Kuri v. McDermott

ANTHONY KURI, (a.k.a. Ramsey Qurash) Plaintiff, v. DET. McDERMOTT (Star No. 21084), DET. FOLINO (Star No. 20143) Defendants.

Case No. 13 C 1653

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 1, 2018

Judge Edmond E. Chang

DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW

Defendants, Timothy McDermott and John Folino, Jr. ("Defendants"), by and through their undersigned attorneys, pursuant to the Federal Rules of Civil Procedure 50(a), hereby move for judgment as a matter of law in their favor, and against the Plaintiff. In support thereof, Defendants state as follows:

INTRODUCTION

Plaintiff's claims against Defendants include Section 1983 violation of due process (Count I), conspiracy to deprive constitutional rights (Count III), failure to intervene (Count IV), and state law claim of malicious prosecution (Count VI).¹ No reasonable jury could conclude in favor of Plaintiff on each of these claims, and, thus, Defendants are entitled to a directed verdict in their favor pursuant to Rule 50(a).

LEGAL STANDARD

Federal Rule of Civil Procedure 50(a) states that the Court may grant judgment as a matter of law against a party when "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue[.]" Fed.R.Civ.P. 50(a). In deciding a Rule 50(a) motion, "the question is simply whether the evidence as a whole, when combined with all reasonable inferences permissibly drawn from that evidence, is sufficient to allow a reasonable jury to find in favor of the plaintiff." Hall v. Forest River, Inc., 536 F.3d 615, 619 (7th Cir. 2008) (citing Hossack v. Floor Covering Ass'n. of Joliet, Inc., 492 F.3d 853, 859 (7th Cir. 2007)). To avoid a directed verdict, "plaintiff must offer substantial affirmative evidence to support [his] argument." Florek v. Vill. of Mundelein, Ill., 649 F.3d 594, 601 (7th Cir. 2011) (quoting Heft v. Moore, 351 F.3d 278, 284 (7th Cir. 2003)).

ARGUMENT

I. NO REASONABLE JURY COULD RULE IN PLAINTIFF'S FAVOR ON HIS DUE PROCESS CLAIM.

A. Plaintiff Failed to Prove Defendants Fabricated Any Evidence.

To prove Defendants violated Plaintiff's right to due process by fabricating evidence, Plaintiff must prove that Defendants manufactured evidence that deprived Plaintiff of his liberty. Avery v. City of Milwaukee, 847 F.3d 433, 439 (7th Cir. 2017). Fabricated evidence is evidence that the Defendants created knowing it to be false. Id. (quoting Petty v. City of Chicago, 754 F.3d 416, 423 (7th Cir. 2014)). In fabrication cases, there is a distinction between fabricated evidence and coerced evidence. The Seventh Circuit explained that fabricated evidence is evidence "known to be untrue by the witness and by whoever cajoled or coerced the witness to give it;" it is "made up" and "invariably false." Petty v. City of Chicago, (7th Cir. 2014). By contrast, "getting a reluctant witness to say what may be true" is not fabricated. What isnecessary is some factual basis to show that Defendants knew the evidence they collected was false. Id.; Hyung Seok Koh v. Graf, 307 F. Supp. 3d 827, 858 (N.D. Ill. 2018); Wrice v. Burge, 187 F. Supp. 3d 939, 953 (N.D. Ill. 2015) (dismissing fabrication claim where there were no facts to suggest defendants knew the alleged fabricated evidence was false).

Here, Plaintiff claims Defendants fabricated Russell and Fernandez's identifications of him, but Plaintiff presented no evidence that Defendants knew those identifications were false. The only evidence Plaintiff presented was Russell's testimony that the police told him who to pick and Fernandez's testimony that the police told him who the offenders were.² Neither witness stated that they ever gave Defendants any indication that Plaintiff or Gomez were not the offenders. To the contrary, both Russell and Fernandez admitted they did make the identifications. Further, neither witness provided any context for their statements at all. For instance, Russell did not explain what conversation occurred with him and the police, such that the jury could conclude Defendants told him who the offenders were before he made the identifications. Similarly, while Fernandez testified that he could not make an identification, he never testified that he told Defendants that Plaintiff and Gomez were not involved in the crime. Thus, there is no evidence from which the jury could infer that Defendants knew Plaintiff and Gomez were not the true offenders. What's more, Plaintiff has presented zero evidence that Gomez did not commit the shooting. In fact, a reasonable inference from Russell's testimony is that Gomez was the shooter. If both Russell and Fernandez identified Plaintiff and Gomez, and Gomez was the shooter, then there is no conceivable way the jury could find that Defendantsknew Russell and Fernandez's identifications of Plaintiff were false, when they had reason to believe the identifications of Gomez were true.

Nor is it enough to say that because the police reports Defendants prepared are inaccurate or misleading to infer Defendants fabricated evidence. The due process clause does not guarantee perfect police reports or a perfect accounting of an investigation. Hyung Seok Koh, 307 F. Supp. 3d at 858. Further, even viewing the evidence in a light most favorable to Plaintiff, what Defendants recorded in their police reports about Russell and Fernandez's identifications is technically accurate. While both witnesses claim the police told them who to pick, they both admit they did make the identifications. Thus, none of the police reports are so deliberately misleading to amount to fabricated evidence. Id.

Finally, Plaintiff expended much effort at trial trying to establish that Defendant Folino learned the names Rowdy and Lil David from Abdul Wachaa before speaking to Russell. Yet, Plaintiff never established that Folino learned the names from Wachaa, nor that what Wachaa told Folino was false. This argument, therefore, is much too tenuous and, more importantly, does not undercut Defendants' belief in the truthfulness of Russell and Fernandez's identifications.

B. Plaintiff Failed to Prove Defendants Withheld Any Material Exculpatory Evidence.

To prove a due process violation pursuant to Brady v. Maryland, Plaintiff must establish Defendants withheld exculpatory evidence that would have affected the outcome of his case. Carvajal v. Dominguez, 542 F.3d 561, 570 (7th Cir. 2008). In particular, "[t]o prevail on a Brady claim for an officer's failure to disclose evidence, a plaintiff must show that (1) the evidence was favorable to him; (2) the officer concealed the evidence; and (3) the outcome would have been different had the evidence been disclosed. Gill v. City of Milwaukee, 850 F3d335, 343 (7th Cir. 2017). Plaintiff's theory at trial is that Defendants failed to disclose that they knowingly manipulated Russell and Fernandez's identifications. Plaintiff failed to prove his theory at trial.

Brady does not require disclosure of exculpatory evidence pretrial. Id. (citing cases). The critical question is whether the exculpatory evidence is disclosed "in time for the defendant to make use of it." Id. If the criminal defendant can make use of the evidence at trial, a subsequent Brady claim fails. Id. In this case, not only did Plaintiff make use of the alleged exculpatory evidence at his criminal trial, he did so successfully because he was acquitted. On summary judgment, Plaintiff argued that he could still satisfy the prejudice prong of his Brady claim by establishing that no reasonable prosecutor would have continued with the prosecution had he or she known that Defendants influenced the identifications. There is no support for that theory in the law. The Seventh Circuit has made clear that despite pretrial detention, if a criminal defendant can make use of the exculpatory evidence at trial, a Brady claim cannot stand. Id.

Nevertheless, even if Plaintiff is right - that a Brady claim can survive if he can prove that the charges against him would have been dismissed pretrial had Defendants informed the prosecutors of Plaintiff's version of Russell and Fernandez's identifications - Plaintiff nevertheless failed to establish that evidence at trial. Plaintiff offered no evidence from his criminal defense attorney or the trial prosecutor to suggest that the charges would have been dropped at any time prior to his acquittal had the alleged exculpatory evidence been disclosed. Nor is there any evidence for the jury to infer that would have been the case. In fact, the evidence suggests the opposite. As stated, Plaintiff presented no evidence Defendants knew the identifications of Russell and Fernandez were false. Russell admitted at trial that he did tell thepolice Rowdy and Gomez were the offenders, and Plaintiff presented no evidence that Russell would have backed off his identifications any earlier than at the criminal trial. Instead, the evidence shows that Russell did not back off even when he had the opportunity because he told Plaintiff's investigator that Plaintiff and Gomez were the offenders. In addition, Plaintiff presented no evidence that Gomez was not the shooter. That means that, at most, all that Plaintiff's evidence shows is that Russell and Fernandez's identifications of him may have been suggested or influenced by Defendants, but not that he did not actually commit the crime. In that case, the prosecutor may have simply decided that Defendants' conduct goes to weight of the evidence, not the admissibility, and proceeded with the prosecution. Because Plaintiff presented no evidence to suggest otherwise, his Brady claim fails.

Plaintiff also did not present evidence that he could not discover evidence of Defendants' alleged suggestive identifications through the exercise of reasonable diligence. There is no dispute that the evidence of the alleged suggestive identification was not exclusively in Defendants' control. Russell and/or Fernandez could have divulged it....