Memorandum Opinion and Order
Plaintiff Bennie Starks was convicted of aggravated criminal sexual assault, attempted aggravated criminal sexual assault, and aggravated battery in the Circuit Court of Lake County, Illinois. Doc. 95 at ¶ 40. In 2006, after 20 years in prison, Starks was released after the Appellate Court of Illinois vacated the two sexual assault convictions. Id. at ¶ 48. Starks then brought this civil suit under 42 U.S.C. § 1983 and Illinois law against the City of Waukegan, Illinois; five former or present Waukegan police officers named Urbancic, Biang, Stevenson, Juarez, and Deprez, who allegedly participated in the investigation that led to his conviction (collectively, “Police Defendants”); Dr. Carl Hagstrom and Dr. Russell Schneider, two dentists who were involved in the investigation and trial as expert witnesses for the prosecution (together, “Dentist Defendants”); and Sharon Thomas-Boyd, a serology expert who also participated in the investigation and trial. The amended complaint, which Starks filed in January 2013 after a lengthy stay of this case had been lifted, is organized into nine counts: (1) a § 1983 claim against all Defendants for violating Starks’s Fourteenth Amendment right to due process of law; (2) a § 1983 claim against the Police Defendants for failure to intervene; (3) a § 1983 claim against all Defendants for conspiracy to violate Starks’s constitutional rights; (4) a § 1983 claim against the City under Monell v. Department of Social Services,
Thomas-Boyd has answered the amended complaint. Doc. 99. The City and the Police Defendants (collectively, “Waukegan Defendants”) filed a motion to dismiss, Doc. 103, and the Dentist Defendants filed a separate motion to dismiss, Doc. 100.
Background
In considering the motions to dismiss, the court assumes the truth of the amended complaint’s factual allegations, though not its legal conclusions. See Munson v. Gaetz,
In January 1986, a woman referred to as M.G. reported to the Waukegan police that she had been attacked and raped by an African-American man. Doc. 95 at ¶ 10. She gave the police a physical description of her attacker that did not match Starks’s appearance. Id. at ¶ 11. The police found a coat and other clothing that belonged to Starks at the scene of the alleged assault. Id. at ¶ 12. But this clothing had been stolen from Starks by two men on the evening that the assault occurred. Id. at ¶ 13. A few days later, Defendants Biang and Juarez showed M.G. a photo of Starks as part of a suggestive photo array and induced her to identify Starks as her attacker. Id. at ¶ 14.
The same day, Starks voluntarily came to the police-station and was interviewed by Biang. Id. at ¶ 15. Biang could have recorded the interview but did not, and he proceeded to prepare a police report that attributed various inculpatory statements to Starks, when in fact Biang made up those statements himself. Id. at ¶¶ 15-16. The next day Starks was interrogated by Defendant Deprez, who, like Biang, did not record the interview and then filed a police report that falsely attributed inculpatory statements to Starks. Id. at ¶¶ 17-18. Defendant Urbancic, a police lieutenant and the supervisor of Biang, Deprez, Juarez, and Stevenson, was closely involved in the investigation. Id. at ¶ 19. Although the Police Defendants knew that M.G. was unreliable and that her identification of Starks was unreliable and a product of improper suggestion, they failed to tell the prosecutors any of this. Id. at ¶¶ 20, 22. Instead, they met with M.G. several more times and, through suggestion, led her to change significant aspects of her story to match the other evidence in the case and to undermine Starks’s alibi. Id. at ¶ 21. As a result of the Police Defendants’ acts and omissions, Starks was arrested and charged. Id. at ¶ 23.
The Dentist Defendants held themselves out as experts in forensic dentistry. Id. at ¶ 5. The prosecution hired the Dentist Defendants to compare an alleged bite mark on' M.G.’s body with Starks’s teeth. Id. at ¶ 24. The Dentist Defendants reported that the bite mark had been made by Starks. Id. at ¶ 25. But they intentionally misapplied the methodology they purported to use, employed a method of comparison that has been rejected by the forensic dentistry community, and used flawed preservation and photography techniques. Id. at ¶ 26. Thus, while they told the prosecution that they could confidently attribute the bite mark to Starks, they were actually aware that they could not reliably make that identification. Id. at ¶ 27.
Defendant Thomas-Boyd was an employee of the Northern Illinois Crime Lab
Juarez gave false testimony to the grand jury, leading it to indict Starks. Id. at ¶ 34. At trial, Juarez, Biang, and Deprez all gave false testimony against Starks, including by saying that the photo array that led to M.G.’s identification of Starks had not been suggestive and that Starks had made inculpatory statements during interrogation. Id. at ¶ 35. The Dentist Defendants also gave false testimony, repeating their assertion, previously made to the prosecutors, that they could reliably link the bite mark on M.G. to Starks’s teeth when in fact their data did not allow them to make that link. Id. at ¶ 36. Thomas-Boyd testified that the semen collected from M.G.’s body and clothing could have been Starks’s and concealed her knowledge that the tests had actually excluded Starks as a possible source. Id. at ¶ 38. The Police Defendants never told the prosecution or the defense that M.G.’s testimony was the product of their suggestive practices. Id. at ¶ 39. Starks alleges that Defendants did all this pursuant to a conspiracy among them to deprive Starks of his constitutional rights and to secure his conviction, and that the acts described above were overt acts taken by Defendants pursuant to their conspiracy. Id. at ¶ 57.
Starks was convicted of aggravated criminal sexual assault, attempted aggravated sexual assault, and aggravated battery, and was sentenced to 60 years in prison. Id. at ¶ 40. His conviction was affirmed on direct appeal. Id. at ¶ 42. In March 2002, more than 16 years after his arrest, Starks filed a motion for a new trial in which he asserted that he was innocent, that post-conviction DNA tests excluded him as the source of the semen, and that Thomas-Boyd had lied about the results of her tests. Id. at ¶ 43. The state trial court denied Starks’s motion. Id. at ¶ 44. But the Appellate Court of Illinois reversed the trial court’s judgment, vacated Starks’s aggravated criminal sexual assault and attempted aggravated criminal sexual assault convictions, and remanded the case for a new trial on those charges. Id. at ¶ 45; see People v. Starks,
Starks filed this lawsuit in January 2009, after his sexual assault convictions had been vacated and he had been released on bond pending a new trial on those charges, but before his aggravated battery conviction had been vacated and before the State had dismissed any of the charges against him. Doc. 1. The court stayed the lawsuit pending the resolution of the state court criminal proceedings.
Discussion
The Waukegan Defendants’ and the Dentist Defendants’ motions to dismiss both purport to come under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 100 at 1; Doc. 104 at 2-3. There is no argument in either motion that plausibly aims at the court’s subject matter jurisdiction, as required for dismissal under Rule 12(b)(1). The Dentist Defendants appear to believe that the rule of Heck v. Humphrey,
I. The Waukegan Defendants’ Motion to Dismiss
The grounds for dismissal advanced by the Waukegan Defendants can be categorized as follows: (1) a challenge to the complaint as a whole for “group pleading”;
A. “Group Pleading”
Starks names nine defendants, each of whom is alleged to have taken distinct unlawful actions; the one exception is that the allegations against the Dentist Defendants do not distinguish between those two defendants. Several counts in the complaint refer generally to “the Defendants” rather than specifying which defendants are the subjects of that count. It is not clear that all claims are actually aimed at all nine defendants. For instance, Starks cannot state claims against the City for denial of due process (Count I) or conspiracy (Count III) under § 1983, because the only way the City could be liable under those claims is by virtue of the acts of its employees, yet municipalities cannot be held liable under § 1983 under a respondeat superior theory for the acts of their officers. See Monell,
Setting aside Starks’s failure to state explicitly that some claims are not aimed at the City, the court perceives nothing problematic in Starks’s use of collective references to “the Defendants” to refer to all of them. The Waukegan Defendants point out, correctly, that Starks is obliged to “adequately plead[] personal involvement” of each defendant, Brooks v. Ross,
B. “Shotgun Pleading”
By “shotgun pleading,” the Waukegan Defendants mean the statement in the first paragraph of each count that “[e]ach paragraph of this Complaint is incorporated as if restated fully herein.” Doc. 95 at ¶¶ 61, 69, 73, 80, 85, 92, 98, 103, 106. They quote CustomGuide v. CareerBuilder, LLC,
C. Count I (Due Process) as a “Hybrid Claim”
The Waukegan Defendants next argue that Count I, titled “42 U.S.G. § 1983 Claim for Denial of Due Process,” is an impermissible “hybrid claim” because it does not specify the particular due process doctrine that Defendants are alleged to have transgressed. Doc. 111 at 5-7; see Daniels v. Williams,
D. Absolute Immunity for Count I (Due Process)
Paragraphs 34-38 of the complaint allege that the Police Defendants gave knowingly false testimony either to the grand jury that indicted Starks or during his criminal trial. Doc. 95 at ¶¶ 34-38. The Supreme Court has made clear that a witness has absolute immunity against any § 1983 claim based on his grand jury or trial testimony. See Rehberg v. Paulk, — U.S. -,
Defendants argue that this requires dismissal of Count I, the due process claim. Doc. 104 at 4-5. But as recounted above, the Police Defendants are alleged to have done much more than just give false testimony and conspire to do so, and nothing in Count I suggests that Starks means to base his due process claim solely on the acts — testifying before the grand jury and the jury — for which the Police Defendants have absolute immunity. The Police Defendants do not argue that the other allegations against them — for instance, that they caused M.G. to identify Starks as her assailant by giving her a suggestive photo array, arid filed reports that falsely attributed inculpatory statements to Starks — could not ground a due process claim. See Whitlock v. Brueggem
E. Count II: § 1983 Failure to Intervene Claim
After incorporating by reference all other paragraphs in the complaint, Count II, titled “42 U.S.C. § 1983 Claim for Failure to Intervene,” alleges as follows:
70. One or more of the Defendant officers [the Police Defendants] had opportunities to intervene on behalf of Plaintiff and prevent the continuing constitutional violations described herein, but due to their intentional conduct and/or reckless or deliberate indifference, declined or refused to do so.
71. As a direct and proximate result of Defendant officers’ failure to intervene to prevent the continuing violation of Plaintiff’s constitutional rights, Plaintiff suffered the injuries set forth above, including physical pain and suffering and emotional distress.
72. The misconduct described in this Count was committed intentionally, willfully, and/or with reckless or deliberate indifference to Plaintiff’s clearly established constitutional rights.
Doc. 95 at ¶¶ 70-72.
The Seventh Circuit has held that “under certain circumstances a state actor’s failure to intervene renders him or her culpable under § 1983.... An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had reason to know (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to prevent the harm from occurring.” Yang v. Hardin,
But as Starks says in his brief opposing dismissal, “[t]hat is obviously not Plaintiffs claim.” Doc. 109 at 9. Rather, Count II alleges that each of the Police Defendants
F. Count III: § 1983 Conspiracy Claim
Defendants next contend that Count III, which alleges that Defendants conspired to deprive him of his constitutional rights in violation of § 1983, falls short of the Rule 8(a) pleading standard as interpreted by Ashcroft v. Iqbal,
Starks’s § 1983 conspiracy claim meets that standard. The complaint describes acts performed by the individual defendants that were intended to and did lead to his prosecution and conviction for crimes he did not commit. The complaint further alleges that “Defendants agreed among themselves and with other individuals to act in concert in order to deprive Plaintiff of his constitutional rights, including his rights to due process and to a fair trial, as set forth” in the complaint’s fact section. Doc. 95 at ¶ 74. Even if this particular allegation is conclusory, meaning that the court should not accept it as true standing alone, see Iqbal,
This is not a case where “the well-pleaded facts do not permit the court to infer more than the possibility of misconduct.” Id. at 679,
While the complaint makes only rather conclusory direct allegations of conspiracy, the complaint also alleges a pattern of harassment by several officers over a period of months. It is a challenge to imagine a scenario in which that harassment would not have been the product of a conspiracy. Under Twombly, all plaintiff needed to allege was a plausible account of a conspiracy. This complaintgoes well beyond that.... Iqbal calls on us to apply our “judicial experience and common sense.” If several members of the same police unit allegedly acted in the same inexplicable way against a plaintiff on many different occasions, we will not dismiss a complaint for failure to recite language explicitly linking these factual details to their obvious suggestion of collusion.
G. The Dentist Defendants’ Limitations Challenge to Counts II and III
In their reply brief, the Police Defendants seek to incorporate by reference the Dentist Defendants’ statute of limitations challenge to Counts II and III, the § 1983 failure to intervene and conspiracy claims. Doc. Ill at 7. As set forth below, the court declines to consider the Dentist Defendants’ argument with respect to Count II because, as the Dentist Defendants’ recognize, they are not named as defendants to that count and therefore cannot properly challenge it. But if the court were to consider their argument as to Count II, the court would reject it on the same grounds given below with respect to the Dentist Defendants’ limitations challenge to Count I; those grounds suffice for Count II as well because the Dentist Defendants do not distinguish between the two counts. And for the reasons given below, the court rejects the Dentist Defendants’ argument that Count III is time-barred. Accordingly, the Dentist Defendants’ arguments regarding Counts II and III do not entitle the Police Defendants to dismissal of those claims.
H. Count IV: Monell Claim
After incorporating by reference all other paragraphs in the complaint, Count IV, titled “42 U.S.C. § 1983 Monell Policy Claim Against City of Waukegan,” alleges as follows:
81. The actions of [the Police Defendants] as alleged above, were done pursuant to one or more interrelated de facto policies, practices and/or customs of the Defendant City of Waukegan[,] its Police Department, Police Board, and/or City Council.
82. At all times material to this complaint, Defendant City and its Police Department had interrelated de facto policies, practices, and customs which included, inter alia:
a) filing false reports and giving false statements and pursuing and obtaining wrongful prosecutions and false imprisonments on the basis of such reports and statements;
b) the failure to properly train, supervise, discipline, transfer, monitor, counsel and/or otherwise control police officers, particularly those who were repeatedly accused of wrongful imprisonments, malicious prosecutions and wrongful convictions and of making false reports and statements;
c) the police code of silence, specifically in cases where police officers refused to report or otherwise covered up instances of police misconduct, and/or the fabrication, suppression and destruction of evidence of which they were aware, despite their obligation under the law and police regulations to do so;
d) covering up, suppressing and withholding exonerating, exculpatory, and/or other evidence favorable to criminal Defendants; and
e) coercing and fabricating false and inculpatory statements from suspects and witnesses.
83. These policies, practices and customs, as set forth above, both individually and together, were maintained and implemented with deliberate indifference, encouraged, inter alia, the fabrication, coercion, manipulation, and alteration of evidence, the making of false statements and reports, the giving of false testimony, and the pursuit and continuation of wrongful convictions and false arrests and imprisonments, and otherwise covering up police misconduct, and were, separately and together, a direct and proximate cause of the unconstitutional acts committed by the named Defendants and the injuries suffered by the Plaintiff.
84. Additionally, said failure to properly train, discipline, monitor, control, assign, transfer, supervise, and counsel the police Defendants herein was done with deliberate indifference and likewise acted as a direct and proximate cause of the injuries to Plaintiff.
Doc. 95 at ¶¶ 81-84. None of the complaint’s factual allegations pertain to the City’s customs or policies, and so none buttress this claim. Starks’s brief opposing dismissal mentions four cases of similar misconduct in Waukegan. Doc. 109 at 12-13.
To state a municipal liability claim under Monell, the plaintiff must allege “that an official policy or custom not only caused the constitutional violation, but was the moving force behind it.” Estate of Sims ex rel. Sims v. Cnty. of Bureau,
Starks’s unwritten practice allegations do not satisfy Rule 8(a). Iqbal holds that “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
The four other alleged cases of similar misconduct cited in Starks’s brief, which must also be considered on a Rule 12(b)(6)
Starks also seeks to assert a Monell claim against the City for failure to train its officers. Doc. 95 at ¶ 84. “In limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983.” Connick v. Thompson, — U.S. -,
I. Count V: State Law Malicious Prosecution Claim
The Police Defendants seek dismissal of Count V, which asserts a state law malicious prosecution claim. “Under Illinois law, the elements of a malicious prosecution are (1) commencement of criminal proceedings by the defendants; (2) termination of that matter in favor of the plaintiffs; (3) the absence of probable cause for the proceedings; (4) the presence of malice; and (5) resulting damages.” Gonzalez v. City of Elgin,
“In regard to the second element, a malicious prosecution action cannot be predicated on underlying criminal proceedings which were terminated in a manner not indicative of the innocence of the accused.” Swick,
Nothing in the complaint suggests that the dismissals of the criminal charges against Starks were brought about by an agreement or compromise with Starks, misconduct on the part of Starks for the purpose of preventing trial, mercy requested or accepted by Starks, the institution of new criminal proceedings against Starks, or the impossibility or impracticability of bringing him to trial. Rather, taking the alleged facts as true, the inference that there existed a lack of reasonable grounds to pursue Starks’s prosecution is compelled. The dismissals were the direct results of the two above-referenced state appellate court decisions, which held that the evidence against Starks had been undermined and that a jury aware of the true evidence would more likely than not acquit. See Starks,
As to the first malicious prosecution element, the Police Defendants’ argument that “[pjolice do not prosecute, prosecutors do,” Doc. 104 at 13, is similarly unavailing. Illinois law holds that “[[liability for malicious prosecution is not confined to situations where the defendant signed a complaint against the plaintiff. Rather, liability extends to all persons who played a significant role in causing the prosecution of the plaintiff, provided all of the elements of the tort are present.” Rodgers v. Peoples Gas, Light & Coke Co.,
J. Count VI: Intentional Infliction of Emotional Distress Claim
In their reply brief, the Police Defendants incorporate by reference the Dentist Defendants’ argument that Starks’s intentional infliction of emotional distress claim is barred by the statute of limitations. Doc. Ill at 10. As explained below, the Dentist Defendants are correct. Moreover, the Dentist Defendants’ arguments apply equally to the Police Defendants. Accordingly, the emotional distress claim is dismissed.
K. Count VII: State Law Civil Conspiracy Claim
Count VII advances a claim for civil conspiracy under Illinois law. In their motion to dismiss, the Waukegan Defendants say only this: “Plaintiffs state law claim for civil conspiracy is derivative of his federal claim [of conspiracy to deprive him of his constitutional rights], discussed above in Section IV. For those same reasons, Plaintiffs Count VII must also be dismissed.” Doc. 104 at 14. Because the court has held that the § 1983 conspiracy claim should not be dismissed, and because Defendants propose no other ground for dismissing the state law civil conspiracy claim, the motion to dismiss is denied as to that claim.
II. The Dentist Defendants’ Motion to Dismiss
The Dentist Defendants press four grounds for dismissal: (1) that Starks’s claims are barred by the applicable statutes of limitations; (2) that the § 1983 claims against them fail because they are private actors who did not act “under color of’ state law; (3) that the § 1983 conspiracy claim fails to satisfy Iqbal; and (4) that the emotional distress claim fails because the Dentist Defendants have absolute immunity under Illinois law for their testimony at his trial.
A. The Statute of Limitations
The Dentist Defendants contend that several of -Starks’s claims are barred by the statute of limitations. Doc. 102 at 5-8. In their reply brief, however, they acknowledge that the § 1983 failure to intervene claim is aimed only at the Police Defendants, Doc. 110 at 1-2; see Doc. 95 at ¶¶ 70-71 (Count II, referring specifically to “the Défendant officers”), and so the court will not consider the Dentist Defendants’ limitations arguments as they pertain to that claim.
“A statute of limitations defense, while not normally part of a motion under Rule 12(b)(6), is appropriate where the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations.” Andonissamy v. Hewlett-Packard Co.,
1. Count I: § 1983 Due Process Claim
As noted above, Count I alleges that Defendants violated Starks’s due process rights by fabricating inculpatory evidence and suppressing exculpatory evidence during the investigation and trial, leading to his conviction and incarceration. The parties agree that the statute of limitations is two years and that Starks filed this suit on January 20, 2009. Doc. 102 at
Starks cites Johnson v. Dossey,
Even if this over-reads Northfield Insurance, the Dentist Defendants have failed to show that the due process claim is time-barred. They cite only two cases, Wallace v. Kato,
In their reply brief, Defendants at last discuss a relevant precedent — Heck—and contend that “the nolle prosequi of May 15, 2012 and January 6, 2013 did not terminate the criminal proceedings in [Starks’s] favor and thus” the claim must be dismissed under Heck. Doc. 110 at 5. For the reasons discussed above, on the facts alleged by Starks, the nolle prosequi dismissals were terminations in his favor and were indicative of his innocence. Accordingly, the Dentist Defendants have failed to establish that the due process claim is time-barred.
2.Count III: § 1983 Conspiracy Claim
The Dentist Defendants concede “that a federal conspiracy claim which rests upon a due process violation accrues at the same time, and has the same limitations periodf,] as the underlying claim.” Doc. 110 at 3. In light of that concession, and because Defendants do not contend that the conspiracy claim is time-barred if the underlying due process claim is not, their limitations challenge to the § 1983 conspiracy claim is rejected for the reasons just given with respect to the due process claim.
3.Count V: State Law Malicious Prosecution Claim
Defendants treat the malicious prosecution claim together with the due process and conspiracy claims. Because they have not made any separate argument that it is time-barred, and because the court has already rejected their contentions with respect to the due process and conspiracy claims, their limitations challenge to the malicious prosecution claim is also rejected.
In their reply brief, the Dentist Defendants argue for the first time that Count V should be dismissed because Starks has not adequately alleged that the dismissals nolle prosequi were for reasons indicative of his innocence. Doc. 110 at 5-7. By failing to introduce this argument prior to their reply brief, the Dentist Defendants forfeited it. See Narducci,
4.Count VI: Intentional Infliction of Emotional Distress Claim
Starks concedes that Illinois law subjects intentional infliction of emotional distress (“IIED”) claims to a one-year statute of limitations. Doc. 108 at 9. The Dentist Defendants contend that Starks’s emotional distress claim accrued when he was convicted in 1986. Doc. 102 at 7. Defendants are correct. In Brooks v. Ross, supra, the Seventh Circuit held that although the plaintiffs malicious prosecution and § 1983 due process claims accrued only upon the favorable termination of the prosecutions, his emotional distress claim arising out of that prosecution accrued when he was indicted.
It is also clear that the continuing tort rule does not apply in this case. The Supreme Court of Illinois has stated that “where there is a single overt act from which subsequent damages may flow, the statute begins to run on the date the defendant invaded the plaintiffs interest and inflicted injury, and this is so despite the continuing nature of the injury.” The single overt act here is Brooks’s indictment, even if the damages that Brooks suffered may have continued throughout his trial. We therefore find Brooks’s ... state law ... IIED claim! ] time-barred.
Starks cites Parish v. City of Elkhart,
5. Count VII: State Law Civil Conspiracy Claim
As with their malicious prosecution argument, the Dentist Defendants treat their argument that Starks’s state law civil conspiracy claim is time-barred along with their argument that his due process claim is time-barred. Doc. 102 at 5-7; Doc. 110 at 7. Accordingly, their limitations challenge to the civil conspiracy claim is rejected for the reasons given above with respect to the due process claim.
B. The State Action Doctrine
The Dentist Defendants next contend that they are private actors who were not acting “under color of’ state law when they performed the actions alleged, as required for liability under § 1983. Doc. 102 at 8-10. They do not explain why they think they were not acting under color of state law when they assisted the investigation and prosecution of Starks by asserting that the bite mark on M.G. had been made by Starks, Doc. 95 at ¶ 25. Precedent holds that “[a] private defendant acts ‘under color of state law for purposes of Section 1983 when it is ‘a willful participant in joint action with the State or its agents.’ ” Leahy v. Bd. of Trs. of Cmty. Coll. Dist. No. 508,
C. Count III: § 1983 Conspiracy Claim
The Dentist Defendants next argue that the § 1983 conspiracy claim against them must be dismissed because its allegations are insufficiently concrete and specific to state a claim. The court rejects this argument for substantially the same reasons given above with respect to the Police Defendants’ similar argument. As discussed above, Starks has adequately alleged that the Police Defendants, the Dentist Defendants, and Thomas-Boyd all made false statements intended to secure his conviction. A highly plausible inference from these allegations is that Defendants had all agreed among themselves to contribute to the effort to secure that conviction, as it is unlikely that each of them independently decided to lie to the prosecutors in order to send an innocent man to prison. See Geinosky,
The Dentist Defendants rely heavily on Cooney v. Rossiter,
Cooney is inapposite. Central to Iqbal is the proposition that “[determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”
D. Count VI: Intentional Infliction of Emotional Distress Claim
Finally, the Dentist Defendants contend that they are entitled to dismissal of the intentional infliction of emotional distress claim because they have absolute immunity for their testimony at his trial under Illinois law. Doc. 102 at 12-14. The eoúrt has already held that the Dentist Defendants are entitled to dismissal of this claim on limitations grounds, so this argument need not be considered.
Conclusion
The Waukegan Defendants’ motion to dismiss is granted with respect to the Monell and intentional infliction of emotional distress claims and otherwise is denied. The Dentist Defendants’ motion to dismiss is granted with respect to the emotional distress claim and otherwise is denied. The dismissal of the emotional distress claim is with prejudice, because the flaw in that claim, the statute of limitations, cannot be cured by repleading. See Rosenfield v. HSBC Bank, USA,
Memorandum Opinion and Order
In May, the court granted in part and denied in part Defendants’ motions to dismiss Plaintiff Bennie Starks’s amended complaint.
Because final judgment has not been entered, the dismissal of the IIED claim is interlocutory, which means that Starks’s motion to reconsider is governed' by Federal Rule of Civil Procedure 54(b) rather than Rule 59(e). See Galvan v. Norberg,
The court dismissed the IIED claim on the ground that it is time-barred under the one-year statute of limitations imposed by Illinois law.
Like Starks, the plaintiff in Parish was convicted of very serious crimes and served several years in prison before the convictions were vacated on post-conviction review and the charges were dropped.
The Seventh Circuit first considered when an IIED claim accrues under Indiana law. The court observed that the Indiana judiciary in Scruggs had adopted the Heck accrual rule for claims arising under Indiana law, and noted that “[ujnder the Heck framework, a claim that directly attacks the validity of a conviction cannot accrue until after the conviction has been terminated in a manner favorable to the plaintiff.” Id. at 681. Citing its own decision in Evans v. Poskon,
[W]e read these cases to rely on th[is] ... distinction ...: whether the claimed tort occurred and was completed before conviction — as would be the case with a claim for false arrest, false imprisonment, or IIED resulting from offensive behavior at the time of arrest — or the claimed tort was not complete prior to conviction — as would be the case with a claim for malicious prosecution or IIED resulting from actions that lead to a false conviction. If the claimed tort occurred and was completed before the conviction, ..., the claims accrue immediately upon the completion of the tort. If the claimed tort continued through, or beyond, the point of conviction, the court must ask whether the claims would directly implicate the validity of the conviction. If the claims would not directly implicate the validity of the conviction, the court should follow the standard discovery rule applied in Indiana: The claim accrues at the time the individual knew or should have known of the tort. If the claim would directly implicate the validity of the conviction, then Heck and Scruggs come into play and the claim does not accrue until the conviction has been disposed of in a manner favorable to the plaintiff.
The Seventh Circuit then applied these accrual rules to Parish’s claim. Parish alleged that the defendant officers “created a fake crime scene, fabricated evidence, tampered with evidence, destroyed or withheld exculpatory evidence, either actively suborned or deliberately turned a blind eye to perjured testimony, and testified falsely under oath, leading to his wrongful conviction,” and then “covered up their actions to maintain [his] continued incarceration”; by this conduct, Parish maintained, the officers “intentionally or recklessly caused him severe emotional distress.” Id. at 683. The Seventh Circuit held that Parish’s IIED claim “was not complete prior to the time of conviction because the conviction was the crux of the case,” reasoning that the officers “allegedly took steps through all stages of the investigation and trial that cumulatively amounted to the tort of IIED,” and that “the conviction was an essential piece of this tort because it was the wrongful conviction that led to the emotional strain and mental anguish that Parish faced.” Ibid. The court then concluded that “the facts alleged to support Parish’s claim of IIED directly attack the validity of the conviction,” explaining: “At the heart of Parish’s complaint is a claim that the defendant
Starks’s IIED claim is, for all relevant purposes, identical to Parish’s. Starks alleges that Defendants showed the victim a suggestive photo array and induced her to identify Starks as the perpetrator; improperly led the victim to change significant aspects of her story to match other evidence and undermine Starks’s alibi; falsely reported that Starks had made certain inculpatory statements during unrecorded interviews; intentionally misapplied forensic techniques on the bite mark on the victim’s body; falsely reported that Starks was the source of the semen recovered from the victim, even though the tests excluded Starks as a possible source; and testified falsely against him at trial.
The only remaining question, then, is whether the Illinois judiciary has adopted Heck for claims arising under Illinois law. It did so in Lieberman v. Liberty Healthcare Corp.,
The two principal cases cited by Defendants do not warrant a different result. The first, Barham v. McIntyre,
For these reasons, Starks’s motion for reconsideration is granted, resulting in the reinstatement of his IIED claim.