government violated their rights to due process.

Second, defendants urge the Court to dismiss plaintiffs’ false arrest and excessive force
claims based on the Fourth Amendment as time-barred. Plaintiffs opine that this Court
addressed the issue in its Memorandum Opinion and Order of March 28, 2005 when it denied
defendants’ motion to dismiss such claims as untimely and relied on Gauger v. Hendle, 349 F.3d
354, 361-62 (7th Cir. 2003). Subsequently, however, in Wallace v. City of Chicago, 440 F.3d
421, 427 (7th Cir. 2006), the Seventh Circuit held that section 1983 claims for false arrest based
on the Fourth Amendment accrue on the day of the arrest and overruled Gauger to the extent that
Gauger “eschew[ed] a clear rule for false arrest claims in favor of an evaluation of the
evidence.” Jd.

Reading Ollins and Saunders’ Second Amended Complaint and Bradford’s Amended
Complaint in light of Wallace, the Court holds that plaintiffs’ false arrest and excessive force
claims based on the Fourth Amendment and any conspiracy allegations based thereon are time-
barred unless equitable tolling saves the claims. See Wallace, 440 F.3d at 427 (reserving
judgment as to whether equitable tolling is available); see also id. at 432 (Posner, J., dissenting
from denial of reh’g en banc) (intimating that tough cases “will be fought out as equitable tolling
cases rather than accrual cases”). Under Illinois’ equitable-tolling rules, which govern plaintiffs’
section 1983 claims, see, ¢.g., Johnson vy. Rivera, 272 F.3d 519, 521 (7th Cir. 2001), the
limitations period is tolled during the period of time in which the defendant fraudulently
conceals the cause of action from the plaintiff, 735 ILL. Comp. STAT. 5/13-215, In addition,
“[e]quitable tolling of a statute of limitations may be appropriate in circumstances where: a
defendant has actively misled the plaintiff; the plaintiff has, in some extraordinary way, been
prevented from asserting her rights in a timely manner; or the plaintiff asserted her rights

mistakenly in the wrong forum.” Weatherly v. Ill. Human Rights Comm'n, 788 N.E.2d 1175,


against defendants would likely require at least some additional fact discovery in this case,
which is now closed and, as stated by the Court in its Order of January 5, 2006, shall not be
extended.

Further, the Ollins, Saunders, and Bradford’s re-packaging of their section 1983 claims is
unnecessary. The Ollins and Saunders’ Second Amended Complaint and Bradford’s Amended
Complaint were sufficient under Rule 8(a) standards to put each defendant on notice of all of the
section 1983 claims asserted in the proposed amendments to plaintiffs’ complaints, which are
now subject to the limitations discussed below.

In addition, Ollins, Saunders, and Bradford seek to amend their complaints by omitting
facts, such as the fact that Ollins had “beaten and sodomized another youth and spent time in
juvenile detention” (Ollins and Saunders’ Second Am. Compl. 4 49), that Saunders had a
juvenile sex charge and several minor theft charges (id. J 158), that Bradford was arrested for
possession of stolen goods (Bradford’s Am, Compl. { 63). Removing these facts and others at
this late stage unduly prejudices defendants because they relied on these admissions during the
discovery process and are now foreclosed from pursuing discovery as to those facts. The Court
therefore denies Ollins and Saunders’ motion for leave to file a Third Amended Complaint and
Bradford’s motion for leave to file a Second Amended Complaint.

Defendants’ response to the motions for leave to amend the complaints raises additional
issues regarding plaintiffs’ claims that had been pleaded in the previous complaints as well as the
proposed amendments. The Court addresses each in turn.

First, defendants correctly argue that to the extent that plaintiffs based their claims solely
on the due process clause of the Fifth Amendment, such claims must be stricken. The due
process clause of the Fifth Amendment applies to federal, not state, actors, see Monitor v. City of

Chi., 653 F. Supp. 1294, 1299 (N.D. Ill. 1987). Plaintiffs have not alleged that the federal


1180 (Ill. App. Ct. 2003).

Because the Court can conceive of a set of facts upon which equitable tolling could apply
to plaintiffs’ false arrest claims, Wallace does not dictate the dismissal of such claims at this
time. Plaintiffs allege that defendants fraudulently concealed, among other things, that
witnesses’ statements implicating L. Ollins, Saunders, and Bradford were wholly fabricated by
defendants. Plaintiffs are free to address the equitable tolling doctrine and submit evidence to
support its application in their summary judgment submissions.

However, equitable tolling does not save plaintiffs’ claims for excessive force,
“attempted” coerced confession as to Ollins and Saunders (which in essence is the same claim as
excessive force where a confession is not obtained), and coerced confession as to Bradford. It
would be impossible for defendants to fraudulently conceal any facts upon which such claims
are based because each plaintiff was physically present when defendants purportedly used
excessive force and attempted or actually coerced a confession out of him. Thus, plaintiffs’
excessive force, “attempted” coerced confession, and coerced confession claims accrued at the
time of each of their interrogations, which occurred in the late 1980s, and Illinois’ two-year
statute of limitations has long since expired.

Third, the Court notes that the Wallace court rejected the notion that “there is a free-
standing due process claim whenever unfair interrogation tactics (short of those that may shock
the conscience and thereby implicate the Supreme Court’s substantive due process rulings) are
used to obtain a confession.” Jd. at 429. The court stated that cases, such as Newsome v.
McCabe, 256 F.3d 747, 752 (7th Cir. 2001), that have recognized procedural due process claims
based on such tactics “are grounded in traditional notions of what is required for a fair trial,
including the Brady right to be given exculpatory material.” Wallace, 440 F.3d at 429; see

Brady v. Md., 373 U.S. 83, 87 (1963).


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

LARRY OLLINS and
OMAR SAUNDERS,

Plaintiffs,
v.

PATRICK O'BRIEN, SUSAN L.
SUSSMAN, THE OFFICE OF

THE COOK COUNTY STATE’S
ATTORNEY, COOK COUNTY,
THOMAS LAHM, JOHN McHUGH,
JAMES MERCURIO, DAVID
NOWAK, JAMES MAURER,
HARRY DROCHNER, PAMELA
FISH, and THE CITY OF CHICAGO,

Defendants.

MARCELIA BRADFORD,
Plaintiff,
Vv.

PATRICK O’BRIEN, SUSAN L.
SUSSMAN, THE OFFICE OF

THE COOK COUNTY STATE’S
ATTORNEY, COOK COUNTY,
THOMAS LAHM, JOHN McHUGH,
JAMES MERCURIO, DAVID
NOWAK, JAMES MAURER,
HARRY DROCHNER, PAMELA
FISH, and THE CITY OF CHICAGO,

Defendants.

ee eee

03 C5795 (related case) ~~

03 C 7175 (related case)

Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

In these related cases, Marcelia Bradford, Larry Ollins and Omar Saunders have sued

defendants pursuant to 42 U.S.C. § 1983 (“section 1983”) for depriving them of their


Ollins and Saunders’ Second Amended Complaint and Bradford’s Amended Complaint
sufficiently put defendants on notice of substantive due process claims as well as Brady claims
based on defendants’ withholding of exculpatory information as to whether witnesses had been
coerced into implicating any of the instant plaintiffs in the underlying crime.’ Wallace, however,
requires that plaintiffs’ separately pleaded Newsome claims based on unfair interrogation tactics
substantively merge with their Brady claims based on the Fourteenth Amendment’s guarantee of

a fair trial.

CONCLUSION

For the foregoing reasons, the Court denies Ollins and Saunders’ motion for leave to file
a Third Amended Complaint [doc. no. 172-1] and Bradford’s motion for leave to file a Second
Amended Complaint [doc. no, 85-1]. Plaintiffs’ claims based solely on the Fifth Amendment’s
due process clause are stricken. Plaintiffs’ excessive force, “attempted” coerced confession and
coerced confession claims, as well as any conspiracy allegations based thereon, are dismissed as
time-barred. Plaintiffs’ separately pleaded Newsome claims merge with their Brady claims. The
Court strikes all punitive damage requests against the City or Cook County from Ollins and

Saunders’ Second Amended Complaint and Bradford’s Amended Complaint.
SO ORDERED ENTERED: 3/26/06

hub b. Bona wel

HON. RONALD A. GUZMAN /’/
United States Judge

*However, as stated in an earlier opinion in this case, a section 1983 plaintiff cannot base
his Brady claim on a defendant’s failure to disclose plaintiff's own false confession. See Ollins,
2005 WL 730987, at *18; see also Wallace, 440 F.3d at 429-30; Gauger, 349 F.3d at 360,
overruled on other grounds by Wallace, 440 F.3d at 427.

7


constitutional rights, as well as for malicious prosecution, intentional infliction of emotional
distress and indemnification under state law. Before the Court are Ollins and Saunders’ motion
for leave to file a Third Amended Complaint and Bradford’s motion for leave to file a Second

Amended Complaint. For the reasons set forth below, the Court denies the motions.

FACTS

The Court presumes knowledge of the facts of this case as provided in a previously
issued Memorandum Opinion and Order. See Ollins v. O’Brien, Nos. 03 C 5795 & 03 C7175,

2005 WL 730987, at *1-4 (N.D. Ill. Mar. 28, 2005).

SSI

If plaintiffs seek to amend the complaint after the filing of a responsive pleading, they
must either have the adverse party’s written consent or move for leave to file the amended
complaint. FED.R.Clv. P. 15(a). Leave “shall be given freely when justice so requires.” Id.
However, a court may deny leave because of “‘undue delay, bad faith[,] or dilatory motive[,] . . .
undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Park v. City of Chi., 297 F.3d 606, 612 (7th Cir. 2002) (quoting Ferguson v.
Roberts, 11 F.3d 696, 706 (7th Cir. 1993)). “Delay, standing alone, may prove an insufficient
ground to warrant denial of leave to amend the complaint; rather, ‘the degree of prejudice to the
opposing party is a significant factor in determining whether the lateness of the request ought to
bar filing.’” /d. at 613 (quoting Doherty v. Davy Songer, Inc., 195 F.3d 919, 927 (7th Cir.
1999).

As an initial matter, the Court finds that there has been undue delay in plaintiffs’

amending their complaints. More than two years after the filing of the instant related lawsuits,


plaintiffs sought leave to amend their complaints at the close of discovery. Plaintiffs concede
that the amendments are not based on any new facts unearthed during discovery, stating
“Plaintiffs acknowledge that nothing prevented them from filing this motion at an earlier time,”
(Ollins and Saunders’ Reply Br. 5), and “Plaintiff's proposed Second Amended Complaint
alleges no new facts,” (Bradford’s Mot. Leave File Second Am. Compl. 1). Because plaintiffs
provide no excuse for waiting over two years to amend their complaints based on facts of which
they knew since the inception of this litigation, the Court finds that there has been undue delay.
Although Ollins and Saunders argue that defendants will not be prejudiced by the
amendment, the Court disagrees. Their amendment of the complaint includes for the first time a
request for punitive damages as to each claim against defendants sued in their individual
capacity! as well as new state-law claims against several defendants, Adding punitive damages
and new state-law claims at this late stage in the litigation creates undue prejudice because
defendants were prevented from creating a litigation strategy as to Ollins and Saunders’ new
claims during fact discovery. See Trident Inv. Mgmt., Inc. v. Amoco Oil Co., 194 F.3d 772, 780-
81 (7th Cir. 1999); Orix Credit Alliance v. Taylor Machine Works, Inc., 125 F.3d 468, 480 (7th

Cir. 1997). Contrary to Ollins and Saunders’ assertions otherwise, adding these new claims

(Compare Ollins/Saunders’ Second Am. Compl. {{ 248, 251, 254, 257, 263, 268, 271,
282, 285, 290, with Ollins/Saunders’ Third Am. Compl. {9 92, 95, 104, 107, 110, 113, 116, 119.)
In addition to the reasons provided by the Court for denying leave to amend to add punitive
damages, the Court would also deny leave to add a request in paragraph 113(b) of
Ollins/Saunders’ Third Amended Complaint and in paragraph 94(b) of Bradford’s Second
Amended Complaint for punitive damages against the City and Cook County for alleged section
1983 violations based on futility. See Newport v. Facts Concerts, Inc., 453 U.S. 247, 271 (1981)
(stating that a municipality is immune from punitive damages in a section 1983 action).
Likewise, plaintiffs’ requests for punitive damages against the City or Cook County as to their
state-law claims of malicious prosecution and intentional infliction of emotional distress are
futile. 745 ILL. Comp. STAT. 10/2-102 (2002) (stating a “local public entity is not liable to pay
punitive or exemplary damages in any action brought directly or indirectly against it . . . .”);
(Ollins/Saunders’ Third Am. Compl. {J 116(b), 119(b); Bradford’s Second Am. Compl. {f
97(b), 100(b).)