In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-1004, 07-1005 & 07-3030

S. ALEJANDRO DOMINGUEZ,

Plaintiff-Appellee,

v.

PAUL HENDLEY and CITY OF WAUKEGAN,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 2907—Milton I. Shadur, Judge.

ARGUED MAY 30, 2008—DECIDED SEPTEMBER 30, 2008

Before BAUER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. In September 1989, when Alejandro

Dominguez was fifteen years old, he was arrested on

charges of home invasion and sexual assault, based on the

allegations of eighteen-year-old Lisa Kraus, who lived in

the same building as he did. Dominguez was convicted

and spent four years incarcerated before being paroled.

Throughout this process and the period following his

release, he maintained his innocence and worked to
2 Nos. 07-1004, 07-1005 & 07-3030

exonerate himself. With the help of a new lawyer,

Dominguez eventually proved that his DNA did not

match the semen found on Kraus’s underwear, and on

April 26, 2002, his conviction was vacated. In August 2005,

Dominguez received a pardon from the Governor.

On April 23, 2004, Dominguez filed a complaint under

42 U.S.C. § 1983 against the City of Waukegan and the

police officers—in particular Officer Paul Hendley—

involved in the investigation of the incident with Kraus.

After the complaint was amended more than once to

add parties and claims and drop parties who had died, the

case went to trial with only Hendley and the City as

defendants. After all evidence was submitted to the jury

but before the jury rendered its verdict, the district court

dismissed the City from the suit, based on a failure

of proof, but with the express understanding that the

City was bound to indemnify Hendley for any judgment

incurred. After a ten-day trial, the jury found in favor

of Dominguez and awarded him a judgment of $9,063,000,

based on its finding that Hendley had violated

Dominguez’s right to due process by taking actions that

denied him a fair trial. At that point, the City repudiated

its prior position and stated that it might not indemnify

Hendley, prompting Dominguez to move for post-judgment relief. Based on the City’s judicial admissions on

the issue of indemnification, the district court reinstated it

as a defendant and amended the judgment to make

Hendley and the City jointly and severally liable for the

judgment in favor of Dominguez. Hendley and the City

appeal, and we affirm.
Nos. 07-1004, 07-1005 & 07-3030 3

I

Hendley’s first argument on appeal is that Dominguez’s

claim is barred by the statute of limitations. We review a

district court’s ruling with respect to a limitations defense

de novo. United States v. Gibson, 490 F.3d 604, 608 (7th Cir.

2007).

In Illinois, the statute of limitations for § 1983 claims is

two years. See 735 ILCS 5/13-202; Williams v. Lampe, 399

F.3d 867, 870 (7th Cir. 2005). Dominguez filed his complaint on April 23, 2004, and so if his claim accrued on or

after April 23, 2002, then his lawsuit was timely. His

conviction was vacated on April 26, 2002, which falls

within this window. The real question is whether that

is the proper event on which to focus.

The jury was instructed to find for Dominguez if it

found that the defendant caused Dominguez’s criminal

trial to be unfair. A § 1983 claim for a due process violation based on the denial of a fair criminal trial may be

brought only after the conviction is set aside. Otherwise,

that civil claim would imply the invalidity of the outstanding conviction and would thus constitute a collateral

attack on the conviction through an impermissible route.

Heck v. Humphrey, 512 U.S. 477 (1994). So viewed,

Dominguez’s claim did not accrue until 2002 and is

therefore timely.

Hendley argues, however, that the underlying reason

why Dominguez asserts that his trial was unfair relates to

his arrest, and thus we should find that his claim accrued

no later than the time when his unlawful seizure was

terminated—that is, the time of his arraignment. Fourth
4 Nos. 07-1004, 07-1005 & 07-3030

Amendment claims for false arrest or unlawful searches

accrue at the time of (or termination of) the violation.

Wallace v. Kato, 549 U.S. 384 (2007). Even if no conviction could have been obtained in the absence of the violation, the Supreme Court has held that, unlike fair trial

claims, Fourth Amendment claims as a group do not

necessarily imply the invalidity of a criminal conviction,

and so such claims are not suspended under the Heck

bar to suit.

Hendley, however, is assuming that Dominguez’s claim

is limited to his arrest and does not also include independent charges of due process violations. That assumption

overlooks critical parts of the case. Dominguez has

asserted all along that the defendant officers violated his

right to due process by manipulating or tampering with

identification and testimonial evidence. He backed up

these allegations with evidence at the trial. His due

process claim is thus more than a Fourth Amendment

claim by another name, and for that reason, it is not barred

by the limitations rule announced in Wallace. Dominguez’s

right to sue arose only after his criminal conviction was

set aside, and, as the district court held, he filed within

the two years permitted by law.

II

Hendley next argues that he was entitled to qualified

immunity because he did not proximately cause any

constitutional violations at Dominguez’s criminal trial. It

is somewhat unusual to encounter a qualified immunity

defense this late in the proceedings, because qualified
Nos. 07-1004, 07-1005 & 07-3030 5

immunity is normally raised during the pretrial phase so

that the public official can avoid the burdens of trial. It is

technically possible, however, to raise the defense after a

jury verdict, if the immunity question itself depended on

disputed issues of material fact. See Johnson v. Jones, 515

U.S. 304, 313 (1995).

In this case, the defendants raised the defense of qualified immunity in their answer, but they did not move

for summary judgment. This was a reasonable way to

proceed, because Hendley denied that he had engaged

in the misconduct of which Dominguez accused him:

withholding material exculpatory evidence from the

defense and prosecutor, orchestrating a show-up identification procedure that caused the criminal trial to be

unfair, and fabricating evidence against Dominguez. There

was and is no disputing that such conduct violates

clearly established constitutional rights. Hendley merely

hoped that the jury would credit his version of what

happened rather than Dominguez’s.

Hendley’s biggest problem is that qualified immunity

is a doctrine designed to respond to legal uncertainty, but

causation (a factual matter) has nothing to do with legal

uncertainty. His contention about a lack of “proximate

cause” is really just an assertion that the evidence was

insufficient to support the jury’s finding that his

conduct proximately caused Dominguez’s damages. Citing

cases discussing proximate cause and superseding cause

in § 1983 claims, Hendley asserts that “numerous circuits

have held that police officers who provide truthful information to subsequent decisionmakers in the criminal
6 Nos. 07-1004, 07-1005 & 07-3030

justice system cannot be held liable under § 1983 for

allegedly wrongful convictions.” Quoting from Townes v.

City of New York, 176 F.3d 138, 147 (2d Cir. 1999), he argues

that the supervening cause doctrine applies “in ‘the

absence of evidence that the police officer misled or

pressured the official who could be expected to exercise

independent judgment.’ ” These cases are of no help to

Hendley, however, for they merely highlight the differences between those cases and Dominguez’s.

Dominguez submitted sufficient evidence at trial to

allow the jury to find that Hendley did not provide

truthful information to subsequent decisionmakers, and

that he did mislead the official who could be expected to

exercise independent judgment. For example, the criminal prosecutor testified that he was never told about any

showup used in Kraus’s identification of Dominguez.

Dominguez also proved that Hendley received an exculpatory document, known to the parties as the “Navy Report,”

but that this report was missing from the official file

that had been provided to the prosecutor during the

criminal trial, and was not part of the materials furnished

to Dominguez in discovery. The Navy Report would have

provided valuable exculpatory evidence for Dominguez.

After Kraus was allegedly sexually assaulted, she visited

a Navy hospital and was interviewed about the incident.

The account that she gave to the naval officer differed

in significant ways from accounts she later gave in the

investigation of the incident. Hendley denied that he

arranged a showup, and denied that he had ever seen

the exculpatory Navy Report. The jury therefore had to

decide who was telling the truth on these points, and
Nos. 07-1004, 07-1005 & 07-3030 7

ultimately whether Hendley misled the prosecution and

caused Dominguez to receive an unfair criminal trial.

This determination had nothing to do with qualified

immunity.

Hendley also argues that Dominguez has not proved

that Hendley arrested him without probable cause. This

would be relevant only if the verdict were based on a

false arrest claim, but it was not. Even supposing Hendley

did have probable cause at the time of arrest, the question

is whether Hendley took actions (whether before or after

the arrest) that caused Dominguez to receive an unfair

trial. Probable cause at the time of arrest would not

sanitize such acts.

III

The jury was instructed that, in order to find for

Dominguez, it had to find that Hendley caused

Dominguez’s criminal trial to be unfair through any of

three specified courses of conduct: (1) withholding material, exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963); (2) causing an unreliable identification procedure to be used at his trial; or (3) fabricating

evidence. Hendley argues that the first of these—the Brady

basis—should not have been submitted to the jury. He

contends that Dominguez failed adequately to plead and

support that theory, and also that he failed to prove it

at trial. Neither point has merit.

Fundamentally, the first point overstates the importance

of pleadings by the time a case reaches trial. The purpose
8 Nos. 07-1004, 07-1005 & 07-3030

of a complaint is to put the defendant on notice of the

claim that is being asserted against him, her, or it; by the

time of trial, the case has normally proceeded through

discovery and the parties have provided whatever

notice of their trial issues and evidence the district court

ordered. This record suggests no lack of notice to Hendley

or the City. They did not object to Dominguez’s evidence

at trial about the Brady violations—indeed, that evidence

was a prominent part of the trial. The defense submitted evidence that materials were not withheld from

the criminal prosecutor. As Dominguez points out, even

if something is missing entirely from the pleadings, it can

be tried by consent. See FED. R. CIV. P. 15(b) (“When an

issue not raised by the pleadings is tried by the parties’

express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at

any time, even after judgment—to amend the pleadings

to conform them to the evidence and to raise an

unpleaded issue. But failure to amend does not affect the

result of the trial of that issue.”). The record easily

shows that supposed flaws in the way that Dominguez

described his Brady point in the pleadings had no effect on

the trial.

Hendley’s assertion that the evidence was insufficient to

support Dominguez’s Brady theory is also unpersuasive.

Once again, Hendley must show that no matter how the

evidence is weighed or credited, no reasonable jury

could have found by a preponderance that he withheld

material exculpatory evidence from Dominguez when

Dominguez was being criminally prosecuted. The trial

record simply does not support such a conclusion, given
Nos. 07-1004, 07-1005 & 07-3030 9

Hendley’s failure to disclose the showup and the Navy

Report.

IV

Hendley next attacks the court’s instructions to the

jury. He has three complaints. First, he argues that the

court erred in not giving his proposed instruction reminding the jury that Hendley may be held accountable

only for conduct in which he was personally involved, not

for what others did or did not do. He accuses Dominguez

of trying to blur the lines by laying all responsibility at

Hendley’s feet, referring to “they,” and characterizing

the investigation as Hendley’s. The district court declined

to give the proposed instruction because the instruction

it had already given referred only to results caused by

Hendley. The plaintiff was entitled to try to prove

Hendley’s responsibility for various acts, and Hendley

had the opportunity to disclaim control, involvement, or

responsibility and convince the jury not to find him liable.

Hendley thinks, however, that the jury remained confused on this point, and as proof he points to the question

it submitted to the judge during deliberation: “If we get to

the point of considering damages, do we consider the

total amount of damages or do we conclude the amount

of damages in light of the degree of possible wrongdoing of the defendant.” At that point, Hendley renewed

his request for an instruction on personal involvement,

but the court decided to give the jury a proximate

cause instruction.
10 Nos. 07-1004, 07-1005 & 07-3030

The jury’s question does not necessarily show that they

were considering assigning liability to Hendley for the

acts of others. It might have suggested that they were

thinking of discounting his liability to take into account

the actions of others. Under ordinary principles of tort

law, the fact that tortfeasor A’s negligent act proximately

caused $100 in damages means that A is liable for the

entire sum of $100, even if co-tortfeasor B could also

have been liable for that same amount (with no double

collection by the victim, of course). Not only does this

explanation undermine Hendley’s claim that his instruction was necessary to clear up confusion, it also supports the district court’s decision to respond to the question by giving a proximate cause instruction.

Second, Hendley claims that the court erred by failing

to instruct the jury that Hendley had no post-arrest duty

to investigate. This argument is premised on Hendley’s

effort to characterize Dominguez’s claim as exclusively

based on false arrest. Because it is not, and because

Dominguez presented evidence from which a jury could

conclude that Hendley engaged in post-arrest conduct

(like manipulation of evidence) that deprived Dominguez

of a fair trial, Hendley’s proposed instruction on “no postarrest duty to investigate” was inappropriate and the

district court properly rejected it.

Finally, Hendley claims that the elements instruction

was erroneous because it failed to discuss superseding

cause, improperly submitted the Brady theory, and failed

to limit recovery to the period of incarceration between

arrest and arraignment as contemplated by this court’s
Nos. 07-1004, 07-1005 & 07-3030 11

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

2006), aff’d on other grounds sub nom. Wallace v. Kato, 549 U.S.

384 (2007). But the court gave a proximate cause instruction, and so Hendley was not prejudiced by the absence

of an instruction discussing superseding cause. We have

already explained why there was no error in the court’s

treatment of the Brady issue. Finally, with respect to the

proper recovery period, the district court correctly concluded that the limitation Hendley proposed was not

appropriate, since Dominguez’s claim was for deprivation

of a fair trial rather than false arrest. The district court

did hold that damages for any unlawful seizure of

Dominguez had to be directly related to his thirteen

days of detention preceding indictment, but that was prior

to this court’s issuance of Wallace v. City of Chicago, when

the circuits were split on the time of accrual of Fourth

Amendment claims, and certainly prior to the Supreme

Court’s affirmance in Wallace v. Kato. Thus, at the time,

Dominguez’s Fourth Amendment claim was still a potential theory of recovery. The district court specifically noted

that its ruling “would not serve as a limitation on the

admissibility of evidence as to the state law claims included in Dominguez’s Complaint that are to be resolved

in the same trial as his Section 1983 Fourth Amendment

claim.” Hendley points out that the court “failed to recognize that the only state law claims were asserted against

Kraus and McCandless, both of whom had already been

dismissed.” The district court might inadvertently have

referred to state law claims while meaning to allude to

claims other than the Fourth Amendment claim, namely,

the federal due process claim. In any event, the Fourth
12 Nos. 07-1004, 07-1005 & 07-3030

Amendment claim was eventually dismissed as timebarred and only the due process claim remained. After

that, Hendley’s proposed recovery-period limitation

was no longer an appropriate instruction.

V

Hendley’s final argument is that the cumulative effect

of a number of trial errors deprived him of a fair trial, and

thus the district court abused its discretion when it

denied his motion for a new trial. We will examine

each alleged error individually; if we find two or more

errors, we will assess the cumulative effect to determine

whether the district court abused its discretion in not

granting a new trial. See United States v. Allen, 269 F.3d

842, 847 (7th Cir. 2001).

Each error alleged by Hendley is itself subject to the

abuse of discretion standard. See Thompson v. City of

Chicago, 472 F.3d 444, 453 (7th Cir. 2006) (evidentiary

rulings); Gorlikowski v. Tolbert, 52 F.3d 1439, 1444 (7th Cir.

1995) (enforcement of a pretrial order); United States v.

Miller, 276 F.3d 370, 373 (7th Cir. 2002) (improper

remarks by counsel); United States v. Vasquez-Ruiz, 502

F.3d 700, 704 (7th Cir. 2007) (potential juror bias). Once

again, he faces an uphill battle because of the standard

of review.

Hendley first raises a number of complaints about

things that Dominguez’s lawyer did during the trial. For

example, he argues that the lawyer, in his opening and

closing remarks and witness examinations, misstated
Nos. 07-1004, 07-1005 & 07-3030 13

facts and misled the jury. First, he objects to the fact that

counsel called Hendley a “bad officer.” We do not believe

that the district court abused its discretion in letting the

remark stand. The language involved here is hardly

inflammatory, and much of Dominguez’s case involved

trying to prove that Hendley engaged in a deliberate

frame-up of Dominguez; a fleeting reference to his being

a “bad officer” seems rather trivial in light of the whole

record and unlikely to influence the jury if it was not

otherwise inclined to credit the evidence against Hendley.

Next Hendley complains that Dominguez’s counsel

misled the jury by referring to “they,” so as to obscure

who was responsible for what actions. For example,

counsel said things like “they interrogated [Dominguez],”

and “they kept him there all night and deprived him of a

lawyer.” Hendley points out that, for example, it was

Officer Marquez rather than Hendley who interviewed

Dominguez. Nonetheless, we conclude that the district

court did not abuse its discretion in allowing these remarks, because Dominguez was not misleading the jury if

he could show that these acts were taken under Hendley’s

direction. The defense was free to point out who engaged

in the physical acts and to refute the contention that

Hendley was leading the investigation. Most importantly,

the jury was instructed to find for the plaintiff only if

Hendley caused the denial of a fair trial. The district court

was entitled to take the position that this was sufficient

to eliminate the risk that the jury would find Hendley

liable for acts for which he had no responsibility.

In addition, Hendley believes that Dominguez’s counsel

confused the jury about when exactly Hendley became
14 Nos. 07-1004, 07-1005 & 07-3030

aware of various facts relating to Dominguez’s criminal

case. This argument relies on Hendley’s insistence that

information available only after the time of arrest is

irrelevant. Once again, this flows from Hendley’s refusal

to acknowledge that the trial was about the deprivation of

a fair criminal trial for Dominguez, not about the

alleged false arrest.

Hendley also argues that questioning Mr. Carter,

Dominguez’s criminal defense attorney, using

hypotheticals because Carter could not remember

Dominguez specifically, was improper, but he cites no

authority in support of this position. He also argues that

Carter’s claim—that Carter would have used the alleged

Brady material to support Dominguez’s criminal defense—is undermined by the fact that Carter did not

use any of the documents that actually were provided. We

see no error here: it was up to the jury to decide what

weight, if any, to give to Carter’s testimony.

Hendley’s next set of arguments relates to the district

court’s decision to enforce the final pretrial order strictly

against the defense (as he sees it), but not against the

plaintiff. He points out that when the defense took issue

with the fact that Dominguez did not include the Brady

issue as a contested issue of law in the final pretrial order,

the court said, “we don’t need that as part of the final

pretrial order”; by contrast, certain defense objections

during trial were overruled because the defense had not

objected to the admission of the exhibits listed on the

final pretrial order. The Brady issue was a factual one

rather than a legal one, and so we see no error there. The
Nos. 07-1004, 07-1005 & 07-3030 15

fact that the pretrial order form did not have the

customary spaces in which to indicate an objection does

not relieve a party from the duty to notify the court in a

timely manner that it objects.

Hendley also asserts that the district court should not

have admitted a document referred to as the “Chancey

Memo,” because the memo was speculative, irrelevant, and

highly prejudicial. This was a memorandum written by

Matt Chancey, chief of the felony division of the Lake

County State’s Attorney’s Office. The memo informed

prosecutors that their obligation to scrutinize cases carefully was “especially true in the case of Officer Hendley

because of the questions which exist about his credibility.”

The Chancey Memo directed those reviewing felony

cases to (1) refuse to approve cases involving confessions

supposedly obtained by Hendley without recorded or

written confessions unless the case is prosecutable without the confession; (2) refuse to approve charges in cases

where Hendley interviewed key witnesses, until the

accuracy of the purported statements was verified;

(3) require corroboration in any case where Hendley

handled physical evidence or would be called to testify

about his observations.

Naturally, this was quite prejudicial, but the question

is whether it was unfairly prejudicial. The claim against

the City was still alive during the trial, and this memo

was relevant and highly probative for the question

whether the City of Waukegan was aware that there were

problems with Officer Hendley. The district court did not

abuse its discretion in admitting the Chancey Memo.
16 Nos. 07-1004, 07-1005 & 07-3030

Hendley claims that it was error for the district court to

limit the defense’s examination of the prosecutor from

Dominguez’s criminal case. This inquiry was important to

him, he says, because the procedures followed by the

prosecutor would have helped support Hendley’s

defense that other actors were superseding causes of the

wrongful conviction, or equivalently, that Hendley did

not proximately cause it. A look at the record shows,

however, that the district court was simply managing the

trial appropriately. The defense’s examination of this

witness took up 114 trial-transcript pages, and Hendley

has not shown that the district court abused its discretion

in urging defense counsel to stay on track and refrain

from confusing the jury.

Hendley also complains about a grab-bag of “prejudicial

testimony.” He objects to the amount of evidence that

Dominguez’s attorney elicited about Dominguez’s innocence and the inadequacy of the facilities where he was

detained. But this information was relevant to liability

and damages, and the district court had no reason to

exclude it. Hendley also objects to Dominguez’s attempt

to blame Hendley for the actions and omissions of others,

but we have already explained why this does not accurately reflect Dominguez’s purpose. Hendley also tries to

find fault with the fact that Dominguez urged the jury to

credit certain parts of Lisa Kraus’s testimony, while

painting her as a liar with regard to other matters. There

is nothing improper about this. He also claims that

Dominguez misled the jury by pushing the theory that

Hendley should have continued investigating up to the
Nos. 07-1004, 07-1005 & 07-3030 17

time of Dominguez’s criminal trial. But this is just

another variation on Hendley’s theme that any events

subsequent to Dominguez’s arrest are irrelevant, so long

as there was probable cause at the time of arrest. This

argument lacks merit, for the reasons we have already

given.

Finally, Hendley claims that the plaintiff gave an improper pretrial interview. As Dominguez notes, and

Hendley does not dispute, the defense did not seek a

mistrial in the court below based on this interview—it

merely sought to broaden voir dire. At voir dire, it was

established that no member of the venire knew about the

interview, and no seated juror even watched the news

channel on which the interview aired. Thus, the defense

was not prejudiced by this interview, and no error occurred as a result of allowing the trial to proceed.

Finding no errors among the issues raised by Hendley,

we have no occasion to assess any cumulative effect.

* * *

We AFFIRM the judgment of the district court.

9-30-08