Villars v. Kubiatowski

JULIO VILLARS, Plaintiff, v. STEPHEN KUBIATOWSKI, Assistant U.S. Attorney for the Northern District ofIllinois; MAURY STRAUB, Ozaukee County Sheriff; JEFFREY SAUER,Ozaukee County Jail Administrator;SCOTT SMITH, Ozaukee County Jail Deputy; ERIC SAGER, Ozaukee County Jail Deputy;STAN GRIFFIN, Ozaukee County Jail Deputy; BRAD KITTINGER,Ozaukee County Jail Deputy; CHARLES FRECHETTE, Ozaukee County Jail Deputy;RICHARD SEIDEMANN, Ozaukee County Jail Deputy; BRIAN McINNIS, Ozaukee County Jail Deputy;CORY JEPSON, Ozaukee County Jail Deputy; and OZAUKEE COUNTY, WISCONSIN, Defendants.

Case No. 12-cv-4586

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

April 29, 2016

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant Kubiatowksi's motion [149] to strike Counts I, II, III and IV of Plaintiff's Fourth Amended Complaint; Plaintiff's motion [151] for leave to file a Fifth Amended Complaint; and Plaintiff's motion [156] for leave to file a supplemental complaint and request for declaratory and injunctive relief or, in the alternative, a Sixth Amended Complaint. All three motions are opposed. For the following reasons, Defendant Kubiatowski's motion [149] to strike Counts I, II, III and IV of Plaintiff's Fourth Amended Complaint is granted in part and denied in part; Plaintiff's motion [151] for leave to file a Fifth Amended Complaint is denied; and Plaintiff's motion [156] for leave to file a supplemental complaint and request for declaratory and injunctive relief is granted in part and denied in part. This case remains set for a status hearing before Magistrate Judge Rowland on May 24, 2016, at 9:00 a.m.

I. Factual Background¹

At all times relevant to the complaint, Plaintiff Julio Villars ("Plaintiff") was a resident of the Village of Round Lake Beach, Illinois. Plaintiff worked as a Confidential Human Source ("CHS") for federal law enforcement authorities, including the Federal Bureau of Investigations ("FBI") and the Drug Enforcement Agency ("DEA"). FBI Special Agent Roecker used his federal authority to induce Plaintiff to become a CHS. Law enforcement agencies and courts routinely take extraordinary steps to assure that the identities of CHSs are not disclosed except on a need-to-know basis, because the disclosure of a CHS's status creates a substantial danger that the CHS will be retaliated against or killed.

On March 11, 2010, Plaintiff, under the supervision of the DEA, participated in a controlled drug transaction involving one pound of methamphetamine. This transaction led to criminal charges being filed against defendants in United States v. Jose Diaz, et al., No. 10-cr-199 ("United States v. Diaz").

On October 27, 2010, the U.S. Attorney's Office filed a motion for material witness warrant pursuant to 18 U.S.C. § 3144. See Case No. 10-cr-199, docket entry [54]. The motion was accompanied by a sworn affidavit from Defendant Stephen Kubiatowski ("Kubiatowski"), who at the time was an Assistant U.S. Attorney for the Northern District of Illinois. Kubiatowski identified Plaintiff by name as a cooperating source who had posed as a buyer of one pound ofmethamphetamine. Kubiatowski represented that Plaintiff's "testimony was a critical piece of the government case" and that it was necessary to detain Plaintiff on a material witness warrant because Plaintiff was facing imminent deportation proceedings and would be outside the court's jurisdiction by the time United States v. Diaz was tried. [147] at 8. On November 3, 2010, Judge Castillo issued a material witness arrest warrant for Plaintiff.

On November 10, 2010, Special Agent Roecker arrested Plaintiff as a material witness. Plaintiff was transported to the United States Marshals Service ("USMS") lock-up in downtown Chicago, Illinois. Plaintiff was not taken to a court hearing as stated in the warrant. Instead, Plaintiff spent approximately seven hours in a counsel client interview room without access to water, food, or restroom facilities. Plaintiff was then booked and processed, patted down, and placed in shackles, handcuffs, and a belly chain.

Next, Plaintiff was transported to the Ozaukee County Jail ("Jail") in Port Washington, Wisconsin. Defendant Jeffrey Sauer ("Sauer") was the Ozaukee County Jail Administrator. Defendants Scott Smith ("Smith"), Eric Sager ("Sager"), Stan Griffin ("Griffin"), Brad Kittinger ("Kittinger"), Charles Frechette ("Frechette"), Richard Seidemann ("Seidemann"), Brian McInnis ("McInnis"), and Cory Jepson ("Jepson") were all Deputies at the Jail (collectively, the "Jail Deputies"). Plaintiff was required to undergo a strip search when he entered the Jail and each time he was returned to the Jail from a court hearing. Upon information and belief, Ozaukee County, the Ozaukee County Department of Corrections, Sauer, and the Ozaukee County Sheriff Maury Straub ("Straub") maintain a written or de facto policy, custom or practice of strip-searching and placing in jail clothing every individual who enters the custody of the Jail, regardless of whether there is reasonable suspicious to believe that the individual is concealing a weapon or contraband. Upon information and belief, they also maintain a written or de factopolicy, custom, or practice of conducting a visual body cavity search of every individual who enters their custody, regardless of the characteristics of the individual, the circumstances of the arrest, or the nature of the charged crime. Upon information and belief, Ozaukee County, Straub, and Sauer tolerated, authorized, or ratified a systemic pattern by their employees of covering up unlawful strip searches.

While Plaintiff was incarcerated, the Jail, the Jail Deputies, and Sauer denied him regular and timely access to the law library and failed to provide him with contact information for the U.S. Attorneys' Office or the District Court for the Northern District of Illinois. Plaintiff sent written requests to these defendants for information and the majority of his requests went unanswered. Upon information and belief, the defendants restricted Plaintiff's library time because the library contained only one computer and five books on state law and no more than one detainee could use the library at a time. The waiting time to use the library was almost two weeks.

On November 15, 2010, the federal district court held an initial hearing on Plaintiff's detention. An attorney from the Federal Defendant Program, Paul Flynn, was appointed to represent Plaintiff at the hearing. During the hearing, Flynn expressed concern that he had a conflict of interest. Plaintiff did not knowingly and voluntarily waive his right to counsel. The assigned Magistrate Judge ruled that Plaintiff would remain detained pending a detention hearing on November 19, 2010. On November 18, 2010, Plaintiff tested positive for tuberculosis ("TB"). The next day, Plaintiff was taken to Chicago for his detention hearing. He was required to wear a mask and to be held in a separate cell from other incarcerated criminal defendants. Plaintiff returned to the Jail following the hearing.

Upon his return to the Jail, Plaintiff was no longer required to wear a mask and was returned to the general population. Plaintiff was tested for TB again and, on November 22, 2010, the results came back negative. Between November 22, 2010 and January 11, 2011, Kubiatowski did not file biweekly reports with the District Court as required by Rule 46(h)(2) of the Federal Rules of Criminal Procedure. After Plaintiff had been detained for about two months, he went on a hunger strike. His intention was to force someone to respond to his request for information regarding his detention.

On January 11, 2011, a status hearing was held on Plaintiff's detention. The hearing was continued until January 13, and then again until January 27. On January 27, the Magistrate Judge held the detention hearing and ordered Plaintiff's release from the Jail. Plaintiff was transported back to the Jail in shackles, handcuffs, and a belly chain and was strip-searched upon his arrival at the Jail. Plaintiff was detained at the Jail until February 1, 2011. That day, he was transported to Chicago in shackles, handcuffs, and a belly chain. Plaintiff was then released from custody.

On December 11, 2011, Diaz entered a plea of guilty to the charges brought against him in United States v. Diaz.

According to Plaintiff, Kubiatowski's actions exposed Plaintiff to the risk of retaliation and proximately caused retaliation against him. Plaintiff fears being harmed or killed by drug trafficking organizations. He alleges that he has suffered severe and lasting emotional and mental distress and lost past and future income as a result of Kubiatowski's actions. Plaintiff also fears that he could be arrested and detained again as a material witness. Finally, Plaintiff claims that he was promised a non-deportation agreement but government officials have instead denied him protection and barred his attempts to receive relief from deportation.

II. Procedural History

On June 13, 2012, Plaintiff filed a pro se twenty-five count complaint [14] against various federal agencies and employees (including Kubiatowski), Ozaukee County and its employees (including Straub and Sauder) , Lake County and its employees (the "Lake County Defendants"), and the Village of Round Lake Beach ("Village") and its employees (the "Village Defendants"). On May 17, 2013, Plaintiff filed an amended complaint [17] with leave of the Court. The amended complaint eliminated all of the federal government defendants except Kubiatowski. It also named as defendants: (1) Ozaukee County, Straub, Sauder, and Does Ozaukee County Jail Deputies 1-8; (2) Lake County, its Sheriff Mark Curram ("Curram"), and Does Lake County Jail Deputies 9-13; and (3) the Village, its Police Chief Gary Bitler ("Bitler"), and its Police Officers Kenneth Coppes ("Coppes"), Patrick Murray ("Murray") and Michael Barr (...