constitution itself. Newsome I, 256 F.3d at 751; Gauger, 349 F.3d at 359 (“a false arrest
claim, as distinct from a malicious prosecution claim ... does not encounter a Newsome
problem”). Here, Patterson complains of malicious prosecution under state law, but he
also accuses defendants of violating his rights under the Fourth, Fifth, and Fourteenth
Amendments of the United States Constitution. Defendants argue that Parratt v.
Taylor, 451 U.S. 527 (1981), ought to foreclose all constitutional claims for which there
is a parallel state remedy, but this expansive reading of Parratt has been rejected by
the Seventh Circuit. McCullah, 344 F.3d at 660. The fact that Patterson’s § 1983
claims for damages overlap with his state law claims for damages does not render his
federal claims infirm. Id. See also Zinermon v. Burch, 494 U.S. 118, 124 (1990)
(‘Overlapping remedies are generally irrelevant to the question of the existence of a
cause of action under § 1983.”).

Patterson’s accusations in Count I assert a deprivation of his right to a fair trial
which is derived directly from the constitution’s guarantee of due process; as such, the
claims are not barred by Newsome I. 286 F.3d at 752 (allegation that prosecutors
withheld material exculpatory details states “a due process claim in the original sense
of that phrase”); Ienco, 286 F.3d at 999. See also Newsome II, 319 F.3d at 304 (finding
that officers’ manipulation of line-up would not by itself support damage award under
§ 1983, but obstruction of prosecutors’ and defense counsel’s ability to get at the truth

in the criminal trial does support such an award) (emphasis in original).

-19-


885, 889 (N.D. Ill 1998) (granting summary judgment for police chief on malicious
prosecution claim where it was clear from the evidence that prosecuting attorney would
have initiated charges without police chiefs involvement). Although legal causation
generally is attributed to the filing of a complaint, a defendant who was not initially
a party to an action may be found to have commenced or continued the original action
if he actively participated in the proceedings. Frye v. O'Neill, 520 N.E.2d 1233, 1240
(Ill. App. Ct. 1988) (stating that liability for malicious prosecution “is not confined to
situation where the defendant signed a complaint against the plaintiff. Rather,
liability extends to all persons who played a significant role in causing the
prosecution.”). Here Patterson asserts that Martin’s, Shines’s, Hillard’s, and
Needham’s participation in suppressing exculpatory evidence and falsifying the
findings of the investigation into police misconduct was active conduct that had a
causal effect on the continuation of the proceedings against him. The court agrees.
Patterson’s complaint alleges that Martin, Shines, Hillard, and Needham
suppressed exculpatory evidence from prosecutors, judges, and defense counsel during
Patterson’s post-conviction proceedings that was pivotal to Patterson’s attempts to
obtain post-conviction relief. Specifically, he claims that Martin “delayed, obstructed,
and otherwise undermined the OPS investigation, report, findings and conclusions;
that Shines “suppressed findings of OPS investigators that ... Area 2 detectives...
tortured and abused six suspects . . . as well as the evidence which supported these
findings”; and that Hillard and Needham obstructed justice by “overturning the OPS
findings . . . and suppressing these OPS files.” Further, Patterson alleges that the

-40-



and IIIA properly allege individual constitutional violations under § 1983, and Count Vv
alleges that the misconduct of the individual defendants which caused Patterson's
constitutional injury was undertaken pursuant to City policy. Thus, Patterson’s
Monell claim against the City of Chicago is sufficiently pleaded and defendant City of
Chicago’s motion to dismiss Count V is denied.

Next, Cook County argues that the court must dismiss the Monell claim against
jt because none of the individual defendants are under its control and it therefore
cannot be held liable for their constitutional violations. Since the City employs all but
three of the individual defendants, at issue here is whether SAO defendants Devine,
Troy, and Lacy are state officials or Cook County officials. Patterson concedes that the
Illinois Supreme Court has held state’s attorneys to be state officials, Ingemunson v.
Hedges, 549 N.E.2d 1269, 1271 (Ill. 1990), and that the Seventh Circuit has applied
Ingemunson in subsequent Monell cases to find counties not liable for misconduct
arising out of county state’s attorney's offices, see, e.g., Ryan v. County of DuPage,
45 F.3d 1090, 1092 (7th Cir. 1995). Nevertheless, he insists that this court should
“conduct its own evaluation of Illinois statutory and decisional law in the context” of
this case and draw a different conclusion. In light of ample precedent concluding that
state’s attorneys are state officials and not county employees, see, e.g., Garcia v. City
of Chicago, 24 F.3d 966, 969 (7th Cir. 1994), Buckley v. County of Dupage, No. 88 C
1939, 1996 U.S. Dist. LEXIS 162, at *24 (N.D. II. Jan. 9, 1996) (finding it “well

established that the State's Attorney is a member of the executive branch and acts as

-36-


him to provide direct evidence of the agreement between the conspirators or of the
overt acts performed in furtherance of the conspiracy. In Count XI and in {60-63
Patterson identifies each individual defendant as part of the conspiracy and alleges
that they agreed to violate his constitutional and state law rights and committed overt
acts in furtherance of this agreement. He also describes defendants’ alleged efforts to
torture and abuse him and others; fabricate and conceal material evidence used to
convict him; testify falsely and lie to prosecutors, judges, and defense counsel about the
torture and fabrication of evidence against him; and suppress all of these actions
throughout his trial and post-conviction proceedings until the day he was pardoned.
Patterson’s assertions are more than adequate to place defendants on notice of the
charges against them. Defendants’ motion to dismiss Count XI is denied.
K. Count XII - IL Respondeat Superior and Count XIII - 745 ILCS 10/9-102
In Counts XII and XIII (mislabeled as a duplicate Count XII in the complaint)
Patterson seeks to hold defendants City of Chicago, Cook County, and the Cook County
State’s Attorney’s Office accountable for the violations of federal constitutional and
state tort law committed by their employees, the individual defendants, under color of
office. Defendants’ only argument for dismissing these two claims is that the City of
Chicago, Cook County, and the Cook County State’s Attorney’s Office cannot be held
liable as employers where none of Patterson's allegations state a colorable claim under
state law against any of the individual defendants. As fully explained herein,
Patterson has stated claims for malicious prosecution, ITED, and conspiracy against
each of the individual defendants. This means that defendants City of Chicago and

~45-


Second, defendants Byrne, Martin, Shines, Hillard, and Needham argue that the
claims against them ought to be dismissed because Patterson “utterly failed to allege
that Byrne [or Martin, Shines, Hillard, or Needham] did anything that would support
those claims.” This contention is utterly without merit. Patterson specifically names
and accuses each of these defendants of committing numerous violations of federal and
state law and of conspiring with the other individual defendants to deprive Patterson
of his rights and cause him grievous injuries. Federal notice pleading rules do not
require Patterson to provide detailed explanations of how each particular defendant
caused each of his injuries. The court believes the allegations in Patterson’s complaint
are more than adequate to put this court and defendants Byrne, Martin, Shines,
Hillard, and Needham on notice of the claims against them.

A. Count I - §1983 Claim for Deprivation of Right to Fair Trial

The first of Patterson’s thirteen claims asserts a violation of his right under the
Fifth and Fourteenth Amendments not to be deprived of liberty without due process
of law. Patterson claims that all of the individual defendants caused his wrongful
charging, prosecution, and conviction “by fabricating and coercing the false admissions
which formed the basis for Plaintiffs charging, prosecution and conviction,” “by
withholding from prosecutors, judges, and defense attorneys involved in Plaintiffs
prosecution the fact that these admissions were false, fabricated, and coerced,” “by
suppressing additional exculpatory torture findings and evidence, as well as other
exculpatory evidence,” “by giving a false and incomplete version of events to
prosecutors,” “by writing false reports and giving false testimony,” and “by improperly

-13-



in to take murder suspect’s confession after police allegedly beat suspect was
absolutely immune from § 1983 suit even though suspect told prosecutor of abuse and
showed him his bruises). But in this case Patterson accuses Troy and Lacy not only
of conspiring to suppress the fact of and evidence obtained from the Area 2 defendants’
abusive interrogation, but also of actively participating with the Area 2 defendants in
torturing him and fabricating his confession. Specifically, he claims that Troy
“physically attacked [him] in an attempt to coerce him into signing a false statement”
that both defendants were aware of his torture and physical abuse and of threats to
inflict further abuse if he did not sign the fabricated confession, and that both
participated in it by allowing the abuse to continue and failing to stop it or report it to
police supervisors. These allegations suggest that Troy and Lacy were functioning as
investigators rather than prosecutors and are therefore entitled only to the same
qualified immunity as police officers performing similar tasks. See Buckley, 509 U.S.
at 273 (“When a prosecutor performs the investigative functions normally performed
by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the
same act, immunity should protect one and not the other.”) (quoting Hampton v.
Chicago, 484 F.2d 602, 608 (7th Cir. 1973). See also Pippin v. Daley, No. 88 C 150,
1988 WL 56177, at *2 (N.D. Ill. May 23, 1988) (finding assistant state’s attorney who
participated in coercive interrogation not entitled to absolute prosecutorial immunity
because those acts were the function of an investigator rather than an advocate).
Though Troy and Lacy characterize their conduct during and after Patterson’s

interrogation as that of prosecutors interviewing a witness and evaluating evidence

-23-



findings contained in the altered OPS report were highly influential in the state’s
decision to continue the case against Patterson on the appellate level. Reading the
complaint in the light most favorable to Patterson, it is reasonable to infer from these
allegations that Martin, Shines, Hillard, and Needham were responsible for continuing
the malicious prosecution against him.

2. SAO defendants Troy and Lacy

Troy and Lacy argue that they are absolutely immune from suit for Patterson’s
malicious prosecution because prosecutorial immunity protects their decision to
present and advocate the state’s case. As discussed above, a prosecutor is absolutely
immune from suit for decisions he makes in evaluating evidence and deciding to
initiate charges. Imbler, 424 U.S. at 431. In this case however Patterson does not
attempt to hold Troy and Lacy accountable for their evaluation ofevidence and decision
to bring the case against him, but rather for their participation in his coercive
interrogation and the fabrication ofevidence. These allegations suggest that Troy and
Lacy were functioning as investigators rather than prosecutors when they committed
the violations which form the basis for Patterson’s malicious prosecution claim. See
Buckley, 509 U.S. at 274. Thus, Troy and Lacy are not entitled to absolute
prosecutorial immunity for their actions.

Patterson’s complaint states a claim for malicious prosecution under Illinois law
against all of the individual defendants. Defendants’ motion to dismiss Count VIII is

denied.

-41-



time, the “bagging” and beating lasted for over two minutes. Patterson found the
abuse unbearable and told the detectives he would “say anything you say” if they
would stop the suffocation and beating.

After Patterson agreed to cooperate, the Area 2 defendants left the room to get
a state’s attorney from the felony review division to take his statement. While alone
in the room, Patterson used a paper clip to scratch into the interview room bench that
he was “suffocated with plastic’ and that his statement to the police was false.
Defendant Burge returned with an Assistant State’s Attorney (“ASA”) who said that
Burge told him Patterson wanted to make a statement. After Burge left the room at
Patterson’s request, Patterson told the ASA that he had nothing to say. The ASA left
and told Burge that Patterson refused to confess. Burge then returned to the room,
told Patterson “you're fucking up,” placed his handgun on the table in front of
Patterson, and said “we told you 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.”
He also told Patterson that if he revealed the torture, “it’s your word against ours and
who are they going to believe, you or us.” Burge then told Patterson that they could do
anything they wanted to him.

Next, defendant Peter Troy, an ASA with the State’s Attorney’s Office (“SAO”),
entered the interview room with Area 2 defendant Madigan. Initially, Patterson
agreed to make a statement in exchange for phone privileges, but he refused to sign the
statement Troy had written out after the Area 2 defendants terminated his calls. In
an attempt to make Patterson sign the statement, Troy and Madigan physically

“4.



bringing the predicate claim, the access claim cannot lie. Harbury, 536 U.S. at 414-15
(‘Whether an access claim turns on a litigating opportunity yet to be gained or an
opportunity already lost, the very point of recognizing any access claim is to provide
some effective vindication for a separate and distinct right to seek judicial relief for
some wrong.”). Thus, a complaint asserting an access to courts claim should state the
underlying claim as if it was being independently pursued, and “should describe any
remedy available under the access claim and presently unique to it.” Id. at 417-18.
The allegations contained in Patterson’s right of access claim are deficient, for
they do not plead a short and plain statement of the underlying claims and do not
establish that Patterson has been denied adequate legal redress for any legitimate
claim. Count IV merely accuses defendants of obstructing the investigation and
suppressing evidence necessary for Patterson to vindicate his constitutional rights in
court without explaining how this conduct denied him his right to seek judicial redress.
In another case this deficiency in pleading might be cured, but in this case it cannot.
As explained above, Patterson’s claims that he was denied his right to a fair trial, his
right to be free from self-incrimination, and his right not to be tortured while in
custody (unreasonably seized) are actionable (though the second two did not accrue
until his conviction was overturned), and his Fourth Amendment claim for false
imprisonment fails as a matter of law because he was arrested pursuant to a valid
warrant, not simply because it might be time-barred. This means that even if
Patterson’s right of access claim was pleaded properly, he cannot assert that he was

denied in the past any legitimate legal remedy that is not still available to him through

-34-


3. Testimonial immunity for Area 2 defendants

Defendants argue that to the extent Patterson’s due process claim is based on
allegations that they testified falsely, they are absolutely immune from liability under
Briscoe v. LaHue, 460 U.S. 325, 335-36 (1988). See also Curtis v. Bembenek, 48 F.3d
281, 285 (7th Cir. 1995), An exception to the rule of absolute testimonial immunity
exists, however, for “complaining witnesses.” Cervantes v. Jones, 188 F.3d 805, 809
(7th Cir. 1999). A complaining witness is one “who actively instigated or encouraged
the prosecution of the plaintiff.” Curtis, 48 F.3d at 286. Given Patterson’s allegations
that defendants “caused [his] wrongful charging, prosecution and conviction,” they
could qualify as complaining witnesses exempt from absolute testimonial immunity.
But the determination of who qualifies as a complaining witness is highly fact-specific
and best not resolved on a motion to dismiss. Cervantes, 188 F.3d at 810; Ienco, 286
F.3d at 1000 n.9 (declining to decide on appeal fact-intensive issue of whether
complaining witness exception applies). At this stage, when viewed in a light favorable
to Patterson, the allegations in the complaint suggest that defendants are complaining
witnesses exempt from absolute testimonial immunity.

Defendants also argue that they are immune from liability for fabricating and
failing to disclose their allegedly false testimony to prosecutors. See House v. Bedford,
956 F.2d 711, 720 (7th Cir. 1992) (witnesses cannot be held liable under § 1983 for
conspiring to commit an immunized act). Here however Patterson’s allegations

encompass far more than defendants’ perjured testimony or even defendants’

-20-


suppressing “highly exculpatory torture evidence which was relevant to Plaintiffs
ongoing attempt to free himself through post-conviction relief.” Specifically, Patterson
claims that Devine was “informed of a wealth of compelling evidence that {his former]
clients, including Burge and Byrne, were centrally involved in a pattern and practice
of torturing suspects, including plaintiff, at Area 2,” and that Devine protected his
former clients by “suppressing evidence which further established that his [former]
clients, and other Area 2 and Area 3 detectives were central actors in a pattern and
practice of torture and abuse which included Plaintiff.” As discussed above, evidence
of widespread torture and malfeasance by the Area 2 defendants qualifies as
exculpatory under Brady, and Devine’s knowing suppression of this evidence from
prosecutors, judges, and defense counsel while Patterson’s judicial proceedings were
ongoing amounts to a violation of Patterson’s due process rights.*

Devine is also accused of violating Patterson’s constitutional rights by making
public statements discrediting Patterson and others alleged to have been tortured by
the Area 2 defendants while Patterson and others sought new suppression hearings,
new trials, new sentences, pardons and/or clemency. Although defamation alone does
not rise to the level of a constitutional violation, a § 1983 action may lie if the

defamation results in the loss of a constitutionally protected interest. Paul v. Davis,

* The issue of the obligation of a lawyer who has been elected to a public
prosecutorial position when the conduct of a former client is called into question in
a manner which implicates his prosecutorial duties is an issue which has not been
thoroughly addressed by the parties and on which the court does not at this point
opine.

-26-



Patterson’s allegations in deciding whether prosecutorial immunity shields Troy and
Lacy from liability for depriving Patterson of his right to a fair trial.

Courts are “quite sparing” in recognizing absolute immunity for prosecutors in
§ 1983 actions and require defendant prosecutors to carry the burden of showing that
such immunity is justified in their particular case. Buckley, 509 U.S. at 269. Immunity
does not rest on an individual’s status as a prosecutor, but “is grounded in the nature
of the functions he was performing in the case.” Houston v. Partee, 978 F.3d 362, 366
(7th Cir. 1992). This “functional approach” to determining immunity “looks to the
nature of the function performed, not the identity of the actor who performed it.”
Buckley, 509 U.S. at 269. “If a [prosecutor's] function was quasi-judicial, the
[prosecutor] enjoys absolute immunity. If the function was administrative or
investigatory, the [prosecutor] enjoys only qualified immunity. Henderson v. Lopez,
790 F.2d 44, 46 (7th Cir. 1986).

Patterson alleges that Troy and Lacy participated in his abusive interrogation,
fabricated statements and admissions for him to sign, suppressed this and other
exculpatory evidence, and lied about Patterson’s involvement in the Sanchez murders
to the prosecuting state’s attorneys and judges before, during, and after the trial.
Generally, prosecutors who cause constitutional deprivations through their evaluation
of evidence presented to them by police may invoke absolute immunity in § 1983 suits,
even if they know or suspect that the evidence was obtained through police misconduct.
See Hunt v. Noon, 926 F.2d 689, 693 (7th Cir. 1991) (finding prosecutor who was called

in to take murder suspect’s confession after police allegedly beat suspect was

-22-


his remaining § 1983 claims. When the claim is right of access, justice delayed is not
the equivalent of justice denied. Defendants’ motion to dismiss Count IV is granted.
E. Counts V & VI - § 1983 Monell Claims

In Counts V and VI Patterson claims that all of the individual defendants’
wrongful actions — including the institution, continuation, and suppression ofa pattern
and practice of torture, abuse, and wrongful prosecutions—were undertaken “pursuant
to one or more interrelated de facto policies, practices and/or customs” of defendants
City of Chicago, Cook County, and the Cook County State’s Attorney’s Office.
Governmental entities are susceptible to suit under § 1983 “when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts” constitutional
injury. Monell v. Dep’t of Social Svcs., 436 U.S. 658, 695 (1978). A § 1983 Monell claim
against a governmental entity will not lie, however, without a finding that at least one
of its individual employees committed a constitutional tort. City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986).

The City of Chicago, Cook County, and Cook County State’s Attorney’s Office
seek to dismiss the Monell claims against them for different reasons. The City of
Chicago argues that since none of Patterson’s § 1983 claims against the individual
police officer defendants are actionable, his Monell claim against the City is without
basis. This argument could prevail only if the court dismissed all of Patterson’s § 1983

claims against the individual defendants, which the court has not done. Counts I, II,

-85-



public by court order in other proceedings. Patterson further alleges that defendants
at all times knowingly suppressed both the actual truth of his innocence and their roles
in framing him for the Sanchez murders from state prosecutors, judges, and the people
of Illinois. Taken as true, these allegations contain all the elements of a Brady
violation and sufficiently charge a deprivation of constitutionally guaranteed due
process rights. First, evidence that the defendants who interrogated, charged, and
prosecuted Patterson committed numerous other acts of torture and malfeasance,
including suppressing evidence other than Patterson’s own abuse and coerced
confession, is exculpatory and therefore favorable to Patterson. Second, Patterson
alleges that defendants willfully suppressed this evidence and their efforts to frame
him for the murders from the prosecutors, judges, and defense counsel before, during,
and after Patterson’s trial. Third, defendants’ suppression of this evidence prejudiced
Patterson by causing him to be convicted for a crime he did not commit and by
continuing to deny him reliefin post-conviction proceedings. These allegations support
Patterson’s claim that he suffered a deprivation of his constitutional right to a fair
trial.

2. Characterization of defendants’ misconduct

Defendants attempt to avoid liability under § 1983 by arguing that Patterson’s
allegations are “nothing more than a recast of his Fourth Amendment false
imprisonment claim“ and “essentially a § 1983 malicious prosecution claim,” neither
of which is actionable after Newsome I, 256 F.3d at 250 (“[T]he existence of a tort claim

under state law knocks out any constitutional theory of malicious prosecution.”). The

-17-



As a result of the misconduct of Area 2 defendants Burge, Byrne, Pienta,
Marley, Pedersen, McWeeny, Madigan, and Danzl, SAO defendants Devine, Troy, and
Lacy, and defendants Hillard, Shines, Martin, and Needham, individually and in
conspiracy, Patterson claims that he was wrongfully tortured, charged, and convicted
for the Sanchez murders in violation of his federal constitutional rights, and that he
suffered compensable injuries under Illinois state law. Patterson’s complaint
enumerates 14 separate charges against various defendants, namely: Count I, § 1983
claim for deprivation of his right to fair trial and wrongful conviction in violation of due
process; Count II, § 1983 claim for false imprisonment; Count III, § 1983 claim for
coercive investigation; Count IIIA, § 1983 claim for torture and abuse; Count IV, § 1983
claim for deprivation of access to courts; Count V, § 1983 Monell claim against the City
of Chicago; Count VI, § 1983 Monell claim against Cook County and the Cook County
State’s Attorney’s Office; Count VII, state law claim for false imprisonment;
Count VIII, state law claim for malicious prosecution; Count IX, state law claim for
intentional infliction of emotional distress (“IIED”); Count X, state law claim for
defamation; Count XI, state law conspiracy claim; Count XII, state law respondeat
superior claim; and Count XIII, state law claim for indemnification under 745 ILCS
10/9-102.

II. Discussion
By their individual and combined motions, defendants seek to dismiss every one
of Patterson’s 14 claims against them. In considering the motions the court accepts as

true all well-pleaded facts and draws all reasonable inferences from those allegations

-9-



fabricated confession and the coerced and fabricated testimony of one other person,
Marva Hall. There was no physical evidence linking him to the crime and no
testimony other than Hall’s and defendants’ implicating him in the murders. Though
defendants insist that Hall’s testimony alone was enough to convict Patterson, he
alleges that her testimony was procured by defendants’ intimidation and that she
recanted that testimony more than once. Moreover, the allegations of torture and
abuse contained in Count IJIA are inextricably intertwined with the allegations of
coercion in Count HI which produced the critical evidence — a fabricated and
involuntary confession — used to convict Patterson. See Fulminante, 499 U.S. at 287
(“the defendant’s own confession is probably the most probative and damaging evidence
that can be admitted against him”) (White, J., dissenting in part).

Since Patterson’s conviction rested almost entirely on his involuntary confession,
and at most on his involuntary confession plus the coerced testimony of a 16 year-old
girl, the court concludes that Patterson could not have challenged defendants’ act of
torturing him and fabricating his confession without necessarily implying the
invalidity of his conviction. Under Heck, Patterson’s § 1983 claims for coercive
interrogation and torture did not accrue until his conviction was overturned in January
of 2003. Since Patterson filed this suit on June 26, 2008, his claims in Counts HI and
IIIA are timely. Defendants’ motion to dismiss Counts III and IIIA is denied.

D. Count IV - § 1983 Claim for Deprivation of Access to Courts

Patterson’s claim in Count IV alleges that defendants’ obstruction ofjustice and

suppression of evidence violated his right of access to courts guaranteed by the Fifth

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Patterson for the Sanchez murders. Where the defendant in Gauger could rely on the
Fourth Amendment to redress his unlawful arrest and suppress his subsequent
involuntary confession, Patterson’s § 1983 claim based on the Fourth Amendment is
foreclosed because he was arrested on a valid, though unrelated, warrant. The Seventh
Circuit is sensitive to the problem its approach has created. As the Gauger court
stated, “[I]t is shocking to think that a police frame-up which lands a person on death
row is not a constitutional tort, though every false arrest made without probable cause
is.” 349 F.3d at 359. This court, were it free to decide this motion in a way it believes
would be conducive to the development of the law, would deny the motion and assess
the claim at a later time on a fuller factual record. As the law exists today in this
circuit, however, it has no such freedom. Patterson’s § 1983 claim for false
imprisonment cannot stand and defendants’ motion to dismiss Count II is granted.

Cc. Count III - § 1983 Claim for Coercive Investigation
and Count IIJA — § 1983 Claim for Torture and Physical Abuse

Counts III and IIIA accuse defendants Burge, Byrne, Pienta, Marley, Pedersen,
Madigan, McWeeny, Troy, and Lacy of using torture and excessive physical abuse to
coerce Patterson to confess to the Sanchez murders in violation of his Fifth, Fourth,
and Fourteenth Amendment rights. Specifically, Count III charges a violation of
Patterson’s right to be free from self-incrimination and Count ITIA charges a violation
of his right to be free from unreasonable seizures. Defendants argue that these claims
are time-barred as Patterson’s alleged injuries accrued at the time of his interrogation.

For civil rights claims brought under § 1983, state law determines the limitations

-29-


basis of his false confession and the testimony of Marva Hall and defendants.
Patterson was sentenced to death, and after his conviction was affirmed on appeal,
spent over 13 years incarcerated on death row until his pardon in January of 2003.
After his conviction but before Patterson filed his motion for a new trial, the
Chicago Police Department’s Office of Professional Standards (“OPS”) completed an
investigation into allegations that suspects held in custody at Area 2 had been tortured
by the Area 2 defendants and others. In November of 1990 the OPS issued a secret
report which was forwarded to then superintendent of the Chicago Police Department
Leroy Martin. In the report OPS found that from 1973 to 1985 there was a practice of
systematic abuse of suspects at Area 2 and that certain Area 2 command personnel,
including defendants Burge and Martin, were aware of such abuse and encouraged it,
either by actively participating in it or by failing to take action to stop it. The report
named both Burge and Byrne as major “players” in the pattern and practice of torture
and recommended that Burge be fired for his participation in Andrew Wilson’s torture.
In 1991 the Illinois Supreme Court denied Patterson’s motion for a new trial,
which argued for his release based on his having been tortured and framed for the
Sanchez murders. While Patterson’s post-conviction appeals were pending before the
Illinois appellate courts, superintendent Martin and the Area 2 defendants delayed,
obstructed, and otherwise undermined the OPS investigation and report by
withholding evidence that there was systematic abuse of suspects at Area 2. In
particular, Martin allegedly knew of and suppressed evidence of torture implicating the
Area 2, defendants from the inception of the OPS investigation until the report and its

-6-


attacked Patterson. McWeeny entered the room at this time, professing not to be
involved in the prior beatings and suffocation, and urged Patterson to cooperate
because the other defendants “could do something serious to him if he didn’t.” As a
result of this coercion and under threat of continued torture, Patterson said he would
agree with whatever the Area 2 defendants and Troy said had happened.

Around the same time, defendant Pienta arrested Eric Caine, Patterson’s co-
defendant in the Sanchez murder prosecution. Caine was interrogated and beaten and
told that if he did not make a statement he would get the same treatment as Patterson.
Caine initially gave a statement, but when he tried to repudiate it Madigan hit Caine
with his open hand over his ear and cheekbone, causing a loud pop and rupturing his
ear drum. Caine screamed in pain; he later gave and signed a court-reported
statement prepared by the Area 2 defendants which falsely implicated Patterson in the
murders.

The Area 2 defendants, together with SAO defendants Troy and William Lacy,
allegedly fabricated oral admissions and reduced these “admissions” to false reports
implicating Patterson and Caine in the Sanchez murders. Defendants communicated
these false reports to the prosecuting attorneys, who used them at Patterson’s
suppression hearing and at trial. Defendants also testified falsely about the fabricated
admissions and the torture and abuse which produced them throughout Patterson’s
prosecution. No physical evidence linking Patterson to the murders was ever
discovered, though a bloody fingerprint that was not Patterson’s was found at the scene
and not introduced at trial. Patterson was convicted for the Sanchez murders on the

-5-



court rejects both contentions, As a matter of law, it is still possible after Newsome I
and Ienco to state a § 1983 claim based on the Fourth Amendment, McCullah v.
Gadert, 344 F.3d 655, 659 (7th Cir. 2003), and on the due process clause of the Fifth
and Fourteenth Amendments, Newsome IT, 319 F.3d at 304. Whether the facts of this
case support a Fourth Amendment claim for false imprisonment will be addressed by
the court below, but it is enough for now to say that the court views Patterson’s
allegations that defendants withheld evidence of widespread torture and abuse by
defendants and others at Area 2, obstructed Patterson’s criminal investigation, and
fabricated the evidence used to convict him as implicating his due process right to a
fair trial. See Manning, 355 F.3d at 1031 (“For plaintiffs seeking redress for being
‘framed’ for a crime it is a difficult task to form the complaint . . . [and] depends on how
this court allows [plaintiff] to characterize his claim.”); Newsome v. McCabe, 260 F.3d
824, 825 (7th Cir. 2001) (denial of petition for reh’g en banc) (“if the right
characterization of the defendants’ conduct is that they deliberately withheld
information, seeking to misdirect or mislead the prosecutors and the defense, then
there is a genuine constitutional problem”).

Though Newsome I prohibits plaintiffs from attempting an “end run” around its
rule “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, 786 (7th Cir. 2003), it does not bar § 1983 claims arising under the language of the

-18-


overturned findings of OPS reports concluding that the torture had occurred and that
the Area 2 defendants were largely responsible. Moreover, Shines, Hillard, and
Needham withheld the torture evidence and OPS files from criminal defendants,
including Patterson, who had allegedly been abused at Area 2.

Ina televised interview in December of 1999 defendant Byrne made defamatory
statements concerning Patterson’s protestations of his innocence and claims of torture
at Area 2, including that Patterson was “without a doubt” “guilty of the [Sanchez]
murders” and that “the detectives who worked with him would not” and did not torture
suspects. On January 10, 2003, then Governor of Illinois George Ryan granted
Patterson and three other death row victims allegedly tortured by Burge and other
Area 2 detectives pardons on the basis of innocence. In granting the pardons Governor
Ryan announced that “the category of horrors was hard to believe,” and the evidence
showed that the four men — Patterson, Madison Hobley, Leroy Orange, and Stanley
Howard — had been “beaten and tortured and convicted on the basis of confessions they
allegedly provided.” In response, State’s Attorney Devine publicly condemned the
pardons of the four men, whom he referred to as “evil” and “convicted murderers,” as
“outrageous” and “unconscionable.” Devine also threatened to challenge the validity
of the pardons in court. Further, ASA Troy made defamatory statements about
Patterson, including that he saw no evidence of torture at Area 2 and that Patterson

was guilty of the murders.

-8-



presented to them by police officers in preparation for initiating criminal proceedings,
the court must take the factual allegations in the complaint as true. Here the
allegations put Troy and Lacy in the interview room with the police during the torture
and fabrication of his confession and prior to his being indicted for the Sanchez
murders.’ On these facts Troy and Lacy were functioning as investigators rather than
advocates for the state and are therefore not entitled to absolute immunity. See, e.g.,
Buckley, 509 U.S. at 274 (denying absolute immunity to prosecutors investigating
evidence before convening special grand jury because “[a] prosecutor neither is, nor
should consider himself to be, an advocate before he has probable cause to have anyone
arrested”). Moreover, since Troy and Lacy were not acting as advocates for the state
when they participated in Patterson’s abusive interrogation and did not personally
prosecute Patterson, they cannot claim immunity from their later Brady violations
simply because of their status as state’s attorneys. See Houston, 978 F.2d at 366
(rejecting argument that “absolute immunity indefinitely attaches to every Cook

County State’s Attorney once a prosecution begins”).

3 It is not clear from the complaint whether the torture and coercive
investigation occurred before Patterson was arraigned — all that is pleaded is that
after he was arrested and prior to the abuse Patterson “was taken to 11th and
State” before being returned to the Area 2 interview room. Regardless, it is clear
that the abusive interrogation occurred before a grand jury returned an indictment
against Patterson for the Sanchez murders.

-24-


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Oth
er Magistrate Judge Joan B. Gottschall than Assigned Judge
CASE NUMBER 03 C 4433 DATE 8/5/2004
CASE Patterson vs. Burge
TITLE
[In the foltowing 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) oO Filed motion of [ use listing in “Motion” box above.]

(2) im} Brief in support of motion due

(3) a Answer brief to motion due . Reply to answer brief due

(4) O Ruling/Hearing on set for at

(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at

(Ca) ia Trial[set for/re-set for] on at

(8) a [Bench/Jury trial] [Hearing] held/continued to at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) CO FRCP41(a)(2).

(0) =o [Other docket entry] ENTER ORDER. For the reasons stated in the attached
memorandum opinion and order, defendants’ motions to dismiss [45-1], [47-1], [91-1] are
granted in part and denied in part. Defendant Troy’s motion to dismiss [91-1] is denied in
its entirety. In addition, plaintiffs motion to file instanter an oversized response [54-1] is
denied as moot, as a duplicate motion [53-1] was granted by the court on 2/11/04.
Defendants shall answer plaintiff's complaint on or before September 7, 2004.

dl) @f [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required,

Notices mailed by judge's staff.

Notified counsel by telephone.

X_ | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

RJ/KB

i

umber of notices

aga tans "sh

wag

Date/timé técelved in
--central-Clerk’s‘Office

AUG 0 9 2004

date dockeied

sailing deputy initials



respondeat superior) as against the City of Chicago and the Cook County State’s
Attorney’s Office, and Count XIII (745 ILCS 10/9-102).

Defendant Troy’s separately filed motion to dismiss based on collateral estoppel
is denied.

Defendants shall answer Patterson’s complaint on or before September 7, 2004.

ENTER ORDER:

Abid

Ji anB. Gottschall
nited States District Judge

DATED: August 5, 2004

-47-



affirmative defenses. United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 628, 626
(7th Cir. 2003); Leavell v. Kieffer, 189 F.3d 492 (7th Cir. 1999). Complaints need not
plead specific facts or defeat affirmative defenses to survive a motion to dismiss, Gomez
v. Toledo, 446 U.S. 635 (1980), though a plaintiff “may plead himself out of court by
alleging (and thus admitting) the ingredients of a defense,” Gypsum, 350 F.3d at 626.
See also Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002).

There is a real difference between admitting a defense, e.g., stating that an
injury occurred on a certain date which is beyond the limitations period, and failing to
overcome a defense, e.g., omitting facts that would preclude application of collateral
estoppel. Here, Patterson has alleged some facts relating to the accrual of his injuries
that make defendants’ statute of limitations defenses ripe for review. In contrast, the
court cannot rule on defendants’ collateral estoppel arguments without considering
facts and evidence outside the pleadings. Because Patterson’s accusations span the
nearly 17 years of this case’s long procedural history and implicate a pattern and
practice of wrongdoing by defendants in this and other cases currently being litigated,
the court declines at this time to dismiss any of Patterson’s claims against any of the

defendants’ as collaterally estopped.”

* The court’s decision also applies to defendant Troy’s separately filed motion
to dismiss on the grounds of collateral estoppel, which is hereby denied.

? This is the same approach taken by Judge Aspen in the related case of
Hobley v. Burge, No. 03 C 8678, 2004 WL 1243929, at * 3 n.5 (N.D. Ill. June 3,
2004) (“by declining to consider at this juncture the material outside of the
complaint and declining to rule on this issue at this stage, we will ensure that all
parties will be given reasonable opportunity to present all material” relevant to the

-11-



in Patterson’s favor. Hernandez v. City of Goshen, 324 F.3d 535, 587 (7th Cir. 2003).
The federal notice pleading standard requires only that “a complaint state the
plaintiffs legal claim, . . . together with some indication .. . of time and place.”
Thomson v, Washington, 329 F.3d 969, 970-71 (7th Cir. 2004). So long as Patterson’s
complaint contains “enough to allow the court and the defendant{s] to understand the
gravamen of [his] complaint,” and the facts as alleged show a legitimate entitlement
to relief, his claims will not be dismissed. McCormick v. City of Chicago, 230 F.3d 319,
323-24 (7th Cir. 2000) (internal quotations omitted). See also Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002).

It cannot seriously be disputed in this case that Patterson’s complaint contains
“enough” to inform the court and defendants of his grievance. Patterson minces no
words in accusing defendants of framing, torturing, maliciously prosecuting,
wrongfully convicting, and falsely imprisoning him on death row for murders he did not
commit. Taking these allegations as true, as the court must at this time, it is clear
that Patterson has suffered violations of his rights that are actionable under federal
and state law. What is less clear, however, is which rights were violated under which
laws by which defendants. The answer to this question matters profoundly, but it need
not be pleaded with as much detail as defendants’ arguments imply.

Defendants seek to dismiss all of Patterson’s claims as untimely, collaterally
estopped, or not actionable. Ordinarily the first two of these are impermissible

grounds for dismissing a complaint, as statutes of limitations and issue preclusion are

-10-



Patterson's defamation claim against Byrne is time-barred as it was brought in June
of 2003, well outside the one-year limitations period.

Defendants Devine and Troy invoke their prosecutorial privilege to comment on
ongoing state prosecutions as grounds for dismissing the defamation claims against
them. Prosecutors in the Illinois State’s Attorney’s Office have an absolute privilege
to comment on issues within the scope of their employment. Ware v. Carey, 75 Ill. App.
3d 906, 913 (finding state’s attorney immune from a state law suit for defamation
based on comments “arising from the performance of his duties”). And because the
State’s Attorney is the “leader of law enforcement in the community,” commenting to
the public on criminal cases is within the scope of his employment. Id. at 914. Here
Patterson accuses Devine and Troy of making defamatory statements concerning his
prosecution and pardon. He argues that these comments are not within the scope of
their duties because the comments were made in the interest of protecting Devine’s
former clients rather than in the interest of pursuing Devine’s and Troy’s duties and
obligations to the State. However, Devine’s and Troy’s personal motivation for
commenting is irrelevant. Patterson has not alleged that Devine or Troy made any
defamatory comments unrelated to the state’s prosecution of him or his subsequent
pardon. Accordingly, Devine’s and Troy’s allegedly defamatory statements are not
actionable.

Patterson’s defamation claim under Illinois law is untimely with respect to
Byrne and cannot be brought against Devine and Troy because their statements are

protected by prosecutorial privilege. Defendants’ motion to dismiss Count Xis granted.

-43-



approach must not be understood as a rule to be applied in every case... Heck may in
fact occasionally bar a civil rights claim premised on” a Fourth Amendment violation).

In arguing that, despite Heck, the statute of limitations requires dismissal,
defendants merge Patterson’s Fifth Amendment claim in Count III for coercive
interrogation with his Fourth Amendment claim in Count IIIA for torture and
excessive force. Though the two claims share allegations of abuse and torture, they
must be analyzed slightly differently in determining whether they survive the motion
to dismiss. With respect to Patterson’s allegation that his confession was involuntary,
it is well settled that a conviction that is based on a false confession coerced by torture
violates due process. Brown v. Mississippi, 297 U.S. 278 (1936). However, a coerced
confession is subject to harmless error analysis, Arizona v. Fulminante, 499 U.S. 279,
303 (1991), and so Heck does not automatically toll the limitations period in every case
where an involuntary confession was used to obtain a conviction. See Simmons v.
O'Brien, 77 F.3d 1093, 1095 (8th Cir. 1996). Likewise, though it is possible that
conduct of police officers that would violate the Fourth Amendment, such as planting
evidence during a search or using excessive force to effectuate an arrest, might impugn
the validity of a conviction, it is not always, or even usually, so. See Gonzalez, 133 F.3d
at 553 (collecting cases).

Applying Heck to the facts of this case, the court concludes that Patterson’s
claims in Counts ITI and IITA are timely. Patterson’s complaint alleges that the only

evidence used at trial to convict him for the Sanchez murders were his involuntary and

-31-


period and federal law governs when the claims accrue. Wilson v. Garcia, 471 U.S.
261, 280 (1985); Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992). Thus, Patterson’s
§ 1983 claims are subject to a two-year statute of limitations under Illinois law,
Gonzalez v. Entress, 133 F.3d 551, 554 (7th Cir. 1998), and their accrual is governed
by Heck v. Humphrey, 512 U.S. 477 (1994). Given the two-year limitations period and
Patterson’s allegation that he was arrested and interrogated in April of 1986,
defendant’s statute of limitations defense is ripe for review.

Heck holds that a damages claim which “necessarily demonstrates the invalidity
of [a] conviction,” 512 U.S. at 481-82, cannot be brought while the conviction stands.
See Gonzalez, 183 F.3d at 552; Gauger, 349 F.3d at 360; Wiley, 361 F.3d at 996.
Defendants urge the court to read Heck and its progeny as inapplicable to Fourth
Amendment claims except in cases where the conviction rests entirely on fruits of the
illegal arrest or seizure. From defendants’ perspective, in any case where even a single
additional piece of evidence supports the conviction, evidence improperly obtained as
a result of a Fourth Amendment violation cannot be said to necessarily impugn the
conviction, and the Fourth Amendment claim accrues at the time of the violation
rather than when the conviction is nullified. But this interpretation of Heck was
advanced and rejected by the Seventh Circuit in both Gauger, 349 F.3d at 361 (“not
always but sometimes a successful challenge to a false arrest can indeed impugn the

validity of the plaintiffs conviction”), and Wiley, 361 F.3d at 997 (“this general

-30-


related findings were ordered produced by court order in February of 1992. Further,
Martin and then OPS director Gail Shines refused to investigate numerous other
allegations of torture and abuse at Area 2, including those made by Patterson, Stanley
Howard, and Melvin Jones.

From 1988 to 1996 the City of Chicago hired defendant Richard Devine, then a
private attorney, and his law firm to represent Burge, Byrne, and other Area 2
defendants against charges brought in federal court and Police Board Proceedings that
they tortured Andrew Wilson and other criminal suspects. During his representation
of Burge, Byrne, and other Area 2 defendants Devine was allegedly informed of a
wealth of compelling evidence that his clients were centrally involved in a pattern and
practice of torturing suspects, including Patterson, and made numerous litigation
decisions designed to protect his clients from criminal, civil, and administrative
liability in the face of that evidence. In 1994 Patterson filed a post-conviction petition
which alleged that he was entitled to a new motion to suppress hearing and a new trial
on the basis of newly discovered torture evidence that previously had been suppressed.
In 1997 Devine became the State’s Attorney of Cook County and acting in this capacity
oversaw the post-conviction proceedings of numerous persons who allegedly had been
tortured and abused by Area 2 defendants, some of whom were Devine’s former clients.

In 1998, Thomas Needham, then counsel and administrative assistant to
Chicago Police Department Superintendent Terry Hillard, conspired with Hillard to
suppress evidence of the Area 2 defendants’ participation in torture at Area 2.
Specifically, Hillard and Needham allegedly obstructed OPS investigations and

-7-



conspiracy to commit perjury at trial. Instead they reach defendants’ obstruction of
criminal proceedings, fabrication of evidence, and intentional misleading of
prosecutors, judges, and defense counsel. “Neither the withholding of exculpatory
information nor the initiation of constitutionally infirm criminal proceedings is
protected by absolute immunity.” Jenco, 286 F.3d at 1000. Therefore, no absolute
testimonial immunity attaches to the actions of the officers outside of trial. See
Manning, 355 F.3d at 1033 (where plaintiff established elements of Brady violation
based on officers’ conduct beyond scope of testimony at trial, officers not entitled to
absolute immunity).

4. Prosecutorial immunity for SAO defendants Troy and Lacy

SAO defendants Troy and Lacy argue that they are entitled to absolute
prosecutorial immunity because, other than allegations that they participated in the
coercive interrogation and physical abuse of Patterson (allegations which they claim
are barred by collateral estoppel), Patterson fails to allege that they committed any
acts outside of their roles as prosecutors which violated his right to a fair trial. See
Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (“[IJn initiating a prosecution and
presenting the State’s case, the prosecutor is immune from a civil suit for damages
under § 1983.”). As an initial matter, the court has already decided that none of
Patterson’s claims, including that Troy and Lacy participated in his torture and
coercive interrogation, will be dismissed at this time based on defendants’ asserted

defense of collateral estoppel. Thus, the court will consider the full spectrum of

-21-


the existence of probable cause to arrest defeats any claim for false arrest or false
imprisonment. Aboufariss v. City of De Kalb, 713 N.E.2d 804, 809 (IIL App. Ct. 1999);
Kincaid v. Ames Dept. Stores, Inc., 670 N.E.2d 11038, 1109 (Il. App. Ct. 1996). Since
Patterson does not dispute that he was arrested on a valid warrant supported by
probable cause, he cannot pursue his state law claim for false imprisonment.
Defendants’ motion to dismiss Count VII is granted.

G. Count VIII — IL Malicious Prosecution

Patterson names all individual defendants in his state law claim for malicious
prosecution, alleging that they “individually, jointly, and in conspiracy, initiated and
continued a malicious prosecution without probable cause against Plaintiff.” To state
a claim for malicious prosecution under Illinois law, a plaintiff must plead: “(1) the
commencement or continuance ofan original criminal or civil judicial proceeding by the
defendant; (2) the termination of the proceedings in favor of the plaintiff; (3) the
absence of probable cause for such proceeding; (4) the presence of malice; and
(5) damages resulting to the plaintiff.” Ritchey v. Maksin, 376 N.E.2d 991, 993 (Il.
1978). Importantly, the plaintiff must also “attribute the legal causation of the original
criminal action against the plaintiff to defendants.” Geisberger v. Vella, 379 N.E.2d
947, 948 (Ill. App. Ct. 1978) (affirming dismissal of claim for malicious prosecution
where plaintiff did not sufficiently allege legal causation of original action to the
defendants). Ifno logical connection can be drawn between the defendant’s actions and

the plaintiffs prosecution, then the malicious prosecution fails as a matter of law. See

-38-



the plaintiffs prosecution, then the malicious prosecution fails as a matter of law. See
Joiner v. Benton Community Bank, 411 N.E.2d 229, 232 (Ill. 1980).

1, Defendants Martin, Shines, Hillard, and Needham

Defendants Martin, Shines, Hillard, and Needham argue that there are
insufficient allegations in the complaint to support a finding that they were responsible
for commencing or continuing any criminal proceedings against Patterson. In
particular, they argue that they cannot be found to have been involved in the malicious
prosecution because they did not assume their respective positions until after
Patterson’s arrest and conviction. However, actions by government officials which
influence a plaintiffs post-conviction proceedings are not immune from suit. Houston,
978 F.2d at 368 (finding prosecutors’ actions during plaintiffs post-conviction
proceedings actionable as constitutional violation); Newsome v. James, 968 F. Supp.
1818, 1322 (N.D. Ill. 1997) (finding actionable malicious prosecution claim covering
actions taken between time of plaintiffs arrest and acquittal). The question before the
court is whether Patterson’s allegations that Martin, Shines, Hillard, and Needham
suppressed and altered exculpatory information in an investigative report concerning
accusations of torture and abuse by Area 2 police officers, including the defendants in
this case, establish that they caused or continued Patterson’s prosecution.

The court will dismiss the malicious prosecution claim against Martin, Shines,
Hillard, and Needham only ifit is clear from the pleadings that Patterson’s prosecution

would have continued without their involvement. Cervantes v. Jones, 23 F. Supp. 2d

-39-



424 U.S. 698, 709 (1976) (defamation resulting in “alteration of legal status . . .
justified the invocation of procedural safeguards”). Devine’s defamatory statements
in this case are alleged to have “adversely influenced the prosecuting attorneys who
were continuing his prosecution and the judicial tribunals hearing his case.” Such an
allegation implicates Patterson’s due process rights and elevates Devine’s statements
from defamation to a possible constitutional violation.

For the reasons stated above, the court finds that Patterson has adequately
pleaded a § 1983 claim for deprivation of procedural due process under the Fifth and
Fourteenth Amendments against all individual defendants. Defendants’ motion to
dismiss Count I is denied in its entirety.

B. Count II - §1983 Claim for False Imprisonment

In Count II Patterson advances a claim for false imprisonment under § 1983,
arguing that his continued imprisonment without probable cause for nearly 17 years
— from interrogation to conviction to exoneration — violated his Fourth Amendment
right to be free from unreasonable seizures. Though Justice Ginsburg championed this
“continuing seizure” theory in her concurring opinion in Albright v. Oliver, 510 U.S.
266, 279 (1994), the approach has never gained traction in the Supreme Court or this
circuit. The Seventh Circuit has held repeatedly that § 1983 claims for false
imprisonment (and false arrest) may be based only on unlawful arrests and/or
detentions occurring up to the point of arraignment. See, e.g., Wiley, 361 F.3d at 998
(7th Cir. 2004) (expressly rejecting “continuing seizure” approach); Lee v. City of

Chicago, 330 F.3d 456, 463-64 (7th Cir. 2003) (same). This is because “[o]nce [a

-27-


Burge threatened him with electrocution and lethal injection and told him that they
would get Arbuckle to “cooperate one way or another.” Still, Arbuckle denied his and
Patterson’s involvement.

On or about April 23, McWeeny, Byrne and other Area 2 detectives on the case
were informed by several persons that Willie Washington and his brother killed Rafael
and Vincent Sanchez. Nevertheless, for the next week, Byrne, McWeeny, and other
Area 2 detectives searched unsuccessfully for Patterson. On April 30, Patterson was
arrested on an outstanding warrant by Chicago Police Department officers from the
Fourth District. Defendants Pienta, Marley, and Pedersen were called to transport
Patterson from the Fourth District police station to Area 2. During the ride, Pienta
allegedly told Patterson that if he had arrested him, he would have killed him.

At Area 2 Patterson was placed in an interview room, handcuffed to the wall,
and questioned by Area 2 detectives about the Sanchez murders for about an hour.
Patterson denied any involvement. He was then taken to 11th and State before being
returned to the interview room at Area 2. After brief questioning, Pienta told
Patterson that he was “tired of this bullshit,” left the room, and came back with a grey
typewriter cover. When Patterson refused to implicate himself in the murders, the
Area 2 defendants, including Pienta, Marley, and Pedersen, handcuffed him behind his
back, turned out the lights, and repeatedly beat him in the chest and suffocated him
by holding the typewriter cover over his face and ears for at least a minute. Pienta
continued to urge Patterson to “cooperate,” and when he refused, the Area 2 defendants
again turned out the lights and suffocated Patterson with the plastic cover. The second

-3-



Cook County State’s Attorney’s Office, as employers of the individual defendants, may
be held liable for actions committed by their employees in the scope of employment.
Defendant Cook County, though not an employer of any individual defendant for
purposes of respondeat superior liability (see subsection E, supra, at 36-37), neverthe-
less may be required to pay judgments entered against county officials in their official
capacities. See Robinson v. Sappington, 351 F.3d 317, 339 (7th Cir. 2003); Pucinski v.
Cook County, 737 N.E.2d 225, 228 (IIL. 2000). Thus, the respondeat superior claim in
Count XII is dismissed as to defendant Cook County, but remains as to the City of
Chicago and the Cook County State’s Attorney’s Office; and since all three defendants
may be required to pay damages on behalf of their employees under Illinois law,
defendants’ motion to dismiss Count XIII is denied in its entirety.
III. CONCLUSION

Defendants’ motions to dismiss are granted with respect to Count II (§ 1983
false imprisonment), Count IV (§ 1983 access to courts), Count VI (§ 1983 Monell claim
against Cook County and Cook County State’s Attorney's Office), Count VII (IL false
imprisonment), and Count X (IL defamation). Count XII (IL respondeat superior) is
dismissed as against Cook County only.

Defendants’ motions to dismiss are denied with respect to Count I (§ 1983 right
to fair trial), Count III (§ 1988 coercive interrogation), Count IIA (§ 1983 torture and
excessive force), Count V (§ 1983 Monell claim against the City of Chicago), Count VIII

(IL malicious prosecution), Count IX (LIED), Count XI (IL conspiracy), Count XII (IL

-46-


J. Count XI - IL Conspiracy and § 1983 Conspiracy

Patterson claims in Count XI that all individual defendants conspired to falsely
imprison, maliciously prosecute, defame, and intentionally inflict emotional distress
on him. In addition, in each of his claims for damages under § 1983 Patterson alleges
that defendants conspired with each other to violate his constitutional rights.
Defendants argue that the conspiracy allegations are untimely and otherwise infirm.
Both arguments are without merit. First, Patterson’s conspiracy claims are based on
his underlying state tort law and federal § 1983 claims and their accrual is determined
by the same analysis that applies to each individual claim. Hobley, 2004 WL 1243929,
at *8; Castillo v. Zuniga, No. 01-616, 2002 WL 898519, at *10 (N.D. Ill. Mar. 14, 2002).
Thus, Patterson’s conspiracy claims based on Counts I (right to fair trial), ITI (coercive
interrogation), IITA (torture and excessive force), V (Monell claim against the City of
Chicago), VIII (malicious prosecution), and IX (IED) are timely for the same reasons
as are the underlying claims.®

Second, Patterson has sufficiently pleaded claims for conspiracy under federal
and state law. To state a claim for conspiracy Patterson must “indicate the parties,
general purpose, and approximate date, so that defendant has notice of what he is

charged with.” Walker, 288 F.3d at 1007. Federal notice pleading rules do not require

®° The court has dismissed Counts II (§ 1983 false imprisonment), IV (access to
courts), VI (Monell claim against Cook County and Cook County State’s Attorney’s
Office), VII (IL false imprisonment), and Count X (defamation), so Patterson’s
conspiracy claim cannot be based on these underlying actions no matter when the
claims accrued.

-44-


influencing the judges hearing Plaintiffs case.” Defendants voice several objections to
this claim: first, that no material evidence was suppressed, as is required under
Brady v. Maryland, 373 U.S. 83 (1963), to establish a deprivation of the right to a fair
trial; second, that Patterson’s “due process” claim is really one for malicious
prosecution, which Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001) (“Newsome
I’), held is not actionable under § 1983; third, that defendants are absolutely immune
from liability for their allegedly perjured testimony, see Briscoe v. LaHue, 460 U.S. 325,
335-36 (1983); fourth, that SAO defendants Troy and Lacy are immune from liability
for all charges of wrongdoing against them in their capacity as prosecutors; and fifth,
that SAO defendant Devine cannot be held individually liable because he too is
shielded by prosecutorial immunity and was not personally involved in Patterson’s
prosecution.

1, Suppression of evidence

The court turns first to defendants’ contention that evidence of Patterson’s
coerced and falsified confession cannot support a due process claim because neither the
confession nor the context in which it was obtained was ever “suppressed.” Defendants’
argument takes too narrow a view of both Patterson’s allegations and the guarantee
of due process promised by the United States Constitution. The due process clause
safeguards the liberty of citizens against deprivation through official actions,
particularly in cases where the state “has contrived a conviction through the pretense
of a trial which in truth is but used as a means of depriving a defendant of liberty

through a deliberate deception of court and jury by the presentation of testimony

-14-


In arguing to dismiss Count I defendants focus on Patterson’s allegations that
defendants violated his due process rights by coercing and fabricating his confession
and withholding that fact from prosecutors, judges, and defense counsel. Defendants
argue that Patterson was present during his own interrogation and therefore knew of
and had access to the same allegedly exculpatory evidence as the state; since the
prosecution has no duty to disclose what the accused already knows, no Brady violation
occurred. Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003); Buie v. McAdory,
341 F.3d 623 (7th Cir. 2003). Defendants do not misstate the law as applied to a case
like Gauger where the alleged Brady violation is based entirely on evidence obtained
during the state’s interrogation of the accused, but additional factual allegations in
Patterson’s complaint make this a very different case than Gauger. Most notably, in
addition to charging defendants with hiding the fact that his confession was coerced
and fabricated ~ an allegation which by itself might not state a Brady claim after
Gauger — Patterson accuses defendants of obstructing justice and violating his right
to a fair trial through actions they took outside the interrogation room.

Patterson’s complaint states that defendants tortured him, fabricated his
“confession,” gave perjured testimony at his suppression hearing and trial, and
knowingly used the power of the state to bring charges against him and obtain his
conviction for murders they knew he did not commit. Additionally, he claims that all
of the defendants acted in concert to effectuate a pattern and practice of torture and

frame-ups at Area 2, and that he was not aware of this evidence until it was made

-16-



false charges and framed him for the Sanchez murders, tortured and beat him at
Chicago Police Department’s Area 2 headquarters, fabricated his “confession” and
falsified inculpatory evidence, coerced witnesses to testify against him, gave perjured
testimony, published defamatory statements regarding his guilt, and obstructed justice
and suppressed exculpatory evidence throughout his suppression hearing, trial, and
post-conviction proceedings. Now before the court are defendants’ motions to dismiss
Patterson’s complaint and all of the fourteen claims contained therein.
I, BACKGROUND

The following facts are taken from Patterson’s first amended complaint and are
regarded as true for the purposes of this motion. See Thompson v. Illinois Dep’t of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002).

On April 19, 1986, Chicago Police Department officers discovered the dead
bodies of Rafaela and Vincent Sanchez in their apartment at 8849 South Burley.
Officers and defendants Lt. Jon Burge, Sgt. John Byrne, Detectives James Pienta,
William Marley, Daniel McWeeny, Joseph Danzl (collectively, “Area 2 defendants”),
and other Area 2 detectives were assigned to investigate the Sanchez murders. On
April 21, Danzl allegedly coerced and intimidated 16 year-old Marva Hall, whose uncle
was a suspect in the murders, into falsely implicating Patterson. On April 22, Burge
and another Area 2 detective took a different suspect, Michael Arbuckle, into custody
at Area 2 headquarters. Burge allegedly told Arbuckle that they “really wanted to get
Aaron Patterson” and wanted Arbuckle to say that Patterson was involved in the
murders. When Arbuckle refused to implicate Patterson and asked for his lawyer,

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a state, rather than a county, officer”), the court is convinced that it need not break
new legal ground on this issue. Because Cook County was not responsible for the
actions of SAO defendants Devine, Troy, and Lacy, it cannot be sued for damages
under Monell.

Finally, the Cook County State’s Attorney’s Office contends that the Monell
claim against it must be dismissed because the Eleventh Amendment prohibits private
litigants from suing the state or its agencies, such as the State’s Attorney’s Office, for
damages. See Garcia, 24 F.3d at 969; Hernandez v. Joliet Police Dep't, 197 F.3d 256,
265 (7th Cir. 1999) (upholding award of sanctions against plaintiff for overlooking an
obvious point of law — that the Eleventh Amendment bars suits against State’s
Attorney’s Office — in filing suit against Will County State’s Attorney’s Office).
Patterson offers no persuasive reason why this rule of law should not be applied here
to bar his Monell claim against the Cook County State’s Attorney’s Office. Defendants
Cook County’s and the Cook County State’s Attorney’s Office’s motion to dismiss Count
VI is granted.

F. Count VII - IL False Imprisonment

In Count VII Patterson asserts a claim for false imprisonment under state law,
which defendants contend is neither actionable nor timely. The tort of false
imprisonment in JIlinois consists ofan unreasonable restraint of an individual's liberty,
against his will, caused by the defendant without probable cause. Meerbrey v.

Marshall Field & Co., 564 N.E.2d 1222, 1231 (1990). As with federal law, in Illinois


5. Prosecutorial immunity & individual liability for
SAO defendant Devine

SAO defendant Devine contends that he cannot be held individually liable under
§ 1983 both because he is shielded by absolute immunity as a prosecutor and because
Patterson failed to allege that Devine was personally involved in depriving Patterson
of his right to a fair trial. The court finds both arguments unpersuasive. First, Devine
cannot claim absolute prosecutorial immunity because he did not personally
participate in Patterson’s prosecution at trial (he did not assume the office of Illinois
State’s Attorney until 1996) or in any of his post-conviction proceedings. See Houston,
978 F.3d at 366; Buckley, 509 U.S. at 273 (prosecutorial acts that do not relate to an
advocate’s preparation for the initiation of a prosecution or for judicial proceedings are
not entitled to absolute immunity).

Second, Devine’s argument that he cannot be held individually liable for
depriving Patterson of his right to a fair trial because “he was not in office when
Patterson was indicted, when his trial occurred, or when the Illinois Supreme Court
affirmed his conviction” misapprehends the nature of Patterson’s due process claim.
Patterson alleges that Devine acted under the color of his office as State’s Attorney in
suppressing exculpatory evidence and making defamatory statements which resulted
in the denial of Patterson's right to fair post-conviction proceedings. A prosecutor who
is not directly involved in the prosecution of a case still may be guilty of a Brady
violation based on his suppression of exculpatory evidence during post-conviction

proceedings. See Houston, 978 F.2d at 368. Here, Devine is accused of possessing and

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ney

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

AUG 0.9 2004

Aaron Patterson,

Plaintiff,

Case No. 03 C 4433

v.

Honorable Joan B. Gottschall

former CPD Sgt. John Byrne #14538; former
CPD Detectives James Pienta #10063;
William Marley #9886; Raymond
Madigan #1471; William Pedersen #8553;
Daniel McWeeny #14367; and Joseph
Danzyl #12568; Assistant Cook County
State’s Attorney Peter Troy, former Assistant)
Cook County State’s Attorney William Lacy; )
Cook County State’s Attorney Richard )
Devine; Chicago Police Superintendent Terry)
Hillard; former Chicago Police Superinten- )
dent Leroy Martin; former OPS Director )
Gayle Shines; former counsel to the Super- _)
intendent Thomas Needham; the City of )
Chicago; Cook County, Illinois and its Cook )
)
)
)

)
)
)
)
Former Chicago Police Lt. Jon Burge #338; )
)
)
)
)
)
)

County State’s Attorneys’ Office,

Defendants.

MEMORANDUM OPINION AND ORDER
After being convicted for the 1986 murders of Rafaela and Vincent Sanchez and
spending 18 years on death row, plaintiff Aaron Patterson was pardoned by Illinois
Governor George Ryan on January 10, 20038. Patterson filed this civil action in June
of 2003, asserting that defendants, individually and in conspiracy, violated his rights

under the United States Constitution and Illinois state law when they knowingly filed

1 MS


and Fourteenth Amendments. There are essentially two categories of right of access
claims: first are claims that systemic official action frustrates a plaintiff in preparing
and filing suits at the present time; second are claims that official acts claimed to have
denied access may have caused the loss or inadequate settlement of a meritorious case.
Christopher v. Harbury, 536 U.S. 408, 413-14. (2002). In this case Patterson’s
allegations that defendants obstructed his criminal investigation and withheld
exculpatory evidence necessary for him to pursue his constitutional claims in court
belong in the second category. Defendants maintain that their actions did not deny
Patterson access to the courts during his prosecution or after his conviction, and that
even if the court were to find otherwise, the claim should be dismissed because
Patterson fails to plead sufficiently the allegations underlying his right of access claim.

A right of access claim provides relief only to plaintiffs who can establish that
they have been denied “adequate legal redress” for a predicate constitutional violation.
Harbury, 536 U.S. at 419. In the context of an access claim, “adequate legal redress”
means a full and fair opportunity to achieve relief on the underlying constitutional
violation; it is not a guarantee of prompt and successful resolution of legal claims. For
example, conspiracies to destroy or cover-up evidence of a crime that render a plaintiff's
judicial remedies wholly inadequate or ineffective violate the right of access. Bell v.
Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984) (“The cover-up and resistance of the
investigating police officers rendered hollow [the plaintiffs] right to seek redress.”).
But where a plaintiffs predicate claim is merely delayed due to government

misconduct, and the access claim can provide no more relief than can be achieved by

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H. Count IX - IL Intentional Infliction of Emotional Distress (IIED)
Patterson contends in Count IX that he suffered severe emotional distress as a
result of defendants’ intentional, extreme, and outrageous acts of torturing,
humiliating, framing, wrongfully convicting, and falsely imprisoning him on death row
for a crime he did not commit. Defendants do not contest the allegations, but argue
only that the claim is untimely because ITED claims accrue on the date when
defendants caused the distress. The court disagrees. The weight of case law in this
district holds that a claim for ITED arising from malicious prosecution does not accrue
until the state criminal proceedings are terminated. See Hobley, 2004 WL 1243929,
at *9 (collecting cases). Thus, since state tort claims are subject to a one-year
limitations period under Illinois law, 745 ILCS 10/8-101, Booker v. Ward, 94 F.3d 1052,
1056-57 (7th Cir. 1997), and Patterson filed his complaint within a year of receiving
his pardon, his ITED claim is timely. Defendants’ motion to dismiss Count IX is denied.

I. Count X - IL Defamation

The allegations in Count X state that SAO defendants Devine, Byrne, and Troy
defamed Patterson by making false public statements implicating him in the Sanchez
murders and accusing him of lying under oath about the murders and his torture.
Defendant Byrne argues that the claim against him is untimely because defamation
actions accrue when the defamatory statement is published, Schweihs v. Burdick, 96
F.3d 917, 920 (7th Cir. 1996); Tom Olesker's Exciting World of Fashion, Inc. v. Dunn
& Bradstreet, Inc., 334 N.H.2d 160, 164 (Ill. 1975), and Patterson’s complaint alleges

that Byrne published his statements in December of 1999. Taking this fact as true,
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criminal defendant is] arraigned, the prosecution is underway,” Wiley, 361 F.3d at 998,
and while the Fourth Amendment protects against seizure without probable cause, it
does not protect against prosecution without probable cause, Newsome I, 256 F.3d at
750. Thus, the prevailing rule in this circuit is that existence of probable cause for an
arrest extinguishes any potential claim under § 1983 for false arrest or false
imprisonment. Jones v. Webb, 45 F.3d 178, 183 (7th Cir. 1995).

That said, dicta from the Seventh Circuit’s recent decision in Gauger suggests
that the vitality of the “continuing seizure” approach to § 1983 actions based on the
Fourth Amendment is ripe for reconsideration after Newsome I. In Gauger the court
opined, “When a defendant is arrested and jailed on the basis of probable cause to
believe that he has committed a crime, and only later does police fraud enter the
picture with the effect of perpetuating the seizure without good cause, there is a
question not as yet authoritatively resolved whether the Fourth Amendment has been
violated.” 849 F.3d at 359.° The facts here present an even stronger case for revisiting
the continuing seizure doctrine. Unlike in Gauger, where the criminal defendant was
arrested without probable cause but additional circumstantial evidence gathered at the
scene enabled detectives to provoke a confession from the defendant, Patterson was
arrested on a warrant for an unrelated crime and the Area 2 defendants allegedly used

torture and obstruction of the criminal investigation to fabricate evidence and frame

5 The court admits to some confusion after reading this part of the Seventh
Circuit’s opinion in Gauger since other cases decided just before (Lee) and after
(Wiley) Gauger seem, at least from this court’s view, to hold authoritatively that the
continuing seizure doctrine is not viable.

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Defendants advance two additional arguments that merit the court’s attention
before turning to Patterson’s individual claims. First, SAO defendants Troy, Lacy, and
Devine contend that this court lacks subject matter jurisdiction over the state law
claims against them. Specifically, they argue that at all times relevant to this action
they were state officials acting within the scope of their employment, and Illinois law
mandates that actions against state employees be brought in the Court of Claims. See
Senn Park Nursing Cntr. v. Miller, 470 N.E.2d 1029, 1039 (Ill. 1984). But the Court of
Claims’ jurisdiction is not exclusive “when it is alleged that the State’s agent acted in
violation of statutory or constitutional law, or in excess of his authority.” Healy v.
Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990). That is exactly the case here: in his claims
for false imprisonment, malicious prosecution, intentional infliction of emotional
distress, defamation, and conspiracy, Patterson accuses the SAO defendants of acting
intentionally and maliciously in violation of Illinois state law. The court is satisfied
that these allegations, if proven, would establish that the SAO defendants acted
outside the scope of their authority as state’s attorneys, meaning that the state law
charges do not belong in the Court of Claims. See Welch v. Illinois Supreme Ct.,
751 N.E.2d 1187, 1195 (IU. App. Ct. 2001) (“Malice, if well pleaded, is outside the scope
of a State employee’s authority and must be brought in the circuit court and not the

Court of Claims.”); Nelson v. Murphy, 44 F.3d 504, 505 (7th Cir. 1995).

issue of collateral estoppel) (internal citations omitted).

-12-



known to be perjured.” Mooney v. Holohan, 294 U.S. 340, 342 (1935). “Equally
offensive to the Constitutional guarantees of liberty” and therefore also a violation of
due process “are confessions wrung from an accused by overpowering his will, whether
through physical violence or the more subtle forms of coercion commonly known as ‘the
third degree’.” Hysler v. Florida, 315 U.S. 411, 413 (1942) (citing Brown v. Mississippi,
297 U.S. 278, 286-87 (1936). These are the fundamental principles from which the
Supreme Court in Brady derived its rule prohibiting the state from suppressing
exculpatory evidence, see 373 U.S. at 86-88, and it is this constitutional understanding
of due process that informs this court’s analysis of Patterson’s claims in Count I.

As interpreted by the courts, a colorable due process claim under § 1983 must
allege that defendants obstructed j ustice or withheld information or evidence necessary
to ensure the fair and impartial trial guaranteed by the constitution. Tenco v. City of
Chicago, 286 F.3d 994 (7th Cir. 2002); Brady, 373 U.S. at 87. In practical terms, a
Brady violation has three components: (1) the evidence at issue must be favorable to
the accused, meaning either exculpatory or impeaching; (2) the evidence must have
been suppressed by the state, either willfully or inadvertently; and (3) prejudice must
have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Though Brady
identifies a trial right of the accused, the government's offending conduct may occur
before, Manning v. Miller, 355 F.3d 1028, 1033 (7th Cir. 2004), during, Newsome v.
McCabe, 319 F.3d 301, 304-5 (7th Cir. 2003) (‘Newsome II’), or after, Buckley v.

Fitzsimmons, 509 U.S. 259, 269 (1993), the criminal trial.

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