal court proceedings, he did not have any contact with the
defendant Officers since 1997. Rather, relying on this court’s decision in Evans IIL, plaintiff
maintains that he has established a continuing course of conduct by the Officers which persisted
through September 2001. Plaintiff also maintains that “the conduct complained of includes that
plaintiff was targeted for prosecution because of his speech, thus the statute does not start to run
until the prosecutions are abandoned or terminated.” For the reasons stated below, the court
concludes that both of plaintiff's arguments are without merit.

In Evans IIL the court denied defendants’ motion to dismiss plaintiffs First Amendment

claim on statute of limitations grounds. In that opinion, the court stated:

According to the City, plaintiff's claims accrued at the various times he was
arrested and, because more than two years elapsed from those dates to the date the
instant suit was filed, his First Amendment claim is time-barred. Plaintiff
responds that by adding an allegation in his second amended complaint of
unlawful conduct on the part of defendants in November 2001, plaintiff has
alleged a “continuing course of conduct by ... defendants,” which allows him to
reach back and seek redress for defendants’ 1997 conduct. Assuming that all of
plaintiff's allegations are true (as the court must at this stage), the court finds it
conceivable that plaintiff will be able to establish that defendants continually
violated his First Amendment rights by arresting him for, charging him with, and

"The Officers also argue that plaintiff has not produced evidence that his speech was in
fact “chilled” as a result of the Officers’ alleged harassment of him. Because the court concludes
that the statute of limitations issue is dispositive with respect to plaintiff's First Amendment
claim, it declines to reach the merits of the Officers’ argument regarding the chilling effect of
their actions on plaintiff’s speech.

15