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Case: 1:12-cv-10418 Document #: 36 Filed: 07/31/13 Page 1 of 11 PageID #:99

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ABIGAIL CIHAK,

Plaintiff,

v.

THE CITY OF CHICAGO, et. al.,

Defendants.

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) No. 12 C 10418
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MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant City of Chicago (City),

Defendant Marie Biggane (Biggane), and Defendant Jeff Doig’s (Doig) motion to

dismiss. For the reasons stated below, the motion to dismiss is granted as to the

federal claims and denied without prejudice as to the state law claims.

BACKGROUND

Plaintiff Abigail Cihak (Cihak) alleges that she worked as a childcare

provider for many years and was employed in January 2010 by a family whose infant

began exhibiting signs of physical distress. Cihak allegedly reported the baby’s

health problems to the baby’s parents. At the end of January 2010, Cihak allegedly

noticed and reported a bump on the baby’s head to the baby’s mother. The mother

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allegedly took the baby to the hospital while Cihak stayed to care for the baby’s

sister. At the hospital, the baby was allegedly diagnosed with multiple fractures and

admitted to the hospital for several days. Later that week, the baby’s parents

allegedly informed Cihak that they no longer wished to employer her.

That same week, Biggane and Doig (collectively referred to as “Defendant

Officers”) allegedly contacted Cihak regarding the baby, and Cihak allegedly went to

the police station to answer Defendant Officers’ questions. Two weeks later,

Defendant Officers allegedly arrested and transferred Cihak from her home to the

police station, and allegedly failed to administer her Miranda warnings or inform her

of the crime with which she was charged. Eventually, Defendant Officers allegedly

told Cihak that she was being charged with committing aggravated battery against a

baby (Crime), which was a Class X felony that carried a potential sentence of 30

years of imprisonment.

Cihak alleges that Defendant Officers had no probable cause to charge her

with the Crime or continue the charges against her. Plaintiff also alleges that she was

held without bond in Cook County Jail for one and a half months, and that she was

then ordered to home confinement. Cihak allegedly remained on home confinement

for two years. Cihak alleges that after charging her with the Crime, Defendant

Officers withheld and destroyed exculpatory information and made false statements

relating to the opinions of a medical expert. On March 28, 2012, the charge against

Cihak was allegedly dismissed in a manner indicating Cihak’s innocence.

Cihak includes in her complaint claims against Defendant Officers brought

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pursuant to 42 U.S.C. § 1983 (Section 1983) alleging an unlawful seizure in violation

of the Fourth Amendment, alleging violations of Cihak’s Fourteen Amendment right

to due process, and alleging a failure to intervene to stop such constitutional

violations, as well as state law claims for malicious prosecution, false arrest, false

imprisonment, and intentional infliction of emotional distress. Cihak also includes in

her complaint a claim against the City relating to the alleged constitutional violations

brought pursuant to Section 1983 and Monell, as well as claims against the City for

respondeat superior and indemnification. Defendants now move to dismiss all

claims.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil

Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences

that favor the plaintiff, construe the allegations of the complaint in the light most

favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in

the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th

Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.

2002). A plaintiff is required to include allegations in the complaint that “plausibly

suggest that the plaintiff has a right to relief, raising that possibility above a

‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”

E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.

2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));

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see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive

a motion to dismiss, the complaint “must contain sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face,” and that “[a] claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations

omitted).

DISCUSSION

I. Section 1983 Claims against Defendant Officers

Defendants argue that the Section 1983 claims brought against Defendant

Officers should be dismissed.

A. Fourth Amendment Unlawful Seizure Claims

Defendants contend that the Fourth Amendment unlawful seizure claims are

time-barred, and should therefore be dismissed. Cihak has not opposed dismissal of

the Fourth Amendment unlawful seizure claims. Therefore, the court grants

Defendants’ motion to dismiss with respect to the Fourth Amendment unlawful

seizure claims.

B. Fourteenth Amendment Due Process Claims

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Defendants contend that Cihak’s Fourteenth Amendment due process claims

should be dismissed because they are faultily premised on Defendant Officers’

alleged fabrication of evidence and Defendant Officers’ alleged destruction of

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

1. Alleged Fabrication of Evidence

Defendants argue that the alleged fabrication of evidence by Defendant

Officers does not give rise to any constitutional claim. The Seventh Circuit has

stated that “[a] plaintiff cannot state a due process claim ‘by combining what are

essentially claims for false arrest under the Fourth Amendment and state law

malicious prosecution into a sort of hybrid substantive due process claim under the

Fourteenth Amendment.’” Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir.

2009)(quoting McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003)); see also

McCann, 337 F.3d at 786 (indicating that “to the extent [a plaintiff] maintains that [a

defendant] denied him due process by causing him to suffer ‘[a] deprivation of

liberty from a prosecution and a contrived conviction . . . deliberately obtained from

the use of false evidence,’ his claim is, in essence, one for malicious prosecution,

rather than a due process violation”); Newsome v. McCabe, 256 F.3d 747, 751-52

(7th Cir. 2001)(indicating that since a state law remedy is available in Illinois,

“satisfying the elements of the state-law tort of malicious prosecution, far from being

the foundation of a constitutional tort . . . , knocks out any constitutional tort of

malicious prosecution”). In the instant action, Cihak alleges that “Defendant

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Officers not only initiated the criminal case against [her], but [they] also maliciously

continued the prosecution against her, including by withholding exculpatory

information and making false statements regarding the opinions of a medical expert.”

(Compl. Par. 15). Cihak also alleges that “Defendant Officers fabricated evidence

and withheld and destroyed exculpatory information, including by making statements

regarding [Cihak’s] alleged culpability with knowledge that the statements were false

and perjured . . . .” (Compl Par. 24). Under Seventh Circuit precedent, the

allegations that Defendant Officers made false statements and fabricated evidence do

not give rise to a constitutional due process claim.

Cihak relies on Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012),

to argue that the Seventh Circuit has “consistently held that a police officer who

manufactures false evidence against a criminal defendant violates due process if that

evidence is later used to deprive the defendant of her liberty in some way.” Id.

However, in Whitlock, “the Seventh Circuit was not directly confronted with the

issue of whether the fabrication of evidence by police officers can give rise to

liability under [Section 1983] as a constitutional due process violation.” Caine v.

Burge, 897 F.Supp.2d 714, 718 (N.D. Ill. 2012). Therefore, Whitlock does not signal

a change in controlling law. See id. at 718-22 (discussing Whitlock’s effect on earlier

cases). Further, since Whitlock, the Seventh Circuit has reaffirmed its holding in

Brooks that the fabrication of evidence does not give rise to a constitutional claim.

See Alexander v. McKinney, 692 F.3d 553, 557 (7th Cir. 2012)(rejecting a plaintiff’s

“attempt to piece together an amorphous substantive due process claim from the

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remains of his forgone or otherwise unavailable constitutional and state law claims”

based on Seventh Circuit precedent). Cihak also relies on Engel v. Buchan, 710 F.3d

698, 708 (7th Cir. 2013), which was decided after Alexander. However, Engel

relates to whether “a Bivens cause of action is available for a Brady violation

committed by a federal law-enforcement agent in connection with a state criminal

prosecution.” Id. Therefore, Engel is not on point. Based on controlling authority,

Cihak’s allegations relating to Defendant Officers’ fabrication of evidence fail to

support her Fourteenth Amendment due process claims.

2. Alleged Brady Violations

Defendants argue that Cihak has not sufficiently pled, and cannot sufficiently

plead, a Brady violation. For a Brady claim, a petitioner must show: “(1) the

prosecution suppressed evidence; (2) the evidence was favorable to the accused; and

(3) the evidence was material, that is, there was a reasonable probability that

prejudice ensued.” Alexander, 692 F.3d at 556-57 (citations omitted). Cihak argues

that she has adequately pled a Brady violation by alleging “that she did not commit

any battery against any child, and that [ ] Defendant Officers nevertheless charged

her and continued a case against her for Class X abuse of a baby without probable

cause and by withholding and destroying exculpatory information, including by

making statements about her regarding her alleged culpability with knowledge that

the statements were false and perjured, and more specifically by withholding

information about false statements regarding the opinions of a medical expert.

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(Resp. 7). Cihak’s allegations regarding lack of probable cause and her actual

innocence relate solely to her Fourth Amendment unlawful seizure claims, which

have already been dismissed. In addition, it is well-settled that a Brady violation

does not occur when a police officer makes a false statement. See Carvajal v.

Dominguez, 542 F.3d 561, 567 (7th Cir. 2008)(stating that “[i]t is already established

law that Brady does not extend so far as to provide relief in a situation where “‘a

police officer makes a false statement to a prosecutor.’”)(quoting Harris v. Kuba,

486 F.3d 1010, 1017 (7th Cir. 2007), which rejected a plaintiff’s attempt to extend

“Brady to provide relief if a police officer makes a false statement to a prosecutor by

arguing that an officer is ‘suppressing’ evidence of the truth by making the false

statement”)(additional citation omitted). Further, as Deefendants correctly point out,

Cihak could have ascertained, through discovery, the true substance of the medical

expert’s opinion. Thus, Defendant Officers’ allegedly false statements relating to the

medical expert’s opinion do not support a Brady claim.

Stripped of the allegations relating to Defendant Officers’ false statements

regarding the medical expert’s opinion, Cihak’s Brady claim consists solely of her

conclusory allegation that Defendant Officers withheld and destroyed exculpatory

evidence. Such an allegation, standing alone, is not sufficient to plausibly suggest a

violation of Brady. Further, Cihak acknowledges that she never went to trial and

alleges that the charges brought against against her were eventually dropped. Even

though Cihak has alleged that she was subjected to two years of home confinement,

absent a trial or guilty plea, the elements of a Brady claim cannot be met. See Ray v.

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City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011)(observing that the plaintiff had

“failed to identify a single instance . . . where [the Seventh Circuit] [had] allowed [ ]

suit[] [based on a violation of Brady] when the individual is merely charged with a

crime, but never fully prosecuted”). Therefore, Cihak has not stated any valid

Fourteenth Amendment due process claims based on a violation of Brady. Based on

the above, the court grants Defendants’ motion to dismiss with respect to the

Fourteenth Amendment due process claims.

II. Failure to Intervene and Monell Claims

Since Cihak has failed to successfully allege any constitutional violations, her

claims for failure to intervene and her Monell claim must also be dismissed. See

Harper v. Albert, 400 F.3d 1052, 1066 n.18 (7th Cir. 2005)(stating that “without

establishing an underlying constitutional violation . . . it would be impossible for a

failure to intervene claim, as a matter of law, to succeed”)(citation omitted); see also

Palka v. Shelton, 623 F.3d 447, 455 (7th Cir. 2010)(dismissing Monell claim after

observing that “because [the] complaint fail[ed] to state a claim for any constitutional

violation, the City and County [could not] be held liable; a Monell claim requires a

municipal policy or practice that results in a constitutional deprivation”)(citation

omitted). Based upon the above, the court grants Defendants’ motion to dismiss with

respect to the failure to intervene claims and the Monell claim.

III. Remaining State Law Claims

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Having resolved the federal claims in this case, the court must determine

whether to continue to exercise supplemental jurisdiction over the remaining state

law claims. Once the federal claims in an action no longer remain, a federal court

has discretion to decline to exercise supplemental jurisdiction over any remaining

state law claims. See Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-252 (7th

Cir. 1994)(stating that “the general rule is that, when all federal-law claims are

dismissed before trial,” the pendent claims should be left to the state courts). The

Seventh Circuit has indicated that there is no “‘presumption’ in favor of

relinquishing supplemental jurisdiction. . . .” Williams Electronics Games, Inc. v.

Garrity, 479 F.3d 904, 906-07 (7th Cir. 2007). The Seventh Circuit has stated that in

exercising its discretion, the court should consider a number of factors, including

“the nature of the state law claims at issue, their ease of resolution, and the actual,

and avoidable, expenditure of judicial resources. . . .” Timm v. Mead Corp., 32 F.3d

273, 277 (7th Cir. 1994). The court has considered all of the pertinent factors and, as

a matter of discretion, the court declines to exercise supplemental jurisdiction over

the remaining state law claims. Therefore, Defendants’ motion to dismiss the

remaining state law claims is denied without prejudice, and such claims are

dismissed without prejudice.



CONCLUSION

Based upon the foregoing analysis, the motion to dismiss is granted

with respect to the Section 1983 and Monell claims. Defendants’ motion to dismiss

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the remaining state law claims is denied without prejudice, and the remaining state

law claims are dismissed without prejudice.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge

Dated: July 31, 2013

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