Lewis v. Mills

• Decision Date: 20 April 2012
• Docket Number: No. 11–2012.,11–2012.
• Parties: David L. LEWIS, Plaintiff–Appellant, v. Larry MILLS, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

677 F.3d 324

David L. LEWIS, Plaintiff–Appellant,
v.
Larry MILLS, et al., Defendants–Appellees.

No. 11–2012.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 29, 2011.Decided April 20, 2012.

John A. Baker (argued), Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff–Appellant.

Michael W. Condon, Jason W. Rose (argued), Attorneys, Hervas, Condon & Bersani, Itasca, IL, Michael J. Tague, Attorney, Flynn, Palmer & Tague, Steven A. Amjad, Attorney, Meyer Capel PC, Champaign, IL, for Defendants–Appellees.

Before POSNER and KANNE, Circuit Judges, and PRATT, District Judge. ^*PRATT, District Judge.

David L. Lewis is a former part-time police officer for the Village of Belgium, Illinois—a town of just over 400 people. On January 6, 2010, Lewis filed a one-count Amended Complaint arising under 42 U.S.C. §§ 1983 and 1988 against four defendants who allegedly participated in a conspiracy to prosecute him for various sexual offenses to retaliate against him for cooperating with an FBI investigation. These four defendants—a truly unique web of characters—consist of: (1) Larry Mills, the First Assistant State's Attorney for Vermilion County, Illinois; (2) Todd Damilano, a Deputy Sheriff/Investigator for the Vermilion County Sheriff's Department (the “Sheriff's Department”); (3) Scott Corrie, the former owner of a now-defunct strip club in Belgium, Illinois, called the Playpen Gentlemen's Club (the “Playpen”); and (4) Clint Gray, who is Lewis's brother, Corrie's friend, and an occasional patron of the Playpen.

Lewis paints a tawdry tale involving drugs, sex, power, corruption, and revenge, all culminating in a violation of his First Amendment constitutional rights. The district court observed that although there was “plenty of smoke” in this case, there was no “evidentiary fire,” or even an “evidentiary matchstick.” Citing this lack of evidentiary support for Lewis's claims, the district court granted summary judgment for all four defendants. Lewis has now appealed, and we affirm.

I. Background

Lewis worked as a part-time police officer in Belgium, Illinois from October 2003 until February 2007. Lewis apparently had an unremarkable record until March 2006, when numerous women—mostly dancers at the Playpen—began accusing him of a wide variety of inappropriate sexual conduct.

Specifically, Lewis's saga began around 3:10 a.m. on March 17, 2006. At that time, Lewis—on duty and in full police uniform—pulled over Danielle Perry, a Playpen dancer. Soon thereafter, Perry drove off, leaving Lewis alone alongside his Village of Belgium squad car. Roughly 20 hours later, at 10:45 p.m., Perry reported to the Sheriff's Department that, during the traffic stop, Lewis grabbed her, forced her to kiss him, and put his hands down her pants.

The Sheriff's Department Captain, Rod Kaag, launched an investigation of Lewis's alleged conduct. On March 22, 2006, Perry gave a recorded account of what transpired. On March 23, 2006, Kaag procured a grand jury subpoena to obtain Perry's phone records to see if the records were consistent with her version of events. That same day, Kaag advised Mills that the Sheriff's Department was launching an investigation against Lewis based on Perry's report. Notably, Kaag “did not ask Mills for guidance, direction or assistance in the investigation.” Moreover, Kaag does “not recall having any other discussions with Mills in 2006 about Lewis” and “did not ask Mills to take any prosecutorial action in 2006 vis a vis Lewis.”

In April 2006, two more Playpen dancers reported allegations of a sexual nature involving Lewis. Lacrisha Carrigan informed Kaag that, one year earlier, Lewis, while on duty, showed her pictures of his genitalia next to a beer bottle. Rebecca Lee told Investigator Damilano—who was working under the direction and supervision of Kaag—that she gave Lewis oral sex to avoid a traffic ticket. Damilano supplied Kaag with a copy of Lee's report. Kaag did not immediately pursue charges against Lewis because he had concerns that these allegations, standing alone, “would not be sufficient to convict Officer Lewis.”

It is perhaps unsurprising that an establishment like the Playpen—which has since closed—was a haven for trouble. Indeed, the “secondary effects” of strip clubs are well-established. See, e.g., Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 559 (5th Cir.2006). Presumably, that is why, in January 2006, the Belgium Police Chief Dale Ghibaudy instructed his officers to avoid the Playpen unless they were responding to a call. However, in Ghibaudy's view, this admonition had little deterrent effect on Lewis. Ghibaudy testified in his deposition that he believed Lewis repeatedly and grossly violated this directive.

On January 19, 2007, Audrey White—who worked for Clint Gray at his restaurant, Fat Boy Subs—lodged a complaint with Ghibaudy about an incident involving Lewis that occurred on December 23 and 24, 2006. She then followed this up with a recorded statement on January 22, 2007. Specifically, White alleged that, hours after running into Lewis at the Playpen on the night of December 23, 2006, Lewis arrived at her home in full uniform, invited her into his squad car, drove her to a secluded area, and tried to kiss her.

In February and March 2007, Damilano interviewed four more women who claimed that Lewis had sexually victimized them. Three were Playpen employees (Cheryl Forshier, Amy Dow, and Jennifer Garrett, who also happens to be Lewis's sister-in-law), and one was a Steak n' Shake employee (Ashley Grider). Following this spate of allegations, Kaag became “convinced that probable cause existed to believe that Lewis had victimized several women and abused his police position with the Village of Belgium.” Therefore, he and Damilano finally turned over the results of the investigation to Mills.

But, notably, in the meantime, Mills had become the subject of a separate investigation involving allegations of unseemly conduct. Specifically, before 2006, the FBI began investigating Mills on suspicion that he had provided favorable deals to criminal defendants in exchange for drugs and other favors. On December 13, 2006, an FBI Special Agent and an Illinois State Police Investigator interviewed Lewis and inquired about Mills. Lewis responded that he had no firsthand knowledge of any drug trafficking or drug use by Mills. Lewis did state, however, that he had heard “rumors” concerning Mills's “attendance at parties, cocaine use, and possibly providing drugs to females with disgruntled husbands and/or boyfriends.”

At the end of this interview, the FBI agent handed Lewis his card. At his deposition, the Illinois State Police Investigator confirmed that Lewis was not a particularly “significant” or “helpful” witness. After this interview, Lewis did not have contact with anyone regarding the investigation, at least until after his own indictment, which is discussed below.

On December 17, 2006, just days after his discussion with the FBI, Lewis alleges that he had a notable conversation with his brother, Clint Gray. Gray approached Lewis, stating that they needed to talk and “your badge needs to stay in the car” because “this is between brother and brother[.]” Gray stated that he had heard that Lewis had spoken to the FBI and that he was “making some very powerful and dangerous people very uncomfortable.” When asked what the FBI knew, Lewis responded that the “FBI has some concerns [Mills] is involved in something not exactly on the up and up with the Playpen.” Gray responded that Mills “runs this county” because he has “absolute power ... to say ... who does and doesn't go to trial.” Gray then explained that in exchange for women and cocaine from Corrie, Mills prosecuted competing drug dealers. Gray also added that Lewis could double his annual income if he went along with this scheme. At the end of this conversation, Gray allegedly asked Lewis if he was “in.” Lewis responded that he would not get involved and that he was going to do his job. Gray ended the conversation cryptically, warning “you know I can't protect you, right.”

Soon after this alleged conversation with Gray, Lewis claims that Jennifer Garrett, his sister-in-law, told him that Corrie kept an apartment where Mills and the Playpen dancers had sex and used cocaine. According to Lewis, she also stated that she had sex with Damilano on multiple occasions. Finally, Garrett allegedly added that if she had legal problems, all she had to do is tell law enforcement to contact Damilano.

On March 30, 2007, a Vermilion County grand jury convened to consider criminal charges against Lewis. Six women testified under oath about their encounters: White, Dow, Perry, Garrett, Carrigan, and Grider. Lewis claims that, immediately before the grand jury hearing, Mills asked him what he had told the FBI. When Lewis feigned ignorance, Mills responded, “wrong answer Dave.” On April 11, 2007, the grand jury charged Lewis with 49 felony counts involving official misconduct, armed violence, criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse, and obstructing justice. Lewis was incarcerated while awaiting trial.

On April 3, 2008, Lewis's trial on two of the counts—one count for official misconduct and one count for criminal sexual abuse—convened, and he was acquitted. Notably, at the trial, Dow recanted her earlier grand jury testimony. Specifically, Dow testified that, in late 2006 or early 2007, Corrie called a meeting with the female Playpen employees and told them they would not have to pay “house fees” if they fabricated statements about Lewis because Lewis's presence was hampering Corrie's drug trade. (Presumably, it's harder to sell drugs when cops...