IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DEMETRIUS JOHNSON,

 

Plaintiff,

v.

REYNALDO GUEVARA, the ESTATE of 

ERNEST HALVERSON, DARRYL DALEY, 

WILLIAM ERICKSON, JOHN HEALY, and 

the CITY OF CHICAGO

Defendants.

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Case No. 20 cv 4156 

Judge Sara L. Ellis 

Magistrate Judge Heather K. McShain

JURY TRIAL DEMANDED

MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

Dated: April 12, 2024 Respectfully Submitted,

 /s/ Josh M. Engquist 

Josh M. Engquist, Atty. No. 6242849 

One of the Attorneys for the Individual 

Defendants

Josh M. Engquist 

James G. Sotos

Josh M. Engquist 

David A. Brueggen 

Elizabeth R. Fleming

Daniel McGinnis 

Special Assistant Corporation Counsel

THE SOTOS LAW FIRM, P.C.

141 W. Jackson, Suite 1240A 

Chicago, IL 60604

(630) 735-3300 

jengquist@jsotoslaw.com

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TABLE OF CONTENTS

PAGE

INTRODUCTION ...........................................................................................................................1 

FACTUAL BACKGROUND ..........................................................................................................2 

The June 12, 1991 Shooting of Edwin Fred and Raul Ortiz ................................................2 

Police Investigation the First Night .....................................................................................3 

Officer Daley’s actions ............................................................................................3 

Lineups the first night ..............................................................................................4 

Continuing Police Investigation ...........................................................................................5 

The arrest and identifications of Johnson ................................................................6 

Sgt. Healy’s involvement in the investigation ..........................................................6 

Demetrius Johnson, Terrell Agee & Bryan Johns: MLDs and Best Friends .......................6 

Criminal Proceedings ...........................................................................................................7 

Johnson’s interactions with Bryan Johns after his arrest .......................................8 

Johnson hires Gubin to represent him .....................................................................8 

Johnson’s trial .........................................................................................................9 

LEGAL STANDARD ....................................................................................................................10 

ARGUMENT .................................................................................................................................11 

I. Johnson Has Insufficient Evidence to Support his Fair Trial Due Process Claims Based 

on Fabrication (Count I) Against Daley, Halvorsen, Erickson and Healy .................. 11 

a. Johnson’s fabrication claims based on Rosa, Ricardo, and Elba Burgos fail because 

there is no evidence that their identifications were false or knowingly 

manufactured. ........................................................................................................ 11 

b. Defendants Erickson, Healy and Daley were not involved with the witnesses in the 

identification of Johnson. ...................................................................................... 13 

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c. Johnson’s fabrication claims based on police reports documenting identification 

procedures fail because there is no evidence the reports were fabricated or 

falsified, nor were they used to establish Johnson’s conviction. .......................... 14 

1. Police reports documenting identification procedures. ................................... 14 

2. June 12, 1991 four-witness lineup report. ....................................................... 15 

II. Johnson’s Claim that Unduly Suggestive Identification Procedures Deprived him of a 

Fair Criminal Trial Fails as a Matter of Law (Count I) .............................................. 16 

a. Vega instructs that prophylactic evidentiary rules, like the rule against admitting 

unduly suggestive identifications, are not bases for § 1983 liability. ................... 17 

b. Johnson cannot demonstrate that any identification procedure deprived him of a 

fair criminal trial. .................................................................................................. 17 

1. The identification procedures were not unduly suggestive. ............................ 18 

2. The witness identifications were sufficiently reliable to overcome the taint of 

any unduly suggestive procedures. ................................................................. 20 

c. Alternatively, Johnson lacks evidence that Defendants acted with the requisite 

intent necessary to confer Section 1983 liability. ................................................. 21 

d. Johnson cannot establish that Defendants Healy, Erickson or Daley were involved 

in the suggestive identification procedures. .......................................................... 23 

e. Alternatively, Defendants are entitled to qualified immunity. ............................. 24 

III. Johnson lacks sufficient evidence to support his Brady claim. .................................. 26 

a. Johnson’s claims for fabrication of evidence cannot be recast as independent Brady 

claims. ................................................................................................................... 27 

b. Johnson lacks sufficient evidence to demonstrate that Daley, Halvorsen or Healy 

were aware of the June 13 six-witness lineup report. ........................................... 28 

c. Erickson retired before Johnson’s criminal trial and there is no evidence that he 

was involved in producing documents to the State’s Attorney’s Office. ............. 29 

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d. Johnson was aware of all the information in the June 13 six-witness lineup report 

and advised his attorney of that information before his criminal trial. ................. 31 

e. There is no Brady claim based upon the alleged suppression of generic nondescript evidence, “street files,” or notes.” ........................................................... 31 

IV. Johnson’s Unlawful Detention (Count II) and Malicious Prosecution (Count IV) 

Claims Fail Because There was Probable Cause to Arrest Based Upon Three 

Identifications ............................................................................................................. 33 

a. Erickson, Daley and Healy were not personally involved in gathering any evidence 

against Johnson or seeking charges. ..................................................................... 33 

b. The existence of probable cause defeats Johnson’s claims. ................................. 34 

c. Alternatively, the presence of arguable probable cause entitles Defendants to 

qualified immunity on the federal unlawful detention claim. ............................... 35 

V. Johnson’s Supervisory Liability Claim Against Defendant Healy Fails .................... 36 

VI. Defendants are Entitled to Summary Judgment on Johnson’s Failure to Intervene 

Claim (Count III) ........................................................................................................ 37 

a. There cannot be failure to intervene liability without an underlying constitutional 

tort. ........................................................................................................................ 37 

b. Johnson lacks evidence that Halvorsen, Daley, Erickson and Healy had a realistic 

opportunity to intervene in any alleged constitutional violation. ......................... 38 

c. Failure to intervene is not cognizable as a federal tort because it violates Section 

1983’s prohibition against vicarious liability. ...................................................... 39 

VII. Halvorsen, Erickson, Daley and Healy are Entitled to Judgment on Johnson’s IIED 

Claim (Count VII) Because They Did Not Commit any Extreme and Outrageous Acts 

that Caused Emotional Distress .................................................................................. 39 

VIII. There is no Evidence to Support Johnson’s § 1983 (Count IV) and state law (Count 

VI) Conspiracy Claims ............................................................................................... 40 

a. There is no evidence of an agreement to support the conspiracy claims. ............. 40 

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b. Alternatively, Defendants are entitled to qualified immunity. ............................. 41 

IX. Johnson Cannot State an Independent Claim for Willful and Wanton Conduct (Count 

VIII) Under Illinois State Law ................................................................................... 42 

CONCLUSION ..............................................................................................................................42 

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CASES PAGE

Accord McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004) .......................... 10 

Alexander v. City of South Bend, 433 F.3d 550, 555, 556 (7th Cir. 2006) ...............................17,18 

Allin v. City of Springfield, 845 F. 3d 858, 862 (7th Cir. 2016) ................................................... 24 

Alvarado v. Hudak, 2015 WL 4978683, *3 (N.D. Ill. 2015) ........................................................ 28 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ......................................................... 10 

Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988) .................................................... 22 

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) ............................................................................. 24 

Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009) ........................................................................... 39 

Avery v. City of Milwaukee, 847 F.3d 433, 443 (7th Cir. 2017) ................................................... 31 

Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015) ......................................................... 40 

Blackmon v. City of Chicago, No. 19 CV 767, 2023 WL 7160639, at *9, *14 

(N.D. Ill. Oct. 31, 2023) .......................................................................................................... 22, 35 

Blackmon, 2023 WL 7160639, at *14, *8 .................................................................................... 34 

Bolden v. City of Chicago, No. 17 CV 417, 2019 WL 3766104, at *11 

(N.D. Ill. Aug. 9, 2019) ................................................................................................................. 32 

Boss v. Pierce, 263 F.3d 734, 741 (7th Cir. 2001) ........................................................................ 31 

Boyd, 225 F. Supp. 3d at 720 ....................................................................................................... 28 

Brady v. Maryland, 373 U.S. 83 (1963) ................................................... 26, 27, 28, 30, 31, 32, 33 

Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) .................................................................................. 39 

Cairel, 821 F.3d at 835 ................................................................................................................. 35 

Carmona v. City of Chicago, No. 15 C 462, 2019 WL 4166856, at *9 

(N.D. Ill. Sept. 3, 2019) .........................................................................................................36, 37 

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Carvajal v. Dominguez, 542 F.3d 561, 566–67 (7th Cir. 2008) ............................................26, 28 

Celafu v. Village of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000) .............................................. 41 

Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001) ..............................................36, 37 

Colbert v. City of Chicago, 851 F.3d 649, 657, 658 (7th Cir. 2017) .....................................13, 24 

Coleman v. City of Peoria, 925 F.3d 336, 344, 345, 347, 348, 350, 351 

(7th Cir. 2019) ........................................................................................... 11, 15, 20, 22, 26, 34, 35 

Cooney v. Casaday, 746 F.Supp.2d 973, 977-78 (N.D. Ill. 2010) ................................................ 40 

Cooney v. Casady, 735 F.3d 514, 519 (7th Cir. 2013) ................................................................ 41 

Daniels v. Williams, 474 U.S. 327, 328 (1986) ........................................................................... 22 

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) .......................................................... 25 

Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) ................................................... 29 

Doxtator v. O’Brien, 39 F.4th 852, 864–65 (7th Cir. 2022). ........................................................ 38 

Drager v. Vill. of Bellwood, 969 F. Supp. 2d 971, 985 (N.D. Ill. 2013) ....................................... 41 

Estate of Davis v. Ortiz, 987 F.3d 635, 638 (7th Cir. 2021) ......................................................... 25 

Ezell v. City of Chicago, No. 18 C 1049, 2024 WL 278829, at *23. ............................................ 17 

Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014) (“Fields II”) .......................................... 11 

Gaddis v. DeMattei, 30 F.4th 625,*13, 630 (7th Cir. 2022) ................................................... 24, 34 

Garcia v. Posewitz, 79 F. 4th 874, 880 (7th Cir. 2023) ................................................................ 35 

Gill v. City of Milwaukee, 850 F.3d 335, 340, 341, 344 (7th Cir. 2017) .......................... 23-24, 36 

Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010) ..................................... 11 

Grayson v. City of Aurora, 157 F. Supp. 3d 725, 740 (N.D. Ill. 2016) ....................................... 12 

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Green v. Newport, 868 F.3d 629, 633 (7th Cir. 2017) .................................................................. 24 

Gregory –Bey, 332 F.3d at 1045 ................................................................................................... 20 

Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) .................................. 13, 16, 29, 32, 33 

Haliw v. City of South Elgin, 2020 WL 1304697, *4 (N.D. Ill. March 3, 2020) ......................... 41 

Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005) ................................................................ 37 

Harris v. Kuba, 486 F. 3d 1010, 1016-1017 (7th Cir. 2007) ........................................................ 28 

Harris, 281 F.3d at 670–71 ........................................................................................................... 25 

Hessel v. O’Hearn, 977 F.2d 299, 305 (7th Cir. 1992) 24............................................................ 24 

Hill v. City of Chicago, 2009 WL 174994, * 4, *9 (N.D. Ill. 2009) .....................................32, 41 

Hill v. Cook County, 463 F. Supp. 3d 820, 845 (N.D. Ill. May 31, 2020) .................................... 33 

Holloway v. City of Milwaukee, 43 F.4th 760, 766 (7th Cir. 2022) .............................................. 17 

Humphrey v. City of Anderson, 19-cv-00764-JRS-TAB, 2021 WL 4477806, at *7 (C.D. Ill. Sept. 

30, 2021) ...............................................................................................................................12-13 

Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998) ............................................................ 36 

Jackson v. City of Cleveland, 925 F.3d 793, 819-20 (6th Cir. 2019) ........................................... 41 

Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Directors, 2012 IL 112479, ¶ 19 ............... 42 

Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018) .................... 29, 31 

Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir.2003) ........................................ 29 

Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012) ........................................................... 10 

Krywin v. Chicago Transit Auth., 238 Ill. 2d 215, 235 (2010) ..................................................... 42 

Lee, 750 F.3d at 691. ..................................................................................................................... 18 

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Manson v. Brathwaite, 432 U.S. 98, 116 (1977) .................................................................... 19, 22 

Manuel v. City of Joliet, 580 U.S. 357, 368 (2017) ...................................................................... 34 

McDonough v. Smith, No. 15-CV-1505 (MAD/DJS), 2022 WL 3279348, at *24 (N.D.N.Y. Aug. 

11, 2022) ...................................................................................................................................... 13 

McGowan v. Miller, 109 F.3d 1168, 1173 (7th Cir. 1997) ........................................................... 18 

Molina ex rel. Molina v. Cooper, 325 F.3d 963, 974 (7th Cir. 2003)........................................... 24 

Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978) .................................................... 39 

Moran v. Calumet City, 54 F.4th 483, 493, 498, 499-500 (7th Cir. 2022) .... 11, 12, 22, 27, 30, 35 

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) ............................................................................... 24 

Munson v. Gaetz, 673 F.3d 630, 637 (7th Cir. 2012) ................................................................... 23 

Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006) ................................................... 34 

Mwangangi v. Nielsen, 48 F.4th 816, 834 (7th Cir. 2022) .......................................................... 39 

Myvett v. Heerdt, 2015 WL 12745087, *6 (N.D. Ill. 2015) .......................................................... 27 

Neil v. Biggers, 409 U.S. 188, 199-200 (1972)................................................................20, 22, 26 

Oliva v. City of Chicago, No. 21-cv-06001, 2023 WL 2631575, at *6 

(N.D. Ill. Mar. 24, 2023) ............................................................................................................... 40 

Patrick v. City of Chicago, 974 F.3d 824, 835 (7th Cir. 2020) ..................................................... 15 

Patrick, 103 F. Supp. 3d at 915 .................................................................................................... 27 

People v. Kelley, 304 Ill. App. 3d 628, 638 (1999) ...................................................................... 25 

People v. Ortiz, 2017 IL App (1st) 142559, ¶ 25 .......................................................................... 25 

Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012) .................................................................. 18 

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Petty v. City of Chicago, 754 F.3d 416, 423, 424 (7th Cir. 2014) .........................................15, 26 

Phillips v. Allen, 668 F.3d 912, 915, 917 (7th Cir. 2012) ......................................................22, 35 

Phillips v. City of Chicago, 2015 WL 5675529, *5-6 (N.D. Ill. 2015) ........................................ 27 

Rasho v. Elyea, 856 F.3d 469, 478 (7th Cir. 2017) ................................................................ 13, 30 

Roberts v. Broski, 186 F.3d 990, 995 (7th Cir. 1999) ................................................................... 11 

Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir. 2016) ............................................................... 37 

Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) ................................................... 13, 36 

Saunders-El, 778 F.3d at 562 ........................................................................................................ 28 

Serrano v. Guevara, No. 17 CV 2869, 2020 WL 3000284, at *19 (N.D. Ill. June 4, 2020) ........ 28 

Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir.2010) ............................................................ 29 

Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) ..................................................................... 40 

Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999), as amended (Jan. 7, 2000) ...................... 35 

Swearingen–El v. Cook County Sheriff's Dept., 602 F.3d 852, 863, 864(7th Cir. 2010) ....... 33, 39 

Swetlik v. Crawford, 738 F.3d 818, 829 (7th Cir. 2013) .............................................................. 10 

Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012) ............................................................ 34 

Thompson v. Clark, 142 S. Ct. 1332, 1137-38 & n.2 (2022) .................................................. 33, 34 

Tun v. Whitticker, 398 F.3d 899, 902, 903 (7th Cir. 2005) ..................................................... 21-22 

Turner v. Hirschbach Motor Lines, 854 F.3d 926, 930 (7th Cir. 2017) ....................................... 40 

U.S. ex rel. Kosik v. Napoli, 814 F.2d 1151 (7th Cir. 1987) ......................................................... 21 

U.S. v. Goodman, 797 F.2d 468, 471 (7th Cir. 1986) .................................................................. 21 

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U.S. v. Harris, 281 F.3d 667, 670 (7th Cir. 2002) ....................................................................... 25 

U.S. v. Johnson, 745 F.3d 227, 230 (7th Cir. 2014) .................................................................... 25 

U.S. v. Jones, 454 F.3d 642, 649 (7th Cir. 2006) .......................................................................... 18 

U.S. v. Kimoto, 588 F.3d 464, 492 (7th Cir. 2009) ....................................................................... 27 

U.S. v. McPartlin, 595 F.2d 1321, 1346, n. 32 (7th Cir. 1979) .................................................... 32 

U.S. v. Newman, 144 F.3d 531, 535 (7th Cir. 1998) ..................................................................... 20 

U.S. v. Parks, 100 F.3d 1300, 1307 (7th Cir.1996) ...................................................................... 27 

U.S. v. Warren, 454 F.3d 752, 759 (7th Cir. 2006) ...................................................................... 32 

Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) ........................................ 13, 16, 23, 29, 32, 33 

Vaughn v. Chapman, 662 F. App’x 464, 467 (7th Cir. 2016) ..................................................... 34 

Vega v. Tekoh, 597 U.S. 134, 150 (2022) ..................................................................................... 17 

Wade v. Collier, 783 F.3d 1081, 1085, 1087 (7th Cir. 2015) ................................................ 33, 34 

Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) ................................... 11 

White v. Pauly, 137 S. Ct. 548, 551 (2017) .................................................................................. 24 

Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012) ..................................................... 11 

Williams v. Martinez, No. 22-CV-06602, 2023 WL 6141494, at *4 (N.D. Ill. Sept. 20, 2023) ... 34 

Young v. City of Chicago, 987 F.3d 641, 644 (7th Cir. 2021) ...................................................... 34 

Ziarko v. Soo Line R. Co., 161 Ill. 2d 267, 274 (1994) ................................................................ 42

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42 U.S.C. § 1983 .................................................................................................................... passim

42 U.S.C. § 1985 ............................................................................................................................41 

Fed. R. Civ. P. 56(a) ......................................................................................................................10 

OTHER AUTHORITIES PAGE

7th Circuit Pattern Jury Instruction 7.14 ........................................................................................15 

Local Rule 56.1 ................................................................................................................................2 

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INTRODUCTION

On the evening of June 12, 1991, Edwin Fred and Raul Ortiz were shot on the sidewalk 

of North Avenue just West of Claremont Avenue. Fred died as a result of his wounds. Police 

investigated and interviewed witnesses. The police investigation has two important periods, the 

first night when a suspect was taken into custody and lineups were run, and the continuing 

investigation that resulted in the identification of Plaintiff Demetrius Johnson. 

Defendant Darryl Daley was an officer who on the first night arrested Bryan Johns, who 

he believed was the shooter, and then provided detectives with a photograph of Johnson later in 

the investigation. Defendants Reynaldo Guevara and William Erickson ran lineups the first night 

of the investigation and Erickson was not further involved before he retired from CPD about a 

month and a half later. About two weeks after the shooting, Defendant Ernest Halvorsen began 

assisting Guevara in the continuing investigation. Johnson was identified in a photo as the 

shooter and was brought in and identified by three witnesses on July 22, 1991. Johnson was 

charged and convicted of the crime. 

Defendant John Healy was a sergeant in Area Five whose only connection to the case 

was signing several detective reports two days after Johnson was arrested and charged.

Initially, there is zero evidence that Defendants Healy and Daley engaged in any of the 

misconduct alleged in Johnson’s complaint, and therefore, they are entitled to summary 

judgment on all counts. Johnson’s specific allegations against Halvorsen and Erickson fare no 

better. In Count I, he contends his fair trial rights were violated because they fabricated 

identifications and police reports, suggested to witnesses who should be identified, and withheld 

Brady evidence. But the three witnesses who identified Johnson have not recanted and confirm 

that their trial testimony was true, there is no evidence of any suggestion of who to identify, and 

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Johnson lacks proof that evidence was suppressed or that any of these Defendants were involved 

with the allegedly suppressed evidence.

Johnson further contends in Counts II and VI that he was unlawfully detained and 

maliciously prosecuted. However, he was identified by three witnesses in lineups, which 

provided ample probable cause to arrest. Johnson also alleges derivative claims of failure to 

intervene and conspiracy (Counts III, IV, and IX), but cannot show that his rights were violated 

or that the Defendants had the opportunity to intervene or came to an agreement to harm 

Johnson. Finally, in Counts VII and VIII, Johnson contends that Defendants inflicted emotional 

distress on him and were willful and wanton toward his rights. But willful and wanton is not a 

valid claim under Illinois law and these claims are based on the same underlying conduct as his 

failing Counts I and II, and they also fail. 

Accordingly, Defendants Daley, Halvorsen, Erickson and Healy1 are entitled to summary 

judgment on all of Johnson’s claims. In further support of this memorandum of law, these 

Defendants rely on the Rule 56.1 Joint Statement of Undisputed Material Facts (“JSOF”).

FACTUAL BACKGROUND

The June 12, 1991 Shooting of Edwin Fred and Raul Ortiz

On the Wednesday evening of June 12, 1991, a gunman opened fire near the intersection 

of Claremont and North Avenue in Chicago where Edwin Fred, Raul Ortiz, and Forrest Garnett 

were standing. (JSOF ¶ 6.) The gunman shot at the three with a handgun, striking Fred with 

numerous bullets and hitting Ortiz once in the right shoulder. After the shooting, the gunman fled 

1 Defendants Halvorsen, Erickson and Healy are deceased, and Geri Yanow has been appointed their 

special representative for this case, but for clarity Defendants will refer to the deceased defendants by 

their names rather than the appointed special representative.

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south on Claremont. (JSOF ¶ 7.) Fred succumbed to his wounds but Ortiz survived, was treated 

at the hospital, and returned to the scene that night. (JSOF ¶ 8.) 

Police Investigation the First night

Chicago police officers responded to the scene and identified four initial witnesses – Aby 

Gonzalez, Stanley Jewel, Fina Martinez, and Omar Ortiz. (JSOF ¶ 9.) Defendant Guevara was 

assigned to investigate the case and went to the scene where he interviewed Raul Ortiz (victim), 

Forrest Garnett, and Aby Gonzalez. (JSOF ¶ 10.) Ortiz stated that while exiting his building—

2333 W. North Avenue— he was shot and then observed a person running southbound on 

Claremont. (JSOF ¶ 10.) Garnett advised he saw a Black male shoot Fred. (JSOF ¶ 10.) Gonzalez 

relayed that while on the southeast corner of North and Claremont Avenues, he observed a Black 

male running towards him turn west and shoot at Fred and Ortiz before turning again and 

running southbound on Claremont and then westbound on LeMoyne. (JSOF ¶ 10.) 

Officer Daley’s Actions

Officer Darryl Daley also responded to the shooting after hearing initial flash messages 

indicating that the shooter was a “male Black,” with the name “Little D” or “Bryan Johnson.” 

(JSOF ¶ 11.) Daley knew a Black man named Bryan Johns, who matched the description, went 

by the nickname “Little D,” and was a member of the Maniac Latin Disciples street gang

(“Disciples” or “MLD”), so Daley immediately suspected Johns. (JSOF ¶ 11.) Daley drove to a 

location where he had seen Johns earlier and saw him exiting a van with two Hispanic males at 

which point he detained Johns. (JSOF ¶ 12.) Daley took Johns to Area 5 where he was placed in 

a lineup, but Daley was not involved in the line-up process. (JSOF ¶ 13.) 

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Lineups the First Night 

There is a lineup report that has Erickson’s name as a reporting officer that indicates that 

Defendant Detectives Erickson and Guevara conducted a lineup on June 12, 1991, at 11:30 p.m., 

approximately three hours after the shooting, and listed the “submitted” date as June 13, 1991 

(“June 13 six-witness lineup report”). Johns and four other individuals were listed as in the 

lineup, and the report indicated the lineup was viewed by six individuals: Aby Gonzalez, Forrest 

Garnett, Fina Montanez, Rosaline Morales, Angel Cordova, and Rosa Burgos. (JSOF ¶¶ 14, 16.) 

The lineup report states that one eyewitness, Aby Gonzalez, positively identified Johns as the 

perpetrator of the Fred murder; Cordova and Morales stated the offender was not in the lineup; 

and Garnett, Rosa Burgos, and Montanez were unable to make an identification. (JSOF ¶ 14.) 

There is a separate lineup report authored by Detective Guevara that indicates that he and 

Erickson conducted a lineup on the night of the shooting comprised of Johns and four others on 

June 12, 1991 at 11 p.m. with the same “submitted” date (“June 12 four-witness lineup report”).

(JSOF ¶ 23.) According to the report, four witnesses viewed a lineup: Gonzalez, Garnett, Rosa 

Burgos, and Montanez. (JSOF ¶ 23.) That report does not identify any other police officers as 

being present for the lineup viewings. (JSOF ¶ 23.) The lineup report states that “[a]fter four 

witnesses viewing this line-up the results of it was negative.” (JSOF ¶ 24.) 

 Detective Erickson’s name does not appear on any police records other than the June 12 

and June 13 lineup reports and there is no evidence that Erickson was involved in the 

investigation of Fred’s murder after the first night. (JSOF ¶¶ 18, 21.) Detective Erickson retired 

from the Chicago Police Department (CPD) on August 2, 1991, less than two months after the 

shooting. (JSOF ¶ 22.) 

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At his civil deposition in this case, Aby Gonzalez testified that he was in the vicinity of 

Edwin Fred’s shooting but did not see the shooter. (JSOF ¶ 26.) Gonzalez denied that he 

identified someone as the offender on the night of the shooting and does not recall participating 

in a lineup related to the shooting or going to Area 5. (JSOF ¶ 15.)

Officer Daley was informed that Johns was not identified in the lineup and that he would 

be released. (JSOF ¶ 28.) Johns was released from custody that same night “[b]ecause the results 

of the line-up were negative.” (JSOF ¶ 29.) There is no evidence that Defendant Halvorsen was 

involved in the Edwin Fred homicide investigation on the first night, June 12-13, or at any time 

before June 29, 1991. (JSOF ¶ 30.) 

Continuing Police Investigation

Elba Burgos lived on Claremont and saw a man running past her house from the scene of 

the murder with a gun in his hand immediately after the shooting. (JSOF ¶¶ 94-97.) On July 11, 

1991, Defendants Guevara and Halvorsen showed her a photo array that included a man named 

Darrell Johnson, and she indicated that the male she saw running resembled the photo of Darrell 

Johnson (“Darrell”), but a little younger. (JSOF ¶¶ 31, 99.) Guevara and Halvorsen knew that 

Darrell had a younger brother named Demetrius Johnson (“Johnson”) and contacted Officer 

Daley to obtain Johnson’s photo. (JSOF ¶ 32.) On July 15, Daley provided a single photo

depicting Johnson with two other individuals. (JSOF ¶ 32.) This was Daley’s last involvement in 

the investigation; he had no contact with Johnson regarding the investigation or with any witness 

that identified Johnson. (JSOF ¶ 32.) Later that day, Halvorsen and Guevara showed the single 

three-person photo received from Daley to Elba Burgos, who positively identified Johnson from 

the three persons in the photo as the person she saw running with a gun from the scene of the 

shooting. (JSOF ¶ 33.) Ricardo Burgos testified at the criminal trial that he also viewed this 

three-person polaroid photo and identified Plaintiff. (JSOF ¶ 92.) 

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The Arrest and identifications of Johnson 

On July 22, 1991, Johnson was arrested by Guevara and Halvorsen for the murder based 

on Elba Burgos’s photo identification. (JSOF ¶ 34.) Guevara then placed Johnson in a live lineup 

and at 8:30 p.m., Elba, Rosa, and Ricardo Burgos all viewed a lineup conducted by Halvorsen 

and Guevara. (JSOF ¶ 35.) Elba identified Johnson as the person “she saw run past her home, 

with gun in his hand, immediately after hearing gunshots being fired at the corner of North Ave. 

& Claremont.” (JSOF ¶ 35.) Rosa identified Johnson as the person “she saw shot Edwin Fred.” 

Ricardo identified Johnson as the person “he saw shoot Edwin Fred.” (JSOF ¶ 35.) 

Following the positive lineups, felony review ASA Buckley was contacted and responded 

to Area 5. (JSOF ¶ 36.) After ASA Buckley reviewed the evidence, and interviewed the 

witnesses and Johnson, he approved felony charges against him. (JSOF ¶¶ 35-36.) Johnson told 

ASA Buckley that he knew of the murder from his friend, Bryan Johns. (JSOF ¶ 37.) Johnson 

also stated that he was a member of the Disciples and that he did not recall his whereabouts on 

the night of the murder. (JSOF ¶ 37.) 

Sgt. Healy’s Involvement in the Investigation 

Sgt. Healy’s name appears on four CPD documents (the June 12 four-witness lineup 

report, June 20 supplementary report, July 22 supplementary report, and July 23 supplementary 

report), all signed and dated by Sgt. Healy on July 24, 1991, as the approving sergeant. (JSOF ¶ 

38.) There is no evidence that Sgt. Healy had any other involvement in the investigation. (JSOF ¶ 

38.) There is no evidence that Sgt. Healy was at Area 5 on any date other than July 24, 1991. 

(JSOF ¶ 39.) 

Demetrius Johnson, Terrell Agee & Bryan Johns: MLDs and Best Friends. 

In 1991, Johnson was associated with the MLDs because he grew up and hung out on the 

same block with the people in the gang. (JSOF ¶¶ 40, 49.) His best friends, Terrell Agee and 

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Bryan Johns, and Johnson’s older brother Darrell, were fellow MLDs. (JSOF ¶¶ 41, 50.) 

Johnson, Agee and Johns, would often go “hunting,” which meant “looking for somebody to beat 

up.” (JSOF ¶ 42.) They specifically “would go ...catch a King2... and just beat them up but then 

let them know who it was that beat him up.” (JSOF ¶ 42.) In response to these MLD attacks, the 

Kings tried to “put a case on” them by lying to the police to get them off the street. (JSOF ¶ 43.)

Johnson, Agee, and Johns recognized the Chicago Police Officers who patrolled their 

neighborhood because they had many encounters with them and specifically Officer Daley. 

(JSOF ¶ 44.) Daley was known in the neighborhood as a fair officer. (JSOF ¶ 44.) 

Criminal Proceedings

On August 19, 1991, Demetrius Johnson was indicted for first-degree murder, attempted

murder, aggravated battery and aggravated discharge of a firearm committed against Edwin Fred, 

Raul Ortiz, Forrest Garnett, and Rosa Burgos. (JSOF ¶¶ 55-56.) Johnson was initially 

represented by Cook County Assistant Public Defender (“APD”) Jack Carey. (JSOF ¶ 57.)3 The 

prosecuting ASA requested documents from CPD on September 19, 1991, and APD Carey 

issued a subpoena to CPD requesting documents by August 13, 1991. (JSOF ¶ 58.) APD Carey 

met with Johnson during the representation (JSOF ¶ 59), and an undated note from a meeting

reflect the following: 

Records do show that on August 28, 1991, APD Carey visited Bryan Johns in jail. (JSOF ¶ 60.)

2 Referring to a member of the Latin Kings gang (“Kings”). (JSOF ¶ 38.)

3 Johnson’s assigned APD, Jack Carey, passed away in January 2002. (JSOF ¶ 82.)

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Johnson’s interactions with Bryan Johns after his arrest

Johnson was detained at Cook County Jail (CCJ) before his trial, when Johns was also in 

custody there. (JSOF ¶ 48.) Johnson knew Johns and considered him an associate from the 

neighborhood. (JSOF ¶ 48.) Johns told Johnson he knew about Johnson’s “situation” and that 

Johns had been “pointed out in the lineup” the day the crime happened, prior to Johnson’s 

criminal trial. (JSOF ¶ 51.) Johnson testified in his deposition that he asked Johns “did he do it,” 

and Johns said “yes.” (JSOF ¶ 52.) Fellow MLD Terrell Agee estimated that about two months 

after the lineup—he and Johns were out “hunting” and discussed the lineup. (JSOF ¶ 46.) Johns 

told Agee that he was picked out of the lineup, but he did not tell him how he found out. (JSOF ¶ 

46.) 

Johnson hires Gubin to represent him

In February 1992, Johnson hired Debra Gubin to represent him. (JSOF ¶ 63.) Johnson 

told Gubin that according to Johns, Johns had been identified in a lineup on the night Fred was 

shot and had committed the murder. (JSOF ¶ 53.) When Gubin took over the case, APD Carey 

tendered to Gubin all police reports, photos and “anything else that [was] not propriety to the 

public defender’s office,” and discussed the case with her. (JSOF ¶¶ 64, 66.) After she reviewed 

the file and met with APD Carey, Gubin filed a Motion for Additional Discovery on February 

18, 1992. (JSOF ¶ 65.) Gubin explained that she filed the motion to obtain “[t]he photo of the 

line-up taken 6/13/1991” because she “didn’t have a copy of the photo lineup of June 13th. And I 

knew that there was a lineup, and I wanted a copy of it.” (JSOF ¶ 67.) 

Pursuant to CPD policies in place at the time, an evidence technician or an authorized 

member of the Detective Division was required to take photographs of any formal lineup which 

resulted in the identification of a suspect. (JSOF ¶ 68.) In 1991, Gubin was aware of the CPD 

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policies regarding lineup identifications, specifically that a photograph would only have been 

taken if the lineup resulted in a positive identification. (JSOF ¶¶ 67-68.) 

Gubin’s defense theory was that Johns was the real killer, but she did not attempt to 

interview him because she did not know if he had an attorney and she thought he might not talk 

to her. (JSOF ¶¶ 70, 71.) She moved to suppress the identification of Johnson but withdrew it 

because, if it failed, her planned argument at trial that the identification was not reliable would 

have been difficult to make and she thought it would be better to present her theory about the 

unreliable identifications all at once. (JSOF ¶ 69, 72.) 

Johnson’s Trial

Sgt. Healy, Detective Erickson and Detective Halvorsen did not testify at Johnson’s 

criminal pre-trial proceedings or trial. (JSOF ¶ 84.) Johnson’s criminal trial began on November 

18, 1992, and no police officer witnesses were called by the State. (JSOF ¶¶ 85, 86.) 

Ricardo Burgos testified that he saw a Black guy wearing a T-shirt and gray pants 

walking North down Claremont with a gun in his hand from about 60 feet away. (JSOF ¶¶ 88-

90.) He then identified Johnson as the person he saw fire the gun that day. (JSOF ¶ 91.) 

Elba Burgos testified that she was in front of her house on Claremont, heard gunshots and 

saw a young Black man—who she identified in court as Johnson —about 25 feet from her 

running down Claremont with a gun. (JSOF ¶¶ 94-98.) She further described her interactions 

with the police, viewing the photo array including Darrell, viewing the photo depicting Johnson 

and two other men, and identifying Johnson in a lineup on July 22 as the man she saw carrying a 

gun on Claremont. (JSOF ¶¶ 99-102.) 

Rosa Burgos testified that she was about 10 feet from the shooter, who was short, young 

and Black, when she exited her building with Raul Ortiz. (JSOF ¶ 103.) Rosa identified Johnson 

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in court as the person who shot Raul Ortiz. (JSOF ¶ 104.) Rosa testified she knew “Little D” as 

Bryan Johns before the shooting and that “Little D” did not shoot Ortiz. (JSOF ¶ 106.) Rosa also 

testified about her interactions with the police and the identifications she participated in. (JSOF

¶¶ 105, 107-108.)

Detective Guevara and Officer Daley were called by the defense at Johnson’s trial. (JSOF

¶ 109.) Daley testified about his arrest of Johns and that he was informed that Johns was not 

identified in a lineup the night of the shooting. (JSOF ¶ 110.) Guevara testified that there was a 

lineup conducted on June 12, 1991, in which no one was identified. (JSOF ¶¶ 111, 112.) The

defense argued that Johnson was misidentified weeks after the shooting during suggestive police 

identification procedures and that Johnson resembled Johns, which may have contributed to the

misidentification. (JSOF ¶ 113.) Johnson was convicted and sentenced to 25 years in prison. He 

was paroled in October 2004 after spending 12 years in custody. (JSOF ¶ 116.) In 2019, his 

conviction was vacated and prosecutors then dropped all charges. (JSOF ¶¶ 120-121.)

LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Summary 

judgment is warranted when the nonmoving party cannot establish an essential element of its 

case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 

(7th Cir. 2012). While the court must construe the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in his favor (Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 255 (1986)), “that duty does not extend to drawing inferences that are supported 

only by speculation or conjecture,” Swetlik v. Crawford, 738 F.3d 818, 829 (7th Cir. 2013). 

Accord McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). In the end, 

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summary judgment is the “put up or shut up moment in litigation.” Goodman v. Nat’l Sec. 

Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). As to any issue on which a Plaintiff bears the 

ultimate burden of proof, he is obligated to identify evidence that would permit a jury to find in 

his favor. Roberts v. Broski, 186 F.3d 990, 995 (7th Cir. 1999) (citing Waldridge v. American 

Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)).

ARGUMENT

I. Johnson Has Insufficient Evidence to Support his Fair Trial Due Process Claims

Based on Fabrication (Count I) Against Daley, Halvorsen, Erickson and Healy

Johnson alleges in Count I that Defendants violated his due process rights by fabricating

police reports and the three witness identifications of him. (JSOF ¶ 126.) But as explained below,

Johnson cannot meet his burden and Defendants are entitled to summary judgment on this claim. 

To prevail on his evidence fabrication claim, Johnson must establish that Defendants 

“‘manufactured false evidence against’ him, which was ‘later used to deprive him of his liberty 

in some way.’” Moran v. Calumet City, 54 F.4th 483, 498 (7th Cir. 2022) (cleaned up) (quoting 

Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012)). Fabricated evidence is evidence 

“that is made up; it is invariably false.” Fields v. Wharrie, 740 F.3d 1107, 1110 (7th Cir. 2014)

(“Fields II”). For Johnson to succeed on his fabricated evidence claim, he must show that each 

defendant knew – “with certainty” – that the evidence was false. Coleman v. City of Peoria, 925 

F.3d 336, 345 (7th Cir. 2019). “This is a high bar to clear,” id. at 344, and one that Johnson 

cannot clear.

a. Johnson’s fabrication claims based on Rosa, Ricardo, and Elba Burgos fail 

because there is no evidence that their identifications were false or knowingly 

manufactured. 

Johnson contends that Defendants “knowingly procured false identifications of Plaintiff 

as the person responsible for the Fred murder from Ricardo, Rosa, and Elba Burgos, after which 

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they concealed the falsity of the identification for decades.” (JSOF ¶ 122.) Johnson’s fabrication 

of identification claim fails against all Defendants because Johnson cannot show that Rosa’s, 

Ricardo’s, or Elba’s identifications and testimony were false or manufactured. See Moran, 54 

F.4th at 498 (holding plaintiff must prove false evidence was used against him). At his criminal 

trial, all three witnesses confirmed their identifications of Johnson. (JSOF ¶¶ 91, 98, 100-101, 

104, 107.) Rosa and Ricardo Burgos were deposed in this case and testified that they told the 

truth at the criminal trial. During Rosa Burgos’ deposition, she confirmed that she would not 

have lied to the police about what she saw and would have told the truth when under oath and 

giving testimony in a courtroom. (JSOF ¶ 119.) Similarly, although Ricardo Burgos couldn’t 

recall testifying at the criminal trial due to suffering a serious head injury in 1996 or 1997, he 

testified that he would not have lied under oath in front of a judge. (JSOF ¶ 117.) Elba Burgos 

could not be located for a deposition,4 but there is no evidence in the record that Elba Burgos’ 

identifications and testimony were fabricated; she has never recanted her trial testimony. (JSOF 

¶¶ 98, 100-101, 118.)

The unequivocal deposition testimony of Rosa and Ricardo—that they would not have 

lied about what they saw—and the absence of any evidence that Elba lied, vitiates any contention 

that Defendants knowingly manufactured false testimony. See, e.g., Grayson v. City of Aurora, 

157 F. Supp. 3d 725, 740 (N.D. Ill. 2016) (rejecting fabrication claim because “the two witnesses 

who testified at Grayson’s criminal trial, universally stated that the Defendants did not provide 

them with what to say or force them to make statements at trial that they knew to be untrue”); 

Humphrey v. City of Anderson, 19-cv-00764-JRS-TAB, 2021 WL 4477806, at *7 (C.D. Ill. Sept. 

4 In 2022, a woman named Ada Elba Burgos was subpoenaed and testified in this case that she had no 

recollection of living in at 1535 N. Claremont, of talking to police after a shooting in 1991 or of testifying 

at a criminal proceeding in 1992—she testified that she was not the Elba Burgos who was a witness in 

this case. (JSOF ¶ 122.)

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30, 2021) (holding there was no fabrication claim because the witness “testified unequivocally 

‘No,’” when asked if officers told him “what to say”); McDonough v. Smith, No. 15-CV-1505 

(MAD/DJS), 2022 WL 3279348, at *24 (N.D.N.Y. Aug. 11, 2022) (rejecting fabrication claim 

where witnesses “consistently testified . . . at two criminal trials, and during their depositions 

taken in this case,” and “not one... has since recanted his or her testimony or even implied that it 

was untruthful or fabricated.”). Thus, Johnson lacks evidence that Defendants manufactured false 

testimony from Richardo, Elba, or Rosa Burgos and summary judgment is appropriate on his 

fabrication claim. 

b. Defendants Erickson, Healy and Daley were not involved with the witnesses 

in the identification of Johnson.

 Also, the claim that Defendants fabricated the identification fails against Defendants 

Erickson, Healy and Daley because they were not involved in or present for any of those 

identifications. 

As a prerequisite, “individual liability under § 1983...requires personal involvement in 

the alleged constitutional deprivation.” Colbert v. City of Chicago., 851 F.3d 649, 657 (7th Cir. 

2017) (cleaned up). “A plaintiff bringing a civil rights action must prove that the defendant 

personally participated in or caused the unconstitutional actions.” Grieveson v. Anderson, 538 

F.3d 763, 776 (7th Cir. 2008) (internal quotation marks omitted). “A defendant will be deemed to 

have sufficient personal responsibility if he directed the conduct causing the constitutional 

violation, or if it occurred with his knowledge or consent.” Rasho v. Elyea, 856 F.3d 469, 478 

(7th Cir. 2017) (quoting Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)); see also 

Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“Section 1983 creates a cause of action based 

on personal liability and predicated upon fault; thus, liability does not attach unless the 

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individual defendant caused or participated in a constitutional deprivation.”) (internal quotation

marks omitted). 

 Here, there is no evidence that Defendants Erickson, Healy and Daley interacted with 

Rosa, Ricardo or Elba Burgos when those witnesses identified Johnson and therefore, the 

detectives could not have “knowingly procured false identifications.” Erickson’s role was limited 

to performing lineups the first night and had no further involvement in the investigation (JSOF ¶ 

21); Healy only signed reports two days after Johnson was arrested and charged (JSOF ¶¶ 38-

39); Daley responded to the shooting, detained Johns for further investigation, and weeks later 

provided detectives a polaroid photo depicting Johnson and two other individuals. (JSOF ¶¶ 11-

13, 32.) 

 Johnson has no evidence linking Defendants Erickson, Daley or Healy to any personal 

involvement in the alleged fabrication of the three identifications nor any evidence of contact 

between these Defendants and those witnesses after Johnson became a suspect. As such, 

Defendants Erickson, Healy and Daley are entitled to summary judgment on the claim that the 

identifications were fabricated. 

c. Johnson’s fabrication claims based on police reports documenting 

identification procedures fail because there is no evidence the reports were

fabricated or falsified, nor were they used to establish Johnson’s conviction. 

1. Police reports documenting identification procedures.

Johnson claims that Defendants wrote false police reports documenting the identification 

procedures, and fabricated reports regarding the identifications made by Elba, Ricardo and Rosa 

Burgos. This aspect of Johnson’s fabrication of evidence claim suffers from a fatal flaw—namely 

there is no evidence in the record to support a plausible inference that Rosa, Ricardo, or Elba 

Burgos’ identifications were false, let alone that these Defendants knew with certainty that the 

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identifications were false. Petty v. City of Chicago, 754 F.3d 416, 423 (7th Cir. 2014); see Section 

I(a), supra. Because Johnson cannot establish that the identifications were false, it logically 

follows that he similarly cannot establish that Defendants falsified or fabricated police reports 

documenting the very same identification procedures.

2. June 12, 1991 four-witness lineup report.

Johnson further contends that Defendants “falsified police reports to hide a lineup on or 

about June 12, 1991 in which Bryan Johns was identified by Aby Gonzalez.” (JSOF ¶¶ 122-123.) 

Specifically, Johnson claims that the lineup report Guevara prepared on June 12, 1991 (“June 12 

four-witness lineup report”), stating that he and Erickson conducted a lineup on the night of the 

shooting with Johns as the suspect and that there was no identification, was fabricated. (JSOF ¶¶

111-112.)

Johnson’s claim against all Defendants fails because the report was not used at his trial. 

The very “essence of a due process evidence-fabrication claim is that the accused was convicted 

and imprisoned based on knowingly falsified evidence.” Patrick v. City of Chicago, 974 F.3d 824, 

835 (7th Cir. 2020) (emphasis added); see Coleman, 925 F.3d at 344 (“Using false evidence to 

convict violates a defendant’s right to a fair trial”) (emphasis added); see also 7th Circuit Pattern 

Jury Instruction 7.14 (plaintiff must prove, inter alia, that “knowingly fabricated evidence was 

introduced against Plaintiff”). Here, the State did not use the June 12 four-witness lineup report at 

all, nor did it elicit any testimony from Guevara regarding the contents of that report. Instead, it 

was introduced by Johnson to cross-examine Defendant Guevara. (JSOF ¶¶ 111-112.) But the 

report itself was not introduced at trial. (JSOF ¶ 84.) As such, Johnson cannot establish that the

report was used to obtain his conviction, defeating his claim.

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Here, Johnson also cannot prevail on this theory against Defendants Halvorsen, Daley and 

Healy because they did not create the June 12 four-witness lineup report and there is no evidence 

that these Defendants were involved in or present for the lineup referenced in the June 12 fourwitness lineup report, nor that they had knowledge of the identification procedure. (JSOF ¶¶ 13, 

30, 38-39.) Corroborating this fact, the report itself does not state that any of the three Defendants 

were there. (JSOF ¶ 23) Given this, Johnson has failed to prove they were personally involved. 

See Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (Section 1983 creates a cause of action based 

on personal liability and predicated upon fault; thus, liability does not attach unless the individual 

defendant caused or participated in a constitutional deprivation.) (internal quotations omitted); see 

also Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) (“A plaintiff bringing a civil rights 

action must prove that the defendant personally participated in or caused the unconstitutional 

actions.”) (citations omitted).

II. Johnson’s Claim that Unduly Suggestive Identification Procedures Deprived 

him of a Fair Criminal Trial Fails as a Matter of Law (Count I)

 Johnson claims that Defendants “procured supposed eyewitness identifications 

implicating Johnson in the crime by using unduly suggestive identification techniques during 

photo identifications and during live lineups.” (JSOF ¶ 126; Complaint, Dkt. No. 1 at ¶ 144.) 

This claim fails as a matter of law under the undisputed facts for four reasons: there is 1) no 

cognizable unduly suggestive identification procedures claim; 2) insufficient evidence that the 

identifications were unnecessarily suggestive and so unreliable that they tainted his trial; 3) 

insufficient evidence to show that Defendants Erickson, Daley and Healy were personally 

involved in the identifications; 4) no evidence that Halverson knowingly suggested who any 

witness should identify. In addition, Defendants are entitled to qualified immunity.

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a. Vega instructs that prophylactic evidentiary rules, like the rule against admitting 

unduly suggestive identifications, are not bases for § 1983 liability.

Johnson cannot bring a § 1983 claim for unduly suggestive identification procedures

because it is an evidentiary protection, not a constitutional right. The “U.S. Constitution does not 

mandate that photo arrays or lineups meet a certain standard of quality.” Alexander v. City of 

South Bend, 433 F.3d 550, 555 (7th Cir. 2006). Recently, in Vega v. Tekoh, the Supreme Court

held that the plaintiff had no § 1983 claim based on a violation of Miranda because prophylactic 

evidentiary principles do not equate to constitutional rights. 597 U.S. 134, 150 (2022). Shortly 

thereafter, in Holloway v. City of Milwaukee, the Seventh Circuit posited, but declined to decide, 

that the reasoning in Vega would bar an unduly suggestive identification procedures claim 

because the protection against such procedures “is, like Miranda, only a trial right.” 43 F.4th 

760, 766 (7th Cir. 2022). Addressing that very question, this Court determined this year in Ezell

v. City of Chicago, that an unduly suggestive identification “claim is not cognizable in light of 

the Supreme Court’s holding in Vega,” finding “the Constitution does not guarantee Plaintiffs a 

fair lineup procedure,” and dismissed the claim because “§1983 does not support constitutional 

claims when they arise out of alleged violations of judge-made prophylactic rules.” No. 18 C 

1049, 2024 WL 278829, at *23. Here, Defendants are entitled to the same relief.

b. Johnson cannot demonstrate that any identification procedure deprived him of a 

fair criminal trial. 

Even if there were a cognizable claim, Seventh Circuit cases issued before Vega set a 

high bar for what qualifies as an unduly suggestive identification procedure. The plaintiff must 

do more than “say[ ] that a witness was shown a suggestive photo array or lineup and later 

testified.” Alexander, 433 F.3d at 556. Nor is it enough to show a plaintiff was later exonerated. 

Id. 

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When determining if an identification procedure reaches this substantial threshold, 

criminal courts have engaged in a two-step analysis. See Lee, 750 F.3d at 691. “First, [courts] 

determine whether the identification procedure was suggestive and unnecessary.” Id.; see also 

Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012). If so, courts must “determine under the 

totality of the circumstances whether the procedure was nonetheless reliable.” Lee, 750 F.3d at 

691; see also Alexander, 433 F.3d at 555 (“Both suggestiveness and reliability are evaluated by 

reference to the totality of the circumstances.”). This inquiry is addressed separately from the 

issue of undue suggestion. McGowan v. Miller, 109 F.3d 1168, 1173 (7th Cir. 1997). Johnson 

must have sufficient evidence to establish that the identifications in this case were so egregiously 

suggestive that they tainted the whole trial. Coleman, 925 F.3d 347. 

1. The identification procedures were not unduly suggestive. 

To determine if identification procedures were unduly suggestive, courts focus on “the 

manner in which the witness was shown the suspect’s likeness, reserving criticism for procedures 

that have been orchestrated to yield the identification of one particular suspect.” U.S. v. Jones, 

454 F.3d 642, 649 (7th Cir. 2006). “For the most part, suggestive procedures involve the 

repeated presentation of only one suspect by the police to a witness, or a lineup in which the 

suspect is clearly distinguishable from the other persons.” Id. Nothing like that occurred here.

The procedures employed in this case included Halvorsen and Guevara on July 15, 1991, 

showing a photo depicting three people, one of whom was Johnson, to Elba Burgos on July 15, 

1991 and also identified Johnson from the three people depicted as the shooter. (JSOF ¶ 33.) 

Ricardo Burgos testified at trial that he also viewed the single photo containing three people. 

(JSOF ¶ 92.) One week later, on July 22nd, Elba, Rosa and Ricardo selected Johnson from a live 

lineup. (JSOF ¶ 35.) 

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Plaintiff’s contention that showing a single photo containing three people is suggestive, 

fails because this information was known to the finder of fact at trial. Both Elba and Ricardo 

testified unrebutted at trial about seeing the single three-person photo prior to their 

identifications of Johnson in the July 22 lineup. (JSOF ¶¶ 92, 100). In short, all the concerns 

were put forth before “the [finder of fact] to weigh,” which removes the possibility of “a very 

substantial likelihood of irreparable misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116 

(1977) (“Juries are not so susceptible that they cannot measure intelligently the weight of 

identification testimony that has some questionable feature.”) (citations omitted). Under the 

totality of the circumstances, Johnson had all the process due to him to address any concerns 

with the identifications; thus, summary judgment is proper because his right to a fair trial was not 

irreparably tainted by the introduction of the identification evidence. Moreover, there is no 

evidence of suggestiveness as to Rosa Burgos, who never saw the single polaroid photo 

depicting three people and nevertheless identified Johnson during the live lineup without there 

being any evidence of suggestion. (JSOF ¶¶ 35, 107.) 

Johnson weakly contends that the lineups were unduly suggestive implying that the only 

way Ricardo Burgos, Rosa Burgos, and Elba Burgos could have picked Plaintiff out of a live 

lineup is if Defendants manipulated the identification process and used unduly suggestive 

identification procedures such as including fillers in the lineup who were a different age and 

height than Plaintiff and did not have distinct characteristics that Plaintiff did. But this 

contention, devoid of any supporting evidence, does not demonstrate a suggestive identification 

procedure or that the witnesses’ identifications were influenced by it. Indeed, the circumstances 

regarding the use of the single three-person photo as well as the photo itself was introduced at 

Johnson’s criminal trial for the finder of fact to consider. There is simply no evidence that

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Halvorsen told any witness to identify Johnson nor is there any evidence that any witness 

selected him because he stood out in the lineup.

2. The witness identifications were sufficiently reliable to overcome the taint

of any unduly suggestive procedures. 

Even if the identification procedures could be characterized as unnecessarily suggestive, 

the identifications were, nonetheless, sufficiently reliable to warrant admission to the jury which 

satisfied due process. The Seventh Circuit has called reliability “the linchpin of the due process 

calculus in identification cases,” U.S. v. Newman, 144 F.3d 531, 535 (7th Cir. 1998). In 

determining reliability, courts consider the five “Biggers” factors: (1) the witness’ opportunity to 

view the suspect at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of 

the witness’ prior description of the suspect; (4) the level of certainty that the witness 

demonstrated at the time of the confrontation; and (5) the time elapsed between the crime and the

confrontation. Gregory –Bey, 332 F.3d at 1045 citing Neil v. Biggers, 409 U.S. 188, 199-200 

(1972). In applying these factors here, the identifications made by Rosa, Elba, and Ricardo 

Burgos were plainly reliable enough to dispel any contention that any suggestive procedures 

“were so egregious as to taint the entire trial.” Coleman, 925 F.3d 347. 

With respect to the first two factors, Rosa, Elba, and Ricardo all had an opportunity to 

observe and were closely focused on the offender they identified as Johnson. Rosa Burgos was

about to exit her apartment building when she saw Ortiz, who was standing in front of her, being

shot. (JSOF ¶ 103.) Rosa had a clear view of the offender, who was a mere 10 feet away from

her, and armed with a gun. (JSOF ¶ 103.) Rosa looked at the offender’s face for four seconds 

before running back into her apartment building. (JSOF ¶ 103.) She described the offender as 

“short, black and young.” (JSOF ¶ 103.) Elba Burgos was sitting on her front porch when she 

heard gunshots, prompting her to stand up and look towards North Avenue. (JSOF ¶¶ 95-96.)

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Immediately after hearing the gunshots, Elba observed a man run past her house with a gun in his 

hand. (JSOF ¶¶ 96, 97, 102.) She had a clear view of the man, whom she described as “young” 

and “black,” who was only twenty-five feet away from her. (JSOF ¶ 97.) Ricardo testified 

truthfully at trial that he was across the street when he saw a black guy wearing a T-shirt and 

gray pants walking North on Claremont with a gun in his hand fire, saw him fire his gun for 

about forty-five seconds, and saw his face. (JSOF ¶¶ 88-91, 117.) Thus, Johnson cannot seriously 

dispute this factor. 

As to certainty of the identifications, Elba, Ricardo, and Rosa testified under oath at trial 

that they accurately identified Johnson as the shooter when they viewed the July 22 lineup. 

(JSOF ¶¶ 91, 101, 107) And when questioned during their depositions in this matter, Rosa and 

Ricardo confirmed that they would have told the truth when under oath and giving testimony in a 

courtroom. (JSOF ¶¶ 117, 119.) Lastly, the span of time between the shooting and the pretrial

identifications, here less than two months, does not cast doubt on the reliability of Rosa’s, 

Ricardo’s and Elba’s identifications. See, e.g., U.S. ex rel. Kosik v. Napoli, 814 F.2d 1151 (7th 

Cir. 1987) (holding that two-month gap does not by itself raise serious question about reliability 

of identification;) U.S. v. Goodman, 797 F.2d 468, 471 (7th Cir. 1986) (two months from 

incident and the “suggestive pretrial identification” and five months from incident to 

identification at trial did not under the circumstances render the identification inadmissible). 

Johnson cannot avoid the fact that these witnesses’ opportunity to observe, degree of attention 

and certainty of their identifications overwhelmingly establishes their reliability.

c. Alternatively, Johnson lacks evidence that Defendants acted with the requisite 

intent necessary to confer Section 1983 liability. 

“The scope of substantive due process is very limited.” Tun v. Whitticker, 398 F.3d 899, 

902 (7th Cir. 2005). “It is one thing to say that officials acted badly, even tortiously, but—and 

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this is the essential point— it is quite another to say that their actions rise to the level of a 

constitutional violation.” Id. at 903. The Supreme Court has explained that due process was 

designed to prevent abusive governmental conduct, not negligence or inadvertence. Daniels v.

Williams, 474 U.S. 327, 328 (1986) (Section 1983 liability under “the Due Process Clause is 

simply not implicated by a negligent act of an official causing unintended loss of or injury to life, 

liberty, or property.”). Only where the defendant’s actions rise to the level of criminal 

recklessness—deliberate indifference—is there a violation of the Due Process Clause. Archie v.

City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988) (explaining criminal recklessness allows a 

Defendant’s knowledge of the risk to be inferred and “the more lenient tort-law definition of 

recklessness would not adequately recognize the difference between constitutional and common 

law obligations”); see also Moran, 54 F.4th at 493 (“[F]or purposes of [§ 1983] civil liability, 

negligent conduct does not offend the Due Process Clause.”). Under these facts, Johnson faces 

an insurmountable bar. 

As applied here, Johnson must show—beyond suggestiveness and reliability—that 

Defendants knew their actions would taint the procedure and cause an unreliable identification. 

See Coleman, 925 F.3d at 347–48 (holding that “even if a court had later found [an] 

identification[] inadmissible under the Brathwaite/Biggers framework, an officer is not 

automatically liable” as a plaintiff must show the officers deliberately used a prohibited 

identification technique to obtain an unreliable identification.) (citing Phillips v. Allen, 668 F.3d 

912, 917 (7th Cir. 2012) (agreeing with the Fifth and Eighth Circuits that “damages [are] 

permissible under” Section 1983 “when a state actor deliberately uses a forbidden technique to 

generate a false identification.”)); see also Blackmon, 2023 WL 7160639, at *14 (“The Court is 

not required to consider these lineup procedures in a vacuum without taking Defendants’ conduct 

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and inferences from that conduct into account—due process claims under § 1983 require a 

showing of intent.”). 

 Johnson has failed to show the requisite intent. As explained below, Erickson, Daley and 

Healy were not involved with the July 22 identification procedures and so they could not have 

knowingly tainted the identification procedure to cause a misidentification. (JSOF ¶¶ 21, 32, 38.) 

And as it relates to Halvorsen, Johnson has no evidence that he used a forbidden identification 

procedure he knew would cause Elba, Rosa, or Ricardo Burgos to identify Johnson. Thus, 

Johnson cannot meet his burden to show that Defendants acted with the requisite intent to violate 

Johnson’s due process rights.

d. Johnson cannot establish that Defendants Healy, Erickson or Daley were 

involved in the suggestive identification procedures.

Personal involvement is a prerequisite for liability under 42 U.S.C. § 1983. Munson v. 

Gaetz, 673 F.3d 630, 637 (7th Cir. 2012). And liability does not attach unless the individual 

defendant caused or participated in a constitutional deprivation. Vance v. Peters, 97 F.3d 987, 

991 (7th Cir. 1996). 

Daley, Erickson, and Healy had no involvement in showing the three-person photo to 

any witness. Daley located the single polaroid photo of Johnson with two other individuals and 

had no further involvement in the investigation. There is no evidence that he directed or was 

aware of how the photo was subsequently used to identify Johnson. And neither Daley, Erickson, 

nor Healy were present for or in conducted the live lineup. (JSOF ¶¶ 21,32, 38-39), Healy signed 

the lineup report two days after it occurred but that is not evidence that he is responsible for the 

procedures used at the lineup. (JSOF ¶ 38.) This, alone, is insufficient to demonstrate personal 

involvement, which requires proof that the defendant either committed the violation, directed it, 

or minimally, knew about and acquiesced to it. Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th 

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Cir. 2017). As to those factors, there is no evidence Healy was aware of the misconduct Johnson

ascribes to Defendants Halvorsen and Guevara with respect to the identification procedures. As a 

result, Johnson cannot maintain a claim that Healy was involved in or aware of any unduly 

suggestive identification procedures. Thus, Healy, Daley, and Erickson are, once again, entitled 

to summary judgment based on lack of personal involvement. See Colbert, 851 F.3d at 657–58 

(lack of personal involvement in allegedly unconstitutional conduct bars claims even if plaintiff 

can establish underlying violation); Molina ex rel. Molina v. Cooper, 325 F.3d 963, 974 (7th Cir. 

2003) (same); Hessel v. O’Hearn, 977 F.2d 299, 305 (7th Cir. 1992) (same).

e. Alternatively, Defendants are entitled to qualified immunity.

Qualified immunity shields officials from civil liability if “their conduct ‘does not violate 

clearly established statutory or constitutional rights of which a reasonable person would have 

known.’” Gill v. City of Milwaukee, 850 F.3d 335, 340 (7th Cir. 2017) (quoting Mullenix v. 

Luna, 136 S. Ct. 305, 308 (2015)). To decide qualified immunity, courts consider: “(1) whether 

the facts taken in the light most favorable to the plaintiff, make out a violation of a constitutional 

right, and (2) whether the constitutional right was clearly established at the time of the alleged 

violation.” Allin v. City of Springfield, 845 F. 3d 858, 862 (7th Cir. 2016) (citation omitted). 

“The showing of clearly established law must be specific to the particular facts of the 

case.” Gaddis v. Demattei, 30 F.4th 625, *13 (7th Cir. 2022). The Supreme Court has warned 

against denying qualified immunity based on generalities as to constitutional principles. See 

White v. Pauly, 137 S. Ct. 548, 551 (2017); Gill, 850 F.3d at 340-41. It is Johnson’s burden to 

identify precedent with facts sufficiently on point to defeat summary judgment. Ashcroft v. alKidd, 563 U.S. 731, 741 (2011); Green v. Newport, 868 F.3d 629, 633 (7th Cir. 2017) (“The 

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plaintiff bears the burden of demonstrating that a right was clearly established at the time the 

alleged violation occurred”). 

As explained above, the evidence is insufficient to establish a constitutional violation 

because there was no clearly established precedent in 1991 that would have put Defendants on 

notice that their alleged conduct was unconstitutional. “The unlawfulness of challenged conduct 

is clearly established ... only if it is ‘dictated by controlling authority or a robust consensus of 

cases of persuasive authority, such that it would be clear to a reasonable officer that his conduct 

was unlawful in the situation he confronted. It is essential to evaluate the public official’s 

conduct at the correct level of granularity.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 

(2018) citing Estate of Davis v. Ortiz, 987 F.3d 635, 638 (7th Cir. 2021). 

Against this backdrop, Johnson cannot point to any controlling or persuasive authority 

that clearly established that it was impermissible for the police to show a photo containing 

multiple people including the suspect prior to a live lineup. See Harris, 281 F.3d at 670–71 

(“there is nothing per se impermissible about placing the same suspect in two different 

identification procedures”). Similarly, Johnson cannot identify authorities establishing, in 1991, 

that the single polaroid photo or lineup contained an insufficient number of quality fillers that 

made it so suggestive that witnesses would have only picked him. See, e.g. U.S. v. Johnson, 745 

F.3d 227, 230 (7th Cir. 2014) (holding the disparity between fillers and subject must be serious);

U.S. v. Harris, 281 F.3d 667, 670 (7th Cir. 2002) (stating that four person photo array was 

“reasonable”); People v. Ortiz, 2017 IL App (1st) 142559, ¶ 25 (quoting People v. Kelley, 304 Ill. 

App. 3d 628, 638 (1999)) (stating “[t]he law, however, does not require the participants in 

a photo array or lineup ‘to be identical or near identical.’”) 

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Even if the limited number of fillers clearly established that the single polaroid photo 

containing three people and lineups were suggestive, there is no controlling authority that would 

support a conclusion that it was clearly established that they were so egregious under the Biggers 

factors so as to taint the entire trial. See Coleman, 925 F.3d at 347. Thus, Plaintiff cannot meet 

his burden to establish that any reasonable officer in Defendants’ position would have known 

they were violating Johnson’s constitutional rights, and Defendants are entitled to qualified 

immunity.

III. Johnson lacks sufficient evidence to support his Brady claim. 

Count I also alleges that Defendants violated Johnson’s due process rights by suppressing 

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, 

Johnson alleges that Defendants suppressed: (1) evidence of all the misconduct alleged; (2) the 

June 13 six-witness lineup report, indicating a positive identification of Johns (3) their 

fabrication of witness statements, and (4) unidentified police reports and non-descript general 

“personal” documents. (JSOF ¶¶ 123, 124.) As set forth below, Johnson lacks evidence to 

support all the required elements of his Brady claims against Defendants.

To prevail under Brady, Johnson must show that the evidence was: 1) favorable to him 

because it was exculpatory or impeaching; 2) willfully suppressed by the officer; and 3) material, 

meaning if it had been disclosed there is a reasonable probability the proceeding would have 

resolved differently. Carvajal v. Dominguez, 542 F.3d 561, 566–67 (7th Cir. 2008). Evidence is 

not suppressed under Brady where the criminal defendant is aware of the evidence or could have 

learned of it through reasonable diligence. See Petty v. City of Chicago, 754 F.3d 416, 423–24 

(7th Cir. 2014) (summary judgment on Brady claim affirmed where defense counsel knew of the 

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allegedly suppressed statement prior to the criminal trial); U.S. v. Kimoto, 588 F.3d 464, 492 (7th 

Cir. 2009) (materials that could have been located could not form basis for Brady violation). 

Additionally, Johnson’s Brady claim cannot be based on speculation that documents 

would have existed. U.S. v. Parks, 100 F.3d 1300, 1307 (7th Cir.1996) (“speculation is not 

enough to establish that the Government has hidden evidence”). Finally, because this is a civil 

suit, Johnson must not only present sufficient evidence to meet the above requirements, but also

that a Defendant who was responsible for the suppression “acted intentionally or at least 

recklessly in failing to turn...over” the evidence. Moran, 54 F.3d at 493. Johnson cannot meet 

his burden as to Defendants Healy, Daley, Halvorsen and Erickson, and they are entitled to 

summary judgment. 

a. Johnson’s claims for fabrication of evidence cannot be recast as independent 

Brady claims. 

 Johnson attempts to create a Brady claim by alleging that Defendants had a duty to 

disclose their own misconduct—seeking to expand the concept of “suppression” into a “catchall” that would fold all of Defendants’ alleged misconduct under the umbrella of a Brady claim. 

But suppression of one’s misconduct does not give rise to a Brady violation. See Patrick, 103 F. 

Supp. 3d at 915 (finding that “plaintiff’s objection to defendants’ conduct appears to be not so 

much that they suppressed evidence as that the evidence they ultimately produced was fabricated 

or otherwise secured by misconduct and is more appropriately characterized as a claim for 

malicious prosecution); Phillips v. City of Chicago, 2015 WL 5675529, *5-6 (N.D. Ill. 2015) 

(finding that the officers’ non-disclosure of their alleged treatment of the plaintiffs’ codefendants’ and witness does not amount to a Brady violation); Myvett v. Heerdt, 2015 WL 

12745087, *6 (N.D. Ill. 2015) (granting summary judgment on Brady claim where plaintiff 

failed to identify any evidence that was withheld from him, but instead claimed that defendants 

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withheld their fabrication of witnesses' statements); Alvarado v. Hudak, 2015 WL 4978683, *3 

(N.D. Ill. 2015) (dismissing Brady claim that officers failed to admit their misdeeds to the 

prosecution because an officer's silence following his alleged fabrication of evidence does not 

result in a Brady violation). 

Moreover, recasting of his fabrication claims as Brady claims is not appropriate and in 

contravention of Seventh Circuit precedent. See Saunders-El, 778 F.3d at 562; Serrano v.

Guevara, No. 17 CV 2869, 2020 WL 3000284, at *19 (N.D. Ill. June 4, 2020) (“Failing to 

disclose falsified evidence, or “keeping quiet” about that evidence, is the same as a fabrication of 

evidence claim and cannot be recast as a Brady allegation”); Boyd, 225 F. Supp. 3d at 720 

(“There is no support for a Brady claim where, as here, the allegation is not that defendants 

suppressed evidence, but rather that they produced evidence that was fabricated.”). “Withholding 

truth,” in the form of detectives’ accounts of interviews, is not suppression of evidence for 

purposes of Brady, and the Seventh Circuit has foreclosed an extension of Brady to encompass 

the theory that a police officer is “suppressing” evidence by giving the prosecution a false 

account of the interview. See Carvajal, 542 F. 3d at 567; Harris v. Kuba, 486 F. 3d 1010, 1016-

1017 (7th Cir. 2007). Accordingly, Johnson’s attempt to create a Brady claim through the 

recasting of his fabrication claim cannot survive summary judgment. 

b. Johnson lacks sufficient evidence to demonstrate that Daley, Halvorsen or 

Healy were aware of the June 13 six-witness lineup report.

 Johnson next argues Defendants suppressed the six-witness lineup report. He has 

insufficient evidence, however, to connect Daley, Healy and Halvorsen to the June 13 sixwitness lineup report or any failure to produce it. “Section 1983 creates a cause of action based 

on personal liability and predicated upon fault; thus, liability does not attach unless the 

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individual defendant caused or participated in a constitutional deprivation.” Vance, 97 F.3d at 

991; see also Grieveson, 538 F.3d at 776. 

 Johnson has no evidence that Daley, Healy or Halvorsen were aware that the June 13 sixwitness lineup report was created, much less that they knew or intended it to be withheld. Indeed, 

Halvorsen was not involved with the investigation at any point on the first night. (JSOF ¶ 30). 

Daley was involved in the investigation, but he was not a detective, did not participate in the 

lineups on the first night, and was simply told that no one was identified. (JSOF ¶¶ 13, 28). Nor 

is there any evidence that Healy was working the first night, and he did not review or sign the 

June 13 six-witness lineup report. (JSOF ¶¶ 38-39.) Thus, Johnson can only speculate that they 

were involved in the alleged failure to produce the report. But summary judgment is “the put up 

or shut up” stage where Johnson must come forward with evidence that supports his theory. 

Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir.2010) (quoting Johnson v. Cambridge Indus., 

Inc., 325 F.3d 892, 901 (7th Cir.2003)). And speculation is not sufficient. Johnson v. Advoc. 

Health & Hosps. Corp., 892 F.3d 887, 894 (7th Cir. 2018) (“Inferences supported only by 

speculation or conjecture will not suffice.”); Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th 

Cir. 2007) (“[I]nferences that are supported by only speculation or conjecture will not defeat a 

summary judgment motion.”). Accordingly, Daley, Healy and Halvorsen had no personal 

involvement in the six-witness lineup and they should be granted summary judgment. 

c. Erickson retired before Johnson’s criminal trial and there is no evidence that

he was involved in producing documents to the State’s Attorney’s Office. 

Johnson’s theory that Erickson was involved with the alleged failure to produce the June 

13 six-witness lineup report likewise fails notwithstanding the fact that he purportedly wrote and 

signed the report. The uncontradicted evidence is that the document was placed in the CPD 

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investigative file as confirmed by its presence in that file when produced in this case. (JSOF ¶ 

14) Thus, there is no evidence that Erickson failed to put the document in the police files. 

Johnson’s theory is that when the police records were provided to the State’s Attorney 

and in response to criminal defense counsel’s record subpoena, the June 13 six-witness lineup 

report was not included. But there is no evidence that Erickson had any involvement with the 

investigation of the Fred murder after the first night. (JSOF ¶ 21) Indeed, Erickson retired from 

CPD on August 2, 1991, (JSOF ¶ 22), less than two weeks after Johnson’s July 22, 1991 arrest

and two weeks before Johnson was indicted on August 19, 1991. (JSOF ¶¶ 34, 56). The ASA did 

not request documents until September 19, 1991 and a response to Johnson’s criminal defense 

attorney’s subpoena was not due until August 13, 1991, (JSOF ¶ 58), all well after Erickson had 

any involvement with the case, and after he had retired. (JSOF ¶¶ 21-22.) Erickson never 

testified in this case either. (JSOF ¶¶ 21, 22, 84.) Johnson has no evidence that Defendant 

Erickson subjectively intended to withhold the June 13 six-witness lineup up report, that he knew 

the report was withheld, or was personally involved in the alleged Brady violation related to that 

report.

To defeat summary judgment, Johnson must show that Erickson was not only personally 

involved in the unlawful conduct, but also that he subjectively intended the report to be withheld. 

See Moran, 54 F.3d at 493 (plaintiff must show “intentional or at least reckless failure to 

disclose); Rasho v. Elyea, 856 F.3d 469, 478 (7th Cir. 2017) (personal involvement requires 

showing that defendant directed the misconduct or allowed it to occur with his knowledge or 

consent). Here, the undisputed timeline of Erickson’s involvement—only on the first night of the 

investigation—his subsequent retirement, and the dates when police records were produced and 

subpoena responses due, demonstrates that Johnson lacks evidence that Erickson was directly 

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involved in or even knew of the alleged failure to produce the June 13 six-witness lineup report. 

Johnson can only speculate that Erickson intended to suppress the report and speculation will not 

carry the day. See Johnson, 892 F.3d at 894. Accordingly, Erickson is entitled to summary 

judgment on this aspect of Johnson’s Brady claim. 

d. Johnson was aware of all the information in the June 13 six-witness lineup 

report and advised his attorney of that information before his criminal trial. 

Johnson’s Brady claim based on the June 13 six-witness lineup report also fails because 

he cannot show the information in it was suppressed and that it was not available through 

reasonable diligence considering the information he had. Evidence known to the defendant is not 

suppressed. Avery v. City of Milwaukee, 847 F.3d 433, 443 (7th Cir. 2017). “Reasonable 

diligence” asks whether the defendant had access to the exculpatory evidence through other 

means. Boss v. Pierce, 263 F.3d 734, 741 (7th Cir. 2001). Here, Johnson has admitted that he was 

not only aware of the identification of Johns in the June 13 six-witness lineup report, but that 

Johns admitted he was the murderer. (JSOF ¶ 52.) Johnson testified that while in Cook County 

Jail awaiting trial, Johns told him that he was arrested for the Fred murder the night it happened, 

he was identified in a lineup but released, and that he committed the murder (JSOF ¶ 51.)5

Johnson then provided this information to his attorneys to use in his defense. (JSOF ¶ 53.) Thus, 

the information in the six-witness lineup report was not kept from Johnson and his Brady rights 

were not violated. 

e. There is no Brady claim based upon the alleged suppression of generic nondescript evidence, “street files,” or notes.”

 Johnson makes the sweeping contention that “‘street files’ and/or ‘personal notes’ and/or 

‘personal files’ kept by detectives working on and in regard to the Edwin Fred murder were 

5 This disclosure by Johns to Johnson is corroborated by Terrell Agee’s testimony that Johns also advised 

Agee that Johns was identified in the lineup for the Fred murder. (JSOF ¶¶ 19, 46.) 

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fabricated, withheld, destroyed or concealed, and that such documents contained exculpatory and 

impeaching information that would have permitted Johnson to demonstrate his innocence.” 

(JSOF ¶ 124.) This allegation fails because Johnson has no evidence that personal notes and/or 

personal files were created by or kept by Defendants, nor proof that the claimed personal notes 

and/or personal files contained exculpatory information. 

To fill the evidentiary void, Johnson is left with no choice but to rely on speculation and 

conjecture, which is wholly insufficient at the summary judgment stage. “[A] denial of Due 

Process cannot be premised on the defendant’s mere conjecture that there might have been 

favorable evidence which was undisclosed. The existence of the evidence must be established...” 

U.S. v. McPartlin, 595 F.2d 1321, 1346, n. 32 (7th Cir. 1979); see also Hill v. City of Chicago, 

2009 WL 174994, * 4 (N.D. Ill. 2009) (no Brady violation based on plaintiff’s mere speculation 

that a report may have existed); U.S. v. Warren, 454 F.3d 752, 759 (7th Cir. 2006) (finding no 

Brady violation because defendant was “unable to point to any specific evidence, exculpatory or 

otherwise, withheld by the government.”). Here, Johnson’s failure to identify any notes, let alone 

specific notes, that were ever taken by Defendants defeats his Brady claim. And even if Johnson 

could present evidence that notes existed, he certainly has no evidence to prove that they 

contained exculpatory information. Indeed, “[w]ithout knowing what the notes said,” this Court 

“cannot determine whether they had exculpatory value or whether that exculpatory value was 

apparent to defendants before the notes were destroyed.” Bolden v. City of Chicago, No. 17 CV 

417, 2019 WL 3766104, at *11 (N.D. Ill. Aug. 9, 2019). 

Finally, Johnson cannot say who was responsible for drafting and/or suppressing any 

alleged personal files or notes which eliminates his ability to show personal involvement. 

Vance, 97 F.3d at 991; Grieveson, 538 F.3d at 776. Absent evidence identifying the alleged 

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missing personal notes or files, the substance of the notes or files or the individuals responsible 

for withholding them, Johnson’s speculative Brady claim based on this theory cannot proceed. 

IV. Johnson’s Unlawful Detention (Count II) and Malicious Prosecution (Count IV) 

Claims Fail Because There was Probable Cause to Arrest Based Upon Three 

Identifications

 Johnson alleges an unlawful pretrial detention claim under the Fourth Amendment 

(Count II) and a state law malicious prosecution claim (Count VI). To sustain a Fourth 

Amendment pretrial detention claim, a plaintiff must allege, at a minimum, that criminal 

proceedings were initiated without probable cause. Thompson v. Clark, 142 S. Ct. 1332, 1137-38 

& n.2 (2022). Proving “the absence of probable cause” is also an essential element of a state law 

malicious prosecution claim. See, e.g., Wade v. Collier, 783 F.3d 1081, 1085 (7th Cir. 2015) 

(quoting Swearingen–El v. Cook County Sheriff's Dept., 602 F.3d 852, 863 (7th Cir. 2010)). 

a. Erickson, Daley and Healy were not personally involved in gathering any 

evidence against Johnson or seeking charges.

Initially, Johnson cannot prove that Defendants Erickson, Daley and Healy were 

personally involved in initiating the prosecution as required for liability under the Fourth 

Amendment unlawful pretrial detention or state law malicious prosecution. See Vance, 97 F.3d at 

991; Grieveson, 538 F.3d at 776. The commencement or continuance of a prosecution requires a 

defendant to have played a “significant role” in the criminal prosecution. Hill v. Cook County, 

463 F. Supp. 3d 820, 845 (N.D. Ill. May 31, 2020) (citations omitted). None of them were 

involved in obtaining the three witness identifications which led to the charges against Johnson. 

(JSOF ¶¶ 21, 32, 38). None of them are listed on the arrest report or were even present during his 

arrest or when he was identified. (JSOF ¶¶ 21, 32, 38). None of them initiated criminal charges 

beginning the prosecution against Johnson. (JSOF ¶¶ 21, 32, 38.) And none testified for the state 

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to aid the prosecution. (JSOF ¶¶ 84, 109.) Accordingly, Defendants Erickson, Daley and Healy 

are entitled to summary judgment on these claims. 

b. The existence of probable cause defeats Johnson’s claims. 

The presence of probable cause is an absolute defense to claims under § 1983 against 

police officers for pretrial detention (Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 

2006)) and under state law for malicious prosecution. See Wade, 783 F.3d at 1085. Probable 

cause for both claims is evaluated at the time the legal process is initiated. See Williams v. 

Martinez, No. 22-CV-06602, 2023 WL 6141494, at *4 (N.D. Ill. Sept. 20, 2023) (citing Manuel 

v. City of Joliet, 580 U.S. 357, 368 (2017) (stating probable cause is evaluated at the time of the 

filing of the charges on which the plaintiff was held)); Thompson, 142 S. Ct. at 1337−38 (holding 

the plaintiff must prove under the Fourth Amendment, “the wrongful initiation of charges 

without probable cause”); Vaughn v. Chapman, 662 F. App’x 464, 467 (7th Cir. 2016) (holding 

probable cause should be evaluated at the time the criminal complaint was filed for an Illinois 

malicious prosecution claim).

Probable cause is a relatively low bar. Young v. City of Chicago, 987 F.3d 641, 644 (7th 

Cir. 2021) (citations omitted). It exists where the facts and circumstances are such that a 

reasonably prudent person would believe that the arrestee has committed a crime. Coleman, 925 

F.3d at 350; Blackmon, 2023 WL 7160639, at *8. That belief does not need to be “correct or 

even more likely true than false, so long as it is reasonable.” Gaddis v. DeMattei, 30 F.4th 625, 

630 (7th Cir. 2022). “This is an objective inquiry; [the court] do[es] not consider the subjective 

motivations of the officer.” Wade, 783 F.3d at 1087 (quoting Thayer v. Chiczewski, 705 F.3d 

237, 246 (7th Cir. 2012) (first brackets in original)). 

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The Seventh Circuit has repeatedly held that a single identification, even if questionable, 

is sufficient to create probable cause. See, e.g., Moran, 54 F.4th at 499–500; Coleman, 925 F.3d 

at 351; see also Cairel, 821 F.3d at 835 (holding eyewitness identification provided probable 

cause, despite witness’ hesitancy and inconsistencies with earlier descriptions). Phillips, 668 at 

915 (stating identification by one eyewitness who lacks an apparent grudge against the accused 

person supplies probable cause). Even a recantation of a statement does not, on its own, negate 

probable cause. Garcia v. Posewitz, 79 F. 4th 874, 880 (7th Cir. 2023). 

Here, the identifications of Rosa Burgos, Elba Burgos and Ricardo Burgos established 

probable cause to detain and prosecute Johnson for the murder of Fred. See Blackmon v. City of 

Chicago, No. 19 CV 767, 2023 WL 7160639, at *9 (N.D. Ill. Oct. 31, 2023) (single 

identification provided probable cause to arrest, which is an absolute defense to wrongful 

detention and malicious prosecution claims;) Moran, 54 F.4th at 500 (holding that “an 

eyewitness identification[], even if questionable, [is] enough to give [the police] probable cause 

to arrest, and here there were two witnesses who insisted that [the plaintiff] was the shooter.”) 

(citing Coleman, 925 F.3d at 351 (internal quotations omitted)) Accordingly, Johnson’s claims 

are defeated by the existence of probable cause. 

c. Alternatively, the presence of arguable probable cause entitles Defendants to 

qualified immunity on the federal unlawful detention claim. 

Alternatively, Defendants are entitled to qualified immunity because Ricardo, Rosa and 

Elba Burgos’ identifications of Johnson arguably created probable cause for his detention. 

Qualified immunity protects officers who reasonably but mistakenly conclude that probable 

cause exists. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999), as amended (Jan. 7, 2000). 

“Arguable probable cause exists when a reasonable police officer in the same circumstances and 

with the same knowledge and possessing the same knowledge as the officer in question could

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have reasonably believed that probable cause existed in light of well-established law.” Humphrey 

v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998) (emphasis in original) (citation omitted). Here, and 

in light of the cases discussed in § IV (b) above, there was no clearly established law to inform 

Defendants that the three identifications of Johnson were insufficient to establish probable cause, 

and qualified immunity bars this claim. 

V. Johnson’s Supervisory Liability Claim Against Defendant Healy Fails

There is no evidence that Defendant Healy was involved in this investigation in any 

capacity other than as a supervisor and that alone does not make him liable under Section 1983 

for a subordinate’s alleged misconduct. Carmona v. City of Chicago, No. 15 C 462, 2019 WL 

4166856, at *9 (N.D. Ill. Sept. 3, 2019) (citing Sanville v. McCaughtry, 266 F.3d 724, 740 (7th 

Cir. 2001)). Section 1983 liability is predicated on personal involvement and responsibility for 

the deprivation of a constitutional right. Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 

2001). A supervisor is personally responsible “if he directed the conduct causing the 

constitutional violation, or if it occurred with his knowledge or consent.” Id. 

Here, there is no evidence that Sgt. Healy actively participated in the Fred homicide

investigation or directed any of the conduct of which Johnson complains. Sgt. Healy’s only 

identified involvement was signing four reports on July 24, 1991—two days after Plaintiff’s 

identification and arrest. (JSOF ¶ 38.) There is no evidence that Sgt. Healy was at the Area Five 

Detective Division on any other date. (JSOF ¶ 39.) Importantly, there is no evidence in the 

record, or a plausible inference to be drawn from the mere fact that he reviewed and signed 

police reports identifying the progression of the investigation after it had taken place. See Gill, 

850 F.3d at 344 (affirming dismissal of Section 1983 claims against a supervisor where there was 

“no allegation or plausible inference that [the supervisor] knew about or was personally involved 

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in the specific conduct”); Carmona, 2019 WL 4166856, at *9 (finding no evidence that the 

supervisor had “any inkling that the alleged constitutional violations – or any alleged malicious 

prosecution – were taking place, let alone that he facilitated, approved, or condoned them”). Sgt. 

Healy cannot be held liable for alleged misconduct of which he had no knowledge. See Chavez, 

251 F.3d at 651 (7th Cir. 2001) (holding there is no liability for failing to detect and prevent 

subordinate’s misconduct). Consequently, Sgt. Healy is entitled to judgment as a matter of law 

for all claims against him.

VI. Defendants are Entitled to Summary Judgment on Johnson’s Failure to 

Intervene Claim (Count III)

 Johnson claims a violation of his due process rights because Defendants failed to 

intervene and prevent the violation of his rights despite having “had the duty and the opportunity 

to do so.” (Complaint, Dkt. No. 1 at ¶ 128.) To prevail on his failure to intervene claim, Johnson 

must prove a constitutional violation in which the Defendant had a realistic opportunity to 

intervene to prevent the violation. Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). 

Defendants are entitled to summary judgment for three independent reasons: 1) no such claim 

can exist without an underlying constitutional violation; 2) there is no evidence that the 

Defendants ever knew of or had an opportunity to intervene in the purported violations of 

Johnson’s constitutional rights; and 3) such a claim is not legally cognizable as it violates 

Section 1983’s bar on vicarious liability. 

a. There cannot be failure to intervene liability without an underlying 

constitutional tort. 

 

“In order for there to be a failure to intervene, it logically follows that there must exist an 

underlying constitutional violation.” Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir. 2016) 

(internal quotation marks omitted). As demonstrated throughout this brief, there are no viable 

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constitutional claims that survive against Defendants Erickson, Halvorsen, Daley and Healy in 

this litigation. Because Johnson’s failure to intervene claim is derivative of his substantive 

constitutional claims as alleged above, where those claims fail against any individual Defendant, 

so, too, do the derivative claims. Thus, there can be no failure to intervene claim, and summary 

judgment should enter for the Defendants on Count III.

b. Johnson lacks evidence that Halvorsen, Daley, Erickson and Healy had a 

realistic opportunity to intervene in any alleged constitutional violation. 

To establish a failure to intervene claim, a plaintiff must establish that “an officer must 

know that a citizen’s rights are being infringed, and he must have a ‘realistic opportunity’ to 

intervene.” Doxtator v. O’Brien, 39 F.4th 852, 864–65 (7th Cir. 2022). As set forth above in § V,

there is no evidence that Sgt. Healy had any other involvement in the Fred murder investigation 

other than signing documents or that he was even present on any day other than two days after 

Plaintiff’s arrest and charging. (JSOF ¶¶ 38-39.) Similarly, and as set forth above in §§ I (b); II 

(d) and III (b)(c), neither Erickson nor Daley was present for any identification procedure of 

Johnson or when documents were produced to the prosecutors or criminal defense attorneys. 

Finally, Halvorsen was not present for the homicide investigation on the first night (see § III (b), 

supra) and the claims of fabricated/suggestive evidence fail against him as set forth above in §§ I 

(a and c) and II (a and b). Thus, summary judgment should be entered on Count IV because 

Plaintiff lacks evidence of a realistic opportunity to intervene in any alleged constitutional 

violation. See Doxtator, 39 F.4th 864–65. (affirming summary judgment for defendant officers 

where they had no realistic opportunity to intervene in other officers’ purported misconduct).

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c. Failure to intervene is not cognizable as a federal tort because it violates 

Section 1983’s prohibition against vicarious liability.

Defendants are aware of how frequently failure to intervene claims are raised, recognized 

and litigated in § 1983 litigation. Recently, Seventh Circuit Judge Frank Easterbrook called into 

question the viability of the failure to intervene theory of § 1983 liability, noting that “‘[f]ailure 

to intervene’ sounds like vicarious liability,” which would of course be untenable, as “[t]he 

Supreme Court has held many times that § 1983 supports only direct, and not vicarious, 

liability.” Mwangangi v. Nielsen, 48 F.4th 816, 834 (7th Cir. 2022) (Easterbrook, J., concurring) 

(citing Ashcroft v. Iqbal, 556 U.S. 662, 676–77 (2009); Monell v. N.Y. City Dep’t of Soc. Servs., 

436 U.S. 658 (1978)). Defendants recognize that this Court is bound to follow the Seventh 

Circuit’s current jurisprudence recognizing such a claim—Byrd v. Brishke, 466 F.2d 6 (7th Cir. 

1972)—but raise the argument for the express purpose of preserving it for appeal and as such, 

Defendants request that it be dismissed for failure to state a viable cause of action.

VII. Halvorsen, Erickson, Daley and Healy are Entitled to Judgment on Johnson’s 

IIED Claim (Count VII) Because They Did Not Commit any Extreme and 

Outrageous Acts that Caused Emotional Distress

To prove an IIED claim under Illinois law, a plaintiff must put forth evidence 

establishing the following: “(1) the defendants' conduct was extreme and outrageous; (2) the 

defendants knew that there was a high probability that their conduct would cause severe 

emotional distress; and (3) the conduct in fact caused severe distress.” Swearnigen–El v. Cook 

Cnty. Sheriff's Dep't, 602 F.3d 852, 864 (7th Cir.2010). Here, Johnson’s IIED claim is based on 

the same conduct that allegedly violated his constitutional rights. Because the constitutional 

claims against Daley, Erickson, Halvorsen and Healy fail based on the lack of evidence and their 

lack of involvement (see §§ I-IV, supra), so does Johnson’s IIED claim. Johnson cannot 

demonstrate the “extreme and outrageous” conduct necessary to support his IIED claim. See

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Cooney v. Casaday, 746 F.Supp.2d 973, 977-78 (N.D. Ill. 2010) (plaintiff’s IIED claim must fail 

when it is premised on alleged constitutional violations that fail). Accordingly, summary 

judgment is appropriate for Defendants on Johnson’s IIED claim.

VIII. There is no Evidence to Support Johnson’s § 1983 (Count IV) and state law 

(Count VI) Conspiracy Claims 

Like failure to intervene, the conspiracy claims are derivative of the federal constitutional 

and state law malicious prosecution claims. As a result, where those claims fail against any 

individual Defendant, so, too, do the derivative claims and they should be dismissed. See e.g, 

Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) (stating conspiracy is not an independent 

basis of liability in § 1983 actions); Oliva v. City of Chicago, No. 21-cv-06001, 2023 WL 

2631575, at *6 (N.D. Ill. Mar. 24, 2023) (“[d]erivative claims fail when the underlying claim 

upon which they rely fails.”) Alternatively, dismissal is warranted on the conspiracy claims for 

two additional reasons: 1) there is no evidence to support the conspiracy claims and 2) 

Defendants are entitled to qualified immunity. 

a. There is no evidence of an agreement to support the conspiracy claims. 

Johnson’s Section 1983 and state law conspiracy claims both require evidence of an 

agreement between more than one person. See Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th 

Cir. 2015) (conspiracy is “a combination of two or more persons acting in concert to commit an 

unlawful act, or to commit a lawful act by unlawful means.”); Turner v. Hirschbach Motor 

Lines, 854 F.3d 926, 930 (7th Cir. 2017) (an agreement is a “necessary and important” element 

of this conspiracy, and “[a] defendant who innocently performs an act which happens to 

fortuitously further the tortious purpose of another is not liable under the theory of civil 

conspiracy”). Johnson has not adduced any evidence of a conspiratorial agreement that was made 

amongst Defendants. Further as set forth above regarding Plaintiff’s failure to intervene claim 

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(§ VI, supra) the Defendants were not present or involved in the alleged constitutional violations 

and so lacked the opportunity to form an agreement. Additionally, any argument of an agreement 

is merely speculation, and insufficient to establish liability. Cooney v. Casady, 735 F.3d 514, 519 

(7th Cir. 2013) (concluding vague and conclusory allegations of the existence of a conspiracy are 

not enough to sustain a plaintiff's burden at summary judgment). Therefore, Johnson’s inability 

to establish a constitutional violation against Defendants dooms his conspiracy claims. Hill, 2009 

WL 174994, at *9; see also Celafu v. Village of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). 

b. Alternatively, Defendants are entitled to qualified immunity. 

Alternatively, Defendants are entitled to qualified immunity on Plaintiff’s Section 1983 

conspiracy claim because “it cannot be said that the law [was] clearly established on this 

point...[t]hat is, reasonable officers would not necessarily know that a conspiracy amongst 

employees of a single municipality can violate the Constitution (no matter what the underlying 

substantive right is at stake).” Haliw v. City of South Elgin, 2020 WL 1304697, *4 (N.D. Ill. 

March 3, 2020) (finding liability is not clearly established for conspiracies amongst police 

officers of a single municipality because the law was unsettled on whether the intracorporate 

conspiracy doctrine applies to § 1983 claims) (comparing Jackson v. City of Cleveland, 925 F.3d 

793, 819-20 (6th Cir. 2019) (the intracorporate conspiracy doctrine applies to § 1983 just as it 

does to § 1985 claims because both create “cause[s] of action against any ‘person’ who deprives 

a plaintiff of his rights[.]”), with Drager v. Vill. of Bellwood, 969 F. Supp. 2d 971, 985 (N.D. Ill. 

2013) (“The Seventh Circuit has yet to decide whether the doctrine applies to § 1983 conspiracy 

claims, and district courts in this Circuit are split on whether it does.”). At issue in Haliw was an 

alleged conspiracy to frame the plaintiff in 2017. Here, the issue is an alleged conspiracy among 

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Defendants in 1991. If the law was unsettled in 2017, it was certainly unsettled in 1991, and 

Defendants are entitled to qualified immunity on the federal conspiracy claims. 

IX. Johnson Cannot State an Independent Claim for Willful and Wanton Conduct 

(Count VIII) Under Illinois State Law 

In Count VIII (willful and wanton conduct), Johnson alleges Defendant Officers “acted 

willfully and wantonly through a course of conduct that showed an utter indifference to, or 

conscious disregard of, [Plaintiff’s] rights.” (Complaint, Dkt. No. 1 at ¶ 163.) However, there is 

no separate and independent tort of “willful and wanton” misconduct. Jane Doe-3 v. McLean 

Cnty. Unit Dist. No. 5 Bd. of Directors, 2012 IL 112479, ¶ 19 (holding that in Illinois, there is no 

separate, independent tort of willful and wanton conduct); Krywin v. Chicago Transit Auth., 238 

Ill. 2d 215, 235 (2010) (same); Ziarko v. Soo Line R. Co., 161 Ill. 2d 267, 274 (1994) (same). But 

even if there was, this claim is just a state law recasting of Johnson’s federal claims in Counts I 

and II and fails for the same reasons his federal claims fail. See §§ I-IV, supra. Thus, Defendants 

Healy, Daley, Erickson and Halvorsen are entitled to summary judgment on Count VIII. 

CONCLUSION

WHEREFORE, for the foregoing reasons, Defendants request that the Court enter 

summary judgment in their favor on all claims and against Johnson. 

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Dated: April 12, 2024 Respectfully Submitted,

 /s/ Josh M. Engquist 

Josh M. Engquist, Atty. No. 6242849 

One of the Attorneys for the Individual 

Defendants

Josh M. Engquist 

James G. Sotos

Josh M. Engquist 

David A. Brueggen 

Elizabeth R. Fleming

Daniel McGinnis 

Special Assistant Corporation Counsel

THE SOTOS LAW FIRM, P.C.

141 W. Jackson, Suite 1240A 

Chicago, IL 60604

(630) 735-3300 

jengquist@jsotoslaw.com

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CERTIFICATE OF SERVICE

I, Josh M. Engquist, certify under penalty of perjury pursuant to 28 U.S.C.A. § 1746 that 

the foregoing is true and correct, that on Tuesday, April 16, 2024, I electronically filed the 

foregoing Memorandum of Law in Support of Motion for Summary Judgment with the Clerk 

of the Court using the CM/ECF system, which will send notification of such filing to the attorneys 

of record on the below Service List. 

Attorneys for Plaintiff:

Jon Loevy

Anand Swaminathan

Joshua Tepfer

Rachel Brady

Steven Art

Sean Starr

Alyssa Martinez

Margaret Gould

LOEVY & LOEVY

311 N. Aberdeen, 3rd Floor

Chicago, Illinois 60607

312-243-5900

jon@loevy.com

anand@loevy.com

josh@loevy.com

brady@loevy.com

steve@loevy.com

sean@loevy.com

alyssa@loevy.com

gould@loevy.com

Attorneys for City of Chicago:

Eileen E. Rosen

Austin G. Rahe

Catherine M. Barber

Theresa B. Carney

Rock Fusco & Connelly, LLC

321 N. Clark, Suite 2200

Chicago, Illinois 60654

312-494-1000

erosen@rfclaw.com

arahe@rfclaw.com

cbarber@rfclaw.com

tcarney@rfclaw.com

Attorneys for Defendant Guevara: 

Thomas M. Leinenweber

Michael J. Schalka

James V. Daffada

Leinenweber Baroni & Daffada

120 N. LaSalle St., Suite 2000

Chicago, IL 60602

(312) 663-3003

thomas@ilesq.com

mjs@ilesq.com

jim@ilesq.com

/s/ Josh M. Engquist

Josh M. Engquist

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