Memorandum Opinion and Order
Bennie -Starks spent .twenty years in prison for a 1986 rape and assault that he says he did not- commit.- In this suit-Starks alleges that Waukegan police officers William Biáng, David Deprez, and
Everyone except Starks has moved for summary judgment. Docs. 309, 312, 316, 319, 325, 329. Thomas-Boyd also has moved the court to declare Illinois’s certificate of innocence statute, 735 ILCS 5/2-702, unconstitutional, Doc. 386, and the Attorney General of Illinois has intervened to defend the statute’s constitutionality, Docs. 399, 401. For the following reasons, Dentist Defendants’ and NIRCL’s summary judgment motions are granted, Waukegan Defendants’ and Thomas-Boyd’s summary judgment motions are granted in part and denied in part, and Thomas-Boyd’s motion to declare the Illinois certificate of innocence statute unconstitutional is denied as moot.
Background
Starks is the primary non-movant, so the following facts are set forth as favorably to him as the record and Local Rule 56.1 permit. See Hanners v. Trent,
In the 1986 trial, which was conducted by the Circuit Court of Lake County, Illinois, a jury found Starks guilty of the January 1986 battery and rape of a 69-year-old woman in Waukegan. People v. Starks,
On. the night of January 18, 1986, the victim stepped outside her apartment for some fresh air when, she says, she was
A caseworker from the Illinois Department of Public Aid testified at Starks’s trial that the victim had told her that she had not actually been raped and had lied to police and medical personnel because she wanted Starks “to pay for beating her up.” Doc. 352 at ¶ 3; Doc. 313-5 at 78-79. At trial, the victim gave confused and contradictory testimony about what happened the night in question. Starks II,
Police recovered the trench coat and watch from the ravine, along with a scarf and a pair of gloves found in the coat. Doc. 356 at ¶ 6. A dry cleaning ticket in the coat eventually led police to identify Starks as its owner. Id. at ¶ 7. On January 21,1986, Starks voluntarily went to the Waukegan police station, signed a Miranda waiver, and spoke to Biang. Doc. 360 at ¶ 7. Starks admitted that the trench coat was his, and that on the night of the attack he was carrying a red bag containing a sweater he had purchased earlier that day. Id. at ¶¶ 2, 7. Several witnesses testified at trial that they had seen Starks in various taverns that night with both the trench coat and the red bag. Doc. 313-4 at 146-177. Starks told Biang that he had been robbed of the coat and watch, along with some cash and other items. Doc. 360 at ¶ 7. Starks also told Biang that he had been robbed of the red bag, but Biang’s police report indicated that Starks said that he had left the red bag at his mother’s house before the robbery. Ibid.; Doc. 360-1 at 25-26, 28-29 (Starks’s January 22, 2014 deposition testimony); id. at 136-138 (Biang’s January 21, 1986 report). Biang’s report was not admitted into evidence at trial, but his testimony was consistent with what he wrote in the report. People v. Starks, No. 2-86-1021,
After taking’ Starks’s statement, Biang and Juarez went to the hospital to interview the victim. Doc. 356 at ¶ 9. The victim had earlier .described her assailant as a clean-shaven African-American male around 18 or 19 years old; Starks at the time was 26 and had a .mustache and beard. Doc. 360 at ¶¶ 2-3. Nevertheless, when Juarez showed the victim a photo array, she fingered Starks. Doc. 356 at 19. The photo array was not introduced into evidence at trial -and has since been destroyed. Doc. 360 at ¶¶ 13-14. Neither Juarez nor the victim referred to the photo array at trial; the victim identified Starks in court as her attacker. Doc. 356 at ¶¶ 34-35; Doc. 360-2 at 87; Doc. 313-4 at Í14.
Biang returned from the hospital and arrested Starks, whom Biang noticed had scratch marks on his body. Doc. 356 at ¶ 10; Doc. '352 at ¶ 7. The next morning, Deprez asked Starks how he had gotten scratched; according to Deprez’s notes, Starks responded, “I must’ve fell somewhere.” Doe. 360 at ¶ 19; Doc. 360-1 at 214-215 (Deprez’s January 22, 1986 re
A grand jury indicted Starks on February 5, 1986. Doc. 360-1 at 188. Juarez, the only witness at the grand jury proceeding, testified that the victim identified Starks’s picture from the photo array and, in response to a grand juror’s question, added that the victim had “[n]o hesitation on her identi[fication] of [Starks], no.” Doc. 360-1 at 186, 188 (Juarez’s grand jury testimony). Juarez further testified that Starks’s picture had been included in the array because he “was at the scene” and because police had found his trench coat, gloves, and scarf in the ravine where the victim was attacked. Id. at 187. Juarez also told the grand jury that “there was a laundry tag located [in the trench coat] and we were able to trace the laundry tag to the cleaners and the cleaners were able to tell us who that customer had been.” Ibid. At trial, however, Juarez testified Only that the victim had told him that her attacker was 18 or 19 years old and clean shaven. Doc. 360-2 at 94; Doc. 313-5 at 85-87 (Juarez’s trial testimony).
Meanwhile, having noticed what appeared to be a bite mark on the victim’s shoulder, Biang contacted Schneider on January 22, 1986 (the day after Starks’s arrest) to serve as a forensic dental consultant on the case. Doc. 360 at ¶¶ 27-28; Doc. 349 at ¶ 34. Biang accompanied Dentist Defendants to the hospital later that day, where they saw the bite mark and helped another officer take pictures of it. Doc. 360 at ¶30; Doc. 349 at ¶ 39. Following the indictment, Dentist Defendants took photos and impressions ■ of Starks’s teeth, which they then used in their bite mark analysis. Doc. 349 at ¶¶ 40-43. In a May 13,1986 letter to the prosecutor, Dentist Defendants wrote: “We have done a detailed comparison of the bite marks with the models and have found a definite match. It is our conclusion that the bites on [the victim] were made by Benny [sic ] Starks Jr.” Doc. 360 at ¶ 35; Doc. 360-3 at 79 (Dentist Defendants’ May 13, 1986 letter). Dentist Defendants followed up on July 1,1986, describing their techniques in more detail and concluding: “The comparison of the models to the bite photo and the overlays to the bite photo indicated a very specific and unusual pattern leading üs to the conclusion that the bite on [the victim] was inflicted by Bennie Starks Jr.” Doc. 360 at ¶ 36; Doc. 360-3 at 81 (Dentist Defendants’ July 1,1986 letter).
Both Schneider and Hagstrom testified to the same effect at trial. Doc. 360-2 at 91-92; Doc. 313-4 at 224-282, 288-295; Doc. 313-5 at 2-5. According to Starks’s expert in this case, David Senn, Dentist Defendants overstated them conclusions, as the maximum level of certainty endorsed by forensic odontologist guidelines in 1986 was only within a “reasonable medical certainty.” Doc. 350 at ¶ 34; Doe. 350-3 at 38. Furthermore, according to Senn, Dentist Defendants’ photograph of the bite mark was out of focus' and therefore may not have been to scale, and, by orienting the bite mark to match the victim’s description of the attack (and to match Starks’s dentition), they reversed the maxillary (upper) and mandibular (lower) jaws. Doc. 350 at ¶¶ 27, 32; Doc. 350-3 at 37-38.
Thomas-Boyd was a forensic scientist and serologist who in 1986 worked for the Northern Illinois Police Crime Laboratory, NIRCL’s predecessor. Doc. 352 at ¶ 9. Assigned to the Starks case, Thomas-Boyd submitted four serology reports dated Jan
Thomas-Boyd did not explain this detail either in her report or at trial, where she testified simply: “I could not exclude [Starks] as a possible source of the semen. That means that I have to include him.” Doc. 313-5 at 22-23. DNA testing in 2000 and 2005 conclusively showed that Starks was not the source of the semen. Starks II,
The jury convicted Starks of “two counts of aggravated criminal sexual assault, one count of attempted aggravated criminal sexual assault, one count of aggravated battery, and one count of unlawful restraint.” Starks III,
In March 2002, armed with DNA testing results, Starks filecj a post-conviction petition for a new trial on the sexual assault and attempted sexual assault charges, which the Appellate Court of Illinois granted in 2006. Id.,
Starks filed this suit in January 2009. Doc. 1. This court stayed the suit pending the resolution of Starks’s state court criminal proceedings.
Starks’s fourth amended complaint has twelve counts (two of them labeled Count 9, which the court will call “9a” and “9b”), as summarized by this table:
City of Biang, De- Schneider & Thomas- NIRCL Waukegan prez, & Jua- Hagstrom Boyd rez
1: § 1983 due process XXX
2': § 1983 failure to inter- X vene '
3: § 1983 civil conspiracy X X X
4: § 1983 Monell liability X 5: Illinois malicious prose- X X X cution
6: Illinois IIED ' ' X X X
7: Illinois civil conspiracy XXX
8: Respondeat superior lia- X . bility for police officers
9a: Liability under 745 'X ILCS 10/9-102 for police officers .
10: Respondeat superior li- X ability for Thomas-Boyd
9b: Liability under 745 X ILCS 10/9-102 for Thomas-Boyd
11: Implied indemnity lia- X • - bility for Thomas-Boyd
Doc. 259. The court has original jurisdiction over the § 1983 claims under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a).
Discussion
I. Section 1983 Due Process Claims
Count 1 of the complaint alleges that the individual defendants violated Starks’s Fourteenth Amendment due process rights by suppressing favorable evidence and/or by fabricating unfavorable evidence. Doc. 259 at ¶¶ 63-70.. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland,
A. Waukegan Defendants
Starks alleges that Juarez, Duprez, and Biang — the three Waukegan police officers — deprived him of due process by suppressing favorable evidence and/or by fabricating unfavorable evidence against him. Specifically, he alleges that Juarez deliberately doctored the photo array that he showed the victim at the hospital, causing her to falsely identify him as the attacker. Starks also alleges that on January 22, 1986, he told Deprez that he had been scratched during the robbery; De-prez’s report, by contrast, states that Starks could not explain the scratches and offered only the feeble excuse that he “must’ve fell soniewhere.” Doc. 360 at ¶ 19; compare Doc. '360-1 at 33-35 (Starks’s deposition testimony) with id. at 214-215 (Deprez’s report). Finally, Starks alleges that on January 21, 1986, he told Biang that he had been robbed of the red bag containing the sweater; Biang’s report and subsequent testimony, by contrast, stated that Starks claimed that he had earlier left the red bag at his mother’s apartment.- Doc. 360 at ¶ 7; compare Doc. 360-1 at 25-26, 28-29 (Starks’s deposition testimony) with id. at 136-138 (Biang’s report); Doc. 313-5 at 84-85 (Biang’s trial testimony). Waukegan Defendants do not argue that they are entitled to qualified immunity for these alleged misdeeds, so the only question is whether, on the summary judgment record, a reasonable jury could find for Starks on his due process claim against the officers.
None of Starks’s allegations would permit a reasonable jury to find that Waukegan Defendants suppressed favorable evidence in violation of Brady. “Evidence is ‘suppressed’ when (1) the prosecution failed to disclose the evidence in time for the defendant to make.use of it, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence.” Carvajal v. Dominguez,
The same holds for Juarez’s allegedly flawed photo array procedures, as explained by Petty:
Petty .alleges that CPD officers coerced Tarver into giving false evidence by threatening him with jail time if he did not cooperate, holding him against his will in a locked room without food or water for over 13 hours, badgering him, and pressuring him to identify Petty as one of the assailants....
Petty not only .knew of Tarver’s treatment before his trial began, he had the ■opportunity to explore this topic at trial and could have subpoenaed the CPD officers to compel their testimony to cast doubt on Tarver’s identification. Because Petty knew of Tarver’s alleged coerced identification before his trial started and had sufficient tim,e to use that information at his trial, .summary judgment was appropriate on the Brady claim. , ' •
Q Okay. And did you have occasion to speak to [the victim] concerning a description of the alleged offender?
A. Yes, I did.
Q. And did she- tell you, officer, that the alleged offender had no facial hair?
A. Yes, she did.
Q. Did she also tell you that the alleged offender was approximately 18 to 19 years of age?
A. Yes, she did.
Doc. 313-5 at 86-87 (Juarez’s trial testimony). Given the circumstances, Juarez did not “suppress” evidence in violation of Brady,
Although Starks has no Brady claim against Waukegan Defendants, they might still have violated due process by fabricating inculpatory evidence. As noted above, “a police officer who manufactures false evidence against a criminal defendant violates due process if that evidence is later used tó deprive the defendant of her liberty in some way.” Whitlock,
Deprez’s report was not introduced into evidence at trial or offered to the grand jury, and he did not testify about its contents. Deprez’s trial testimony was limited to stating that he obtained a Miranda waiver from Starks before Biang’s January 21 interview. Doc. 313-5 at 50-54, 56. Accordingly, Deprez’s alleged fabrications about what Starks said about his scratches could not. have violated his due process rights. See Armstrong,
Likewise, Juarez’s allegedly doctored photo array was never introduced into evidence at trial, thereby absolving Juarez of any potential liability. In Alexander v. City of South Bend,
Juarez did testify before the grand jury that the victim with “[n]o hesitation” identified Starks’s picture from the photo array. Doc. 360-1 at 186, 188 (Juarez’s grand jury testimony). (The photo array itself was not shown to the grand jury.) But lying to a grand jury, if that is what Juarez did, is not actionable as a constitutional tort under § 1983, for “a grand jury witness has absolute immunity from any § 1983 claim based on the witness’ testimony.” Rehberg v. Paulk, — U.S.-,
Even if Juarez were not protected by absolute immunity for his testimony before the grand jury, Starks has not identified— and the court’s own research has not revealed — any Seventh Circuit or Supreme Court case recognizing a due process (as opposed to malicious prosecution) claim based on false evidence or testimony that was presented to a grand jury but never introduced at trial. Cf. Saunders-El,
Fields’s remarking “the fabrication of evidence harmed the defendant before and not just during the trial, because it was used to help indict him,”
Likewise, citing that passage from Fields, Armstrong reasoned that an eventually acquitted defendant is still deprived of his liberty if he is imprisoned awaiting trial, and therefore that if police irretrievably destroy (as opposed to’ merely suppress) exculpatory evidence, the defendant may have a viable Brady claim.
In any event, because the Seventh Circuit has not circulated to the full court under Circuit Rule 40(e) the question whether Alexander should be overruled, it cannot be understood in Fields or Armstrong to have silently overruled the requirement that a faulty photo array must taint the trial in order for it to give rise to a due process violation. See Iqbal v. Patel,
[T]he complainant testified her assailant fled the scene carrying a red bag. According to defendant’s statement, he had dropped this red bag off at his mother’s house before he was robbed. Thus, defendant’s statement to the police [about having been robbed] has little, if any, exculpatory value.
Starks I, slip op. at 19 (Doc. 360-2 at 101). Yet there is no federal due process remedy when a police officer perjures himself on the stand because police officers, like other witnesses who testify in a criminal proceeding, have absolute immunity for the content of their testimony. See Briscoe v. LaHue,
There admittedly is tension between Somberger and Whitlock. If, as Whitlock holds, a police officer violates due process by fabricating testimony for other witnesses to deliver in court, why should the officer escape liability if he gives the false testimony himself? Either way, the defendant suffers, the sanie harm. But the same tension exists in the grand jury cop-text, where the Supreme Court — recognizing that, as here, absolute immunity does not “extend[ ] to all activity that a witness conducts outside of the grand jury room” — has nonetheless held that immunity “may not be circumvented by ... re-framing] a claim to attack the preparation instead of the absolutely immune actions themselves.” Rehberg,
The important point, however, is that Whitlock did not purport to overrule Som-berger, which remains gopd law in the Seventh Circuit and, being squarely on point (“The Constitution does not require that police testify truthfully,”
B. Dentist Defendants
The court will treat Dentist Defendants’ together, given that they co-authored the expert reports in Starks’s prosecution, Doc. 350 at ¶¶25, 34, 35, and testified to similar effect at his criminal trial, Doc. 313-4 at 256 (Schneider testifying: “My opinion is that Mr. Starks bit [the victim] in the shoulder.”); id. at 295 (Hagstrom: “It is my opinion that Bennie Starks inflicted the bite on [the victim].”); Doc. 313-5 at 2, 5' (Hagstrom testifying that he and Schneider arrived at their respective opinions “at the same time”' because they “conducted [their] examinations and tests simultaneously”); Doc. 350-3 at'-27 (Schneider and Hagstrom’s jointly 'signed May 13, 1986 letter to the prosecutor stating: “It is our conclusion that the bites on [the victim] were made by Benny [sic] Starks Jr,”); Doc; 350-3 at 29 (same, in a July 1, 1986 letter to the prosecutor). Represented, by the same lawyers, they have filed virtually identical briefs in this case. Compare Docs. 311, 375 (Schneider’s briefs) with Docs. 314, 384 (Hagstrom’s briefs).
Based on their analysis of the bite mark on the victim’s shoulder, Dentist Defendants opined that Starks was the biter. The court previously held that Dentist Defendants are absolutely immune for their trial testimony,
Supported by the opinion of Senn, his retained expert in this case, Starks argues that Dentist Defendants’ opinion at his trial that he bit the victim was riddled with so many errors - as to amount to a due process violation. In 2009, the National Academy of Sciences released a report on the use of forensic science in the courtroom. National Academy of Sciences, “Strengthening Forensic Science in the United States” (2009), www.nap.edu/ catalog/12589/strengthening-forensic-science-in-the-unitedstates-a-path-forward.
Although the majority of forensic odon-tologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, and no large population studies have been conducted. In numerous instances, experts diverge widely in their evaluations of the same bite mark evidence, which has led to questioning of the value, and scientific objectivity of such evidence.
Id. at 176 (emphasis added, footnotes omitted); see also Brandon L. Garrett & Peter J. Neufeld, “Invalid Forensic Science Testimony and Wrongful Convictions,” 95 Va. L.Rev. 1, 67-71 (2009). The report explains:.
Some of the basic problems inherent in bite mark analysis and interpretation are as follows:
(1) The uniqueness of the human dentition has not been .scientifically established.
(2) The ability of the dentition, if unique, to transfer a unique pattern to human skin and the ability of the skin to maintain that uniqueness has not been scientifically established.
i. The ability to analyze and interpret the scope or extent of distortion of bite mark patterns on human skin has not been 'demonstrated.
ii. The effect of distortion on different comparison techniques is not fully understood and therefore has not been quantified.
(3)‘ A standard for the type, quality, and number of individual characteristics required to indicate that a bite mark has reached a threshold of evi-dentiary value has no.t been estaba lished.'
National Academy of Sciences, supra, at 175-76 (footnotes-omitted).
There appears to be little, if any, scientifically valid data to support the accuracy of bite mark’ comparison, and the data that does exist is damning. A 2011 peer-reviewed article found that because skin easily distorts, it is a poor medium for bjte marks; the article described an experiment in which a single' “dentition” wp used to produce nearly a hundred bite marks in both skin and wax, and the resulting skin marks not only failed to match the dentition that created them,,but were often closer matches to other dentitions (those that did not create the marks). Mary. A. Bush, Peter J. Bush, & H. David Sheets, Study of Multiple Bitemarljs Inflicted in Human Skin by a Single Dentition Using Geometric Morphometric Analysis,” 211 Forensic Sci Int’l 1, 1-8 (Sept. 2011); see also National Academy of Sciences, supra, at 174 (“Unfortunately, bite marks on the skin will change over time and can be distorted by the elasticity of the skin,, the unevenness of the surface bite, and swelling and healing.. These features play severely limit the validity of forensic odontology.”). A 2006 peer-reviewed article lamented the “disturbingly high, false-positive error rate” of bite mark matching, as evidenced in part by a 1999 workshop conducted by the. American Board of Forensic Odontology, in which experts who “attempted to match four bitemarks to seven dental models found 63.5% false positives.” C. Michael Bowers, “Problem-Based -Analysis of Bitemark Misidentifications,” 159S Forensic Sci. Int’l S104, S106-S107 (2006). Sixty-three percent! The article also describes other
It is therefore doubtful that “expert” bite mark analysis would pass muster under Federal Rule of Evidence 702 in a case tried in federal court. See Fed.R.Evid. 702(c) (requiring that expert testimony be “the product of reliable principles and methods”); D. Michael Risinger, “Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?,” 64 Albany L. Rev. 99, 142 (2000) (“[B]ite mark identification has little published data from studies showing that forensic odontologists can identify the origin of a bite mark under non-ideal conditions, or how various non-ideal conditions affect individual and group performance. There have been proficiency studies, but the results have never been made public.... So bite mark experts have benefited from their ability (up to now) to do few proficiency studies and to keep secret the results of such proficiency studies as have been done; isn’t this backward?”); see also Ege v. Yukins,
[B]ite mark identification evidence presented by an expert witness can be a valuable aid to a jury in understanding and interpreting evidence in a criminal trial. The bite mark evidence presented in the case enabled the jury to see the comparisons being made by the experts. By looking directly at the physical evidence used, the models and the photos, the jury was able to judge for itself whether Stinson’s teeth did in fact match the bite marks found on the victim’s body.
Starks argues that Dentist Defendants’ bite mark “analysis” was so far outside the norms of bite mark matching, such as they were in 1986, that it violated due process. For this assertion, Starks relies on the opinion of Senn, a forensic odontologist himself who has testified as a bite mark expert in many criminal cases. Doc. 313-20 at 48-50 (Senn’s CV). Eighty years ago, Upton Sinclair observed: “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!” Upton Sinclair, I, Candidate for Governor: And How I Got Licked 109 (Univ. of Calif. Press 1994) (1935). Illustrating Sinclair’s point, Senn opines not that bite mark matching is inherently unreliable, but only that Dentist Defendants made analytical errors and overstated their conclusions in Starks’s criminal case. Doc. 350 at ¶¶25, 27, 32, 34;
[Dentist Defendants] had a pre-existing relationship with the Waukegan Police Department and at some point Dr. Schneider was Sgt. Biang’s personal dentist; were initially requested “to identify the bite marks and match them with the person that we had in custody”; failed to follow basic odontological procedures in recording their evidence gathering; recklessly proceeded with comparing the bite mark to Starks when it turned out that the photograph of the mark was so poor that the scale was out of focus; failed to examine other photographs that were taken of the bite mark on January 19, 22 and 29; failed to preserve the photograph of the bite mark that they used to compare the mark to Starks’ dentition; matched the maxillary portion of Starks’ dentition to the mandibular portion of the bite mark because this was the only way it would fit; issued opinions that stated that Starks definitely made the bite mark even though this level of certainty violated odontological guidelines; stated to Biang that Starks made the bite mark beyond any question; used an experimental chart to assert to the prosecutor and the jury that there were 62 points of similarity between the photo of the bite mark and Starks’ dentition but failed to reveal that the chart was experimental and not generally accepted in the odon-tological community; failed to have their work reviewed by an experienced' odon-tologist with whom Dr. Schneider had a close relationship, even though this was the first real case in which they were comparing a bite mark to a model, other than in classes; and stated that Starks definitely made the bite mark even though in fact that was not their opinion and their real opinion was that Starks could have made the bite mark but so could another person.
Doc. 351 at 9-10.
None of these allegations amount to due process violations. The only one that even comes close is that Dentist Defendants “failed to preserve the photograph of the bite mark that they used to compare the mark to Starks’ dentition.” Id. at 9. But this allegation is highly misleading; in support, Starks cites Schneider’s deposition testimony, Doc. 350 at ¶ 32 (citing Doc. 350-2 at 114-118), which states that Dentist Defendants produced at trial a slide containing both the photo and the comparison model together, instead of each one individually. In any event, even if Starks’s assertion had record support, nowhere does he allege that Dentist Defendants’ failure to keep that particular photo was in bad faith or a deliberate attempt to hide favorable evidence. Absent such an allegation, supported by the evidence, the mere failure to preserve the photograph is not a due process violation. See Armstrong,
Starks’s remaining allegations, ultimately boil down to a complaint that Dentist Defendants’ report and testimony were incompetent and wrong, maybe grossly so, even by the standards of bite mark matching in 1986. This claim faces an insurmountable obstacle in Buie v. McAdory, which explained: .
No decision of the Supreme Court “clearly establishes” that experts (or any other witnesses) must be right; the constitutional rule is that the defendant is entitled to a trial that will enable jurors to determine, where the truth lies. That a witness may give false or mistaken testimony therefore is not an independent constitutional violation. What the Constitution provides is assurance that evidence may be tested by cross-examination and by contrary proofs. Whether a given expert witness overstated her conclusion is mete for cross-examination, and no one impaired Buie’s ability to elicit from her just how likely (or unlikely) a “reasonable degree of scientific certainty” was in her vocabulary.
Buie was a habeas case, but its holding about what due process requires applies with equal force to a § 1983 constitutional tort action. See Sornberger,
Nór has Starks adduced any evidence tending to show that Dentist Defendants deliberately falsified their analysis or hid exculpatory results. Cf. Jones v. City of Chicago,
To. be sure, Starks asserts in his Local Rule 56.1(b)(3)(C) statement:
[Dentist Defendants] determined that Stark[s]’s mandibular dentition did not make the mandibular portion of the bite mark on [the victim], but they did not report this to the prosecutor. Exhibit 21, Hagstrom 97; Exhibit 17, Schneider 173.
Doc. 350 at ¶28. But the cited record material does not support this assertion; at the very least, it renders the assertion highly misleading. For what Dentist Defendants actually said was that they did match the mark to Starks’s dentition, and that they continue to believe they did so correctly. Doc. 350-2 at 134-136 (Schneider’s testimony); Doc. 350-3 at 14 (Hagstrom’s). So an accurate statement of fact would be: “Dentist Defendants determined that Starks’s mandibular dentition did not make what they thought was the maxillary portion of the bite mark on the victim, but which according to Senn was in fact the mandibular portion of the
Indeed, the very unreliability of bite mark identification works against Starks’s claim, for given such a high false-positive rate, who can say that any bite mark analysis has been “falsified,” let alone deliberately? It would be akin to saying that an astrologer “falsified” his conclusion that, because the planets are in a particular alignment, the defendant must have committed the crime, or to complaining-that.a palm reader grossly deviated from professional standards by mistaking the. heart line for the head line. But the court need not go this far; it is enough that Starks has failed to adduce admissible evidence that Dentist Defendants deliberately falsified their opinions, as opposed to merely forming them incompetently. That distinguishes this case from Stinson, where the odontologists “altered the identification of the missing tooth following discussion with [police officers] on November 15, 1984, after they interviewed Stinson.”
Starks relies’ on Brown v. Miller,
Brown alleges that at this point Miller [the expert] either intentionally and in bad faith failed to conduct additional, commonly used tests (“Rh tests” and “enzyme tests”) that would have made the identification more specific and accurate, and likély excluded Brown as the donor, or, in the alternative, that Miller did conduct those tests, that those tests were conclusively exculpatory, and that Miller concealed the exculpatory results. Brown specifically alleges, that these other tests were commonly used in the same lab at the time, that Miller knew about and used those other tests in the same year, that Miller was unable to draw conclusions in similar identification cases without performing those more specific tests, and that Miller could have performed those tests in Brown’s case. Miller argues that these facts support an inference either that.Miller actually did conduct, the tests in this, case or that he knew he should have reported that his results were inconclusive without .further testing.
Id. at 235 (paragraph break added).’ As this passage indicates, the Brown plaintiff specifically alleged that the defendant had concealed exculpatory test results. It also bears mention that Brown was decided on
Senn charges that Dentist Defendants made mistakes in their analysis (e.g., reversing the mandibular and maxillary jaws, and using an out-of-focus image, Doc. 350 at ¶¶ 25-27, 34; Doc. 350-3 at 31-38) and then compounded their errors by overstating their (erroneous) conclusions by saying that Starks was the biter instead of that Starks could not be excluded as the biter. Senn does not, however, opine that Dentist Defendants performed additional routine tests but suppressed the results. To the contrary, as noted above, Senn opined “that in 1986 the standards and the guidelines were different than they are at the time that we were doing the reevaluation. ... I mean, you know, we believed that [Dentist Defendants] did what they did in 1986 in good faith.” Doc. 349 at ¶ 83 (quoting Doc. 310-22 at 22). Senn cannot testify as to Dentist Defendants’ state of mind, but the only reasonable inference that can be drawn from his opinion removes this case from Brown’s ambit — and Starks has offered no other evidence to put it back in.
Pierce is similarly unhelpful to Starks, as this passage demonstrates:
Mr. Pierce claims that after his arrest, he was assured that he would be released if a comparison of his' hair samples did not match those found at the crime scene. Ms. Gilchrist falsely reported that the hairs were consistent; had she truthfully reported that they were not consistent, Mr. Pierce would have been released within hours of his arrest, and never tried. This was aggravated by Ms. Gilchrist’s failure to deliver the hair samples for review by an independent forensic examiner hired by the defense, as required by law.
Moreover, as alleged in the amended complaint, when preparing her forensic report on the case, Ms. Gilchrist performed an enzyme test that conclusively demonstrated that Mr. Pierce could not have been the source of the semen found on the rape victim, but Ms. Gilchrist disregarded and disputed the significance of this evidence in her report.
Therefore, and in accord with binding precedents Buie (“[wjhether a given expert witness overstated her conclusion is mete for cross-examination,”
C. Thomas-Boyd
The same result holds for Thomas-Boyd. Although Starks dutifully in-cants the magic phrases — “she fabricated reports and concealed exculpatory evidence,” Doc. 354 at 5 — his substantive allegations boil down to, and, the record evidence can support only, a complaint that Thomas-Boyd’s expert serology opinion was wrong:
[Thomas-Boyd] issu[ed] conclusions in reports that stated that she could not exclude Starks as a source of the semen and so advising the prosecutor, when in fact she could exclude him and should have done so. Additionally, her recognition that there was ■ a 95% possibility that Starks was excluded as the source of the semen was exculpatory evidence that she had a duty to report, but she failed to do so.
Her failure to explain to the prosecutor what she now claims was the basis for the request for the semen sample and her failure to be forthright in the meaning of her results shows a witness who was going to great lengths to conceal the real meaning of her test results, and who wanted to avoid at all costs providing the scientific evidentiary conclusions that were mandated by the results she had obtained and which would have excluded Starks as the attacker.
Doc. 354 at 5-6 (paragraph break added). For the reasons given above, none of these are Brady violations, for the only thing Thomas-Boyd allegedly “suppressed” was the fact that her conclusion (that Starks could not be excluded) relied on an improbable assumption (that Starks was an aberrant secretor). That is not a suppression of evidence, but merely an unreliable expert opinion that “[t]he tools of the adversary process supply the means to expose.” Buie,
More to the point, Thomas-Boyd turned over all of her serology reports to Starks and the prosecutor, and none of them contain falsehoods or fabrications. Her final report plainly indicates that Starks is a type B secretor, that the victim was a type O non-secretor, and that only H antigens were present in the samples. Doc. 352 at ¶ 12; Doc. 317-2 at 62 (Thomas-Boyd’s blood genetic marker analysis of the victim’s blood, saliva, and vaginal standards; Starks’s blood and saliva standards; a vaginal swab from the victim; and the semen stain on the underwear). Thomas-Boyd’s sole conclusion in that report was:
In order to make a sound scientific decision concerning the possible exclusion of the suspect, Bennie Starks, as a possible source of the foreign blood groups detected on the submitted vaginal swab (item 01-01) and underwear (item 07-01), a semen standard from Bennie Starks is required.
Doc. 317-2 at 61. That’s it — and it is not false, for if there remained (as Starks concedes) even just a five percent chance that he was the source of the semen, then it was entirely accurate for Thomas-Boyd to conclude that he could not yet be “excluded,” which would require a zero percent chance. Nor- did Thomas-Boyd “overstate” her results beyond the bounds of forensic science; to the contrary, she accurately said that she could not definitively exclude Starks.
Starks complains that Thomas-Boyd’s trial testimony was misleading because it left the impression that he was among the 14% of the population who could have been the source of the semen, when in fact there was at least a 95% chance that he was not. Doc. 354 at 7. But Thomas-Boyd is absolutely immune for her trial testimony. See Briscoe,
Moreover, any confusion at trial was probably created by Starks’s lawyer, not Thomas-Boyd. Leaving aside chain-of-custody and methodology testimony, here was the full extent of Thomas-Boyd’s testimony on direct examination regarding her serology testing:
Q. Now, based on the tests that you conducted on all those exhibits on this, did you form an opinion within a reasonable degree of scientific certainty what the source of .the sperm was that you located on the. underwear and this vaginal swab?
A. With comparison with the standards .that I received, from Bennie Starks, I could not exclude him as a possible source of the semen. -That means I .. have to include him..
Doc. 313-5 at 22-23. That testimony exactly matches the conclusion in her report. On .cross-examination, Starks’s lawyer- attempted to expose the testimony’s scant probative value:
Q. Okay. Now, you have used the words eliminated and included.
A, Yes..:. ■ ■
Q. Okay. That’s because you cannot say definitely whether or not it was this person’s blood, this person’s hair, or this person’s seminal fluid?
A. That js correct.
Q. Okay. You do the seminal fluid and the blood groupings just, as you stated, that is,.people have A, B, AB, and all the mixtures, am I correct?
A. Yes, that’s correct.
Q. Okay.- You determined that the defendant’s blood type was B?
A. That is correct, yes.
Q. It is a fact, is it not, that 14 per cent of the population of this United States has B type blood?
A. That is correct.
Doc. 313-5 at 30-31.' So it was Starks’s lawyer who injected the “14” into the record, probably in an attempt to minimize the importance of Thomas-Boyd’s conclusion that she could not “exclude” Starks as the source of the semen.
Later in cross-examination; Starks’s lawyer successfully moved for judicial notice of the fact that in 1980 the population of Lake County was more than 450,000. Id. at 33. Starks’s lawyer then, posed a hypothetical: i ■ •
Q. So, when you say that — Let me go back. If I have B type blood, okay?
A. Uh-huh.
Q. And I ám a secretor, as you have indicated that the defendant is, and you find B type of, whatever you call it, stuff in the seminal fluids—
A. Yes.
Q. —you would have to include me?
A. Right.
Q. Within that group?
A. Yes.
Q. So, if any of the jurors, the judge, anybody else in here had B type, you would have to include them?
A. Right.
Id. at 31 (emphasis ádded). Thus, what happened at trial is that Thomas-Boyd responded to a hypothetical, posed by Starks’s own lawyer, in which “you find B type [antigens] in the seminal fluids.” Ibid. Given this hypothetical, Thomas-Boyd truthfully answered that she would not be able to exclude anybody with B type blood. Answering hypotheticals is what experts do. See Williams v. Illinois, — U.S.-,
In sum, Thomas-Boyd is absolutely immune for her trial testimony, none of. her reports were false or-fabricated, and, for the reasons described above regarding Dentist Defendants, her. allegedly incompetent or mistaken expert opinion did not violate due process. See Sornberger, 434
II. Section 1983 Conspiracy Claim
Count 3 of the complaint alleges that Defendants conspired to violate Starks’s federal constitutional rights. Doc. 259 at ¶¶ 75-81. But “conspiracy is not an independent basis of liability in § 1983 actions,” Smith v. Gomez,
III. State Law Malicious Prosecution Claim
Count 5 of the complaint alleges that Defendants maliciously prosecuted Starks in violation of Illinois common law. Doc. 259 at ¶¶ 95-98. Malicious prosecution has five 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. The absence of any one of these elements bars a plaintiff from pursuing the claim.
Smck v. Liautaud,
A. Waukegan Defendants
Waukegan Defendants argue that Starks’s criminal: proceedings were not terminated in his favor. Doc. 321 at 7-9. To be favorable, a termination must have been “indicative of the innocence of the accused.” Swick,
Starks responds that the Circuit Court of Lake County issued him a Certifícate of Innocence, which is indicative of his, well, innocence. Doc. 359 at 17; Doc. 360 at ¶ 39; Doc. 360-3 at 129-130 (“The Petitioner was innocent of all offenses for which he was incarcerated on in this captioned case ... and is therefore granted a Certifícate of Innocence.”). Waukegan Defendants object to the admissibility of the Certifícate, and Thomas-Boyd has filed motions arguing that admitting the Certificate as evidence in this case would violate her federal due process rights. Docs. 386, 396, 405.
The court need not resolve that evidentiary issue right now because Starks has adduced other evidence sufficient to show that the criminal proceedings were terminated in a manner indicative of his innocence — namely, the DNA testing, which eliminated him as the source of the semen. Doc. 360 at ¶ 37; Doc. 378 at ¶ 37; see Starks III, 359 IlLDec. 26,
Waukegan Defendants make only one other perfunctory argument on the malicious. prosecution claim, the entirety of which is:
Plaintiffs expert, Clark, concedes that the police officers had probable cause to arrest Bennie Starks. ([Doc. 320 at] ¶29.) The police also had items of Starks’ clothing at the scene of the crime as well as a positive identification of the victim.
In any event, “[l]iability for malicious prosecution can be imposed when an active part is taken in continuing or procuring the continuation of criminal proceedings.” Adams v. Sussman & Hertzberg, Ltd.,
Waukegan Defendants could have argued that probable cause existed not only to arrest but also to indict Starks, and that probable cause continued to exist throughout his prosecution. They did not, however, so the argument is forfeited for purposes of summary judgment. See Batson v. Live Nation Entm’t, Inc.,
B. Dentist Defendants
Like Waukegan Defendants, Dentist Defendants argue that Starks’s prosecution did not terminate in his favor. As shown above, this argument is unavailing. But Dentist Defendants also argue that they neither commenced nor continued the criminal proceedings against Starks. Doc. 311 at 28-30. Dentist Defendants were not the complaining witnesses, and they were not contacted .until after Starks had been arrested. Doc. 349 at ¶¶ 34, 36. And Adams v. Sussman & Hertzberg, Ltd. sets a high bar for holding private, individuals culpable under Illinois law for continuing a criminal prosecution:
The defendant must take an active part in the[] prosecution after learning that there is no probable cause for believing the accused guilty. It is not enough that he appears as a witness and thereby aids in the prosecution of the charges which he knows to be groundless. His share in continuing the prosecution must be active, as by insisting upon or urging further prosecution. The fact that he initiated the proceedings does not make him liable merely because he intentionally' refrains from informing a public prosecutor, into whose control the prosecution has passed, of subsequently discovered facts that clearly indicate the innocence of the accused.
Starks maintains that Dentist Defendants “did actively seek the continuation of the prosecution/meeting with Biang and urging him that Starks, beyond any doubt, was the person who bit [the victim], and reporting to the prosecutor that Starks definitely made the bite mark.” Doc. 351 at 19. But Adams holds that “[i]t is not enough that [a defendant] appears as a witness and thereby aids in the prosecution of the charges which he knows to be groundless.”
C. Thomas-Boyd
Thomas-Boyd likewise argues that she neither commenced nor continued the prosecution against Starks. Starks agrees that she did not commence the prosecution, but contends that she continued it because “if Thomas-Boyd had revealed her exculpatory information this would likely have led to the abandonment of the rape prosecution, and, assuming good faith in the prosecutor, of the other charges also.” Doc. 354 at 13-14 & n. 5. Again, Starks’s argument is incompatible with Adams, which makes clear-that Thomas-Boyd cannot be held “liable merely be^ cause [s]he intentionally refrain[ed] -from informing a public prosecutor . -. of subsequently discovered facts that clearly indicate[d] the innocence- óf the accused.”
Starks has presented no such' evidence. Accordingly, Thomas-Boyd'is entitled to summary judgment on the malicious prosecution claim as well. It is'therefore unnecessary to reach her argument that she is entitled to absolute immunity on the improbable ground that she was providing a “police protection service” to Starks, 745 ILCS 10/4-102 (emphasis added). Doc. 316 at 12-13.
IY. . State Law Intentional Infliction of Emotional Distress Claim
Count 6 of the complaint alleges that Defendants intentionally- inflicted emotional distress oh Starks, in violation' of Illinois common law. Doc. 259 at ¶¶ 99-100. An intentional infliction of emotional distress (“IIED”) claim has three elements: “First, the conduct involved must be truly extreme and outrageous. Second, the actor must either intend that his conduct inflict severe emotional distress, or know that there is at least a high probability that his conduct will cause severe emotional distress. Third, the conduct must in fact cause severe emotional distress.” McGrath v. Fahey,
The first .element is relatively easy to analyze, -for under Illinois law, the hurdle for an IIED claim is' even higher than for a malicious prosecution claim, at least where the same offending conduct forms the basis of both claims. See Lundy v. City of Calumet City,
Waukegan Defendants, by contrast, failed in their initial brief to present any argument on the IIED claim, Doc. 321, resulting in a forfeiture for purposes of summary judgment. See Batson,
In sum, Starks’s IIED claim against Waukegan Defendants will be tried, while' Dentist Defendants and Thomas-Boyd are entitled to summary judgment.
V. State Law Civil Conspiracy Claim
Count 7 of the complaint alleges that Defendants committed state law civil conspiracy. Doc. 259 at ¶¶ 101-105. Under Illinois law, “[e]ivil conspiracy is defined as a combination of two or more persons for the purpose of accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful means.” McClure v. Owens Coming Fiberglas Corp.,
As explained above, Starks has viable state law tort claims against only Waukegan Defendants, so to maintain his state law conspiracy claim against Dentist Defendants or Thomas-Boyd, he must adduce evidence showing an agreement between them and at least one Waukegan Defendant. (If Dentist Defendants conspired, they likely conspired with each other, but since neither of them committed a tortious act, that is not enough to establish civil conspiracy liability.) This Starks has
Starks lays out a series of allegations in his briefs. Doc. 351 at 12-13; Doc. 354 at 10-13. With two exceptions, they merely repeat his allegations of what Dentist Defendants and Thomas-Boyd did by themselves (in parallel with Waukegan Defendants) in the Starks investigation, and do not suggest an “agreement” or “meeting of the minds” between Dentist Defendants or Thomas-Boyd, on the one hand, and any of the Waukegan Defendants, on the other. The two-exceptions are: (1) Schneider “had a pre-existing relation with the [Waukegan Police Department] and was at one point Biang’s personal dentist,” Doc. 351 at 12; and (2) “Thomas-Boyd clearly had undisclosed contact with law enforcement personnel, since she learned information — in particular the identity of Bennie Starks, initially misspelling his name and subsequently correcting this — that is not included in the materials that are extant ,in the crime lab files,” Doc. 354 at 11.
Neither of these tidbits nudge Starks’s evidence from merely speculative to the point where a reasonable jury could find “clear and convincing” evidence of an agreement. McClure,
But even if Biang were Schneider’s patient • beforehand, that does not make it any more likely that they agreed to wrongfully frame Starks. See Williams v. Seniff,
Starks’s evidence regarding Thomas-Boyd is similarly infirm: Starks asserts in his' Local Rule 56.1(b)(3)(C) statement: “In the course of her testing of the evidence' in [his criminal] case, Thomas-Boyd learned information about the case from law enforcement that is not reflected in the written flies preserved by the NIPCL or its successor organization, NIRCL. Exhibit 9, Thomas-Boyd 87.” Doc. 353 at ¶ 16. But page 87 of Thomas-Boyd’s deposition transcript does not support this assertion, as viewing the entire page demonstrates:
Q. And it notes that microscopic analysis of the underwear revealed the presence of spermatozoa cells?
A. That’s correct:
Q. So, again, it appears that in terms of testing for semen or spermatozoa, it was a microscopic analysis as opposed to a chemical analysis; is that correct? ■ ■
A. I don’t remerhber everything we did—
Q. ' If you had—
A. —to prove it was semen.
Q. I’m sorry. If you had done a chemical analysis for the presence of semen, you would have noted that?
A. Yes.
Q. Then if you go to the end of this document—
A. Page 7?
Q. Yes. So the portion that-says “Tests and, Cpnclusions,” you note in that that a whole blopd and dried saliva standard is being requested from the suspect, Bennie Starks,, to help determine the possible source of spermatozoa cells. Do— A. That’s correct.
Doc. 353-1 at 129. What this has to do with Thomas-Boyd’s “learning] information about the case-from law enforcement that is not reflected in the written files” is unexplained and probably unexplainable.
“A court should not be expected to review a lengthy record for facts that a party could have easily identified with greater particularity.” Ammons v. Aramark Unif. Servs., Inc.,
But Geinosky was decided on a motion to dismiss, and the Seventh Circuit noted that “[ujnder Twombly, all plaintiff needed to allege was a plausible account of a conspiracy.” Ibid, (citing Bell Atl. Corp. v. Twombly,
The analysis could end here, but it bears mention that Geinosky involved what the Seventh Circuit termed “inexplicable” behavior on the officers’ part. It is hardly “inexplicable” that Dentist Defendants and Thomas-Boyd would bungle their respective analyses, as the phenomenon of motivated cognition suggests that their inculpa-tory findings were the natural outcomes of a criminal investigation. See National Academy of Sciences, supra, at 123 (noting that motivated reasoning can affect forensic analysts “if, for example,- they are asked to compare two particular, hairs, shoeprints, fingerprints — one from the crime scene and one from a suspect— rather than comparing the crime scene exemplar with a pool of counterparts.”); ibid, (describing a study “in which experi
In any event, even putting motivated cognition to the side, to find on this record a conspiracy would amount to “mere speculation, and it is well-settled that ‘conjecture alone cannot defeat a summary judgment motion.’ ” Lewis v. Mills,
YI. Remaining Claims and Issues
Counts 9b, 10, and 11 of the complaint, as well as Thomas-Boyd’s cross-complaint, seek to hold the City of Waukegan and/or NIRCL vicariously hable and financially responsible for any judgment Starks obtains against Thomas-Boyd. Doc. 259 at ¶¶ 113-144; Doc. 230. Because Thomas-Boyd is entitled to summary judgment on all of Starks’s claims against her, Wauke-gan and NIRCL.- are entitled to summary judgment on Starks’s vicarious liability claims against them as to Thomas-Boyd; for the same reason, Thomas-Boyd’s motion for summary judgment on her remaining cross-claims against Waukegan and NIRCL (Thomas-Boyd previously was granted summary judgment as to her cross-claim for defense costs against NIRCL, Doc. 229), and Waukegan’s motion for summary judgment as to Thomas-Boyd’s cross-claim against it, are denied as moot. This disposition makes it unnecessary to reach NIRCL’s immunity arguments. Doc. 330 at 3-7. The City of Waukegan sought summary judgment on Counts 8 and 9a of the complaint, which seek to hold it vicariously hable and financially responsible for the police officers’ alleged misconduct, Doc. 319, but it presented no argument on those counts other
Starks has abandoned his .failure-to-intervene claim. (Count 2) .against Waukegan Defendants and his Monell claim (Count 4) against the City of Waukegan. Doc. 359 at 1, 21. Accordingly, Waukegan Defendants are entitled to summary judgment on those counts. See Nichols v. Mich. City Plant Planning Dep’t,
Finally, Thomas-Boyd has moved to declare Illinois’s certificate of innocence statute, 735 ILCS 5/2-702, unconstitutional. Docs. 386, 396. Her motion, however, appears to be an evidentiary motion in li-mine masquerading as an as-applied constitutional challenge. See Kluppelberg v. Burge,
The criminal justice system occasionally delivers injustice, and Starks appears to have been the victim of “experts” peddling junk science to credulous judges and jurors. It is easy to sympathize with Starks’s plight. See Dan Hinkel & Sarah Freistat, “Another Lake County Murder Case Collapses; Freed Inmate Now the 6th Cleared of Major Felony Since 2010,” Chicago Tribune, May 29, 2015, p. C1 (“The case is the latest to crumble in a county renowned for disastrous prosecutions. Strong is the sixth inmate cleared of a major felony in Lake County since 2010. Most of the six men — who spent, a total of 95 years behind bars before being cleared — were prosecuted under Michael Waller, who was state’s attorney for 22 years before retiring in 2012.”). On the summary judgment record and under binding precedent, however, Starks has no federal or state tort remedy against Dentist Defendants. He also has no federal or state tort" remedy against Thomas-Boyd, and no federal remedy against Waukegan Defendants.
Starks’s state law, claims against the Waukegan police officers will proceed to trial. Because all federal claims have been dismissed, and because the parties are not of diverse citizenship, the court .has the discretion under 28 U.S.C. § 1367(c)(3) to relinquish jurisdiction over those state law claims. However, because the “court and the parties in this case have already expended substantial judicial resources ... and the parties have completed discovery,” because trial has been set for next month, because Illinois law governing the surviving claims is not complex or unsettled, and because the state law claims are as central to this case as were the now-dismissed federal claims, the court will retain jurisdiction over the suit and see it through to judgment. Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp.,
Conclusion
Schneider’s, Hagstrom’s, and NIRCL’s summary judgment motions, Docs. 309, 312, 329, are granted. Thomas-Boyd’s summary judgment motion. Doc. 316, is granted as to Starks’s claims against her and denied as moot as to her remaining cross-claims against Waukegan and NIRCL. Thomas-Boyd’s motion to declare 736 ILCS 5/2-702 unconstitutional, Doc. 386, is denied as moot. Schneider, Hagstrom, Thomas-Boyd, and NIRCL will be'terminated as parties. Waukegan Defendants’ summary judgment motion, Doc. 319, is granted as to Starks’s federal' due process, federal conspiracy, federal failure-to-intervene, Monett, and implied indemnity claims' (Countsl, 2, 3, 4, and 11), but denied as to his state law malicious prosecution, IIED, civil conspiracy, and derivative liability claims (Counts 5, 6, 7, 8, and 9a). The City of Waukegan’s summary judgment motion on Thomas-Boyd’s cross-claim, Doc. 326, is denied as moot.