Wilson v. City of Chicago

Decision Date03 October 1995
Docket NumberNo. 86 C 2360.,86 C 2360.
Citation900 F. Supp. 1015
PartiesAndrew WILSON, Plaintiff, v. CITY OF CHICAGO, Richard Brzeczek, Jon Burge, Patrick O'Hara, and John Yucaitis, Defendants. Jon BURGE, Defendant and Cross-Plaintiff, v. CITY OF CHICAGO, a Municipal Corporation, Defendant and Cross-Defendant.
CourtU.S. District Court — Northern District of Illinois

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Andrew Wilson, Pontiac, IL, pro se.

John Ladell Stainthorp, People's Law Offices, Jonathan B. Gilbert, David Philip Schippers, Schippers, Gilbert & Bailey, Chrtd., Chicago, IL, for Andrew Wilson.

Arthur Mooradian, Kelly Raymond Welsh, Susan R. Lichtenstein, John F. McGuire, Michael A. Forti, Charles Wilfred Levesque, City of Chicago, Law Department, Corporation Counsel, Susan S. Sher, Corporation Counsel, City of Chicago, Chicago, IL, for City of Chicago.

William Joseph Kunkle, Jr., Jeffrey Mark Rubin, Phelan, Cahill, Devine & Quinlan, Ltd., Chicago, IL, David K. Greene, PNC Mortgage Corp. of America, Vernon Hills, IL, for Richard Brzeczek, Thomas McKenna, Officer Mulvaney.

Arthur Mooradian, Kelly Raymond Welsh, John F. McGuire, City of Chicago, Law Dept., Corp. Counsel, Chicago, IL, for James Reilly.

William Joseph Kunkle, Jr., Jeffrey Mark Rubin, Caesar A. Tabet, Phelan, Cahill, Devine & Quinlan, Ltd., Chicago, IL, David K. Greene, PNC Mtg. Corp. of America, Vernon Hills, IL, for John Burge.

William Joseph Kunkle, Jr., Jeffrey Mark Rubin, Caesar A. Tabet, Phelan, Cahill, Devine & Quinlan, Lawrence Dominic O'Gara, Attorney at Law, Chicago, IL, David K. Greene, PNC Mtg. Corp. of America, Vernon Hills, IL, for Patrick O'Hara.

William Joseph Kunkle, Jr., Jeffrey Mark Rubin, Caesar A. Tabet, Phelan, Cahill, Devine & Quinlan, Chicago, IL, Joseph Vincent Roddy, Law Office of Joseph V. Roddy, Chicago, IL, David K. Greene, PNC Mtg. Corp. of America, Vernon Hills, IL, for John Yucaitis.

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

Plaintiff Andrew Wilson brings this action for damages pursuant to 42 U.S.C. § 1983 and state law against Jon Burge, Patrick O'Hara and John Yucaitis (the "Officers"), alleging that they tortured him to force him to confess to the murder of two Chicago police officers. In his Second Amended Complaint, plaintiff added the City of Chicago (the "City"), alleging that the City is liable, pursuant to the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/9-102 ("the Tort Immunity Act"), for any judgment or settlement he receives.

The Officers have cross-claimed against the City based on the same state statute, also alleging that the City is liable for any judgment entered against them or settlement paid to plaintiff as a result of his claims against the Officers.

The court has jurisdiction of plaintiff's underlying federal action against the Officers pursuant to 28 U.S.C. § 1331 and § 1343(a)(3). On January 5, 1995, the court ruled that it had jurisdiction over plaintiff's and the Officers' claims against the City under the doctrine of supplemental jurisdiction as codified in 28 U.S.C. § 1367.

The City has moved for reconsideration of that decision, or in the alternative to bar plaintiff's indemnity claims against it based on res judicata. Plaintiff has moved for partial summary judgment on Count I against the City asking the court to hold as a matter of law that the Officers were acting within the scope of their employment when they committed the alleged acts of abuse. Plaintiff has also moved for summary judgment against the Officers, based on the collateral estoppel effect of a Police Board hearing. Finally, plaintiff has moved to strike the City's second affirmative defense, which asserts that the Tort Immunity Act does not apply to the City because it is a home rule unit.

For the reasons set forth below, the City's motion for reconsideration is denied, and plaintiff's motions to strike the City's second affirmative defense, and for partial summary judgment against the City and the Officers are granted.

FACTS

On February 14, 1982, plaintiff was arrested for the murder of two Chicago police officers. After his arrest, plaintiff claims that the Officers beat and tortured him into confessing to the crime. The state ultimately tried and convicted him, but an appeals court reversed the conviction because the confession was ruled involuntary. He was subsequently retried and convicted and is now serving a life sentence.

In 1986, plaintiff brought this action against the City and the Officers pursuant to 42 U.S.C § 1983. After an eight week trial ended in a hung jury, a second eight week trial resulted in a finding that plaintiff's constitutional rights had been violated, but not by the Officers. The jury found that the City had a de facto policy authorizing the police to physically abuse persons suspected of killing or injuring Chicago police officers. This policy, however, did not result in the direct and proximate cause of plaintiff's injuries. Based on this finding, the jury found in favor of all defendants. On appeal, the Seventh Circuit reversed the jury verdict for the Officers but affirmed the verdict for the City. The court of appeals then remanded the case to this court for a new trial as to the Officers only.

Throughout both trials, the City admitted that the Officers acted under the color of law and within the scope of their employment. By doing so, the City implicitly admitted that it would pay any judgment or settlement against the Officers pursuant to the Tort Immunity Act.

After the second verdict, the Chicago Police Department's Office of Professional Standards reopened the investigation into the conduct of the Officers. The City alleges that this re-opened investigation came about as a result of facts revealed at the second trial. Subsequently, then acting Superintendent LeRoy Martin brought formal charges against the Officers before the Chicago Police Board. The City prosecuted the action, taking the position that the Officers, while acting as Chicago police officers, physically abused and failed to prevent the abuse of plaintiff. The City also charged that the Officers failed to provide plaintiff with proper medical treatment for the injuries he sustained while in their custody. From February 10, 1992, until March 20, 1992, the Board, acting as an administrative agency in a judicial capacity, held hearings on alleged violations of Chicago Police Department rules by the Officers. At those hearings, the Officers were represented by counsel, who presented evidence and cross-examined witnesses.

On February 11, 1993, the Board issued its decision, finding all three Officers guilty of misconduct. Specifically, the Board found Burge guilty of violating eight Chicago Police Department rules, including: (1) physical abuse of plaintiff; (2) knowledge that other Officers abused plaintiff, but failed to take action to stop the mistreatment; and (3) failure to provide proper medical care for plaintiff. Additionally, the Board found the other two Officers guilty of failure to stop or report the abuse, and failure to get medical attention for plaintiff. The City suspended Yucaitis and O'Hara for fifteen months and fired Burge. The Board's decision was affirmed by the Circuit Court of Cook County on administrative review. That decision is now on appeal before the Illinois Appellate Court.

In March 1994, allegedly as a result of the Police Board's findings, the City changed its long-held position in the instant case that the Officers' actions fell within the scope of their employment. As a result of this change, the City decided it would not indemnify the Officers for any settlement or judgment against them.

By letter to Burge's counsel dated March 28, 1994, the City confirmed that it was: (1) repudiating its original affirmation in its answer that the Officers acted within the scope of their employment; and (2) denying indemnification for any damages or settlement with or without an admission of liability or willful misconduct. In response to the City's change in position, plaintiff and the Officers asked for and were granted leave to file a Second Amended Complaint and Cross Claim asserting their respective claims under the Tort Immunity Act. The City moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), which motion was denied by this court. Wilson, 1995 WL 1290 (N.D.Ill.1995).

Motion for Reconsideration

The City has now filed a motion requesting that the court reconsider its January 5, 1995, decision denying the City's motion to dismiss the state law indemnity claims based on lack of supplemental jurisdiction, or in the alternative, for the court to hold that the indemnity claims are barred by the doctrine of res judicata. For the reasons set forth below, the City's motion is denied.

First, the City has brought its motion to reconsider under Fed.R.Civ.P. 60(b) which, as plaintiff points out, applies only to final judgments. Because the court's denial of the City's motion to dismiss is obviously not a final judgment, Rule 60(b) is inapplicable. Moreover, and more importantly, in its January 5, 1995, opinion, this court fully set forth why it has supplemental jurisdiction of plaintiff's and the Officers' state law claims. The City has presented nothing new to persuade this court that its previous decision was erroneous. The case on which the City relies, Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223 (7th Cir.1993), is so inapposite factually that it lends no support to the City's position. Accordingly, for the reasons set forth above and in the court's January 5, 1995, opinion, the City's motion for reconsideration is denied.

More interesting, but equally unavailing, is the City's position that if the court is correct that the state law claims arise out of a common nucleus of facts as the plaintiff's Section 1983 claim against the Officers, then his state law claims against the City are barred by res judicata because ...

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