In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3598

JOVAN MOSLEY,

Plaintiff-Appellant,

v.

THE CITY OF CHICAGO, a municipal corporation,

and Chicago Police Officers CLARENCE HILL, 

DERAIL EASTER, CHARLES WILLIAMS, AND

EDWARD HOWARD, JR.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06-c-6314—David H. Coar, Judge.

ARGUED MAY 25, 2010—DECIDED JULY 29, 2010

Before FLAUM, ROVNER and WOOD, Circuit Judges.

FLAUM, Circuit Judge. This is an appeal from a grant

of summary judgment in favor of the defendants in a

§ 1983 action that arose from the arrest and prosecution

of plaintiff-appellant Jovan Mosley. Mosley was at the

scene when a group of individuals beat Howard Thomas
2 No. 09-3598

to death in 1999. Mosley arrived at the scene with the

group that attacked Thomas and left the scene with the

same group. Mosley and three other individuals were

charged with Thomas’s murder. After approximately

five years in jail, Mosley was acquitted at trial. Shortly

thereafter he filed this suit. Mosley’s § 1983 claim centers

around the allegation that the investigating officers

withheld evidence of an exculpatory statement made

by the key eyewitness during the line-up when this

witness identified Mosley. We agree with the district

court that the record does not support Mosley’s due

process violation claim or any of his related state law

claims. We affirm.

I. Background

A. The Prosecution of Mosley in the Thomas Murder

Shortly after midnight on August 6, 1999, Howard

Thomas was beaten to death near 7330 South Calumet

Avenue in Chicago. Two teenage individuals, Jori Garth

and Anton Williams, witnessed the attack. That evening,

Garth and Williams were sitting on Garth’s front porch.

Frad Muhammad, Lawrence Wideman, Marvin Treadwell,

Jovan Mosley and Gregory Reed approached the porch.

Garth knew Treadwell and Reed socially. Reed, who

had been drinking heavily, joined Garth and Williams

on the porch while the others stayed at foot of the stairs.

While the group was talking, Thomas walked by and

someone in the group said, “there go the motherfucker

right there.” The group standing at the base of the

stairs ran at Thomas. There is some testimony that Reed
No. 09-3598 3

initially ran out and quickly ran back to the porch. Eventually, the beating ended and Muhammad, Wideman,

Treadwell, and Mosley all walked off together, leaving

Thomas in a pool of his own blood. The police arrived

shortly thereafter. Garth and Williams did not come

forward as witnesses right away.

The police interviewed Garth and Williams about six

months after the attack. Garth told the police about the

group coming to her porch to talk with her and Williams. She said that shortly into the conversation Thomas

walked by and three of the members of the group ran and

attacked him. She said that a tall, light-skinned, black man

was the one with the baseball bat and the other two

individuals had braided hair. None of these descriptions

fit Mosley. Mosley does not allege that the police withheld Garth’s statement.

Williams also gave a statement to the police. He told

the officers that five individuals came to the porch. He

recognized Reed, Treadwell, and Muhammad. He did not

recognize the other two individuals. Officers Charles

Williams, Clarence Hill, and Edward Howard, Jr. testified

that Anton Williams told them that everyone in the

group except Reed attacked Thomas. After Williams gave

his statement, the officers assembled a line-up with

Mosley. Williams identified Mosley as having been on

the scene of Thomas’s murder. The officers did not create

a report to document the line-up at that time. Fifteen

months later, Detective Hill documented the line-up in

vague and general terms. The report does not say

precisely what role Mosley played in the attack, but it did
4 No. 09-3598

indicate that Williams identified Mosley as being

involved in the murder in some fashion. This report was

turned over to Mosley’s attorney before trial. At his

deposition in this case, Williams indicated that the

report was a fair representation of the results of the

line-up.

In addition to giving his initial statement and identifying Mosley in the line-up, Williams testified before

the grand jury and at Mosley’s trial. Before the grand

jury Williams gave the following testimony:

Q: After you heard somebody say that, what did

you see then?

A: They started beating on him.

Q: When you say they, who specifically did you see?

A: Frad, Marvin, Red.

Q: And did you see where the fourth black male

who you described to the Grand Jury, where did he

go as those three people were beating on the victim?

A: I didn’t see him beat him, but he was around

the area.

Q: Did you see him where the three people that

you knew were beating on the victim?

A: Yes.

Q: And was he down in that area?

A: Yes.

At trial, Williams gave direct testimony consistent with

his grand jury testimony. Then, on cross-examination
No. 09-3598 5

Williams agreed with a statement by defense counsel

that one could interpret as making Mosley less culpable:

Q: [Mosley is] the person you identified as having

been out there but not having done anything, correct?

A: Correct.

Q: You never at any time told the police officers

that Jovan Mosley did hit or strike or kick

Mr. Thomas, did you?

A: No. No.

Williams testified in his deposition that he told the

officers that five men, including Mosley, attacked

Thomas. Williams also testified that he consistently

told the officers that Mosley was part of the group that

ran toward Thomas but that he did not see Mosley

throw any punches. Other than agreeing with defense

counsel’s statement on cross-examination, Williams

never claimed to have definitively seen Mosley abstain

from participation in the attack.

The detectives also took a statement from Reed. Reed

implicated all four defendants in the attack. In the statement, Reed claimed that Mosley hit Thomas a couple

of times. In discussing that statement during his deposition in this case, Reed stated that he had no independent

recollection of what happened but provided the statement based on what he had heard from other individuals.

Reed claimed that he told the officers of that fact before

he gave the statement, but he did not acknowledge his

lack of personal recollection in his statement. Reed gave

deposition testimony that the officers did not tell him
6 No. 09-3598

what to say in his statement. On the eve of trial, Reed

told the prosecutor, Andrew Varga, that he was drunk

on the night of the incident and did not have any independent recollection of the event. At that time, Varga

decided not to call Reed as a witness at trial. There is

no information in the record regarding whether Varga

ever informed Mosley’s defense attorney about this

discovery.

All of Mosley’s co-defendants also implicate Mosley

in the beating in some fashion. Muhammad said that

Mosley was part of the group that attacked Thomas, but

did not say what Mosley did in the beating. Wideman

said that Mosley was part of the earlier discussions

when the group planned to rob and beat someone.

Wideman also said that Mosley was present at the scene

of the beating and left with the group after the beating.

Treadwell did not implicated Mosley by name, but did

say that Frad’s friend was the fifth member of the

group and was one of the men who hit Thomas. Mosley

also gave a statement implicating himself. Throughout

his briefs, Mosley characterizes his statement as “a statement given after twenty-eight hours of being handcuffed

to a wall in an interrogation room.” However, the

manner in which that statement was obtained is not

challenged in this lawsuit.

Mosley’s trial was originally scheduled for April 2000.

However, by agreement of the parties, the court continued the trial until November 2005. Mosley remained

in the maximum-security wing of the Cook County Jail

while awaiting trial. In November 2005, Mosley was
No. 09-3598 7

acquitted by a jury. Wideman, Treadwell, and Muhammad

were convicted of first-degree murder.

B. Procedural History

Mosley filed this case against the City of Chicago,

Clarence Hill, Maverick Porter, Derail Easter, Charles

Williams, and Edward Howard, Jr. All of the individual

defendants are Chicago Police Department officers who

were involved in the investigation of the Thomas murder. The initial complaint contained the following

claims: Count I—the defendants violated Mosley’s due

process rights by withholding exculpatory evidence

and fabricating false reports; Count II—the defendants

falsely imprisoned Mosley; Count III—defendants

violated Mosley’s right to equal protection of the laws;

Count IV—defendants conspired to deprive Mosley of

his constitutional rights; Count V—the defendants subjected Mosley to malicious prosecution; Count VI—the

defendants engaged in a civil conspiracy; Count VII—the

defendants subjected Mosley to intentional infliction of

emotional distress; Count VIII— defendant City of

Chicago is bound by the doctrine of respondeat superior;

and Count IX—defendant City of Chicago is obligated

to indemnify the Chicago Police Officer defendants.

Defendants moved to dismiss all of the claims. Mosley

voluntarily dismissed the claims for false imprisonment, violation of equal protection, and conspiracy to

deprive Mosley of his constitutional rights. The district

court denied the motion to dismiss on all other counts.

Discovery ensued. Prior to the close of discovery, defen-
8 No. 09-3598

dants filed for summary judgment on the remaining

counts. Discovery continued while the motion for summary judgment was pending. At the close of discovery,

the district court granted defendants’ motion for summary judgment on all remaining counts. The district

court found that the defendants did not violate

Mosley’s due process rights because any failure to

disclose exculpatory evidence did not rise the level of a

Brady violation. The district court granted summary

judgment on the malicious prosecution claim because

it found that there was probable cause to proceed with

the prosecution. The district court found that without a

valid claim for the due process violation or the malicious

prosecution, the civil conspiracy claim could not stand

because there was no legally cognizable injury. The

district court granted summary judgment on the intentional infliction of emotional distress claim because the

statute of limitations had run. Finally, the district court

found that the claims against the City of Chicago were

inapplicable because Mosley did not put forward any

valid claims against the individual officers. Mosley now

appeals the district court’s grant of summary judgment

on the counts for denial of due process, malicious prosecution, and civil conspiracy. He also asks us to

reinstate the claims against the City of Chicago if we

reinstate any of the claims against the individual defendants.

II. Discussion

We review a district court’s grant of summary judgment de novo. Barricks v. Ely Lilly & Co., 481 F.3d 556, 559
No. 09-3598 9

Mosley contends that the district court erred by formulating 1

the test for summary judgment as “a party seeking summary

judgment has the burden of showing that there are no genuine issues of material fact that would prevent judgment as

a matter of law.” Mosley claims that by formulating the test in

this manner, the district court improperly intermingled the

analysis of the record facts with the legal tests for prevailing

as a matter of law. Tied to this claim, Mosley argues that the

district court did not view the facts in the light most favorable

to Mosley when granting summary judgment. This argument

is without merit. The district court did not disregard the

proper standard of review for summary judgment—it considered whether the record presented any issues of material

fact with regard to the legal issues presented. There was no

conflation or confusion of facts and the law. Furthermore, as

defendants point out, we review a claim for summary judgment de novo, and therefore we review the record and legal

issues anew.

(7th Cir. 2007). Summary judgment is proper if “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). If the moving 1

party meets this burden, the non-moving party must

submit evidence that there is a genuine issue for trial.

Fed. R. Civ. P. 56(e); Ptasznik v. St. Joseph Hosp., 464 F.3d

691, 694 (7th Cir. 2006). The existence of merely a

scintilla of evidence in support of the non-moving

party’s position is insufficient; there must be evidence

on which the jury could reasonably find for the

non-moving party. Ptasznik, 464 F.3d at 694.
10 No. 09-3598

A. Brady Violation Claim

The main issue in this appeal is whether the officers

violated their duty under Brady v. Maryland, 373 U.S. 83

(1963), to turn over all exculpatory evidence and thereby

violated Mosley’s due process rights. Mosley claims

Williams told the officers that he recognized Mosley

from the group of individuals who beat Thomas to

death but that Williams saw that Mosley did not participate in the beating. Mosley insinuates that there was

an original line-up report created that contained that

statement and the officers destroyed the report to keep

it from Mosley’s attorney. In the alternative, Mosley

claims that the officers did not create the line-up report

for fifteen months to hide the fact that Williams saw

that Mosley did not participate in the beating. Additionally, Mosley claims that the officers committed a Brady

violation by not informing Mosley’s attorney that Reed

was too drunk to have any independent recollection of

the night.

We begin our analysis by determining what Mosley

would need to show to prevail on a Brady due process

violation claim. A Brady violation occurs when the government fails to disclose evidence materially favorable

to the accused. Youngblood v. West Virginia, 547 U.S. 867,

869 (2006). The Brady duty extends to impeachment

evidence as well as exculpatory evidence. Id. at 870. A

defendant may demonstrate that a Brady violation has

occurred by “showing that the favorable evidence

could reasonably be taken to put the whole case in such

a different light as to undermine confidence in the ver-
No. 09-3598 11

dict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). In

granting summary judgment, the district court identified

the logical tension inherent in claiming a Brady violation occurred when the predicate trial resulted in an

acquittal—exclupatory evidence coming to light after the

trial would reaffirm, not undermine, the confidence in

a not guilty verdict. Several of our sister circuits have

held that the standard set out in Kyles indicates that a

trial that results in an acquittal can never lead to a

valid claim for a Brady violation because the trial produced

a fair result, even without the exculpatory evidence. See

Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)

(“Regardless of any misconduct by government agents

before or during trial, a defendant who is acquitted

cannot be said to have been deprived of the right to a

fair trial.”); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir.

1998) (finding no Brady violation in the face of an

acquittal because Brady protects a defendant from an

unfair trial and an acquitted defendant does not suffer

the effects of an unfair trial); McCune v. City of Grand

Rapids, 842 F.2d 903, 907 (6th Cir. 1988) (holding that

where criminal charges are dropped before trial, and

thus the underlying criminal proceeding terminated in

an appellant’s favor, there is no injury caused by the act

of suppressing exculpatory evidence). But see Haupt v.

Dillard, 17 F.3d 285, 287-88 (9th Cir. 1994) (holding that

where the trial judge was biased, defendant’s acquittal

speaks only to the amount of damages due and is irrelevant to whether he has a cause of action for a violation

of his due process right to a fair trial). Our circuit

has not directly resolved whether a plaintiff can assert
12 No. 09-3598

a claim for a Brady violation when the trial resulted in

an acquittal. We were recently confronted with this

issue in Bielanski v. County of Kane, 550 F.3d 632, 644 (7th

Cir. 2008). However, we did not directly address the

question because we found that even if we recognized a

cause of action for a Brady violation when the trial results

in an acquittal, the plaintiff in Bielanski would still have

failed to state a claim. In coming to that conclusion, we

set aside the issue of whether such a claim could potentially exist. We held that to state a Brady violation

claim when the criminal trial ended in acquittal, if such

a claim exists, the plaintiff would need to show that

“the decision to go to trial would have been altered by

the desired disclosure.” Bielanski, 550 F.3d at 645 (citing

Carvajal v. Dominguez, 542 F.3d 561, 570 (7th Cir. 2008)).

Following Bielanski, we now ask whether there is any

evidence in the record that would show: (1) that the

officers withheld materially favorable evidence from

Mosley, and (2) had the officers disclosed that evidence

sooner, it would have altered the decision to go to trial. In

other words, Mosley must show that if all parties had

known of some piece of exculpatory evidence, the prosecution would not have moved forward with charges,

the grand jury would not have indicted Mosley, or the

trial court would have granted a motion to dismiss the

indictment. Because Mosley cannot meet this bar, we

reserve the question of whether our circuit recognizes a

claim for a Brady violation when the trial results in an

acquittal for a later case when this standard is met.

There is no evidence in the record that the officers

withheld any materially favorable piece of evidence.
No. 09-3598 13

Mosley contends that during the lineup identification

of him, Williams told the officers that he saw Mosley

during the attack and he saw that Mosley did not participate in the beating; that the officers withheld that

information; and that this withholding amounts to a

Brady violation. Mosley does not contend that the

officers withheld Williams’s initial statement to the

police or his grand jury testimony that he saw Mosley

in the area of incident but did not see Mosley participate

in the attack. Mosley stresses the distinction between

not seeing someone participate in a crime and seeing

someone not participate in the crime. Even if this distinction is meaningful, Mosley’s claim fails because there is

no evidence that Williams told the officers that he saw

Mosley not participate in the beating that led to Thomas’s

death. To support his claim, Mosley points our attention

to the cross-examination at trial where Williams replied

“yes” to the defense counsel’s statement: “[Mosley is] the

person you identified as having been out there but not

having done anything, correct?” We agree with the district

court that Williams’s one word answer to that leading

question must be interpreted in light of all of Williams’s

testimony. This is not an impermissible credibility determination. It is a necessary interpretive step to give any

meaning to that piece of testimony. In every situation

where Williams articulated what he told the police

officers—his grand jury testimony, his direct examination

testimony at trial, and his deposition testimony in this

case—Williams consistently said that he told the officers

that he saw Mosley with the group that committed the

attack but did not see or could not remember seeing
14 No. 09-3598

Mosley participate. In light of the fact that he has consistently testified, both before and after the trial, that he told

the officers that Mosley was in the area of the attack but

that he did not know or did not see if Mosley participated,

the one word answer on cross-examination cannot create

a genuine issue of material fact on this issue. Mosley also

points to the fifteen-month delay in the creation of a lineup

report as evidence that the officers were intentionally withholding information. While fifteen months is an unusually long delay for the creation of a report, there is no

evidence that the delay was the result of anything

other than an oversight.

Even if we were to determine that Williams’s agreement on cross-examination creates an issue of material

fact as to whether or not Williams ever told the officers

that he saw Mosley not participate in the beating, this

withholding would not rise to the level of a Brady violation under the standard we set forth in Bielanski because

it would not have altered the prosecution’s decision to

go to trial. The prosecutor testified at his deposition that

he moved forward against Mosley on an accountability

theory of murder. To purse the accountability theory of

murder, the state did not need to show that Mosley

actively participated in the beating. Instead, the state

needed to show that Mosley, with the intent to promote or

facilitate the attack, solicited, aided, abetted, agreed or

attempted to aid, others in the attack. 21 Tracy Bateman &

Susan L. Thomas, Ill. Law and Prac. Homicide § 9 (2010).

Williams’s alleged statement would not have changed

the viability of this theory of criminal liability for

Mosley. Taking Mosley’s most favorable formulation of
No. 09-3598 15

Williams’s testimony, Williams saw Mosley with the

group who carried out the attack and saw Mosley in the

area of the attack. Wideman stated that Mosley participated in earlier discussions planning to attack, beat, and

rob an individual. After the attack, Mosley left with the

group of perpetrators. This evidence would have been

sufficient for the prosecutor to pursue the accountability

theory of murder under Illinois law.

Mosley also contends that the officers committed a

Brady violation by withholding the evidence that Reed

was “drunk as hell” on the night of the incident and had

no independent recollection of the incident. Mosley

argues that this is impeachment evidence and therefore

Brady material that should have been disclosed. This

argument fails because the state did not call Reed at trial

and therefore the state had no obligation to turn over

evidence that could impeach his testimony. Furthermore, the prosecution did decide to move forward with

the trial even after learning this fact. Therefore, even

assuming that a Brady violation could occur when a trial

ends in acquittal, this claim cannot rise to the level described in Bielanski. 

B. Malicious Prosecution Claim

In order to prevail on a malicious prosecution claim

under Illinois law, the plaintiff must prove: (1) the commencement or continuance of judicial proceedings by

the defendant against the plaintiff; (2) a lack of probable

cause for those proceedings; (3) malice in instituting

the proceedings; (4) termination of the proceedings in
16 No. 09-3598

the plaintiff’s favor; and (5) damages resulting to the

plaintiff. The district court concluded that the defendants

had probable cause to press forward with the prosecution

and therefore Mosley could not maintain a claim for

malicious prosecution. Probable cause is defined as “a

state of facts that would lead a person of ordinary

caution and prudence to believe, or to entertain an

honest and strong suspicion, that the person arrested

committed the offense charged.” Reynolds v. Menard, Inc.,

850 N.E.2d 831, 837 (Ill. App. Ct. 2006).

Mosley erroneously claims that the district court

impermissibly weighed the credibility of the witnesses

in determining that the officers had probable cause.

We look to the totality of the circumstances when considering whether the officers had probable cause to

arrest and initiate proceedings against a defendant.

Illinois v. Gates, 462 U.S. 213, 231 (1983). In finding that

the officers had probable cause, the district court relied

on the testimony of the officers and Williams that

Williams told the officers Mosley was in the group that

attacked Thomas and Reed’s statement to the officers

that he heard Mosley had been a part of the attack. Although Reed’s hearsay statements would not have

been admissible at trial, they can still serve as a basis for

probable cause when considered with the other evidence.

See Ebert v. Gaetz, ___ F.3d ___, 2010 WL 2508771 (7th

Cir., June 23, 2010) (“probable cause to arrest can rest

upon information that would not be admissible at trial,

such as hearsay, if the information is supported by

some indicia of reliability.”). In addition to Reed and

Williams’s statements, the officers also acted on the
No. 09-3598 17

statements of Muhammad, Wideman, and Treadwell, all

of which implicated Mosley. While Mosley is correct to

argue that the testimony of confederates is not always

the most credible in front of a jury, it certainly can be

credited in forming the basis for probable cause.

C. Civil Conspiracy Claim

Lastly, Mosley claims that the district court erred in

granting summary judgment on his civil conspiracy

claim. To show a civil conspiracy, Mosley must show

an agreement to accomplish either an unlawful purpose

or a lawful purpose by unlawful means. McClure v. Owens

Corning Fiberglass Corp., 720 N.E.2d 242, 258 (Ill. 1999).

Mosley must show that each of the defendants “knowingly and voluntarily participated in a common scheme

to commit an unlawful act or a lawful act in an

unlawful manner.” Id. Proof of accident or negligence is

not enough. Id. Mosley does not point to any evidence

of a common scheme. Instead, Mosley points to allegations he made in his complaint. This is not the proper

standard for summary judgment. At this stage, Mosley is

required to offer support for those allegations. In place

of evidence, Mosley points to the absence of reports from

his interrogation and the line-up. He is correct that

this indicates an oversight by the police officers in

this case. However, without more, this omission

does not amount to evidence of conspiracy to obtain an

unlawful result or to obtain a lawful result through

unlawful means.
18 No. 09-3598

III. Conclusion

For the reasons set forth above, we AFFIRM the district court’s grant of summary judgment on all claims.

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