MEMORANDUM OPINION AND ORDER
Plaintiff Jonathan Grayson
The remaining defendants (the City of Aurora, Wallers, Robertson, and West)
BACKGROUND
The Court takes the following facts from the parties’ Local Rule 56.1 statements and exhibits. The facts are undisputed unless expressly noted.
A. The Underlying Incident
Just before 6 a.m. on August 24, 2000, Aurora Police Officers Lawrence Suttle, Brian Pierce, and Jeff Schoeberlen received and responded to a report of gunshots near the Lincoln Laundromat at 15 S. Lincoln Avenuew in Aurora, Illinois. (Def. 56,1 St. ¶3.) The officers encountered Shaun Miller, Leroy. Starks, and Marilou Alvoradp once they arrived on scene. (Def. 56.1 St. ¶ 4.) Miller was nonresponsive
After ambulances and emergency vehicles arrived on scene, Alvorado left and later returned. (Def. 56.1 St. ¶ 10.) The reason for her departure is disputed: at Grayson’s criminal trial, Alvorado testified that the police took her to the station in handcuffs because she was not cooperative, while in her 2014 deposition, she stated she was never forced to speak.’ (PI. Resp. ¶ 10; 2014 Alvorado Dep. at 337-38.) Alvo-rado returned to the scene with Maurice and Melissa Matthews. Pierce documented in a report that Maurice yelled that Alvo-rado had told him that Flip was the shooter. (Def. 56.1 St. ¶ 11.) Grayson has used the nickname Flip since he was a child. (Def. 56.1 St. ¶ 12.)
B. The Investigation
1. Leroy Starks
Officer Marshall Gauer spoke with Starks in the hospital the morning of the
On August 25, 2000, Aurora police interview Starks at the hospital again. (Def. 56.1St. ¶ 41.) Starks told Wallers that the shooter was about 5’9‘, had big eyes and a big nose, and was wearing a white striped shirt and purple shorts, which was different than Alvorado’s account. (Def. 56.1 St. ¶41.) Starks did not tell Wallers.that he knew who the shooter was or that it was someone he knew as Flip, but eventually selected Grayson’s photo from a lineup. (PI. Resp. ¶ 41; Def. 56.1 St. ¶ 42.) Grayson contends that in the lineup Wallers showed Starks, he had the biggest eyes.
Starks’s identification of Grayson without telling officers his name raises factual issues. Starks testified that he told his brother that Flip shot him while he was in the ambulance, yet he neglected to tell police officers either of the first two times he was interviewed. Moreover, Starks stated that he had met Grayson once, while Grayson testified that he knew Starks before the shooting and had interacted with him multiple times. (Def. 56.1 St. ¶ 45; PI. Resp. ¶ 45.) Alvorado’s description of their relationship fell much closer to Grayson’s interpretation.
2. Marilou Alvorado
Just after the incident on August 24, 2000, Alvorado spoke to Suttle and told him that she had been with Miller and Starks. (Def. 56.1 St. ¶7.) The parties heavily dispute whether Alvorado was present for the shooting. Alvorado stated she was, but -Starks maintained that Alvo-rado was not in the vicinity during the actual shooting because she left to make a phone call. (PI. Resp. ¶ 93.) Suttle’s police report stated that Alvorado described the shooter as a 5’8” Black male wearing tan pants, a flannel shirt, and black headwear. (PI. Resp. ¶7.) Alvorado also told Suttle that she recognized the shooter but did not know his name. (Def. 56.1 St. ¶ 7.) Suttle’s report indicated that there were no other witnesses directly on scene when he took Alvorado’s statement. (Def. 56.1 St. ¶ 7.) Alvorado later testified that she was afraid to name Grayson as the shooter because she believed the police would not be able to take him into custody right away.
At the hospital, Gauer wrote a report stating that Melissa told him to look for Peanut and Flip. (Def. 56.1 St. ¶ 25.) However, in this same conversation, Alvorado told Gauer that “it wasn’t Flip because he wasn’t tall enough.” (Gauer Dep. at 81.) Alvorado proceeded to meet with police at least three times concerning the incident. (Def. 56.1 St. ¶ 27.) In her first interview
- On August 26, 2000, Alvorado contacted Wallers and told him she had been approached by Greene, who told her that Grayson had called him from jail and informed him that Alvorado had implicated the two of them in the shooting. (Def. 56.1 St. ¶ 56.) Alvorado went to the police station to look at some photo lineups after telling officers she could identify the shooter if she saw him. (PI: Resp. ¶ 57.) Alvora-do did not identify Grayson as the shooter either in a photo lineup or a more general “Gang Book,” but when Wallers asked her if she. saw Flip (Grayson) in the Gang Book, she pointed him out. (Def. 56.1 St. ¶ 57.) Alvorado. did, however, positively identify Greene in another photo lineup, despite the fact that he was not in custody and had in fact just confronted her about the incident. (PI. Resp. ¶ 57.)
Alvorado. spoke with Wallers again on August 29, 2000. (Def. 56.1 St. ¶80.) Alvo-rado gave a videotaped statement where she finally identified Grayson as the shooter, although the parties dispute whether Wallers interviewed her beforehand. (Def. 56.1St. ¶ 80; PI. Resp. ¶ 80.) Even during this interview, Alvorado failed to identify Grayson as the shooter her first try. When Wallers initially presented Alvorado with the photo lineup containing Grayson’s picture, she said she did not see the shooter. (PI. Resp. ¶ 80.) Wallers then asked if Al-vorado recognized anyone in that lineup, and she said she knew Flip (Grayson). (PI. Resp. ¶ 80.) Wallers eventually asked Alvo-rado again if she recognized Flip, to which she replied in the affirmative, and then he again asked if Flip shot Miller and Starks. At this point, Alvorado said yes. (PI. Resp. ¶ 80.)
Alvorado’s failure to identify Grayson as the shooter from the beginning raises a factual dispute. The Defendants characterize her hesitance as emanating from fear, but Alvorado’s identification of Greene while he was not in custody conflicts that theory. What is undisputed is that Alvora-do knew Grayson well; for about four months in 2000, Grayson kept some belongings at Alvorado’s home and sometimes slept, ate, and showered there. (Def. 56.1St. ¶ 81; PI. Resp. ¶ 81.) Grayson was a close friend of Alvorado’s boyfriend, but she kicked him out of her home around two months before the incident. (PI. Resp. ¶ 81.) ■
After Grayson’s conviction, Alvorado was permitted to leave' the state despite being on probation. The Defendants contend that Alvorado was not given any money or consideration in exchange for her testimony, but Commander Nelson of the Aurora Police Department testified that Alvorado did, in fact, receive consideration for her cooperation but he-did know what it was. (Def. 56.1 St. ¶ 113; PI: Resp. ¶ 113.)
3. Melissa Matthews
Melissa was not a witness to the shooting and any information from her was only gained from Alvorado. (PI. Resp. ¶ 25.) On August 24, 2000, Officer West interviewed Melissa twice, despite her lack of involvement with the shooting. (Def. 56.1 St. ¶31; PI. Resp. ¶ 31.) West testified that his police report stated that Matthews told West that although she did not have personal knowledge of the incident, Alvorado had told her that the shooter looked like Flip but was taller. (Def. 56.1 St. ¶ 31.)
On August 27, 2000, West interviewed Melissa at the Kane County Correctional
4. Karen Langley
Langley awoke to gunshots the morning of the shooting. (PI. Resp. ¶ 16.) She called the police just before she heard a “commotion” and “footsteps like people running.” (PI. Resp. ¶ 16.) Around twenty minutes after the shooting, Officer Darrel Moore canvassed the area surrounding the Lincoln Laundromat. (Def. 56.1 St. ¶ 14.) He spoke to Karen Langley, who lived in an apartment next to the Laundromat., (Def. 56.1St. ¶ 14; PI. Resp. ¶ 14; PI. Resp. ¶ 16.) Langley does not remember speaking to any police officer in person the day of the incident, but Moore’s canvass report states that Langley told him she heard six gunshots, observed a Black male wearing a white no sleeve shirt and black pant's near her residence, and laughter. (Def. 56.1 St. ¶¶ 15,17.) Moore’s canvass report was disclosed to Grayson’s 'criminal defense attorney. (Def. 56.1 St. ¶ 17.)
She cannot remember all the details, but Langley does remember calling 911 after she heard the gunshots where she told the operator she had heard a number of gunshots. (Def. 56.1 St. ¶ 18.) Langley’s 911 call was disclosed to Grayson’s criminal defense attorney. (Def. 56.1 St. ¶ 18.) However, Langley additionally testified that she called the non-emergency number of the Aurora Police Department about an hour after her 911 call and reported to the operator a recount of what she had seen. (PI. Resp. ¶ 15.) Langley’s apartment was near the back of her -building and she did not have a view out toward the front. (Def. 56.1St. ¶ 16.) Instead,; Langley had á- direct view of the rear porch of the Ballines’ residencé,' the house across the way from her window. (PI. Resp. ¶ 16; PI. 56.1 St. ¶6.) Langley testified that she told the non-emergency operator that, after the shooting, she. saw a cab pull up to the home.across the alley from her house and two Hispanic males climbed in the back seat and laid down in a suspicious manner. (PI.- Ex. IS, Langley Dep. at 10; Def. 56,1 St, ¶ 21.) The operator transferred Langley to who she believed was a detective working on the case.
5. Jennifer Pitts
Around 9 a.m." the morning of the shooting, Officers Thompson and Hester located
6. Carlos Aguilera
At 10:15 p.m. on August 24, 2000, Wal-lers interview Aguilera. (Def. 56.1 St. ¶ 35.) In the interview, Aguilera stated that he saw two men run toward the back of his apartment building next to the Laundromat after he heard gunshots. (Def. 56.1 St. ¶37.) Wallers showed Aguilera a photo lineup with Grayson’s picture in it, but Aguilera did not identify him. (Def. 56.1 St. ¶ 38.) In fact, Aguilera identified a lineup “filler.” (Def. 56.1 St. ¶38.) Wallers found Aguilera credible after his interview. (Pl. Resp. ¶ 39.)
C. The Interrogations
Detective Richard Roberston arrested Grayson on August 26, 2000. (Def. 56.1 St. ¶ 46.) At the time, Aurora police were able to decide when to start recording a witness statement; there was no mandate to record all interaction. (Def. 56.1 St. ¶ 47; Pl. Resp. ¶ 47.) Robertson took Grayson to the precinct and Grayson eventually signed a Miranda rights waiver, although Grayson testified that he was not read his Miranda rights until after the officers started recording an already-ongoing interview. (Def. 56.1 St. ¶ 48; Pl. Resp. ¶48.) A portion of Grayson’s first interrogation was videotaped, starting at 6:08 a.m. on August 26, 2000. Grayson told the interviewing officers that he was sleeping in a friend’s garage at the time of the shooting and that he had heard that Greene or Adrian Moore shot at some rivals near the Laundromat. (Def. 56.1 St. ¶ 49.) While Wallers created photo lineups with Greene’s and Moore’s photos in them based on Grayson’s statement
Grayson asserts that Wallers interrogated him at length before starting the recording and that, although he denied any involvement in the shooting, he felt like he needed to implicate other people based on the officers’ feeding him information. (Pl. Resp. ¶ 51.) Grayson maintains that West told him he needed to place himself in the crime in order to help himself. (Pl. Resp. ¶ 52.) He testified that West and Wallers gave him some words to go off of and that he supplemented their version when he was being recorded. (Pl. Resp. ¶ 52.) Gray-son further testified that the officers would only record his statement once he had said what they wanted him to say. (Pl. Resp. ¶ 52.)
Wallers interrogated Grayson again on August 27, 2000 around 6 p.m. (Def. 56.1 St. ¶ 59.) Grayson told Wallers that he saw Greene do the shooting and, when confronted, Grayson broke down and asked to end the interview. (Def. 56.1 St. ¶ 59.) Later that same day, Grayson contends that when speaking with West unrecorded, West told him that if he would help them, West would help him and send him home. (Def. 56.1 St. ¶ 60.) Grayson then provided a second recorded statement. (Def. 56.1 St. ¶61.) This time, Grayson stated that he was present on scene while Adrian Moore was responsible for the shooting, but Gray-
Grayson had his initial hearing on August 28, 2000 and spoke with West directly thereafter. (Def. 56.1 St. ¶ 70.) This third interview was also recorded, although the parties dispute whether it was recorded in its entirety. (Def. 56.1 St. ¶ 71; PI. Resp. ¶ 71.) In his third statement, Grayson reverted to his original story and told West that his original alibi was true and that his other statements were false. (Def. 56.1 St. ¶ 72.)
Regarding his treatment while in Aurora’s custody, the parties do not dispute that the officers did not physically abuse Grayson. (Def. 56.1 St. ¶ 73.) However, he was occasionally forced to wait to use the restroom and Grayson claims he received severely inadequate food. (Def. 56.1 St. ¶ 73; PI. Resp. ¶ 73.) Grayson testified that during those first three days, he was “starving” and consistently asked' for food but was denied. (PL Resp. ¶ 73.) In 2001, Grayson’s I.Q. test returned a score'of 89 and indicated that he was not mentally disabled. (Def. 56.1 St. ¶ 124.) However, he received borderline scores for verbal I.Q. and struggled in his knowledge of conventional social standards and his ability to pay attention. (PI. Resp. ¶ 124.) The psychologist who conducted his test testifiéd that Grayson may have issues interacting with people, expressing himself, and approaching interrogations. (PL Resp. ¶ 124,) Grayson had only gone to school through the sixth grade- and was placed in special education classes. (PL Resp. ¶ 124.) The psychological test did demonstrate that Grayson could likely understand the jeopardy associated with custodial interrogation. (Def. 56.1 St. ¶ 125.) However, Gray-son scored' well below the mean regarding his 'understanding of the protections related to the right to remain silent. (Pl. Resp. ¶ 125.)
D. Grayson’s Criminal Trial
Leading up to trial, Aurora police recovered a gun from Sergio Contreras that was forensically linked to the Laundromat shooting and a separate discharge of the same firearm. (Def. 56.1 St. ¶¶ 86-87.) Grayson’s criminal defense attorney was made aware of the gun’s existence, but Grayson asserts that Wallers did not ask any witnesses, connected with the other discharge any questions about the Laundromat incident. (PL Resp. ¶ 87.) Contreras testified at his deposition that he was unaware of the gun’s connection to the Laundromat until 2011. (Def. 56.1 St. ¶ 89.)
Grayson’s trial took place in August 2002 after the prosecution disclosed that Alvorado and Starks would identify him at trial. (Def. 56.1 St. 1190; PL Resp. ¶90.) Alvorado testified that she witnessed Grayson, alone, shoot Miller and Starks and that he proceeded to point his gun at her and pull the trigger on an empty magazine.
' There was no physical or forensic evidence tying Grayson to the incident. Nevertheless,' Grayson was convicted and the Illinois Court of Appeals. affirmed over Grayson’s challenge to the sufficiency of the evidence. (Def. 56.1 St. ¶ 94.) In so holding, the appellate court noted that Al-vórado’s and Starks’s testimony and rendition of events conflicted but that “resolving such issues if the function of the jury[.]” (PL Resp. ¶ 94.)
E. The Re-Investigation
• The Aurora Police Department initiated a reinvestigation of the Laundromat incident in ■ 2011 based ■ on; in part, a letter from Ernesto Urzua. (Def. 56.1 St. ¶95.) Wallers eventually possessed the letter and passed it on to detectives John Munn arid Darrell Moore. (Def. 56,1 St. ¶ 96.) Urzua’s letter, along with any copies that ever existed, is missing. (Def. 56.1 St. If 97.) The Defendants claim that in the letter, Urzua stated he wanted to speak with a detective concerning old murders. (Def. 56.1 St. ¶ 98.) Grayson- disputes the content of the letter because he was never given an opportunity to inspect it and it is now missing. (PL Resp. ¶ 98.)
Munn and Moore visited Urzua in Staté-ville Correctional Center arid interviewed him on the Laundromat shooting. Urzua told the detectives that he was present when another individual, Quentin Moore, shot the individuals that Grayson was convicted of murdering. (Def. 56.1 St. ¶ 100.) The detectives shared this information with the Kane County State’s Attorney’s Office (“KCSAO”), and the KCSAO eventually conducted its own re-investigation. (Def. 56.1 St. ¶ 101; PI. Resp. ¶ 101.) At his deposition for this case, Urzua invoked his Fifth Amendment privilege against self-incrimination regarding' all substantive questions about the Laundromat shooting, but before the deposition, Munn and Moore testified that Urzua stated that he and Quentin were the only people responsible for the crime. (Def. 56.1 St. ¶ 102; PL Resp. ¶ 102.) Munn and Moore additionally visited Alvorado at her home, unannounced, and interview her. (Def. 56.1 St. ¶ 103.) The detectives testified that Alvora-do’s story was inconsistent and that she was' “not very cooperative^]” .(PL Resp. ¶ 103; Munn Dep. at. 119.) Munn and Moore stated that Alvorado told them there were two perpetrators involved in the shooting, but-Alvorado maintains that she never said that.
Officer Munn, an Aurora Police Department officer himself, testified that he did not find Starks’ original-identification right after the incident to be credible based on the area the shooting occurred in, the time of the incident, the lighting in the area, and accounts from other witnesses. (PI. Ex. 2, Munn Dep. at 148.)
F. Grayson’s Exoneration
The KCSAO moved to vacate Grayson’s conviction on March 6, 2012 and the charges were dismissed. (Def. 56.1 St. ¶ 112.) The State of Illinois issued Grayson a Certificate of Innocence in March 2014. (PI. Resp. ¶ 112.)
LEGAL STANDARD
Summary judgment is appropriate where the admissible evidence shows that no genuine dispute exists as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). “A ‘material fact’ is one identified by the substantive law as affecting the outcome of the suit.” Bunn v. Khoury Enters., Inc.,
In determining'whether a genuine issue of material fact exists, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Bunn,
DISCUSSION
The Defendants have moved for summary judgment on all of Grayson’s claims contained in his second amended complaint. They -primarily make five arguments in support of their motion: (1) Gray-son’s due process claim is legally deficient; (2) to the extent they made reasonable mistakes, the Defendants are entitled to qualified immunity; (3) the record does not demonstrate the lack of probable cause or the existence of malice for his state law malicious prosecution claim; (4) they were under no duty to secure the Urzua: letter; and (5) the remaining claims are primarily contingent and fall if they secure summary judgment on Grayson’s due process and malicious prosecution claims. The Court addresses Grayson’s claims in order.
A. Due Process Claim
Grayson asserts that the Defendants violated, his due process rights and deprived him of a. fair trial by withholding exculpatory evidence, using unduly suggestive identification procedures, fabricating evidence, and coercing him into giving false inculpatory statements. Grayson con
1. Exculpatory Evidence
Pertinent to the allegations here, police officers are liable if they withhold material exculpatory evidence. See Brady v. Maryland,
As discussed above, Langley testified that on the morning of the Laundromat shooting, she called 911 directly after hearing gunshots and, approximately one hour later, called the Aurora police department’s non-emergency line to disclose some suspicious behavior. Langley was a member of an Aurora neighborhood watch group at the time and was accustomed to calling this non-emergency line. She testified that she called the non-emergency line and was eventually transferred to a detective assigned to the Laundromat shooting. She recalled that the detective was a man, but could not remember his name. Langley testified that she told this detective that she witnessed two Hispanic men on the porch of Ballines’ residence across the alley from her window. She said she noticed them after the shooting and witnessed them crawl into a cab, lie down in the back seat, and leave the area after the police presence calmed down. She testified that she told the detective the name of the cab
At the very least, Langley’s detailed rendition of this event impeaches both Al-vorado’s and Starks’s version of the events that involved a single, Black shooter who ran off after the shooting. Such information, if elicited at trial, would be material because it would cast doubt on both eyewitnesses’ versions.
Of utmost importance is the fact that the Ballines’ potential involvement was never mentioned or disclosed on any police report to Grayson. (PI. 56.1 St. ¶ 15.) Langley testified that she told Aurora police' that the individuals were located on the Ballines’ porch when she saw them and it is undisputed that this revelation did not occur on the 911 call that was disclosed to Grayson before his trial. The Defendants contend that Grayson is to blame for not questioning Langley in anticipation of .his trial, see Stinson v. Gauger,
There is also evidence in the record that Alvorado received some form, of consideration in exchange for her cooperation and
2. Fabrication of Evidence. & Unduly Suggestive Identifications
A fabrication of evidence due process violation occurs when a criminal defendant is harmed by “the' police or prosecutor [who] manufactures evidence that he knows to be false.” Petty v. City of Chicago,
For these same reasons, there is also no , evidence, aside from Grayson’s speculation, that the Defendants used unduly suggestive procedures when presenting photo lineups to Starks and Alvorado. Although Starks’s and Alvorado’s delayed identifications of Grayson as the shooter were odd and potentially not credible (as addressed below), based on the evidence that they both knew him and knew him well, there is nevertheless no indication that the Defendants overtly pressured either witness, forced them to identify Grayson, or used
3. Coerced False Confession
Grayson contends that the conditions surrounding his custodial interrogations were unduly coercive and led to false incul-patory statements brought out by the Defendants. The Defendants maintain that the record belies Grayson’s coerced confession claim and that, even if there were factual disputes, his claim is time-barred. A review of Grayson’s testimony concerning his interrogations with Wallers and West and the criminal trial mandate a denial of summary judgment in this, regard. . ■ .
The voluntariness of a confession “is a question of fact to be determined from-the totality of all the circumstances.” Schneckloth v. Bustamonte,
A confession is voluntary and admissible where the totality of the circumstances demonstrate that “it is the product of a rational intellect and free will and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant’s free will.” United States v. Vallar,
First and foremost, Grayson testified that Wallers and. West told him he could go home in exchange for “helping them” and giving them the name of the shooter. Grayson attempted to comply by placing himself in the crime and telling the officers that he was present at the Laundromat when Adrian Moore shot Miller and Starks, but the officers refused to accept, his narrative. Although there is nothing improper about delving deeper into Grayson’s alibi in theory, falsely promising lenience is enough to create a jury question over' whether Grayson’s will was overborne in the course pf his interrogation. See Stadfeld,
Read together and taken in conjunction with Grayson’s statements that Wallers and West intentionally fed him details of the crime and only recorded his interrogation sessions when his statements matched what they told him, a reasonable jury could conclude that his “will was overborne at the time he confessed.” See Reck v. Pate,
Although two witnesses, Alvorado and Starks, both testified at Grayson’s trial in addition to the prosecution playing Grayson’s recorded statements, their testimony was inconsistent and conflicted with that of the other. The Illinois appellate court went as far as to recognize that Alvorado’s and Starks’s testimony and rendition of events conflicted but that “resolving such issues is the function of the jury[.]” (PI.’ Resp. ¶ 94.) Accordingly, the Court cannot say as a matter of law that Grayson’s shifting, inculpatory statements did not play a major role in his conviction. Additionally, viewing all disputed facts in the light most favorable to Grayson as the Court must, the Defendants fed Grayson substantial portions of his inculpating statements and they were untrue. For these two reasons, Grayson’s coerced confession allegations are timely. See, e.g., Chatman v. City of Chicago, No. 14 C 2945,
Because genuine issues of disputed fact cloud whether the Defendants unduly coerced Grayson into placing himself in the crime, the Court dénies summary judgment on his' due process claim for this reason as well.
4. Qualified Immunity
The Defendants’ qualified immunity argument is truncated and essentially merely describes the general law concerning the availability of the defense. See de la Rama v. Ill. Dep’t of Human Servs.,
Waiver aside, ány properly supported qualified immunity argument with respect to Grayson’s Brady allegations would fail. The Court applies a two-part test when determining if a government actor is entitled to qualified immunity. “First, a court must decide whether the facts that a plaintiff has alleged make out a violation of a constitutional right. Second, if the plaintiff has satisfied this first step, the- court must decide whether thé right at issue was clearly established at the time of defendant’s alleged misconduct.” Pearson v. Callahan,
When allegations revolve around whether police officers failed to disclose Brady evidence, the qualified immunity question focuses on whether it was clearly established that the information that Gray-son contends the Defendants failed to disclose had to be turned over as exculpatory or impeaching. See Carvajal,
B. Supervisory Liability Claim
Grayson does not oppose the Defendants’ motion with respeeLto his claim for supervisory liability. The Court accordingly dismisses this claim,
C. Failure to Intervene Claim
The Defendants’ brisk argument for summary judgment on Grayson’s failure to intervene claim rests on a contingent finding that Grayson’s due process claim fails. Because the Court declines to grant summary judgment on the majority of the due process claim, the Court similarly denies the Defendants’ motion with respect to the failure-to intervene claim.
D. Conspiracy under Section 1983 Claim
In his second amended complaint, Gray-son brought a conspiracy claim, alleging that the Defendants reached an internal agreement to frame Grayson for the Laundromat shooting and deprive him of his constitutional rights. The Defendants argue that because there is no evidence of an underlying constitutional violation or evidence of an agreement amongst themselves, Grayson’s conspiracy claim fails. The Court has already concluded that the former argument is unsuccessful, but the latter has merit.
First and foremost, Grayson did not offer any meaningful response to the Defendants’ position that there is no evidence of an agreement and therefore waived any argument. See Bonte v. U.S. Bank, N.A.,
E. Malicious Prosecution Claim
In order to prove malicious prosecution pursuant to Illinois law, a plaintiff must establish the following elements: “(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.” Swick v. Liautaud,
Probable cause is a complete defense to a claim for malicious prosecution. See Logan v. Caterpillar, Inc.,
The Defendants argue that although they had no physical evidence tying Grayson to the Laundromat shooting, they had two credible eyewitnesses: Alvorado and Starks. The circumstances surrounding both witnesses, however,.raise genuine issues of material fact over the credibility of the witnesses’ statements- and reasonableness in relying on those statements that make a finding of probable cause as a matter of law inappropriate.
First and foremost, Alvorado’s eyewitness statement that she saw the shooter at the timé of the incident is fraught with credibility and reliability concerns. Most fundamentally, there are genuinely disputed facts regarding whether Alvorado even saw the shooting. See, e.g., Jimenez,
Starks’s identification, albeit a closer call, likewise presents factual issues regarding its credibility and reliability. According to Alvorado, Starks knew Grayson well and spent time with him at Alvorado’s house frequently. Accepting this fact in the light most favorable to Grayson, which here would be that Starks did know Gray-son, his delayed identification is odd and there is no record evidence whatsoever where he or any officer explains why Starks was unable to tell officers who the shooter was right away. In addition, Munn, an Aurora officer himself, testified that he did not find Starks’s identification credible based on other witness reports, the area of the shooting, and the lack of lighting in the alley. “The question of probable cause is typically a proper issue if there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them.” Sornberger v. City of Knoxville,
Without the identifications of Alvorado or Starks, the Defendants had little, if anything, to base their charge on. Because the Court is not convinced that the undisputed facts conclusively show that probable cause to charge Grayson was present, the question of whether the Defendants had probable cause to charge and prosecute Grayson will remain for the jury.
Regarding the Defendants’ second challenge, “[m]alice is defined as the initiation of a prosecution for any reason other than to bring a party to justice.” Rodgers v. Peoples Gas, Light & Coke Co.,
The Court finds that there is enough evidence, when viewed in the light most favorable to Grayson, to give rise to a
F. Negligent Supervision Claim
Grayson does not oppose the Defendants’ motion with respect to his claim for negligent supervision. The Court accordingly dismisses this claim.
G. Conspiracy under Illinois Law Claim
For the same reasons the Court grants summary judgment on Grayson’s federal conspiracy claim, it correspondingly grants summary judgment to the Defendants on his state conspiracy claim.
H. Intentional Infliction of Emotional Distress Claim
Grayson alleged that, in the course of his arrest, interrogations, and prosecution, the Defendants subjected him to the intentional infliction of emotional distress. The Court grants the Defendants’ motion for summary judgment on this claim because Grayson’s claim is untimely. In Illinois, the Tort Immunity Act imposes a one-year statute of limitations period on intentional infliction of emotional distress claims. See 745 ILCS 10/8-101(a). Claims for intentional infliction of emotional distress stemming from an arrest or prosecution accrues on the date of the arrest.
I. Respondeat Superior Claim
Grayson does not oppose the Defendants’ motion with respect to his claim for respondeat superior. The Court accordingly dismisses this claim on this basis and because respondeat superior is not avail
J. Indemnification Claim
The Defendants’' sole argument for summary judgment on Grayson’s indemnification claim is that there is no underlying liability. The Court has denied the Defendants’ motion with respect to the underlying violations and' therefore denies the Defendants’ motion with respect to Grayson’s indemnification claim as well. Moreover, Illinois law makes local municipalities, .including the City of Aurora, liable for the payment of any tort judgments entered against one of its employees so long as the employee was acting within the scope of his employment. See 745 ILCS 10/9-102; see also Argento v. Vill. Of Melrose Park,
K. Spoliation Claim
Grayson brought an Illinois state law spoliation claim for the missing Urzua letter. Grayson contends that “[t]he facts surrounding the missing Urzua letter are damning[,]” and that it is impossible to believe that Wallers did not read the letter when he had access to it. (Dkt. No. 187 at 51-52.) To prove a spoliation claim, a plaintiff must demonstrate that: “(1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant -breached that duty by losing or. destroying the evidence; (3) the loss or destruction of the evidence was the proximate cause of the plaintiffs inability to prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual damages.” Martin v. Keeley & Sons, Inc.,
At the outset, the Court notes that Grayson failed to address the Defendants’ challenge to his ability to prove the third element of his spoliation claim and has accordingly waived any argument. See Bonte,
L. Conspiracy to Deny Access to Courts Claim
The Defendants contend that Grayson’s claim for 'conspiracy to deny access to courts is merely a restyled incantation of his state law spoliation claim. Grayson agrees with this characterization and offers no argument against summary judgment aside from reincorporating his state law spoliation position. The Court therefore grants summary judgment on this claim for the same reasons it granted summary judgment on Grayson’s spoliation claim. ■
CONCLUSION
“Where the parties present two vastly different stories — as they do here — it is almost certain that there are genuine issues of material fact in dispute.” Payne,
Notes
. At the time of the underlying investigation and conviction, Grayson went by the name Jonathan Moore.
. ' Grayson voluntarily dismissed Kearbey, Gumz, Thompson, Kinney, and Soto as defendants in his response to the Defendants’ motion for summary judgment. (Diet. No. 187 at 30 n.30.)
. The City of Aurora’s motion for summaiy judgment is granted in all respects except for Grayson's Illinois state law indemnification claim.
. Miller died from the gunshot wounds he suffered on August 24, 2000.
. This statement, however, is directly contradicted by her later identification of Eric Greene, who was not in custody.
. Wallers claims he never interviewed Langley nor listened to the 911 tape during his investigation. In viewing the facts in the light most favorable to Grayson, the Court accepts that either Wallers or another detective on the Laundromat case spoke with Langley. Wal-lers, as the lead detective, was tasked with maintaining the worldng file on the case. (PI. 56.1 St. ¶ 23.)
. Starks positively identified Greene in a photo lineup while he was in the hospital. (Def. 56, l St. ¶ 75.)
. Grayson also testified that the officers fed him the caliber of the murder weapon, and when they gave him the wrong caliber initially, they demanded he change the caliber of gun in a recorded interrogation. (PL Resp. ¶ 63.)
. Alvorado testified slightly inconsistently at her -2014 deposition. She stated that the shooter shot at her and Starks first, then unloaded the rest, of his ammunition on Miller. (2014 Alvorado Dep. at 121.)
. Munn's written statement that Alvorado told him in this in 2011 would be inadmissible hearsay. Moreover, even if Alvorado testified at trial that she told the Aurora police this information in 2000, her statement would still constitute hearsay without any exception because it would be offered for the truth- of the matter asserted; that is, that she did in fact tell police that information,
. The Defendants contend that Alvorado’s testimony was totally impeached by Starks when he testified that Alvorado was not present when he was shot. Langley’s account, however, would cast doubt on Starks's version of events as well.
.Additionally and as discussed at length above, Grayson testified that Wallers and West fed him testimony and coerced a false confession out of him. If a jury believed Gray-son’s account, and a reasonable jury could, this could constitute evidence of malice as well. See, e.g., Jimenez v. City of Chicago,
. The Seventh circuit additionally foreclosed the argument that intentional infliction of emotional distress constitutes a continuing tort or violation. See Bridewell,
. Grayson cites to another court in this District for the proposition that intentional infliction of emotional distress claims accrue after the invalidation of the underlying conviction. See Rivera v. Lake County,
. The Court’s ruling does not foreclose the possibility of Grayson pursuing a missing evidence instruction at trial. See Russell v. Nat’l R.R. Passenger Corp.,