UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

James Fletcher, Jr., )

)

Plaintiff ) 1:20-cv-04768

)

-vs- ) Judge Andrea R. Wood

)

City of Chicago, et al., )

)

Defendants )

DEFENDANTS’ REPLY IN SUPPORT OF THEIR JOINT MOTION TO DISMISS 

CERTAIN CLAIMS IN COMPLAINT

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TABLE OF CONTENTS

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

DISCUSSION .................................................................................................................................2

I. Fletcher Has Failed to State A Brady-Based Process Claim ....................................................2

II. Recent Seventh Circuit Precedent Is Unambiguous and Dooms 

Fletcher’s Due Process Claim Based on The Use of Unduly Suggestive

Procedures................................................................................................................................12

III. Fletcher’s New Allegations, Raised for the First Time in the Response

and Based Solely on His “Belief,” Do Not Save His Claim for Destruction 

of Evidence ..............................................................................................................................17

IV. Fletcher Concedes There is No Independent Tort for 

Willful and Wanton Misconduct .............................................................................................18

CONCLUSION .............................................................................................................................19

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TABLE OF AUTHORITITES

CASES Page

Supreme Court

Brady v. Maryland, 373 U.S. 83 (1963) ................................................................................ passim

Kyles v. Whitley, 514 U.S. 419 (1995).........................................................................................n. 8

Manson v. Brathwaite, 432 U.S. 98 (1977) .............................................................................12, 16

Neil v. Biggers, 409 U.S. 188 (1972).......................................................................................12, 16

Wearry v. Cain, 136 S.Ct. 1002 (2016) .......................................................................................n. 8

Circuit Courts

Anderson v. City of Rockford, 932 F.3d 494 (7th Cir. 2019).......................................................n. 6

Avery v. City of Milwaukee, 847 F.3d 433 (7th Cir. 2017)..................................................n. 4, n. 6

Coleman v. City of Peoria, 925 F.3d 336 (7th Cir. 2019)......................................12, 14, 15, 16, 17

Dominguez v. Hendley, 545 F.3d 585 (7th Cir. 2008)...............................................................n. 10

Fields v. Wharrie, 740 F.3d 1107, 1114 (7th Cir. 2014) .............................................................n. 4

Fields v. Wharrie, 672 F.3d 505, 517 (7th Cir. 2012) .....................................................................5

Gauger v. Hendle, 349 F.3d 354 (7th Cir. 2003)..............................................................n. 7, 9, 10, 

Geinosky v. City of Chi., 675 F.3d 743 (7th Cir. 2012) ...............................................................n. 3

Goudy v. Bassinger, 604 F.3d 394, 400 (7th Cir. 2010)........................................................n. 8, 12

Harris v. Kuba, 486 F.3d 1010 (7th Cir. 2007) .......................................................................9, n. 7

Hensley v. Carey, 818 F.2d 646, 648, 650 (7th Cir. 1987)......................................13, 14, 17, n. 10

Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001)..............................................................n. 6, 13

Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003)......................................................................13

Patrick v. City of Chicago, 974 F.3d 824(7th Cir. 2020).............................................................n. 4

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Phillips v. Allen, 668 F.3d 912 (7th Cir. 2012)............................................................12, 14, 15, 16

Saunders-El v. Rohde, 778 F.3d 556 (7th Cir. 2015).......................................n. 4, 8, 9, 10, 11, n. 7

United States v. Hawkins, 499 F.3d 703 (7th Cir. 2007) ...........................................................n. 10

United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002)......................................................n. 7

Whitlock v. Brueggemann, 682 F.3d at 567, 582 (7th Cir. 2012)..............................................n. 4

Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994)...........................................n. 3

District Courts

Avery v. City of Milwaukee, 40 F. Supp. 3d 1089, 1093-4 (E.D. Wis. 2014),

rev'd in part, 847 F.3d 433 (7th Cir. 2017).................................................................................n. 6

Dixon v. Pfister, 420 F. Supp. 3d 740 (N.D. Ill. October 25, 2011)...................................... passim

Gonzalez v. City of Waukegan, 220 F. Supp. 3d 876 (N.D. Ill. 2016).......................................n. 10

Heard v. Becton, Dickinson & Co., 440 F. Supp. 3d 960, 969 (N.D. Ill. 2020)..............................7

Serrano v. Guevara, 315 F. Supp. 3d 1026 (N.D. Ill. 2018) .....................................................n. 10

Walker v. White, 16 CV 7024, 2017 WL 2653078 (N.D. Ill. June 20, 2017)..................................8

Wrice v. Burge, 187 F. Supp. 3d 939, 951–52 (N.D. Ill. 2015)...................................................n. 4

Illinois Courts

People v. Fletcher, 2016 IL App (1st) 132459-U.................................................................. passim

Statutes

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

735 ILCS 5/2-615 ..........................................................................................................................19

Rules

Fed. R. Civ. P. 12(b)(6)..........................................................................................................n. 3, 19

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Defendants, Jerome Bogucki, Anthony Noradin, Raymond Schalk (the “detectives”), and 

Anthony Wojcik (collectively “Defendant Officers”), and City of Chicago (the “City”), through 

their respective undersigned counsel, submit this reply in support of their joint motion to dismiss 

(Dkt. # 34, “Motion”), which seeks to dismiss: the due process claims in Count I based on the 

suppression of Brady material, the use of unduly suggestive procedures, and the destruction of 

evidence; Count II (“Unlawful Detention”);1 and Count VIII (“Willful and Wanton Conduct”). 

Introduction

Unable to offer any meaningful response in opposition to defendants’ motion, Fletcher, 

from the very first sentence of his response, mischaracterizes and misdirects. In an effort to justify 

his claims in this action, he declares that he was granted habeas relief based “upon a finding that 

the eyewitness identifications the State used to procure [his] conviction were untrue, and based off 

of investigative misconduct by the Defendant Officers in the instant case.” (Dkt. #42, Plaintiff’s 

Response to Defendants’ Joint Motion to Dismiss (“Response”), 1.) This statement is 

demonstrably false. The sole basis for Fletcher’s habeas relief was the criminal court’s admission 

of a hearsay statement, which the district court found to be testimonial and therefore a violation of 

the Confrontation Clause. Dixon v. Pfister, 420 F. Supp. 3d 740, 759, 767-8 (N.D. Ill. 2011).

Unfortunately, Fletcher’s attempts at misdirection permeate his Response. He inaccurately 

asserts that defendants ignore his allegations and rely on disputed facts. He claims, without 

citation, to have made allegations (and asserted claims) in his complaint that simply are not there.

Fletcher asks this Court to ignore facts and evidence established in matters of public record, of 

which this Court may take judicial notice, because they conflict with his allegations. (Response, 

1 Fletcher states he is voluntarily dismissing his claims in Count II. (Response, n. 1.) Defendants simply 

note that based on the arguments in their joint motion (at Section IV), those claims should be dismissed 

with prejudice. 

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at 1). Fletcher does not explain why this Court should indulge his request to turn a blind eye to the 

actual evidence and instead credit his contradictory allegations, many of which are entirely 

speculative, under the pretense of complying with the standards applicable to motions to dismiss. 

In the end, no amount of misdirection (or manipulation of the facts) can save the claims at issue 

here.

Discussion

I. Plaintiff Has Failed to State A Due Process Claim Under Brady.

2

As defendants demonstrated in their motion, Fletcher was fully aware of any facts 

regarding the photo array, the lineup, and the witness identifications that were subject to Brady

disclosure. (Motion, 1-6, 8-15.) Not only was Fletcher himself fully aware of the evidence he 

claims was suppressed, his criminal jury heard all of the evidence that he claims was suppressed. 

Unable to meaningfully argue otherwise, Fletcher instead contends that defendants have 

improperly relied on “disputed” facts while ignoring the allegations in the complaint. (Response, 

1, 9, 13-14.) To the contrary, defendants merely cited to public documents that set forth trial 

testimony, the content of which cannot be disputed and the truth of which is not relevant (i.e.,

whether true or false, the witnesses said what they said). For example, when asked by Fletcher’s 

lawyer whether he told Fletcher’s private investigator that he was only 75% sure of his photo array 

identification the year before the trial, eyewitness Edward Cooper admitted that he did. People v.

Fletcher, 2016 IL App (1st) 132459-U, ¶ 6. Fletcher therefore cannot plausibly dispute that his 

2 Although Fletcher contends that the Court should disregard defendants’ Brady and suggestive procedures 

arguments because they have conceded that he has stated a fabricated evidence-based due process claim 

(Response, 6), as defendants noted in their motion, the Seventh Circuit and district courts in this circuit 

routinely address due process theories as “claims” and treat them separately. (Motion, n. 7.) Such practice 

is therefore not only proper, it helps to streamline litigation and make for more efficient discovery. 

Particularly where, as here, Fletcher has asserted an extremely broad Monell claim, narrowing the 

underlying constitutional claims at issue in this matter will significantly serve to streamline the proceedings 

and focus the scope of relevant discovery. 

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lawyer asked the question (which necessarily means he had the information Fletcher now claims 

was suppressed), nor can he plausibly dispute that the jury heard Cooper’s testimony admitting 

this fact. 

Fletcher also claims defendants have improperly relied on police reports that he says have 

not been “authenticated” and cannot be authenticated because he says they were fabricated.

(Response, 14.) Authentication has nothing to do with the truth of the content of the reports, and 

Fletcher does not claim that the reports, which he refers to and relies on in his complaint, are not 

the reports from his criminal case.3 Again, whether true or false, the words written in the reports

say what they say and Fletcher cannot dispute that they were written. 

Fletcher’s real complaint in his Response is that the record and evidence established in 

public documents and the police reports he refers to in his complaint expose his allegations for 

what they are: distortions and manipulations of otherwise indisputable facts that conclusively 

defeat his Brady claim.

Edward Cooper

Fletcher claims that Defendant Officers withheld the fact that Cooper told them “he could 

not identify anyone, when presented with a photo array containing [Fletcher’s] picture.” 

(Response, 10.) But as defendants established in their motion, Fletcher knew, and his jury heard, 

that Cooper (i) was shown a photo array and asked if he saw anyone who robbed him; (ii) could 

not make a positive identification from the photo array; and (iii) told Fletcher’s investigator in 

3 Although Fletcher claims he did not “cite” the police reports prepared in the course of the murder 

investigation, the reports were incorporated by reference in the complaint (paragraphs 34, 35, 42, 47, 51, 

60, 136, 170), to support claims of a failure to report and disclose certain facts. Thus, the reports are 

“considered part of the pleadings” and “may be considered by [this] court in ruling on the motion to 

dismiss.” Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994); Geinosky v. City of Chi., 675

F.3d 743, 745 n.1 (7th Cir. 2012) (the court may consider on a Rule 12(b)(6) motion “documents that are

critical to the complaint and referred to in it.”).

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2004 that he was only 75% sure of his identification. (Motion, 4-5, 9-11.) Fletcher also knew, and 

his jury heard, that Fletcher was the only participant in the lineup whose picture had been included 

in the photo array. (Id. at 3.) And Fletcher knew that Cooper, who Fletcher admits talked to his 

private investigator (Response, 14), told that investigator the year before his trial, “I can’t even 

remember their faces after so many years.” (Motion, 11.)

Notwithstanding his admission that Cooper spoke with his private investigator, Fletcher

claims that Cooper only discussed whether or one or two robbers were carrying a gun and “not 

whether Cooper had performed an identification of Plaintiff or not.” (Response, 14.) But in 

response to a question on cross-examination, Cooper admitted that he told Fletcher’s investigator 

he was only 75% sure that Fletcher was the perpetrator. Fletcher, 2016 IL App (1st) 132459-U, ¶ 

6 (“On cross-examination, Cooper admitted that he told an investigator in September 2004 that he

was ‘only about 75 percent sure’ of the identity of his assailants.”); Dixon, 420 F. Supp. 3d at 748-

9 (“In his September 2004 conversation with a detective hired by the defense, Cooper told the

detective that he was only ‘75 percent sure’ who the robber was.” (quoting Trial Tr. Vol. III at 98, 

99)). Fletcher cannot plausibly dispute the actual words his counsel used to cross-examine Cooper,

or the words Cooper used to respond to the questions. 

In any event, Fletcher’s jury heard this testimony, which means it was disclosed at trial and 

therefore not suppressed. The jury also heard Cooper’s testimony that, when he viewed the 2002 

photo array, he tentatively identified Fletcher, but told detectives he was not sure and wanted to 

see an in-person line-up. Dixon, 420 F. Supp. 3d at 748; Fletcher, 2016 IL App (1st) 132459-U, 

¶6.

The trial record establishes beyond debate that the officers did not suppress a single piece 

of evidence regarding the circumstances of Cooper’s identification. Thus, the Cooper allegations 

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do not support Fletcher’s Brady claim. 

Emmett Wade

Fletcher claims Defendant Officers withheld that Wade was “shown a single photograph 

of Plaintiff, when being asked to identify the person who killed Willie Sorrell” and “refus[ed] to 

identify Plaintiff as the person who killed Willie Sorrell despite Defendant Officers pressuring him 

to identify Plaintiff as the killer.” (Response, 10.) But as Fletcher admits (Response, 3), Wade did 

not identify him as one of the armed robbers at any time. And Wade testified at Fletcher’s trial that 

he could not identify Fletcher as one of the armed robbers. Thus, any alleged pressure or other 

tactics employed to secure an identification were not subject to Brady disclosure because there 

was no identification to impeach. See Fields v. Wharrie, 672 F.3d 505, 517 (7th Cir. 2012) (“The 

constitutional violation occurs when the means by which the testimony was acquired are not 

disclosed at trial—or when other information that impeach the testimony’s reliability are not shared 

with the defense.” (emphasis added)). 

Fletcher completely ignores this dispositive argument. Instead, he merely repeats the 

allegations in his complaint and then contends that a purportedly fabricated statement in the 2002 

police report somehow transformed Wade’s inability to identify him into a “refusal” to identify 

him that is “highly exculpatory.” (Response, 3-4.) Specifically, Fletcher claims that Defendant 

Officers fabricated their 2002 report by “falsely” recording that Wade told them he could not see 

the armed robbers’ faces, thereby implying that he would not have been able to identify Fletcher 

or refute any identification of Fletcher. (Id.) First of all, allegations of fabrication do not state a 

Brady claim. (Motion, 14-15.)4 Second, Fletcher does not allege, either in his complaint or in his 

4 See also, Wrice v. Burge, 187 F. Supp. 3d 939, 951–52 (N.D. Ill. 2015) (“To be clear, I am not endorsing

Wrice's argument that the officers who interrogated [testifying witness] had a Brady obligation to disclose

that they fabricated evidence [because as Saunders-El] reiterate[s] [a] Brady claim cannot be ‘premised on 

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response, that Wade told the officers he could see the armed robbers’ faces and that Fletcher was 

not one of them. (Complaint, ¶¶39-43; Response, 3-4, 10-11, 13-15.) 

As to Fletcher’s claim that Wade was shown a single photo of him rather than a photo 

array, it is not relevant to the attempted Brady claim because Wade did not identify Fletcher. 

Although not necessary to resolution of this issue, the Court should note that Fletcher told the court 

in his post-conviction proceedings that his trial counsel had elicited these alleged details of the 

identification procedures from Wade. Fletcher, 2016 IL App (1st) 132459-U, ¶ 27 (“[Fletcher]’s 

original postconviction petition admits, ‘Emmitt Wade told [Fletcher’s defense counsel] that 

detectives told him to pick out [Fletcher], but he did not.’ Since Wade’s affidavit contains facts 

already known to [Fletcher] at or prior to his trial, it does not qualify as newly discovered 

evidence.”).

The ultimate and dispositive point here is that Wade did not identify Fletcher and testified 

as such. Whether the officers showed Wade one photo or many, whether they told Wade that 

Fletcher was their suspect and pressured him to identify Fletcher, and/or whether they fabricated 

the 2002 police report is immaterial to the issue. With no identification to impeach, any alleged 

the police officers' silence following their alleged fabrication of the evidence’”) (quoting Saunders–El v.

Rohde, 778 F.3d 556, 562 (7th Cir. 2015)). Nor does this allegation support a fabrication claim because 

Fletcher does not allege that the 2002 report was admitted at trial. Patrick v. City of Chicago, 974 F.3d 824, 

834-5 (7th Cir. 2020) (a plaintiff must prove that the allegedly fabricated evidence was used at trial and 

was material to the plaintiff’s conviction); Avery v. City of Milwaukee, 847 F.3d 433 (7th Cir. 2017) (a due

process claim based on fabricated evidence is viable only when the allegedly fabricated evidence was 

admitted against a plaintiff at trial and caused the plaintiff’s conviction); Whitlock v. Brueggemann, 682 

F.3d at 567, 582 (7th Cir. 2012) (“[Defendant] is correct that the alleged constitutional violation here was 

not complete until trial.”); Fields v. Wharrie, 740 F.3d 1107, 1114 (7th Cir. 2014) (“[T]he cases we’ve just 

cited involved not merely the fabrication, but the introduction of the fabricated evidence at the criminal 

defendant's trial. For if the evidence hadn’t been used against the defendant, he would not have been harmed 

by it, and without a harm there is, as we noted earlier, no tort.”)

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tactics used in Wade’s interview are not subject to disclosure under Brady and therefore these 

allegations cannot support Fletcher’s Brady claim.5

Terry Rogers

Fletcher argues that “[u]pon information and belief,” Defendant Officers failed to disclose 

a “deal with Rogers, wherein they declined to investigate or seek charges for arson, in exchange 

for his false statement implicating Fletcher.” (Response, 10.) The only facts he provides to support 

this allegation in his complaint, however, are that Rogers was arrested in February 2002 and 

interviewed by Defendant Officers the day after his arrest, and then released sometime after 

without being charged. (Complaint, ¶¶23-24, 30.) These facts are insufficient to plausibly link 

Defendant Officers to Rogers’ release or link that release to Rogers’ identification of Fletcher as 

one of the armed robbers. Thus, any suggestion that Rogers’ release was somehow linked to an 

“illegal and undisclosed deal” (id., ¶29), is nothing more than speculation and the Court “is not 

required to credit rank speculation.” Heard v. Becton, Dickinson & Co., 440 F. Supp. 3d 960, 969 

(N.D. Ill. 2020) (rejecting an allegation based on information and belief to support a claim: “If

[plaintiff] has a legitimate reason to suspect that [defendant] disclosed [private information], he

surely possesses information of some kind that triggered his suspicion . . . .”)

Equally dispositive, Fletcher admits that Rogers did not in fact testify at his trial. 

(Response, 11.) Fletcher nevertheless claims that because Detective Bogucki testified that he had 

learned from the 1990 police report that one of the witnesses had provided the name “Fletcher,”

he could have used the purported deal to attack the reliability of Rogers’ 1990 statement to police 

and Defendant Officers’ reliance on that statement. Of course, Fletcher fails to explain how an 

5 Defendants note that Fletcher fails to mention much less address their argument that, even if the Court

were to find that the officers had a duty to disclose the alleged tactics they used when they interviewed 

Wade, the presence of an Assistant State’s Attorney during Wade’s interview at which he was shown 

Fletcher’s photo discharged any Brady obligation. (Motion, 12.)

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alleged deal struck in 2002 could somehow attack the credibility of a statement Rogers gave to 

Detective Fleming in 1990 or call into question Detective Bogucki’s reliance on that 1990 

statement.

Fletcher also claims that “the State introduced police reports into evidence which contained 

[Rogers’] testimonial statements” at his trial and cites Dixon for this allegation. (Response, 11.) 

Dixon does not state that the 1990 report containing Rogers’ statement was entered into evidence,

and Fletcher does not allege in his complaint that it was. Dixon, 420 F. Supp. 3d 740, 761 

(“Specifically, Bogucki testified that from reading police reports, he learned that ‘[o]ne of the 

witnesses had provided a name of Fletcher.’”). As such, Fletcher’s allegations with respect to 

Rogers do not support his Brady claim.

Shenee Friend

As defendants established in their motion, under circuit precedent, police officers have no 

Brady duty to disclose their alleged fabrication of evidence. (Motion, 14-15, n. 11). And Fletcher 

plainly alleges in his complaint that Defendant Officers fabricated Friend’s identification by 

moving her finger to the photo of Fletcher and saying “that was who did it.” (Complaint, ¶45.) 

Thus, this is an allegation of fabrication and any attempt to recast the claim under Brady should 

be rejected. See Walker v. White, 16 CV 7024, 2017 WL 2653078, at *4 (N.D. Ill. June 20, 2017) 

(citing Saunders-El v. Rohde, 778 F.3d 556 (7th Cir. 2015): “The Seventh Circuit, however, does 

not permit recasting evidence-fabrication claims as Brady-based due process claims. Although

[plaintiff] attempts to articulate his Brady claim as alleging that the officers withheld evidence as

to the [planted] drugs’ origin, he merely repeats his fabrication of evidence claim [which alleged

that police planted the drugs on him].”). 

Rather than address the precedent defendants cite in their motion, Fletcher cites several 

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cases that address the suppression of promises or threats made to a witness to secure his/her 

testimony, or multiple interviews over a period of years coupled with threats or promises, or pretrial recantations.

6 But Fletcher does not allege that Friend was threatened or promised any benefit 

or interviewed repeatedly or at undue length or that she recanted her identification before trial, the 

only sort of allegations that would support a Brady claim. Not one of the cases Fletcher cites, 

however, stands for the proposition that fabrication allegations can support a Brady claim. 

Fletcher skirts the insufficiency of his allegations by contending that Saunders-El, Gauger, 

and Kuba stand only for the narrow proposition that there is no duty to disclose that which is 

known to a criminal defendant. (Response, n. 4.) The only support for this contention is that those 

cases involved evidence that the plaintiffs already knew about. (Id.) Fletcher wholly ignores the 

language in the cases (and other circuit precedent cited by defendants) that indisputably holds that 

officers have no duty to create evidence on behalf of a defendant. Gauger v. Hendle, 349 F.3d 354, 

360 (7th Cir. 2003) (“Gauger wants to make every false statement by a prosecution witness the 

basis for a civil rights suit, on the theory that by failing to correct the statement the prosecution 

deprived the defendant of Brady material, that is, the correction itself.”); see also Harris v. Kuba, 

486 F.3d 110, 1017 (7th Cir. 2007) (“Harris essentially seeks an extension of Brady to provide relief 

6 Avery v. City of Milwaukee, 40 F. Supp. 3d 1089, 1093-4 (E.D. Wis. 2014), rev'd in part, 847 F.3d 433 

(7th Cir. 2017) (defendants suppressed that the three jailhouse informants were promised reduced sentences 

in exchange for their testimony that plaintiff confessed to the murder at issue; they were interviewed 

multiple times over a period of two years and one of them recanted his statement before trial but was told 

he had to testify); Anderson v. City of Rockford, 932 F.3d 494, 500-3, 505-7 (7th Cir. 2019) (defendants 

suppressed evidence that: one witness told other witnesses who were family members immediately after 

the shooting at issue that he did not know who did the shooting; same witness had unrelated forgery charges 

against him dropped after he testified; recordings of same witness admitting he did not know who the 

shooter was in calls made from jail; another witness’ statement of first-hand knowledge that another man 

was responsible for the murder at issue and a defendant’s threat to that witness that if he did not recant his 

statement, he would be charged with perjury); Newsome v. McCabe, 256 F.3d 301, 747, 749 (7th Cir. 2001)

(defendants failed to disclose that plaintiff’s “fingerprints did not match those they had obtained at the 

crime scene” and also failed to disclose that the eyewitnesses had “earlier selected pictures from a book if 

mug shots that did not contain [plaintiff]’s photo”).

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if a police officer makes a false statement to a prosecutor by arguing that an officer is “suppressing” 

evidence of the truth by making the false statement. This court has already foreclosed this 

extension.”)

In fact, Gauger expressly identified and rejected the plaintiff’s attempt to conflate the 

Brady duty to disclose exculpatory or impeaching evidence with a Brady duty to create such 

evidence for the criminal defendant or to tell the truth about an investigation and thereby 

impermissibly extend Brady. Gauger, 349 F.3d at 360. To emphasize its point, the court observed 

that adopting the proposed extension of Brady would not benefit that particular plaintiff in any 

event: “Indeed [even if the court were to adopt the extension] the duty to disclose falls out [in this 

case], because Gauger knew what he had said at the interrogation.” Id. Neither this language nor 

any other language in Gauger circumscribes its analysis to evidence that is already known to a 

criminal defendant or directed toward the defendant. Likewise, plaintiff argues that Saunders-El

is limited to misconduct that a plaintiff already knows about or is directed toward the plaintiff. 

Again, there is no language in Saunders-El that circumscribes its analysis or holding. In fact, not 

once in the entire opinion does the court use the words “knowledge” or “know(s)” or “knew.” 778 

F.3d 556. And the issue in the case was not that the defendants did not disclose that the plaintiff 

was abused; it was that the defendants did not disclose that they had planted evidence at the crime 

scene to frame the plaintiff. 

Saunders-El was the first Seventh Circuit opinion to expressly hold as much. 778 F.3d at 

560 (“district court erred in holding, categorically, that a claim of evidence fabrication cannot form 

the basis of a due process claim under §1983 and must instead be brought as a state law malicious 

prosecution claim”). But in doing so, the court made sure that the holdings in Gauger, Sornberger 

and Kuba were not compromised by also expressly finding that, consistent with those cases, 

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officers have no duty to disclose their misconduct or tell the truth about the circumstances of their 

investigations and thereby create evidence for a defendant. Id. at 562. In short, Saunders-El made 

clear that its recognition of a due process fabrication claim was distinct from an improper extension 

of the Brady duty to include disclosure of misconduct.7

In a final grasp at a Brady claim, Fletcher, without citation, claims he has also alleged that 

Defendant Officers “suppressed evidence of their longstanding pattern and practice of denying 

criminal suspects due process.” (Response, 12.) In fact, the word “pattern” is used only once in 

Fletcher’s 40-page, 201-paragraph complaint and the word “patterns” is used but twice. 

(Complaint, ¶81, 96.) And those paragraphs fall within the section of the complaint entitled “Policy 

and Practice of Wrongly Convicting Innocent Individuals” (id. at 10), which contains allegations 

in support of Fletcher’s Monell claim and does not include a single allegation that Defendant 

Officers “suppressed” any pattern (id. at ¶¶66-97). Nowhere in his complaint has Fletcher alleged 

that Defendant Officers suppressed a pattern of misconduct. Allegations that do not exist cannot 

be used to save Fletcher’s Brady claim, and this “see if it sticks” argument should be summarily 

rejected by the Court.

Fletcher concludes his defense of his deficient Brady allegations by arguing that the 

Seventh Circuit “has [] disallowed Defendants’ improper tactic of treating ‘each piece of 

7 Saunders-El, 778 F.3d 556, 562 (“Saunders–El seeks to charge the officers with a Brady violation for 

keeping quiet about their wrongdoing, not for failing to disclose any existing piece of evidence to the 

prosecution. But our case law makes clear that Brady does not require the creation of exculpatory evidence, 

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

prosecution.” (emphasis original)); Gauger, 349 F.3d 354, 360 (“We find the proposed extension of Brady 

difficult even to understand. It implies that the state has a duty not merely to disclose but also to create 

truthful exculpatory evidence.”); Harris, 486 F.3d at 1015 (Brady “‘does not place any burden upon the

government to conduct a defendant’s investigation or assist in the presentation of the defense’s case’” 

(internal citations omitted)); United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002) (“Brady prohibits 

suppression of evidence, it does not require the government to act as a private investigator and valet for the 

defendant, gathering evidence and delivering it to opposing counsel.”)

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suppressed evidence in seriatim, rather than assessing its cumulative effect.’” (Response, 17 

(quoting Goudy v. Bassinger, 604 F.3d 394, 400 (7th Cir. 2010)). Of course, Goudy was referring 

to the appropriate standard by which a court must determine whether evidence found to be 

suppressed was material, that is, the court must measure the cumulative effect of each piece of 

suppressed evidence to determine materiality. Goudy, 604 F.3d at 400-1. This principle of law 

does not mean that the Court is not required to first determine whether a piece of evidence has 

been suppressed or is even subject to Brady before it is thrown into the bucket of suppressed 

evidence to be considered in determining whether the cumulative effect of the evidence is 

material.8

II. Recent Seventh Circuit Precedent Is Unambiguous and Dooms Plaintiff’s Due 

Process Claim Based on The Use of Unduly Suggestive Procedures.

As defendants established in their motion (at 16-19), the Seventh Circuit has refused to 

convert “a rule of evidence to a rule of damages” by recognizing an independent section 1983 

claim for use of suggestive procedures in securing an identification. See Phillips v. Allen, 668 F.3d 

912, 915 (7th Cir. 2012) (refusing to extend “the Biggers approach. . . from trials to arrests, and 

from a rule of evidence to a rule of damages”); Coleman v. City of Peoria, 925 F.3d 336, 347 (7th 

Cir. 2019) (Brathwaite and Biggers “address the admissibility of eyewitness identifications at trial, 

not § 1983 liability.”) This precedent forecloses Fletcher’s attempt to base a due process claim on 

allegations of unduly suggestive identification procedures.

As evident from the very cases Fletcher cites in his response, Coleman and Phillips are 

consistent with long-standing circuit precedent that holds the use of suggestive procedures in 

8 Fletcher also cites Kyles v. Whitley and Wearry v. Cain for the same proposition but they, like Goudy, 

concern the appropriate measure of materiality. Kyles, 514 U.S. 419, 441 (1995) (requiring a “cumulative 

evaluation” of the materiality of wrongfully withheld evidence); Wearry, 136 S.Ct. 1002, 1007 (2016) (“the 

state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather 

than cumulatively”).

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securing an identification does not support a damages award under section 1983. See e.g.,

Newsome v. McCabe, 256 F.3d 747, 753 (7th Cir. 2001) (“No one would quarrel with the assertion

in defendants' reply brief that ‘in 1979 [and today], the detectives could have reasonably believed

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.’”).9 As the court explained, it was not the use

of the procedures at issue that supported a claim for damages, it was the suppression of Brady

evidence that gave Mr. Newsome a viable claim under section 1983. Id. at 751-753.

The Seventh Circuit reiterated this principle of law when Newsome was again up on appeal

two years later. Newsome v. McCabe, 319 F.3d 301, 304 (7th Cir. 2003) (the use of “manipulated” 

identifications at trial “would not by itself support an award of damages, as our opinion denying 

rehearing in 2001 explained”); see also id. at 305 (“the constitutional violation justifying an award

of damages is not the conduct of the lineups but the concealment of evidence about them”).

Likewise, in Alexander v. City of South Bend, the Seventh Circuit again reiterated that “The

Constitution does not require that police lineups, photo arrays, and witness interviews meet a

particular standard of quality.” 433 F.3d 550, 555 (7th Cir. 2006) (citing Hensley v. Carey, 818

F.2d 646, 648, 650 (7th Cir. 1987)); see also id. (“Hensley's point is this: flawed identification

procedures are not themselves constitutional violations; plaintiffs must show how those flawed

procedures compromised the constitutional right to a fair trial. What identification evidence was

actually admitted at trial? What did the victims, eyewitnesses, and police officers say? Were they

cross-examined? Were the circumstances surrounding the identification and the police procedures

put before the jury? What exhibits were admitted on this issue? Was any objection or motion to 

9 In Newsome, the defendants failed to disclose that plaintiff’s “fingerprints did not match those they had 

obtained at the crime scene” and also failed to disclose that the eyewitnesses had “earlier selected pictures 

from a book if mug shots that did not contain [plaintiff]’s photo”). 256 F.2d at 749. 

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suppress the identification evidence made?”) The questions Alexander asked, like Newsome, 

clearly target the disclosure of evidence that would enable a criminal defendant to test the 

identification at issue at trial. The questions posed also make clear that because the constitutional 

right at issue is evidentiary in nature, the due process remedy is exclusion from trial through a 

motion to suppress. Id. (“Grounded in due process, the constitutional interest implicated in

challenges to police identification procedures is evidentiary in nature.” (emphasis original)); id. at 

556 (“It is telling that Alexander did not move to suppress or otherwise object to the introduction

of the identification evidence on grounds of unconstitutional suggestiveness.”)

Thus, well before Coleman and Phillips, our circuit made clear that the use of suggestive 

procedures is not actionable under section 1983. Instead, a plaintiff must be able to establish that 

critical evidence relating to the procedures and identification was either suppressed or fabricated 

and therefore made his trial unfair. And under that precedent, Fletcher’s due process claim must 

sound in suppression or fabrication to support an award of damages.

Although he makes reference to them, Fletcher does not genuinely discuss the Newsome

cases, Alexander or Hensley. (Response, 17-18.) Instead, he mischaracterizes or misquotes these 

and the other cases he cites (see Response, 20), which irrefutably hold that the use of suggestive 

procedures cannot form the basis of a section 1983 claim for damages.10

10 Fletcher’s quote from Alexander is from the court’s discussion of admissibility standards in a criminal 

case not whether a suggestive procedures claim is an actionable section 1983 claim, 433 F.3d at 555; the 

quote Fletcher attributes to Hensley is actually a quote from the Southern District of New York and not 

Hensley’s take on the issue, 818 F.2d at 649; Dominguez v. Hendley does not discuss the viability or 

contours of a suggestive procedure claim at all, 545 F.3d 585 (7th Cir. 2008); United States v. Hawkins is 

a criminal case that obviously had nothing to do with a motion to dismiss a section 1983 suggestive 

procedures claim, and that examined the trial court’s denial of a motion to suppress identifications at the 

defendant’s criminal trial, 499 F.3d 703 (7th Cir. 2007); and Serrano v. Guevara, No. 17 CV 2869, 2020 

WL 3000284 (N.D. Ill. June 4, 2020) examined the identifications at issue to determine whether the 

circumstances surrounding the identifications supported an inference that the defendants fabricated the 

identifications (at *15-17) and whether the allegations supported a Brady claim and not whether the 

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Fletcher also mischaracterizes Phillips and Coleman. He claims that the Seventh Circuit 

conducted a reliability analysis in those cases and found the identifications at issue to be sufficient. 

(Response, 19.) Not so. As defendants discussed in their motion, in dicta in Phillips (a false arrest 

case), the Seventh Circuit considered a possible exception to its holding that the use of suggestive 

procedures could not support a claim for damages under section 1983. (Motion, 17.) The court 

hypothesized (but did not apply) a “proviso” that would allow a cause of action against a police 

officer for use of “a particular technique” if that technique “ha[d] already been forbidden by an 

authoritative judicial decision (that is, by the Supreme Court or the court of appeals with territorial 

jurisdiction)” before the officer used it. Phillips, 668 F.3d at 917. The court did not conduct a 

“reliability” analysis and conclude that the identification passed muster, as Fletcher claims. It

discussed the facts surrounding the identifications at issue solely to illustrate its point that neither 

the police officers nor the lawyers nor the justices themselves have the expertise necessary to 

determine whether the facts before the court established that the procedures used were suggestive. 

Phillips, 668 F.3d 912, 914-17. Therefore, courts should not make a determination that a particular 

procedure is suggestive without hearing from experts. Id. at 915-17. Moreover, the Seventh Circuit 

explained, even if expert testimony or a scientific report is offered in a particular case and the court 

in the case rules that a procedure was suggestive, the officers in the case would nonetheless be 

entitled to qualified immunity unless it or the Supreme Court had previously proscribed the 

particular technique at issue. Id. at 917.

Fletcher’s mischaracterization of Coleman is equally egregious. In Coleman, a reversedconviction case, the trial court in the underlying criminal proceedings denied the plaintiff’s motion 

allegations supported a suggestive procedures claim (at *18-19). As for Gonzalez v. City of Waukegan, 220 

F. Supp. 3d 876 (N.D. Ill. 2016) the only case Fletcher cites that allowed a suggestive procedures claim, it 

is a district court opinion that is not binding on this Court and respectfully, was incorrectly decided. 

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to suppress photo and lineup identifications, and the plaintiff did not object to the in-court 

identification and did not appeal the trial court’s denial of his motion to suppress. 925 F.3d 336, 

348. The Seventh Circuit explained that the defendants “cannot be held liable for depriving [the 

plaintiff] of his constitutional rights simply because the trial court rejected [the plaintiff]’s legal 

arguments, or because he forfeited them.” Id. The Seventh Circuit then continued: 

Even if a court had later found [the] identifications inadmissible under the

Brathwaite/Biggers framework, an officer is not automatically liable for violating

a suspect's constitutional rights whenever a judge later deems a witness’s

identification inadmissible. Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012) 

(refusing to extend the Biggers framework “from trials to arrests, and from a rule 

of evidence to a rule of damages”). Our decision in Phillips notes a proviso for 

situations where an officer uses a specific interrogation technique clearly 

proscribed by existing law. Id. at 917 (explaining an officer may not use judicially 

forbidden measures “to trick a person into making an unreliable identification”). 

For example, an interrogator's use of physical violence to extract an identification 

out of an eyewitness surely violates due process

Id. at 347-48. Although the court then went on to discuss the “show up” procedure used (a 

procedure previously forbidden in this circuit absent exigent circumstances), this entire discussion 

follows the words “Even if” and therefore is plainly dicta. Id. at 347-49. Indeed, after the 

discussion, the Seventh Circuit circled back to the principles embodied in its actual holding:

[Plaintiff]’s appellate briefs develop a solid cross-examination outline for 

[witness]’s identifications. But such arguments do not establish a constitutional

violation. After all, “the validity of an eyewitness identification is for the jury.” Id.

at 916. Due process is not offended by the introduction of a questionable eyewitness

identification; the jury may observe the witness, assess any alleged suggestive

circumstances, and make its own determination about what weight, if any, to give

it.

Id. at 349. Thus, Coleman, consistent with circuit precedent, held that the due process right with 

respect to unreliable identifications is their suppression. Id. at 347. If a criminal defendant is 

unsuccessful in challenging an identification in his criminal proceedings, or forfeits his right to the 

identification, he cannot seek damages from the police officer who secured the identification for 

the alleged use of suggestive procedures. Id. If the proviso discussed in dicta is applied, even if a 

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later court finds the identification at issue to have been unconstitutionally admitted, the officer is 

still protected from damages for the use of a suggestive procedure unless the procedure had 

previously been proscribed by circuit or Supreme Court precedent. Id. at 347-48. Fletcher does not 

mention much less discuss any of this analysis or language. (Response, 18-19.) He simply refers

to defendants’ argument here as “bizarre.” (Id., 18.)11

Finally, contrary to Fletcher’s claim, defendants do not concede that the procedures used 

were suggestive. Whether they were is not relevant to whether he can state this claim. Under 

Coleman’s ruling (and Newsome’s and Alexander’s and Hensley’s), the use of suggestive 

procedures cannot support a claim for damages under section 1983. For that reason alone, 

Fletcher’s suggestive procedures claim should be dismissed. And, even if the Court applies the 

proviso discussed in dicta, Fletcher has not and cannot plead the facts necessary to trigger the 

proviso. Thus, the claim must still be dismissed with prejudice.

III. Fletcher’s New Allegations, Raised for the First Time in the Response and Based 

Solely on His “Belief,” Do Not Save His Claim for Destruction of Evidence.

As defendants established in their motion (at 16-19), Fletcher’s complaint failed to identify 

a single piece of evidence allegedly “destroyed” by defendants. (Complaint, ¶¶34, 115, 120, 140.) 

In an attempt to save this claim, Fletcher now claims in his Response (at 20-21) that he “believes” 

a 1995 photo array shown to Cooper was destroyed because it contained Fletcher’s photo. 

(Response, 20-21.) However, this argument offers nothing more than another speculative 

allegation based on a “belief” that lacks a single fact to support it. Such an unsubstantiated 

11 Fletcher’s argument that because he withdrew his motion to suppress, the suggestibility of the procedures 

Defendant Officers used was never adjudicated and therefore he did not forfeit his due process rights in his 

criminal proceedings (Response, n. 6) is so disingenuous it doesn’t merit response. Likewise, his argument 

in footnote 5 of his Response, that because evidence was suppressed and fabricated, he couldn’t litigate a 

motion to suppress has no merit. First, as established above, he had all the evidence he needed if he wanted 

to pursue such a motion. Second, that he is barred from bringing a suggestive procedures claim, has nothing 

to do with whether he can state a claim for suppression and/or fabrication of evidence. 

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assertion fails to provide a plausible claim that evidence was destroyed. And as Fletcher well 

knows, Cooper testified at trial that Fletcher’s picture was not in the array. Dixon, 420 F. Supp. 3d 

at 767. As discussed above, Fletcher had numerous conversations with Cooper, both before his 

trial and during his post-conviction proceedings, and submitted affidavits from Cooper in his postconviction case. If Fletcher actually had any information or good faith basis upon which to assert 

that the 1995 photo array was destroyed by Defendant Officers, and/or that the array contained his 

picture, those specific allegations presumably would have been front and center in his complaint. 

Given Fletcher’s extensive access to Cooper (this background is readily available from a cursory 

review of People v. Fletcher and Dixon v. Pfister, both of which are public documents), the Court 

should not allow Fletcher’s claim to advance based purely on a “belief” unsupported by a single 

fact. 

Fletcher’s reliance on implausible speculation in an effort to oppose defendants’ motion is 

further demonstrated by his suggestion that because “all of the eyewitnesses were questioned by 

CPD Officers in 1990 at the scene of the crime, id. at ¶19; Plaintiff believes that this photo array 

was likewise destroyed by Defendant Officers.” (Response, 21.) What photo array? Is Fletcher 

alleging that CPD officers came to the crime scene in 1990 with a photo array that already included 

Fletcher’s picture? Did Cooper or Wade or Friend tell him, in their many conversations, that they 

were shown a photo array that included Fletcher in 1990? Again, the Court should reject this 

illogical and unreasonable contention. Stripped of its unsupported conjecture, Fletcher’s response 

fails to plausibly support his “destruction of evidence” claim and it should be dismissed. 

IV. Fletcher Concedes There is No Independent Tort for Willful and Wanton 

Misconduct.

Fletcher concedes that there is no independent tort for “willful and wanton conduct” under 

Illinois law. (Response, 21 (“Defendants are correct that willful and wanton conduct is not an 

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independent tort in Illinois.”).) That concession should end this Court’s inquiry. But Fletcher 

actually declares that the non-existence of such a cause of action “does not warrant its dismissal.” 

Id. This declaration seriously misapprehends both federal and Illinois rules of procedure, which 

provide for dismissal when a plaintiff fails to state a claim upon which relief can be granted. FRCP 

Rule 12(b)(6); 735 ILCS 5/2-615. Fletcher’s bizarre argument merits no further response from 

defendants and no consideration by this Court. Count VIII must be dismissed. 

Conclusion

For all of the foregoing reasons and the reasons set forth in defendants’ joint motion, 

defendants respectfully request that the Court dismiss: the due process claim alleged in Count I to 

the extent based on the suppression of evidence under Brady, unduly suggestive procedures, or 

destruction of evidence; the Fourth and Fourteenth Amendment “unlawful detention” and 

malicious prosecution claims alleged in Count II (as conceded by Fletcher, Response, n. 1); and, 

any derivative federal and state law claim (see Motion, 24-25) to the extent based on otherwise 

deficient claims. The state law willful and wanton conduct claim in Count VIII also should be 

dismissed because, as Fletcher concedes (Response, 21), it is not cognizable under Illinois law.

Respectfully submitted,

CELIA MEZA Defendant Officers

Acting Corporation Counsel 

of the City of Chicago

By: s/ Paul A. Michalik By: s/ Amy A. Hijjawi

Special Assistant Corporation Counsel

Attorneys for Defendant City of Chicago

Special Assistant Corporation Counsel

Attorneys for Defendant Officers

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Terrence M. Burns

Paul A. Michalik

Daniel M. Noland

Reiter Burns, LLP

311 South Wacker, Suite 5200

Chicago, Illinois 60606

(312) 982-0090

Andrew M. Hale

Amy A. Hijjawi

Brian Stefanich

Hale Law LLC

53 W. Jackson Blvd., Suite 330

Chicago, IL 60604

(312) 341-9646

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CERTIFICATE OF SERVICE

I, Amy A. Hijjawi, an attorney, hereby certify that, on the date stamped on the margin 

above, I served a copy of this pleading on all counsel of record via the ECF System.

/s/ Amy A. Hijjawi

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