Federal District Court Opinions

DICK v. CARPENTER, (N.D.Ill. 11-29-2006) STEVEN DICK,
VILLAGE of WILMETTE, Defendants. No. 02 C 3038. United
States District Court, N.D. Illinois, Eastern Division.
November 29, 2006


JAMES ZAGEL, District Judge

Plaintiff Steven Dick (“Dick”) has filed a Second Amended
Complaint alleging seven instances in which Officer George
Carpenter (“Carpenter”), Officer Michael Gerlitz
(“Gerlitz”), and the Village of Wilmette (“Wilmette”)
deprived him of his constitutional rights, in violation of
42 U.S.C. § 1983, during his arrest and subsequent
prosecution for possession of controlled substances with
intent to deliver. The Circuit Court of Cook County
eventually overturned Dick’s conviction. Afterwards he
filed this action. Gerlitz, Carpenter and the Village of
Wilmette have all filed motions for summary judgment. For
the following reasons, Defendants’ motions are granted in
part and denied in part.


George Carpenter and Michael Gerlitz were officers in the
Wilmette police force. In December of 1982, they enlisted
the aid of Jeffrey Donahue (“Donahue”) as a police
informant. On January 17, 1983, Donahue informed the
officers that Dick would be driving along a certain route
and that the police would find a brown paper bag containing
LSD and methamphetamines in Dick’s jeep. At the time, Dick
already had a criminal record due to his prior arrest for
Page 2 possession of marijuana. Several officers, including
Carpenter, Gerlitz and agent Caesar Tovar of the
Metropolitan Enforcement Group (“MEG”) stopped the jeep
along the route that Donahue described. When they
approached the vehicle, a water pipe was visible on the
vehicle floor. After searching the jeep, they found the
drugs Donahue described in both the grocery bag, as well as
additional drugs in Dick’s jacket pocket. All three men in
the vehicle were taken into custody. Donahue and the other
person riding in the vehicle were released without charges.
Dick was charged and later convicted of possession of LSD
and methamphetamines with intent to deliver.

While in custody, Dick denied any knowledge of the drugs
and claims that he told the officers that the drugs
belonged to Donahue, who also had a large quantity of those
types of drugs at his house. At some point that same day,
Donahue had surrendered a large quantity of LSD and
methamphetamines. Neither the police nor the prosecution
informed Dick’s criminal attorney about the drugs
confiscated from Donahue.

After giving the police information about several people,
Donahue stated that he feared for his personal safety and
decided to move to Captiva Island, Florida. He claims he
lived in the backseat of a Buick from February through May
of 1983. Donahue did not have a personal phone and only
received mail by asking for packages with his name at the
local post office.

Based on his conversations with the officers involved, the
prosecutor told Dick’s attorney that there was a reliable
informant but that the informant was not an occurrence
witness. The contact information for Donahue that Dick’s
attorney received stated that Donahue’s last known address
was Captiva Island and that he was working at a hotel on
the island. On November 14, 1983, the police department
issued a supplemental police report indicating the name of
Donahue’s employer and that he was living with a friend in
Jacksonville, Florida. Dick claims Page 3 his attorney
looked vigorously for Donahue but was unable to find him.
However, he also admits that his attorney thought it would
be a waste of time to hire an investigator to find Donahue.
According to Dick, the attorney believed that the officers
were hiding Donahue, but Dick has no support for that
contention. Regardless of the actual reason, Dick’s
attorney did not pursue Donahue and Donahue did not testify
at the trial. When the Circuit Court overturned Dick’s
conviction, it also found that Donahue was a paid informant
and an occurrence witness, whose testimony would have
affected the outcome of the case. Once he was released,
Dick filed this suit against the people responsible for his
imprisonment, alleging violations of his Constitutional
rights under § 1983.


Summary Judgment

Defendants now move for summary judgment pursuant to
Fed.R.Civ.P. 56(c).[fn1] Summary judgment is proper when
there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). A genuine issue of fact exists only when,
based on the record as a whole, a reasonable jury could
find for the non-movant. Pipitone v. United States, 180
F.3d 859, 861 (7th Cir. 1999). In determining whether a
genuine issue of material facts exists, I must construe all
facts in the light most favorable to the non-moving party
and draw all reasonable and justifiable inferences in its
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Page 4 However, I may not rely upon inadmissible
hearsay to oppose the motion. Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). If
there has been adequate time for discovery and the party
bearing the burden of proof has failed to establish an
essential element of its case, I must grant summary
judgment. Celotex, 477 U.S. at 322.

The Defendant Officers

In order to prove a claim under § 1983, Dick must
establish: “1) [he] held a constitutionally protected
right; 2) he was deprived of that right in violation of the
Constitution; 3) the defendants intentionally caused the
deprivation; and 4) the defendants acted under color of
state law.” Schertz v. Waupaca County, 875 F.2d 578, 581
(7th Cir. 1989). The parties agree that at the time of the
arrest Carpenter and Gerlitz worked in the Wilmette Police
Department and that their actions in the course of police
duty are the subject of this suit, so there is no dispute
that they were acting under color of law for the purposes
of § 1983. Thus, they must demonstrate that Dick’s
evidence is not sufficient for a reasonable jury to find
that they violated Dick’s Constitutional rights.

False Arrest and Excessive Force

Despite the general requirements for § 1983 claims,
in a false arrest claim, “the actual existence of probable
cause to arrest precludes [the suit].” Juriss v. McGowan,
957 F.2d 345, 349 n. 1 (7th Cir. 1992). Probable cause
exists if, at the time of the arrest, “the facts and
circumstances within the officers’ knowledge and of which
they had reasonably trustworthy information” warrant a
reasonable belief that an offense has been committed.
Hughes v. Meyer, 880 F.2d 967, 969 (7th Cir. 1989). Page 5

In the additional materials they submitted, Carpenter and
Gerlitz claim that the statute of limitations for Dick to
file a false arrest claim has already elapsed. Section 1983
claims are subject to the forum state’s statute of
limitations for personal injury claims. Foryoh v.
Hannah-Porter, 428 F. Supp. 2d 816, 819 (N.D. Ill. 2006).
Illinois’ statute of limitations for personal injury claims
is two years. 735 ILCS § 5/13-202. Therefore the
statute of limitations for Dick’s false arrest claim is also
two years. Foryoh, 428 F. Supp. 2d at 819. Although Dick
may not recover any damages for an allegedly
unconstitutional conviction or sentence until that
conviction is actually invalidated, see Heck v. Humphrey,
512 U.S. 477, 486-87 (1994), the statute of limitations to
file the false arrest claim still begins to accrue at the
time of the arrest. Wallace v. City of Chicago, 440 F.3d
421, 427 (7th Cir. 2006). Therefore the statute of
limitations for Dicks false arrest claims elapsed in early
1985. This case was not filed until 2002.

Under Illinois law, equitable tolling may be applied where
Plaintiff “has, in some extraordinary way, been prevented
from asserting [his] rights in a timely manner; or the
plaintiff asserted [his] rights mistakenly in the wrong
forum.” Foryoh, 428 F. Supp. 2d at 821 (citation omitted).
Dick has not offered any evidence that suggests that he
meets this criteria. Therefore his false arrest claims are

Similarly, Dick’s claim that the officers used excessive
force during his arrest must also fail. The alleged
excessive force occurred during Dick’s arrest in 1983 and
he has not been prevented from asserting his rights since
the statute of limitations began to accrue. Additionally,
Heck would not apply to his excessive force claim because
it only applies to “harm caused by actions whose
unlawfulness would render [his] conviction or sentence
invalid.” Heck, 512 U.S. at 486. A successful excessive
force claim would not have invalidated his drug conviction.
He Page 6 had two years from the date of his arrest to
file that claim, but did not do so. He may not pursue it

Withholding Evidence — False Prosecution[fn2]

Dick alleges two instances in which the officers denied him
a fair trial by withholding evidence: (1) not disclosing
Donahue’s exact address or sufficient means of contacting
him; and (2) not disclosing that Donahue was also found in
possession of the same types of drugs found in Dick’s jeep.
If he is able to show that the officers suppressed evidence
favorable to the defense — either because it was
exculpatory or because it had impeachment value —
and that the evidence was material at trial, those officers
would be liable for a violation of due process under Brady.
See Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001);
Ienco v. Angarone, 291 F. Supp. 2d 755, 760 (N.D. Ill.

The government may be accused of a Brady violation if it
“withholds evidence that, had it been disclosed, creates a
reasonable probability that the result of the trial would
have been different.” Ienco, 291 F. Supp. 2d at 760. The
three concepts that should be considered in determining
whether or not evidence has been suppressed are “knowledge,
possession and the availability of the information to the
defendant.” Id.

Donahue’s Address

I have already noted that Dick had the opportunity to use
the Donahue’s testimony because he was aware of Donahue’s
whereabouts a month before his trial. The reason Dick was
Page 7 aware of Donahue’s whereabouts was because the
officers issued the supplemental report in November. Once
he knew, roughly, where Donahue was located, Dick’s
attorney could have attempted to track down Donahue
himself. Instead he chose not to do so. Evidence is not
“suppressed” when it is accessible to a reasonably diligent
defendant. Id. at 761. By itself, Dick’s claim that his
attorney believed the police were hiding Donahue is only
hearsay and not enough to prove a violation. Dick has not
shown that the officers knew of any more information other
than what was given to Dick’s attorney. The government is
not obligated to seek information when it is unaware that
the information exists, nor is it obligated to seek
information on the defendant’s behalf. Id. at 760.
Therefore, Dick cannot show that the officers suppressed
evidence related to Donahue’s whereabouts.

Donahue’s Drugs

Dick also believes that the fact that Donahue was found
with a stash of drugs soon after Dick was arrested would
have compromised Donahue’s credibility at trial. Evidence
that Donahue possessed the same types of drugs found in
Dick’s car would most likely have been favorable to the
defense because of its exculpatory or impeachment value and
also would have been material to an issue at trial, namely
whether or not the drugs in the car actually belonged to
Dick. However, Dick still cannot show that the officers
suppressed that evidence.

Dick claims that, after his arrest, he informed the police
that the drugs belonged to Donahue, who also had additional
drugs in his house. Both sides agree that at some point
after Dick’s arrest, somebody from the task force (possibly
MEG agent Tovar) confiscated some amount of drugs from
Donahue. Assuming, for the moment, that Dick is correct and
that the officers did not know that Donahue possessed
additional drugs until Dick informed them, the Page 8
question here is whether there is a substantive difference
between Dick knowing that Donahue had drugs and Dick knowing
that the police had actually confiscated those drugs from
Donahue. In other words, would the additional information
— that the police had confiscated drugs —
have changed the outcome of the case?

I do not believe that information about the drug
confiscation would have changed the outcome of the trial.
Dick claims that he already knew Donahue had drugs, and he
had the opportunity to contact Donahue a month before
trial. Even if the police were hiding the information about
the confiscation, Dick could have elicited testimony on
that subject from Donahue if he had brought him in as a
witness. He chose not to do so. Importantly, he does not
claim that he even followed up with the police to see if
they checked on the information he claims to have given
them. With a reasonable amount of diligence in either
questioning the officers afterwards, Dick would have found
out that the government confiscated drugs from Donahue on
the day of Dick’s arrest.


In order to show a conspiracy, Dick must show: 1) a
conspiracy existed; 2) the purpose of the conspiracy was to
deprive Dick of his constitutional rights; 3) the person
committed an act in furtherance of the conspiracy; and 4)
Dick was actually injured as a result. Alexander v. City of
South Bend, 433 F.3d 550, 556-57 (7th Cir. 2006). Although
a conspiratorial agreement may be established by
circumstantial evidence, the evidence must be enough for “a
reasonable jury [to] conclude that the conspirators had, in
fact, reached an understanding that they sought to injure
[the plaintiff].” Id. at 557. Page 9

Dick also is not able to show that both officers engaged in
a conspiracy to deprive him of his constitutional rights.
Although circumstantial evidence may be sufficient to prove
a conspiracy, there is no evidence of any understanding
between Carpenter and Donahue to plant evidence. In the
deposition transcript, Donahue specifically states that he
cannot recall Carpenter ever telling him to put contraband
in somebody else’s possession. He states that he usually
spoke with Gerlitz and does not know what kind of
conversations Gerlitz and Carpenter had. A reasonable jury
could not find that Carpenter conspired with anybody to
deny Dick his constitutional rights. However, based on
Donahue’s deposition testimony that he had discussions with
Gerlitz in which the “spirit of the message” was to set
other people up with contraband, Dick may be able to show
that Gerlitz reached an agreement with Donahue. Therefore,
Gertlitz’s motion for summary judgment on the conspiracy
claims must be denied.

Village of Wilmette

To establish a § 1983 claim against the Village of
Wilmette, Dick must prove that the Village caused him to be
deprived of a federal right and that the deprivation was
the proximate cause of his injuries. Ineco v. City of
Chicago, 286 F.3d 994, 998 (7th Cir. 2002). The deprivation
must have resulted from either (1) “express municipal
policy,” (2) “widespread custom,” or (3) “deliberate act of
a decision-maker with final policy-making authority.” Id.
Mere allegations about the municipality’s customs are
insufficient, because Wilmette cannot be liable under a
respondeat superior theory for only having employed a
tortfeasor. Ineco, 286 F.3d at 1001; Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978). Instead, Dick must
provide material evidence showing that the officers were
acting pursuant to official custom or policy. Ienco, 286
F.3d at 1001. He has not done so. The officers’ actions
towards Plaintiff on that one Page 10 occasion are
insufficient to establish liability against Wilmette. Id.
(citing Williams v. Heavener, 217 F.3d 529, 532 (7th Cir.
2000) (ordinarily a single incident does not establish
custom to give rise to Monell liability)). Therefore I
grant summary judgment in favor of Wilmette.

For the aforementioned reasons, the Village of Wilmette’s
motion for summary judgment is granted, Officer Carpenter’s
motion is granted, and Officer Gerlitz’s motion is granted
in part and denied in part.

[fn1] Plaintiff’s reply to Defendants’ motion for summary
judgment also requests reinstatement of their state law
claim for malicious prosecution, which I dismissed in my
order of March 17, 2003. Because the request for
reinstatement is unrelated to Defendants’ motion for
summary judgment, I decline to resolve the issue here. If
he wishes, Plaintiff may bring a new motion requesting such
relief so that Defendants will have a sufficient chance to

[fn2] Dick also filed a federal claim alleging malicious
prosecution. That claim is dismissed. The existence of a
tort claim under state law for malicious prosecution, such
as the IL law for malicious prosecution, knocks out any
constitutional theory of malicious prosecution. Newsome v.
McCabe, 256 F.3d 747, 750 (7th Cir. 2001).