IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES FLETCHER, JR., )

)

Plaintiff, )

) No. 20-cv-04768

v. ) 

) Judge Andrea R. Wood

JEROME BOGUCKI, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

In 2005, Plaintiff James Fletcher, Jr., was convicted of murdering Willie Sorrell. In 

October 2019, his conviction was set aside. Three months later, all charges against him were 

dropped. He subsequently brough this lawsuit claiming that police officers involved in his 

investigation—Jerome Bogucki, Anthony Noradin, Raymond Schalk, and Anthony Wojcik—

caused his wrongful conviction by fabricating and suppressing evidence against him and using 

unduly suggestive identification techniques to obtain false eyewitness identifications. He also 

asserts that Defendant City of Chicago (“City”) caused his injuries through its deficient policies 

and practices. Defendants move to dismiss the Complaint in part (Dkt. No. 34) and to strike some 

of its allegations (Dkt. No. 35). For the reasons stated below, their motion to dismiss is granted in 

part and denied in part, and their motion to strike is denied.

BACKGROUND

For purposes of Defendants’ motion to dismiss, the Court accepts all well-pleaded 

allegations in the Complaint as true and draws reasonable inferences in Fletcher’s favor. Regains 

v. City of Chicago, 918 F.3d 529, 533 (7th Cir. 2019). The Court does not vouch for the objective 

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truth of those allegations. Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018). The 

Complaint alleges as follows.

Fletcher is a 57-year-old resident of Chicago. (Compl. ¶ 9, Dkt. No. 1.) Bogucki, Noradin, 

Schalk, and Wojcik (“Defendant Officers”) were police officers employed by the City during the 

events described below. (Id. ¶¶ 10–11.) Wojcik supervised the other three officers. (Id. ¶ 11.)

On December 21, 1990, a shootout took place between two armed robbers and a delivery 

truck driver on Chicago’s West Side. (Id. ¶¶ 14–16.) A bystander, Willie Sorrell, was 

inadvertently shot and killed by one of the robbers. (Id. ¶ 16.) The robbers successfully fled the 

scene. (Id. ¶ 17.) Police officers interviewed four witnesses: Edward Cooper, the driver; Sheenee 

Friend, who witnessed the robbery; and Emmett Wade and Terry Rogers, who witnessed the 

chase. (Id. ¶ 18.) But none of the witnesses was able to identify the robbers. (Id. ¶ 19.)

In 1995, Bogucki and Schalk took up the investigation, having played no part in its earlier 

stages. (Id. ¶ 20.) They interviewed Cooper, who told them that he believed Rogers was involved 

in the crime. (Id. ¶ 22.) Seven years later, in 2002, Rogers was arrested for arson and criminal 

trespassing. (Id. ¶ 23.) Bogucki, Schalk, and Noradin interviewed Rogers the day after his arrest, 

and he told them that Fletcher was one of the robbers. (Id. ¶¶ 24–25.) Rogers’s identification was 

clearly unreliable because the perpetrator had been described by eyewitnesses as having 

“shoulder-length, Jheri-curl” hair but Defendant Officers knew that Fletcher had short, non-curly 

hair at the time of the crime. (Id. ¶ 26.) Further, Rogers’s statement conflicted in several ways 

with the statement he made in 1990. (Id. ¶ 27.) Fletcher alleges that Defendant Officers made 

Rogers a deal not to prosecute him for arson in exchange for his false statement that Fletcher was 

one of the robbers. (Id. ¶ 29.)

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Defendant Officers proceeded to re-interview the other witnesses. (Id. ¶ 37.) They used a 

photo of Fletcher from 2002 that more closely matched the initial description given of one of the 

robbers, even though they could have used a photo from 1990 that did not fit the description. (Id. 

¶ 48.) They showed Cooper a photo array including the 2002 photo, but Cooper told them that he 

did not recognize any of the potential suspects because too much time had passed. (Id. ¶ 49.) The 

officers concealed this information and falsely stated in their report that Cooper had picked out 

Fletcher’s photo and tentatively identified him. (Id. ¶ 50.) Defendant Officers also presented a 

photo array to Friend but she initially pointed out someone else. (Id. ¶ 45.) In response, Defendant 

Officers moved Friend’s finger to Fletcher’s photo, told her that Fletcher had committed the 

crime, and told her that Fletcher was a bad, violent man. (Id. ¶ 46.) Defendant Officers did not 

record or disclose the tactics they used. (Id. ¶ 47.) Finally, Defendant Officers showed a single 

photograph of Fletcher to Wade, who did not identify Fletcher as the perpetrator despite being 

pressured to do so. (Id. ¶ 39.) Wade had previously stated (in 1990) that he had seen the robbers 

and could identify them if he saw them again. (Id. ¶ 40.) But Defendant Officers did not disclose 

Wade’s failure to identify Fletcher; instead, they falsely wrote that Wade had not previously seen 

the robbers’ faces. (Id. ¶¶ 41, 43.)

Subsequently, Defendant Officers conducted a police line-up with Cooper and Friend. (Id. 

¶ 52.) Both Cooper and Friend had already seen Fletcher’s photograph and knew that the officers 

suspected Fletcher of having committed the crime. (Id. ¶ 54.) 

No physical evidence tied Fletcher to the crime. (Id. ¶ 32.) Nevertheless, he was arrested 

and charged for Sorrell’s murder. (Id. ¶ 65.) Defendant Officers never disclosed their fabrication 

of evidence to the state prosecutors, Fletcher, or Fletcher’s attorneys. (Id. ¶ 113.) Instead, they 

wrote false police reports that hid their misconduct, which were used to charge and prosecute 

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Fletcher. (Id. ¶ 114.) Defendant Officers also suppressed exculpatory evidence, including that 

Rogers had previously received benefits for testifying for the police. (Id. ¶ 118.) Wojcik both 

intentionally ignored the other officers’ misconduct and explicitly authorized it. (Id. ¶ 119.)

Fletcher, who maintained his innocence throughout his prosecution, was wrongfully 

convicted and sentenced to life without parole. (Id. ¶¶ 121–22.) He sought post-conviction relief 

and his conviction was eventually set aside on October 25, 2019. (Id. ¶ 124.) Three months later, 

the Cook County State’s Attorney dropped the charges against him. (Id. ¶ 125.) Ultimately, 

Fletcher spent thirteen years in prison for a crime he did not commit. (Id. ¶ 127.)

In addition to the above allegations, Fletcher makes the following claims regarding the 

City’s practices and policies. Fletcher alleges that the Chicago Police Department has a history of 

causing innocent people to be convicted of serious crimes, including at least 150 cases since 1986. 

(Id. ¶ 67.) Those cases frequently involved the tactics that Defendant Officers used against 

Fletcher, including fabricating evidence, withholding exculpatory evidence, using suggestive 

identification procedures, feeding information to witnesses, pressuring witnesses to testify 

consistently with police detectives’ case theories, and physically abusing witnesses. (Id. ¶¶ 68, 

70.) During the time period relevant to Fletcher’s claims, police officers, including Defendant 

Officers, routinely hid and destroyed exculpatory material, keeping such documents in files that 

were never disclosed to participants in the criminal proceedings. (Id. ¶ 71.) However, the City 

chose not to investigate such misconduct, and no Chicago police officer has faced discipline for 

falsifying or hiding evidence in a case where police detectives attempted to charge innocent 

people with serious crimes. (Id. ¶ 77.) Relatedly, the City took no action to identify police officers 

who were repeatedly accused of misconduct. (Id. ¶ 78.) Instead, the Chicago Police Department

maintained a code of silence under which officers ignored and lied about misconduct committed 

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by other officers. (Id. ¶ 83.) In the years before Fletcher was convicted, the City failed to train its 

officers adequately on various topics, including how to conduct identification procedures, the duty 

to preserve and disclose exculpatory evidence, the importance of not abusing, manipulating, and 

coercing suspects and witnesses, and the risks of wrongful conviction, among other things. (Id. 

¶ 92.)

DISCUSSION

Defendants move to dismiss Count I (in part), Count II, and Count VIII of the Complaint 

pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 34). To survive a Rule 12(b)(6) 

motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, the Court need not accept a party’s legal 

conclusions, and a party cannot defeat a motion to dismiss with “[t]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements.” Id. This pleading 

standard does not require a complaint to contain detailed factual allegations. Twombly, 550 U.S. 

at 555. Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Iqbal, 556 U.S. at 678.

I. Count I: Fourteenth Amendment Due Process

In Count I, Fletcher asserts a claim pursuant to 42 U.S.C. § 1983 alleging that Defendants 

violated his Fourteenth Amendment Due Process rights. The Due Process Clause protects 

criminal defendants from being deprived of their liberty based on various kinds of police 

misconduct. A defendant’s due process rights are implicated when the government “manufactures 

false evidence” against him, see Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012); 

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“fails to disclose evidence materially favorable to the accused,” see Mosley v. City of Chicago, 

614 F.3d 391, 397 (7th Cir. 2010); uses “unduly suggestive identification techniques [to the extent 

that they] are allowed to taint the trial,” see Alexander v. City of S. Bend, 433 F.3d 550, 555 (7th 

Cir. 2006); and destroys evidence “with apparent exculpatory value” or destroys “potentially 

exculpatory evidence” in bad faith, see Armstrong v. Daily, 786 F.3d 529, 546 (7th Cir. 2015). 

But a due process violation occurs only where the evidence or law enforcement techniques cause 

a deprivation of liberty. See Armstrong, 786 F.3d at 553 (“[A]n accused has no claim against an 

officer who fabricates evidence and puts the evidence in a drawer, never to be used.”).

Defendants concede that Fletcher has stated a claim under a theory of fabrication of 

evidence. But they argue that Fletcher’s alternative theories of relief—including suppression of 

evidence, unduly suggestive identification procedures, and destruction of evidence—constitute 

separate claims that should be dismissed as insufficiently pleaded.

A. Dismissal of Theories

Generally, “[a] complaint need not identify legal theories, and specifying an incorrect 

theory is not a fatal error.” Rabe v. United Airlines, Inc., 636 F.3d 866, 872 (7th Cir. 2011). That 

said, Federal Rule of Civil Procedure 10 requires a plaintiff to state “a separate count” for “each 

claim founded on a separate transaction or occurrence” where “doing so would promote clarity.” 

Fed. R. Civ. P. 10(b). A single claim may encompass multiple theories of relief: a claim consists 

of “the aggregate of operative facts which give rise to a right enforceable in the courts” and “[o]ne 

claim supported by multiple theories does not somehow become multiple claims.” Sojka v. Bovis 

Lend Lease, Inc., 686 F.3d 394, 399 (7th Cir. 2012) (internal quotation marks and citation 

omitted); see also NAACP v. Am. Fam. Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992) (“One set 

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of facts producing one injury creates one claim for relief, no matter how many laws the deeds 

violate.”).

Fletcher asserts that Defendants violated his right to a fair trial and his right not to be 

wrongfully convicted and imprisoned. He alleges that they accomplished this by fabricating 

police reports, using false evidence, failing to correct false evidence, using unduly suggestive 

identification techniques, withholding exculpatory evidence, and concealing and destroying other 

evidence. This is a single claim under a single set of facts. In theory, these facts could be divided 

up in any number of ways; for example, Fletcher might assert a separate count for “suggestive 

identification techniques” based on each allegedly suggestive interview and lineup. But all of 

these facts relate to a single investigation involving the same set of police officers and are 

therefore appropriately tied together. See BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 

2015) (“A motion to dismiss under Rule 12(b)(6) doesn’t permit piecemeal dismissals of parts of 

claims; the question at this stage is simply whether the complaint includes factual allegations that 

state a plausible claim for relief.”).

The authority Defendants cite does not require Fletcher to assert a separate due process 

claim for each legal theory he might pursue. In Saunders-El v. Rohde, 778 F.3d 556 (7th Cir.

2015), the plaintiff asserted that police officers violated his Fourteenth Amendment Due Process 

rights by (1) fabricating evidence against him and (2) withholding evidence of the fabrication 

from the prosecution. The Court of Appeals referred to the second theory as a “Brady claim” in its 

decision; therefore, Defendants contend, a fabrication of evidence claim must be pleaded

separately from a Brady claim. Id. at 558, 561–62. But nothing in Saunders-El hinged on whether 

the two theories formed a single claim or two claims; rather, the court held that the plaintiff had 

failed to state a claim under any of his attempted legal theories. Id. at 560–62. Indeed, the Court 

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of Appeals also referred to the plaintiff as asserting a “dual-pronged” due process claim, which 

could be interpreted as acknowledging that the plaintiff asserted a single claim encompassing 

multiple theories. Id. at 561. Ultimately, the language the court used to describe the plaintiff’s 

claim and legal theories was merely dicta. See United States v. Crawley, 837 F.2d 291, 292 (7th 

Cir. 1988) (defining dictum as “a statement in a judicial opinion that could have been deleted 

without seriously impairing the analytical foundations of the holding—that, being peripheral, may 

not have received the full and careful consideration of the court that uttered it”). 

In some cases, however, considering the viability of individual theories supporting a 

single claim may serve to narrow issues for discovery and trial. And so, even though the evidence 

fabrication theory that Defendants concede to have been sufficiently pleaded suffices to state a 

Fourteenth Amendment Due Process claim (and thus prevents dismissal of Count I), the Court 

will nonetheless consider the other legal theories advanced by Fletcher.

B. Brady Due Process

Defendants contend that Fletcher’s allegations do not plausibly suggest that they 

suppressed or concealed any exculpatory evidence. They maintain that there is no legal 

requirement that police officers turn over evidence of their own misdeeds. In response, Fletcher 

points to exculpatory statements and actions by eyewitnesses that the investigating officers failed 

to turn over. 

To state a due process claim based on Brady v. Maryland, 373 U.S. 83 (1963), Fletcher 

must allege that “(1) the evidence at issue is favorable to [him], either because it was exculpatory 

or impeaching; (2) the evidence must have been suppressed by the government, either willfully or 

inadvertently; and (3) there is a reasonable probability that prejudice ensued.” Parish v. City of 

Chicago, 594 F.3d 551, 554 (7th Cir. 2009). “Brady does not require the creation of exculpatory 

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evidence, nor does it compel police officers to accurately disclose the circumstances of their 

investigations to the prosecution.” Saunders-El, 778 F.3d at 562. And because “[t]he Constitution 

does not require that police testify truthfully,” but only entitles a defendant “to a trial that will 

enable jurors to determine where the truth lies,” no Brady violation occurs when a police officer 

withholds information known to the defendant. Sornberger v. City of Knoxville, 434 F.3d 1006, 

1029 (7th Cir. 2006); see also Harris v. Kuba, 486 F.3d 1010, 1016–17 (7th Cir. 2007) (finding 

no Brady violation where police officer allegedly lied to prosecutors about facts known to 

criminal defendant).

As alleged, no physical evidence tied Fletcher to the crime. Instead, the prosecution relied 

heavily on eyewitness identifications. Fletcher alleges that even though Friend initially selected a 

person other than Fletcher out of a photo array, Defendant Officers withheld that information 

from the prosecution. (Compl. ¶¶ 45, 139.) At trial, Friend identified Fletcher as one of the 

robbers. People v. Fletcher, 2016 IL App (1st) 132459-U, ¶¶ 7–8. Likewise, Fletcher alleges that 

Cooper told Defendant Officers that he did not recognize anyone in a photo array, but those 

officers concealed Cooper’s failure to make an identification. (Compl. ¶¶ 49–50.) At trial, Cooper 

testified that he had identified Fletcher in that lineup; his prior statement, allegedly withheld by 

Defendant Officers, would have impeached that identification. See Fletcher, 2016 IL App (1st) 

132459-U, ¶ 6. These allegations, standing alone, state a claim under a Brady theory: making 

inferences in Fletcher’s favor, they plausibly suggest that police officers suppressed evidence 

favorable to Fletcher, causing prejudice. See Parish, 594 F.3d at 554.

Defendants contend that Fletcher’s claim is for fabrication of evidence, not Brady 

suppression. They note that Fletcher has alleged that Defendant Officers moved Friend’s finger 

from the potential suspect she first identified to Fletcher’s photograph. Therefore, Defendants 

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urge, the officers did not have to disclose Friend’s initial identification because they could not 

have violated Brady simply by “keeping quiet about their wrongdoing.” Saunders-El, 778 F.3d at 

562. But Defendants ignore that Friend’s initial identification of another suspect is separate from 

Defendant Officers’ subsequent alleged fabrication of evidence. Friend’s identification of 

someone else as the perpetrator was materially impeaching evidence that the officers were 

obligated to disclose. And Defendants do not contend that Fletcher knew that Friend had 

identified someone else as the perpetrator at the time of his trial. Similarly, Defendants contend 

that Fletcher had interviewed Cooper through an investigator prior to trial, and Cooper said that 

he was only 75% sure of his identification. But the allegedly withheld information—that Cooper 

failed to identify Fletcher when shown a photo array—is far more impeaching than what Cooper 

told the investigator.

Some of Fletcher’s other allegations might not independently suffice to state a claim. For 

example, he alleges that Wade declined to identify him as the perpetrator when shown a single 

photograph of him. (Compl. ¶ 39.) But Defendants point out that Wade did not identify Fletcher 

as the perpetrator at trial and that his failure to identify Fletcher when interviewed earlier 

therefore was not necessarily material or impeaching. The parties also contest whether Defendant 

Officers’ alleged deal to drop arson charges against Rogers in exchange for his implicating 

Fletcher in the crime constituted Brady material, considering that Rogers did not testify at 

Fletcher’s criminal trial. But ultimately, because Fletcher has sufficiently stated a claim under a 

Brady theory, the Court need not resolve whether his other allegations would suffice to state such 

a claim on their own.

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C. Unduly Suggestive Identification Procedures

Defendants also contend that Fletcher has failed to make out a claim for unduly suggestive 

identification procedures. Their position is that because there is no minimum standard for 

identification or lineup procedures under the Constitution, no deficiencies in such a procedure 

could ever support a Fourteenth Amendment Due Process claim.

Indeed, “[t]he Constitution does not require that police lineups, photo arrays, and witness 

interviews meet a particular standard of quality.” Alexander, 433 F.3d at 555 (7th Cir. 2006).

However, a defendant’s due process right to a fair trial is violated when “unduly suggestive 

identification techniques are allowed to taint the trial.” Id. To state a claim for a Fourteenth 

Amendment Due Process violation based on a suggestive identification procedure theory, Fletcher 

must allege that “the flaws in [Defendants’] identification techniques made his trial unfair.” Id. 

An officer “is not automatically liable for violating a suspect’s constitutional rights whenever a 

judge later deems a witness’s identification inadmissible,” although a finding of liability may be 

appropriate “where an officer uses a specific interrogation technique clearly proscribed by 

existing law.” Coleman v. City of Peoria, 925 F.3d 336, 347–48 (7th Cir. 2019).

The identification procedures used to convict Fletcher, according to his allegations, were 

egregiously flawed. He alleges that Defendant Officers instructed Friend to identify him as the 

perpetrator even though she initially identified someone else. (Compl. ¶ 45.) They allegedly did 

so while Friend was in custody for a parole violation; making inferences in Fletcher’s favor, it is 

plausible to infer that Defendant Officers used that leverage to pressure Friend further into 

making a false identification. (Id. ¶ 44.) In addition, Defendant Officers allegedly used a 

photograph of Fletcher from 2002 (when he had a hairstyle that matched the description of the 

robber from 1990) even though they could have used a 1990 photograph (when his appearance 

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did not match the witnesses’ descriptions). (Id. ¶ 48.) Again, at trial, Friend identified Fletcher as 

one of the robbers. Fletcher, 2016 IL App (1st) 132459-U, ¶¶ 7–8. Because, as alleged, no 

physical evidence tied Fletcher to the crime, Fletcher has adequately pleaded that Defendant 

Officers’ alleged suggestive identification techniques tainted the trial.

Not every suggestive identification technique violates a defendant’s Fourteenth 

Amendment rights. For example, a lineup identification is not necessarily unduly suggestive just 

because a defendant is visually distinguished from the other participants—for example, because 

he is the only participant wearing a hat, a visible ankle restraint, or white shoes. See Coleman, 925 

F.3d at 348 (collecting cases). Such suggestive elements may be outweighed by “indicia of 

reliability,” for example when a witness reports that he or she had a good opportunity to view the 

suspect during the crime, was familiar with the suspect, or was certain of his or her identification. 

Id. But here, Defendant Officers are alleged to have steamrolled over Friend’s failure to identify 

Fletcher by instructing her to identify him. Fletcher asserts, and Defendants do not dispute, that 

such an identification technique was plainly proscribed by law. 

Defendants’ remaining objections are unavailing. They cite Phillips v. Allen, 668 F.3d 912 

(7th Cir. 2012), which held that a police officer does not spoil an identification just by 

“mentioning a suspect’s name.” Id. at 917. But Phillips offered the distinction that “showing a 

witness just one photo and asking her to ‘confirm’ that the photo depicts the culprit,” unlike lesser 

suggestive actions, could give rise to liability under § 1983. Id. Defendants Officers’ conduct, as 

alleged, matches squarely up with the proviso in Phillips regarding liability for officers who “trick 

a person into making an unreliable identification” by using a technique that “has already been 

forbidden by an authoritative judicial decision.” Id.

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Defendants next suggest that the Coleman decision added a “trigger” to the Phillips 

proviso, establishing that a defendant must first successfully suppress a challenged identification

in his criminal case before he can pursue a claim for unduly suggestive identification techniques. 

See Coleman, 925. F.3d at 347. But this interpretation of Coleman is not supported by the 

decision. As discussed above, unduly suggestive identification procedures only give rise to a due 

process claim when they taint the underlying trial; where the fruits of such a procedure are 

successfully suppressed, no prejudice can result. And although Coleman concluded that the 

witness’s identification “bore enough indicia of reliability to warrant defendants’ reliance,” it 

considered the suppression hearing at the criminal trial only as part of the totality of the 

circumstances, not as a required “trigger.” Id. at 348.

The improper admission of identification testimony does not, without more, support a 

claim for unduly suggestive identification procedures. See Phillips, 668 F.3d at 915. But 

Fletcher’s theory—that Defendant Officers told an eyewitness to identify him as the suspect even 

after she picked out someone else’s photograph—alleges the kind of wrongdoing and prejudice 

that is required. See Gonzalez v. City of Waukegan, 220 F. Supp. 3d 876, 883 (N.D. Ill. 2016)

(concluding that a plaintiff states a claim under an unduly suggestive identification procedure 

theory by alleging that police officers told the witness which suspect to identify and, in doing so, 

tainted the resulting criminal trial). Defendants’ cite no authority to the contrary. See Newsome v. 

McCabe, 256 F.3d 747, 752–53 (7th Cir. 2001), abrogated on other grounds by Manuel v. City of 

Joliet, 137 S. Ct. 911 (2017) (agreeing that “detectives could . . . reasonably believe[] that it 

should be up to the prosecutors, and ultimately the court, to determine if an eyewitness 

identification is sufficiently reliable for use at trial,” but not opining on the level of police 

misconduct required to taint an eyewitness identification); Hensley v. Carey, 818 F.2d 646, 649 

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(7th Cir. 1987) (holding that a defendant who participated in an allegedly unduly suggestive 

lineup but was not ultimately tried “could not possibly have been deprived of his right to a fair 

trial since he was never tried”). The Court concludes that Fletcher has also stated a claim under a 

theory of unduly suggestive identification procedures.

D. Destruction of Evidence

Finally, Defendants assert that Fletcher’s “claim” for destruction of evidence must be 

dismissed because Fletcher has not identified any evidence that has been destroyed.

Fletcher points to two paragraphs in support of this theory of liability: first, that “[n]one of 

the witnesses [at the scene of the crime] identified either of the offenders at the scene and the case 

went cold” (Compl. ¶ 19); and second, that “Bogucki and Schalk re-interviewed Cooper in March 

of 1995. They showed Cooper a photo-array of potential suspects, including a man named 

Fletcher Clinton. Cooper was unable to identify any of the men as the assailant.” (Id. ¶ 21.) 

Neither paragraph implies that Defendants destroyed evidence. Fletcher adds that he has also 

alleged that the City (generally) destroyed exculpatory evidence; but to make out a theory for 

destruction of evidence, he must also allege that Defendants (specifically) destroyed evidence 

about his case. Thus, Fletcher’s allegations do not state a claim under a destruction of evidence 

theory.

As noted above, however, that Fletcher’s pleaded facts do not support a destruction of 

evidence theory does not lead to the dismissal of Count I. And moreover, it does not necessarily 

preclude him from taking discovery regarding the potential destruction of relevant evidence. He is 

entitled to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s

claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). If Defendant 

Officers destroyed evidence regarding the Fletcher investigation, that fact may be closely enough 

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related to his other allegations to be discoverable. In sum, Count I survives Defendants’ motion to 

dismiss, though Fletcher has not adequately pleaded a claim based on a theory of destruction of 

evidence.

II. Count II: Unlawful Detention

Fletcher initially asserted a claim for unlawful detention in violation of the Fourth and 

Fourteenth Amendments. After Defendants moved to dismiss that claim, Fletcher indicated his 

intent to voluntarily dismiss it. Defendants ask the Court to dismiss the claim with prejudice.

The parties have not addressed whether Fletcher is entitled to voluntary dismissal without 

prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1), or whether Count II may only be 

dismissed on terms to be determined by the Court pursuant to Federal Rule of Civil Procedure 

41(a)(2). But the result is the same because dismissal without prejudice is appropriate here. Under 

Rule 41(a)(2), “dismissal [without prejudice] is typically allowed unless the defendants will suffer 

some legal prejudice beyond the potential for further litigation.” Belkow v. Celotex Corp., 722 F. 

Supp. 1547, 1553 (N.D. Ill. 1989). Defendants have not identified any prejudice they would face 

if Count II is dismissed without prejudice. Thus, the Court dismisses Count II without prejudice.

III. Count VIII: Willful and Wanton Conduct (Negligence) 

Defendants also move to dismiss Count VIII, which Fletcher captioned “State Law 

Claim—Willful and Wanton Conduct.” There is no independent tort under Illinois law for 

“willful and wanton conduct.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 973 

N.E.2d 880, 887 (Ill. 2012). Instead, “willful and wanton conduct is regarded as an aggravated 

form of negligence.” Id. To state such a claim, Fletcher must plead “the basic elements of a 

negligence claim—that the defendant owed a duty to the plaintiff, that the defendant breached that 

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duty, and that the breach was a proximate cause of the plaintiff’s injury.” Id. He must also “allege 

either a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare.” Id. 1

Defendants complain that Fletcher has wrongly categorized his claim because “willful and 

wanton conduct” is not an independent tort. But Fletcher has clarified that he asserts a claim for 

negligence aggravated by willful and wanton conduct, which is recognized under Illinois law. See 

id. In any case, “specifying an incorrect theory is not a fatal error.” Rabe, 636 F.3d at 872.

But Defendants also maintain that Fletcher has not identified a duty owed to him or a 

breach of that duty. The Court agrees. The duty Fletcher specifies—the “duty to refrain from 

willful and wanton conduct in connection with the Sorrell murder investigation”—is too vague to 

support a negligence claim. (Compl. ¶ 186.) Certainly, Fletcher has pleaded that Defendant 

Officers deliberately intended to harm him; for one thing, he alleges that they framed him for a 

murder because he would not act as a police informant for them. (Compl. ¶¶ 63–65.) But he must 

also plead duty, breach, and cause, and Fletcher has not explained why his allegations support 

such a claim. For these reasons, Count VIII is dismissed without prejudice.

IV. Motion to Strike

Defendants also have moved to strike certain paragraphs from the Complaint. (Dkt. No. 

35.) They assert that those paragraphs—which allege that Defendants have a history of 

investigative misconduct—are prejudicial, intended only to embarrass Defendants, and unrelated 

to the Complaint’s allegations. Fletcher, in response, maintains that these paragraphs (1) establish 

a pattern or practice of constitutional violations by the City, and (2) may be admissible under 

Federal Rule of Evidence 404(b), which provides that evidence of other crimes, wrongs, or acts 

1 Under Illinois law, public employees are generally immune from suit for their “act[s] or omission[s] in 

the execution or enforcement of any law,” but there is an exception for willful and wanton conduct. See

745 ILCS 10/2-202; McDowell v. Vill. of Lansing, 763 F.3d 762, 768 (7th Cir. 2014).

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“may be admissible . . . [to] prov[e] motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

Federal Rule of Civil Procedure 12(f) provides that the Court “may strike from a pleading 

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. 

Civ. P. 12(f). However, motions to strike are disfavored because of the risk that they will delay 

and unnecessarily multiply the proceedings. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 

1286, 1294 (7th Cir. 1989). “A motion to strike should not be granted unless . . . the language in 

the pleading has no possible relation to the controversy and is clearly prejudicial.” Volling v. 

Antioch Rescue Squad, 999 F. Supp. 2d 991, 1007 (N.D. Ill. 2013) (internal quotation marks and 

citation omitted). Prejudice lies where the allegations “confus[e] the issues” or are “so lengthy 

and complex that [they] place[] an undue burden on the responding party.” Cumis Ins. Soc., Inc. v. 

Peters, 983 F. Supp. 787, 798 (N.D. Ill. 1997).

Defendants move to strike the following allegations:

• Defendant Officers worked in Area 5, where there was allegedly a long history of 

misconduct similar to that which allegedly occurred in this case. (Compl. ¶ 91.)

• Police supervisors failed to intervene to stop such misconduct. (Id.) 

• Defendant Officers’ supervisors and the City promoted officers who engaged in 

misconduct, including Wojcik, who “ranks in the top 8% of officers in terms of the 

number of times he has been accused of misconduct” but, as alleged, has never 

been meaningfully disciplined. (Id. ¶ 95.)

• Defendant Officers have been accused of misconduct on numerous occasions, and 

Bogucki in particular was found by a jury to have caused a wrongful conviction

through his misconduct. (Id. ¶¶ 98–101.)

The remaining paragraphs detail additional alleged misconduct involving Defendant Officers and 

state that the City failed to discipline them for their misconduct. (Id. ¶¶ 102–110.)

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Fletcher has alleged that the City caused his wrongful conviction through its policies and 

practices, including failing to prevent Defendant Officers’ misconduct committed against him. 

Thus, alleged misconduct committed by Defendant Officers on other occasions is potentially 

relevant to whether the City caused Fletcher’s injuries through its policies and practices. But even 

if Fletcher had not asserted such a claim, the disputed paragraphs would still be allowable. 

Defendant Officers may contend that any mistakes they made in investigating Fletcher were 

accidental. Their past alleged misconduct is relevant on that issue under Federal Rule of Evidence 

404(b)(2). Of course, as Defendants note, Fletcher may not argue that Defendant Officers violated 

his rights just because they allegedly committed similar actions in the past. Fed. R. Evid. 

404(b)(1). Still, Fletcher has offered several non-propensity purposes for which such evidence 

could be used. 

Defendants’ remaining arguments are unavailing. They state that the challenged 

allegations will confuse the jury because Defendants are not on trial for their past alleged 

misconduct. But the Court has not yet determined whether those allegations may be presented to 

the jury, and that issue is properly the subject of a future motion in limine. Defendants also 

complain that they will be unduly burdened by investigating, responding to, and defending against 

the allegations. But Fletcher’s allegations overwhelmingly speak only to prior allegations of 

misconduct against Defendant Officers; thus, Defendants need not dig up all the details of each 

alleged incident, but will generally be able to respond by confirming whether Fletcher has 

accurately described the complaints made against Defendant Officers. 

Similarly, it is not unduly prejudicial that the Complaint gives examples of other officers 

with histories of alleged misconduct who worked in the same area as Defendant Officers, 

including Detective Reynaldo Guevara. It is potentially relevant whether Defendant Officers 

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worked in an environment where misconduct was tolerated. In any event, the challenged 

allegations focus almost exclusively on Defendant Officers. The same holds for Fletcher’s 

allegation that Wojcik ratified false police reports about Officer Jason Van Dyke’s shooting and 

killing of Laquan McDonald in October 2014. (Compl. ¶ 106(b).) Any risk of unfair prejudice 

before a jury is appropriately addressed as an evidentiary matter at a later stage in the case. The 

challenged allegations are also not redundant; they may be fairly extensive, but they are 

efficiently drafted and do not unnecessarily digress from the subject matter of this case.

Defendants object that discovery will be improperly broadened unless the Court strikes the 

challenged allegations. Not so. The scope of discovery is limited to “nonprivileged matter that is 

relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ P. 

26(b)(1). Proportionality is determined in relation to Fletcher’s claims, not his factual allegations. 

For these reasons, Defendants’ motion to strike is denied.

CONCLUSION

For the above reasons, Defendants’ motion to dismiss (Dkt. No. 34) is granted in part and 

denied in part. Counts II and VIII are dismissed without prejudice. Defendants’ motion to strike 

(Dkt. No. 35) is denied.

ENTERED:

Dated: September 30, 2021 __________________________

Andrea R. Wood

United States District Judge

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