Starks v. City of Waukegan

946 F.Supp.2d 780

Bennie STARKS, Plaintiff,

v.CITY OF WAUKEGAN, Lieutenant Urbancic, W. Biang, P. Stevenson, M. Juarez, D. Deprez, Dr. Carl Hagstrom, Dr. Russell Schneider, and Sharon Thomas–Boyd, Defendants.

No. 09 C 348.

United States District Court,

N.D. Illinois,

Eastern Division.

May 21, 2013.

Opinion Granting Reconsideration in Part Aug. 16, 2013.

John Ladell Stainthorp, Joey L. Mogul, People's Law Offices, Chicago, IL, for Plaintiff.

Ellen Kornichuk Emery, Lucy B. Bednarek, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Michael David Krause, Jeffrey Escher, Krista Rosalie Stine, Robert Steven Tengesdal, Bollinger Connolly Krause LLC, Laura A. Sbertoli, Bollinger Connolly Krause Ltd., Chicago, IL, Robert Scott Bell, Jr., Law Offices of Cary J. Collins, P.C., Hoffman Estates, IL, for Defendants.

Memorandum Opinion and Order

GARY FEINERMAN, District Judge.

Plaintiff Bennie Starks was convicted of aggravated criminal sexual assault, attempted aggravated criminal sexual assault, and aggravated battery in the Circuit Court of Lake County, Illinois. Doc. 95 at ¶ 40. In 2006, after 20 years in prison, Starks was released after the Appellate Court of Illinois vacated the two sexual assault convictions. Id. at ¶ 48. Starks then brought this civil suit under 42 U.S.C. § 1983 and Illinois law against the City of Waukegan, Illinois; five former or present Waukegan police officers named Urbancic, Biang, Stevenson, Juarez, and Deprez, who allegedly participated in the investigation that led to his conviction (collectively, “Police Defendants”); Dr. Carl Hagstrom and Dr. Russell Schneider, two dentists who were involved in the investigation and trial as expert witnesses for the prosecution (together, “Dentist Defendants”); and Sharon Thomas–Boyd, a serology expert who also participated in the investigation and trial. The amended complaint, which Starks filed in January 2013 after a lengthy stay of this case had been lifted, is organized into nine counts: (1) a § 1983 claim against all Defendants for violating Starks's Fourteenth Amendment right to due process of law; (2) a § 1983 claim against the Police Defendants for failure to intervene; (3) a § 1983 claim against all Defendants for conspiracy to violate Starks's constitutional rights; (4) a § 1983 claim against the City under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); (5) a state law malicious prosecution claim against all Defendants; (6) a state law intentional infliction of emotional distress claim against all Defendants; (7) a state law conspiracy claim against all Defendants; (8) a state law respondeat superior claim against the City with respect to the alleged state law violations by its officers; and (9) a state law indemnification claim against the City under 745 ILCS 10/9–102. Doc. 95.

Thomas–Boyd has answered the amended complaint. Doc. 99. The City and the Police Defendants (collectively, “Waukegan Defendants”) filed a motion to dismiss, Doc. 103, and the Dentist Defendants filed a separate motion to dismiss, Doc. 100. The motions are denied, except as to the intentional infliction of emotional distress and Monell claims, which are dismissed.

Background

In considering the motions to dismiss, the court assumes the truth of the amended complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012). The court must consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Starks's briefs opposing dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012). The following facts are set forth as favorably to Starks as these materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir.2012). The court's recitation of these facts at the pleading stage is not intended to endorse them.

In January 1986, a woman referred to as M.G. reported to the Waukegan police that she had been attacked and raped by an African–American man. Doc. 95 at ¶ 10. She gave the police a physical description of her attacker that did not match Starks's appearance. Id. at ¶ 11. The police found a coat and other clothing that belonged to Starks at the scene of the alleged assault. Id. at ¶ 12. But this clothing had been stolen from Starks by two men on the evening that the assault occurred. Id. at ¶ 13. A few days later, Defendants Biang and Juarez showed M.G. a photo of Starks as part of a suggestive photo array and induced her to identify Starks as her attacker. Id. at ¶ 14.

The same day, Starks voluntarily came to the police station and was interviewed by Biang. Id. at ¶ 15. Biang could have recorded the interview but did not, and he proceeded to prepare a police report that attributed various inculpatory statements to Starks, when in fact Biang made up those statements himself. Id. at ¶¶ 15–16. The next day Starks was interrogated by Defendant Deprez, who, like Biang, did not record the interview and then filed a police report that falsely attributed inculpatory statements to Starks. Id. at ¶¶ 17–18. Defendant Urbancic, a police lieutenant and the supervisor of Biang, Deprez, Juarez, and Stevenson, was closely involved in the investigation. Id. at ¶ 19. Although the Police Defendants knew that M.G. was unreliable and that her identification of Starks was unreliable and a product of improper suggestion, they failed to tell the prosecutors any of this. Id. at ¶¶ 20, 22. Instead, they met with M.G. several more times and, through suggestion, led her to change significant aspects of her story to match the other evidence in the case and to undermine Starks's alibi. Id. at ¶ 21. As a result of the Police Defendants' acts and omissions, Starks was arrested and charged. Id. at ¶ 23.

The Dentist Defendants held themselves out as experts in forensic dentistry. Id. at ¶ 5. The prosecution hired the Dentist Defendants to compare an alleged bite mark on M.G.'s body with Starks's teeth. Id. at ¶ 24. The Dentist Defendants reported that the bite mark had been made by Starks. Id. at ¶ 25. But they intentionally misapplied the methodology they purported to use, employed a method of comparison that has been rejected by the forensic dentistry community, and used flawed preservation and photography techniques. Id. at ¶ 26. Thus, while they told the prosecution that they could confidently attribute the bite mark to Starks, they were actually aware that they could not reliably make that identification. Id. at ¶ 27.

Defendant Thomas–Boyd was an employee of the Northern Illinois Crime Laboratoryand held herself out as an expert in serology, the science of bodily fluids. Id. at ¶ 6. As part of the investigation, Thomas–Boyd examined semen that had been recovered from M.G. and physical evidence from Starks. Id. at ¶¶ 28–29. The results of her tests excluded Starks as a possible source of the semen, providing very strong evidence of his innocence given that M.G. had not had sexual intercourse during the two weeks preceding the attack, meaning that the semen recovered from her body and clothing must have come from her attacker. Id. at ¶¶ 30–31. But Thomas–Boyd kept this to herself and instead submitted a report that said, falsely, that Starks could have been the source of the semen. Id. at ¶¶ 32–33.

Juarez gave false testimony to the grand jury, leading it to indict Starks. Id. at ¶ 34. At trial, Juarez, Biang, and Deprez all gave false testimony against Starks, including by saying that the photo array that led to M.G.'s identification of Starks had not been suggestive and that Starks had made inculpatory statements during interrogation. Id. at ¶ 35. The Dentist Defendants also gave false testimony, repeating their assertion, previously made to the prosecutors, that they could reliably link the bite mark on M.G. to Starks's teeth when in fact their data did not allow them to make that link. Id. at ¶ 36. Thomas–Boyd testified that the semen collected from M.G.'s body and clothing could have been Starks's and concealed her knowledge that the tests had actually excluded Starks as a possible source. Id. at ¶ 38. The Police Defendants never told the prosecution or the defense that M.G.'s testimony was the product of their suggestive practices. Id. at ¶ 39. Starks alleges that Defendants did all this pursuant to a conspiracy among them to deprive Starks of his constitutional rights and to secure his conviction, and that the acts described above were overt acts taken by Defendants pursuant to their conspiracy. Id. at ¶ 57.

Starks was convicted of aggravated criminal sexual assault, attempted aggravated sexual assault, and aggravated battery, and was sentenced to 60 years in prison. Id. at ¶ 40. His conviction was affirmed on direct appeal. Id. at ¶ 42. In March 2002, more than 16 years after his arrest, Starks filed a motion for a new trial in which he asserted that he was innocent, that post-conviction DNA tests excluded him as the source of the semen, and that Thomas–Boyd had lied about the results of her tests. Id. at ¶ 43. The state trial court denied Starks's motion. Id. at ¶ 44. But the Appellate Court of Illinois reversed the trial court's judgment, vacated Starks's aggravated criminal sexual assault and attempted aggravated criminal sexual assault convictions, and remanded the case for a new trial on those charges. Id. at ¶ 45; see People v. Starks, 365 Ill.App.3d 592, 302 Ill.Dec. 769, 850 N.E.2d 206 (2006), appeal denied,222 Ill.2d 595, 308 Ill.Dec. 331, 861 N.E.2d 662 (2006). The court takes judicial notice of the appellate court's statement that “[d]uring the first trial, the jury was incorrectly advised that the seminal fluid found on the victim's underwear and in the victim's vaginal fluid could not be excluded as being [Starks's]. ...