02-5911.061-JCD April 12, 2006

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NILDA GOMEZ, )

)

Plaintiff, )

)

 v. ) No. 02 C 5911

) 

LT. RICCIO, GEORGE MELANIS, )

JORGE RIVERA, and the CITY OF )

CHICAGO, ) 

 )

Defendants. )

MEMORANDUM OPINION

Before the court is defendants’ “amended, renewed motion for

partial summary judgment based on new authority.” For the reasons

explained below, the motion is granted.

This is a civil rights action by plaintiff Nilda Gomez against

the City of Chicago (the “City”), Chicago Police Lieutenant Anthony

Riccio, and Chicago Police Officers George Melanis and Jorge

Rivera. Plaintiff claims that after her arrest for domestic

battery, she was falsely charged with felony battery to police

officers, detained, and subjected to a strip search and a body

cavity search in retaliation for having previously filed a civil

rights suit against defendant Riccio, among others. According to

plaintiff, the aggravated battery charges are based on false claims

that plaintiff intentionally kicked Officers Melanis and Rivera in

the course of the domestic battery arrest. The relevant facts are
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recited in our Memorandum Opinion of November 1, 2005, which ruled

on defendants’ motion for summary judgment, and will not be

repeated here.

Defendants now seek summary judgment on Count II. In Count

II, plaintiff alleges that defendants violated her constitutional

right to a fair trial by “fabricat[ing] ‘evidence,’ communicat[ing]

false and misleading information to various Cook County State’s

Attorneys, and withh[olding] exculpatory information from various

Cook County State’s Attorneys.” (Second Amended Complaint, ¶ 23.)

Defendants’ motion is styled as an “amended, renewed motion for

partial summary judgment based on new authority.” In defendants’

view, the Seventh Circuit’s decision in Ienco v. Angarone, 429 F.3d

680 (7th Cir. 2005), which was issued two weeks after our ruling on

defendants’ motion for summary judgment, “directly applies to

plaintiff’s due process claim.” (Motion at 1.) 

Ienco is “new authority” only in the sense that it was

recently issued; it does not stand for any novel rule of law, but

rather applies existing law to a new set of facts. In Ienco, the

Seventh Circuit stated in pertinent part:

In Ienco IV, we found that Ienco’s claim of malicious

prosecution failed as a matter of law, but remanded the

case to allow Ienco the opportunity to allege that the

officers violated his right to due process by withholding

information or evidence necessary for him to receive a

fair and impartial trial as guaranteed by the

Constitution. We held in Newsome [v. McCabe, 256 F.3d

747 (7th Cir. 2001)] that due process claims against the

police alleging the withholding of evidence should be
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analyzed under the framework set forth in Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963). 256 F.3d at 752. Under Brady, the government

must disclose favorable evidence that is material to

either the defendant’s guilt or possible sentence. 373

U.S. at 87, 83 S. Ct. 1194. In order to prevail under

Brady, Ienco must show that: (1) the government

suppressed evidence; (2) the evidence was favorable to

the defense, either because it was exculpatory or had

impeachment value; and (3) the evidence was material to

an issue at trial. United States v. Grintjes, 237 F.3d

876, 880 (7th Cir. 2001). Evidence is suppressed for

Brady purposes when (1) the prosecution failed to

disclose the evidence in time for the defendant to make

use of it, and (2) the evidence was not otherwise

available to the defendant through the exercise of

reasonable diligence. United States v. O’Hara, 301 F.3d

563, 569 (7th Cir. 2002) (citing Boss v. Pierce, 263 F.3d

734, 740 (7th Cir. 2001)).

429 F.3d at 683. Because the Court could not “find any evidence on

appeal that was both material to Ienco’s defense at trial and

suppressed by the police,” it affirmed the district court’s grant

of summary judgment in favor of the officers on Ienco’s due process

claim. Id.

Defendants argue that they are entitled to summary judgment on

plaintiff’s due process claim because there is no evidence that the

officer defendants withheld any evidence, let alone any exculpatory

material evidence. The basis of plaintiff’s due process claim is

that the officers testified falsely that plaintiff kicked them

during the arrest. Defendants contend that such allegations do not

fit within the due process framework set forth in Ienco and its

predecessors and are essentially duplicative of plaintiff’s

malicious prosecution claim. 
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In response to defendants’ motion, plaintiff concedes that in

Count II, she is “not alleging evidence suppression but rather

manufacturing of false evidence.” (Response at 2.) Plaintiff

attempts to distinguish Ienco on its facts but wholly fails to

explain why its legal principles do not apply. 

Relevant Seventh Circuit case law indicates that due process

relief is limited to cases where the facts show that law

enforcement officers withheld information or suppressed evidence in

violation of Brady. We adopt the analysis of our colleague, Judge

Moran, who recently addressed the issue in Griffin v. City of

Chicago, 406 F. Supp. 2d 938, 946-48 (N.D. Ill. 2005). In Griffin,

Judge Moran examined the language of Newsome, 256 F.3d at 752, and

Gauger v. Hendle, 349 F.3d 354 (7th Cir. 2003), overruled on other

grounds by Wallace v. City of Chicago, 440 F.3d 421 (7th Cir.

2006), and concluded that allegedly falsified testimony falls

outside of Brady, and thus fails to fit within the framework for a

due process claim. 

Plaintiff acknowledges that her due process claim is based not

on the suppression of evidence, but on falsified testimony. It is

simply a recast of plaintiff’s malicious prosecution claim.

Because there is no evidence that the officers suppressed

exculpatory evidence, plaintiff has failed to create a genuine

issue of fact as to her due process claim. Accordingly,
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defendants’ amended, renewed motion for summary judgment on Count

II will be granted. 

CONCLUSION

Defendants’ amended, renewed motion for partial summary

judgment based on new authority is granted. Summary judgment in

favor of defendants and against plaintiff is entered on Count II.

DATE: April 12, 2006

ENTER: ___________________________________________

John F. Grady, United States District Judge