Evans, Ronnie v. City of Chicago ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3844
RONNIE EVANS,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 00 C 7222—Robert W. Gettleman, Judge.
____________
ARGUED NOVEMBER 10, 2004—DECIDED JANUARY 6, 2006
____________
Before COFFEY, RIPPLE and SYKES, Circuit Judges.
COFFEY, Circuit Judge. On the evening of March 22,
1997, Frankie Ann Perkins, age 37, died following an
altercation with two Chicago Police Officers who were
allegedly attempting to restrain her while taking her into
custody. Ronnie Evans, who resided next door to the vacant
lot on Chicago’s west side where Perkins died, claims to
have witnessed the entire event. In a television news
interview taped the next day, Evans announced his version
of the events surrounding Perkins’ death and in doing so
publicly accused the two officers involved of murdering
Perkins. In the months that followed, Evans claims he was
systematically harassed, intimidated and retaliated against
by a number of Chicago Police Officers who acted in a
2 No. 03-3844
concerted effort to intimidate and coerce him into changing
his story as to the circumstances surrounding Perkins’
death.
On November 16, 2000, Evans filed a five count complaint
in the United States District Court for the Northern District
of Illinois against the City of Chicago (“City”) and eight
individual Chicago Police officers.1 Evans’ initial complaint,
along with a first amended complaint, were dismissed in
part, and a second amended complaint was thereafter filed2
alleging inter alia that: the named officers violated the
Racketeering Influenced and Corrupt Organizations Act
(“RICO”), 42 U.S.C. § 1961, et seq.; the officers and the City
violated his First Amendment right to free speech, 42
U.S.C. § 1983; the officers and the City violated Illinois law
by maliciously prosecuting him; and that the officers and
the City also violated Illinois law by intentionally inflicting
emotional distress upon him. See Evans v. City of Chicago,
No. 00-C-7222, 2003 WL 22232963 (N.D. Ill. Sept. 26, 2003).
Following discovery, the City filed a motion for summary
judgment, which the district court granted, finding that
Evans’ RICO claim failed as a matter of law because he
lacked standing and his § 1983 and Illinois common law
1
The Chicago Police Officers named in the complaint are: Joseph
McCarthy, Robert Hofer, R. Bullington, Michael Kozenko, J.
Hladick, Richard Coyle, Mark Smith and Tony Green.
2
The first two complaints Evans filed were dismissed without
prejudice, leaving us to consider only his second amended
complaint. A more complete procedural history can be found
at Evans v. City of Chicago, No. 00 C 7222, 2001 WL 1028401(N.D.Ill. Sept. 6, 2001), Evans v. City of Chicago, No. 00 C 7222
(N.D. Ill. Nov. 28, 2001), Evans v. City of Chicago, No. 00 C 7222
(N.D.Ill. Jan. 18, 2002), Evans v. City of Chicago, No. 00 C 7222,
2003 WL 22232963 (N.D.Ill. Sept. 26, 2003).
No. 03-3844 3
claims were barred by the applicable statutes of limitations,
735 ILCS 5/13-202 and 745 ILCS 10/8-101. Affirmed.
I. BACKGROUND
At approximately 9:00 p.m. on the evening of March 22,
1997, Ronnie Evans and his cousin, Anthony Gray, were
alerted by what they described as flashing colored lights
that seemed to be coming from the vicinity of the vacant lot
next door to Evans’ residence at 3340 West Van Buren
street in Chicago, Illinois. Evans claims that, after noticing
the flashing lights, he and Gray went to a window on the
second floor of the house to determine what the commotion
was. Once at the window, Evans witnessed two persons,
whom he later identified as Officers Hofer and McCarthy,
struggling with a woman, whom he later recognized as his
cousin, Frankie Perkins. One of the officers allegedly had
his hands around Perkins’ neck while the other was strug-
gling to hold her arms behind her back. At some point, the
two officers and Perkins fell to the ground and one officer
let go of her, while the other officer—who allegedly had his
hands around Perkins’ neck—fell directly onto Perkins’
chest and continued to strangle her. Evans, at that point,
presumed that Perkins had passed out or died, because as
the officers rolled her over to handcuff her, Perkins was
motionless. After Perkins was cuffed, officers allegedly
proceeded to drag her unconscious body over to the squad
car and unceremoniously lifted and shoved her lifeless body
into the back seat of the vehicle. Upon witnessing this,
Evans claims he charged out of the house, screaming at the
officers “I seen [sic] what you guys did . . . [m]an, you are
bogus.” While Perkins lay in the back seat of the squad car,
Evans overheard the officers radio for ambulance assistance
and stated that they failed to perform CPR nor did they
make any other attempt to revive Perkins. What’s more,
when the paramedics did arrive to attend to Perkins, the
4 No. 03-3844
officers allegedly told them that the area was a crime scene;
meaning that they should not attempt to revive the
woman.3 Perkins was later examined by the paramedics and
determined to be dead.4
The next morning, representatives of ABC Channel 7
visited the neighborhood in order to conduct interviews
concerning Perkins’ alleged death at the hands of Chicago
Police Officers. Evans agreed to, and did, appear on the
news that evening. While relating his view of what hap-
pened the previous night, Evans publicly accused the
two officers involved of murdering his cousin in cold blood.
After the report aired, the CPD’s Office of Professional
Standards (“OPS”) formally launched an investigation into
the incident. In an interview conducted on September 2,
1997, Evans related to OPS officers his version of the events
that took place on the evening of March 22, 1997, including
his opinion that Officers McCarthy and Hofer participated
in the choking death of Perkins. Evans along with Perkins’
family also lodged complaints with the Federal Bureau of
Investigation and the United States Attorney for the
Northern District of Illinois as well as the offices of Con-
gressmen Danny Davis and Bobby Rush concerning the
incident. In addition, Perkins’ family filed a wrongful death
lawsuit against the City of Chicago and the CPD in the
3
Israel Garcia, one of the paramedics who arrived on the scene,
testified that he and his partner thoroughly examined Perkins
and even hooked her up to an EEG machine, but there were no
signs of life. In Garcia’s words, she had “flat-lined.” Further,
Garcia testified that, because Perkins showed no signs of life
and because the police had designated the area a crime scene,
the paramedics did not attempt to resuscitate her.
4
The record is unclear as to when Perkins was examined, how
she was transported and where she was conveyed to after she was
taken from the scene. However, it is clear that she died following
the altercation with police.
No. 03-3844 5
United States District Court for the Northern District of
Illinois.5 The Perkins family hoped that if the case ever
went to trial Evans’ would testify as to what he witnessed
on March 22nd in order to bolster their case against the
city.6
A. Evans’ Alleged Harassment
Evans claims that shortly after his appearance on
television, he was subjected to a campaign of harassment
and terrorization by a number of Chicago Police Officers.
Specifically, Evans claims that Officers Joseph McCarthy,
Robert Hofer, Robert Bullington, Michael Kozenko, James
Hladick, Richard Coyle, Mark Smith and Tony Green7
committed various illegal and unwarranted offenses against
him, e.g., allegedly arresting him without probable cause,
threatening him and continually confronting him on the
street and at his home in an effort to harass and intimidate
him. The alleged harassment began in early April
1997—approximately one-and-a-half weeks after the news
5
The complaint also alleged a number of constitutional and
civil rights deprivations on Perkins’ behalf relating to the
events of the night surrounding her death.
6
As it turns out, the Perkins’ family’s suit against the city
never reached trial, as it was settled on March 24, 1999, with
Perkins’ family receiving $500,000 in damages.
7
Evans had contact with many of these officers prior to Perkins’
death. For example, in February of 1997, Officers McCarthy
and Hoefer (who regularly patroled the area surrounding Ev-
ans’ home at 3388 West Van Buren) had stopped him and
questioned him. No arrest was made at that time. Additionally,
just two weeks before Perkins death, Officers McCarthy and
Bullington encountered Evans while they were arresting Perkins
for possession of narcotics. Perkins was taken into custody, but
Evans was questioned and released.
6 No. 03-3844
broadcast—and continued until late December of 1997.8
According to Evans, the reasoning behind this supposed
persecution was to keep him quiet and to discourage him
from testifying—either in front of the OPS or in federal
court in conjunction with Perkins’ pending
lawsuit—concerning the incident that he witnessed on the
evening of March 22, 1997. On the other hand, the officers
claim that Evans was a known drug dealer and they were
just doing their job by checking up on him and stopping
him, when necessary, to ascertain whether he was in
possession of, or dealing, illegal drugs.
Indeed, during this time period Evans was arrested on
three separate occasions—May 12, 1997, June 8, 19979 and
July 14, 1997—for felony possession of a controlled sub-
stance, in violation of 720 ILCS 570/402.10 On each occa-
8
On a number of occasions, Evans describes being accosted on
the street and/or near his home by two or more officers. For
example, about three weeks after Perkins’ death, Evans claims
that Officers McCarthy, Bullington, Coyle and Kozenko ap-
proached the vacant lot next to Evans’ house and proceeded to,
without cause, ask him to take off all of his clothes so that they
could search him. Evans goes on to assert that officers performed
a cavity search on him and then proceeded to laugh at him
when he refused to answer any of the questions posed to him.
Evans states he was humiliated and angry, noting that he refused
to answer any of their questions. According to Evans, incidents
such as this continued throughout the summer and fall. What’s
more, Evans claims that during the same time frame he was
simply minding his own business, but that police officers made a
point of continually attempting to intimidate and harass him.
9
In addition, the day following this arrest, June 10, 1997, the
Cook County State’s Attorney’s office filed a violation of probation
charge against Evans, relating back to a 1996 conviction he had
sustained, also for possession of a controlled substance.
10
Evans was also arrested on September 5, 1997, by Officer Hofer
(continued...)
No. 03-3844 7
sion, Evans claims he was arrested without cause and that
he was mistreated by police officers. For instance, Evans
claims that when he was arrested on May 12, 1997,11
officers proceeded to kick, punch and otherwise abuse
him after chasing him into his house.12 In addition,
Evans claims that after being arrested and transported to
the 11th District Police Station, officers resumed beat-
ing him in the parking lot before taking him inside the
station house and forcing him to strip naked in front of
a female detainee. After being allowed to dress, Evans
alleges that the officers “paraded” him through the police
station, announcing to other officers that he was “the one
that was on T.V.” and informing them that they should
“lock his ass up” whenever they encountered him.13
10
(...continued)
on an outstanding warrant and on September 21, 1997, by Officers
McCarthy and Bullington for disorderly conduct.
11
It should be noted, however, in a hearing concerning Evans’
May 12, 1997 arrest, a Cook County Circuit Court judge specifi-
cally found that there was indeed probable cause to arrest Evans.
12
Evans claims that he “possessed no contraband” and that
“[t]he defendant officers produced the controlled substances at the
11th District, falsely claiming it had come from Ronnie Evans.”
However, the police report tells a far different story. According to
the police report officers had been conducting surveillance in the
area of the 3300 block of West Van Buren on that date and had
witnessed six different subjects purchase drugs from three
different individuals, later identified as Evans, Doris Jones and
Anthony Gray. The report also states that when Evans was
approached by officers after distributing what appeared to be
contraband, he immediately ran into his house. However, before
he reached the door he dropped a baggie containing 20 individual
doses of crack cocaine.
13
Evans was released on a bond a day or two later and placed on
house arrest pending an appearance on the charge. Four days
after his arrest, on May 16, 1997, Evans made a statement to OPS
(continued...)
8 No. 03-3844
Throughout the summer and fall of 1997, Evans saw fit to
fail to appear in Cook County Court on numerous occasions
relating to the drug charges brought against him during the
summer, i.e., his May 12, 1997, June 8, 1997 and July 14,
1997 arrests, and by December of 1997, Evans had five
warrants pending for his arrest. At some point in early
December 1997, in order to avoid apprehension, Evans
decided to turn himself into Judge Haberkorn, the Cook
County Circuit Court Judge handling all of his criminal
cases. Judge Haberkorn ordered a deputy to immediately
transport him to the Cook County Jail at 26th and Califor-
nia, where he remained until March 17, 2000, approxi-
mately 28 months in all.
B. Criminal Court Proceedings Against Evans
In October of 1998, Evans’ attorney filed two motions to
suppress evidence, both concerning his July 14, 1997,
arrest.14 The circuit court judge heard testimony on the
motions on three dates between October 1998 and February
1999, but did not rule on them immediately.
13
(...continued)
concerning his arrest on May 12th and told the investigators that
arresting officers, in his words, had “used excessive force and had
arrested him without probable cause.” In the following weeks
Evans alleged that he was approached on two other occasions by
CPD officers who proceeded to threaten and attempt to intimidate
him.
14
Prior to April 2, 1998 Evans was represented in his various
criminal proceedings by two attorneys from the Office of the
Cook County Public Defenders. Thereafter, he was represented by
a private attorney.
No. 03-3844 9
Subsequently, on January 14, 2000,15 the State of Illinois
voluntarily withdrew one of the charges pending against
Evans, a violation of probation charge that the State had
filed on June 10, 1997, relating back to a 1996 conviction
Evans had incurred for possession of a controlled substance.
See supra p. 6 n.9. The State’s Attorney’s office felt that
because Evans had served the maximum amount of jail
time on his 1996 possession of a controlled sub-
stance conviction while awaiting trial, the violation of
probation charge was, in effect, moot. Shortly thereafter the
State moved the Circuit Court to order that the probation
charge had been resolved as “PTU” or “probation termi-
nated unsatisfactory.” The Circuit Court granted the
motion, issuing an order reflecting that Evans had indeed
violated his probation, but not reaching the merits of the
charge.
On February 25, 2000, Evans’ motions to suppress
concerning his July 14, 1997 arrest were argued and denied.
That afternoon, a short bench trial was held on the July 14,
1997 charge, and Evans was found guilty of possession of a
controlled substance and sentenced to one year of probation,
probation terminated instanter. With the July 14, 1997
possession of a controlled substance charge resolved, the
State then entered into talks with Evans in an attempt to
deal with the two remaining pending charges against him,
the May 12, 1997 and June 8, 1997 possession of a con-
trolled substance charges. The State’s Attorney approached
Evans with a plea bargain, whereby Evans could plead
guilty to one of the charges and the State would seek the
minimum punishment for that crime, four years in prison,
and move to nolle prosequi the other charge. Evans agreed,
and on March 12, 2000 pled guilty to the June 8, 1997
15
The cause of a delay of approximately 10 months is unclear from
the record, but it may be due to Evans’ change of counsel during
that period of time.
10 No. 03-3844
charge. Thereafter, the State, pursuant to the agreement,
moved to nolle prosequi the May 12, 1997 charge.16 The
Circuit Judge sentenced Evans to four years on the June 8,
1997 charge, with credit for 838 days time served, the
period of time he spent in Cook County Jail awaiting trial.
C. Evans’ Civil Case
On November 16, 2000, Evans filed a complaint in the
United States District Court for the Northern District of
Illinois against the City of Chicago and eight Chicago Police
Officers.17 In his second amended complaint,18 which is
pertinent here, Evans claims that he is entitled to damages,
due to the fact that inter alia: the named officers violated
the RICO, 42 U.S.C. § 1961, et seq.; the officers and the City
16
The agreement between Evans and the State’s Attorney’s office
to nolle prosequi the May 12, 1997 charge in return for a guilty
plea on the June 8, 1997 charge is reflected both in the affidavit of
Brian Klauss, the Assistant State’s Attorney who prosecuted the
case, and in the transcript of the sentencing proceedings. At
sentencing, Judge Haberkorn expressly acknowledges that Evans
is pleading guilty to the June 8, 1997 charge “pursuant to agree-
ment.” In addition, the court thoroughly questioned Evans as to
his understanding of what his guilty plea meant and as to his
intention to enter such a plea voluntarily.
Also, Klauss states in an affidavit that the only reason he
moved to nolle prosequi the May 12, 1997 charge was because
of the agreement. Indeed, he states that, at the time, he “believed
that if the matter had gone to trial, it would [have] result[ed]
in a conviction, based in large part on the fact that Judge
Haberkorn had convicted [co-defendant] Doris Jones of the May 12
charges and had expressed her belief that these same arresting
officers were credible in their testimony on the same facts.”
17
See supra note 1 and accompanying text.
18
See supra note 2 and accompanying text.
No. 03-3844 11
violated his First Amendment right to free speech, 42
U.S.C. § 1983; the officers and the City violated Illinois law
by maliciously prosecuting him; and that the officers and
the City also violated Illinois law by intentionally inflicting
emotional distress upon him. See Evans v. City of Chicago,
No. 00-C-7222, 2003 WL 22232963 (N.D. Ill. Sept. 26, 2003).
Following discovery, the defendants moved for sum-
mary judgment and, on September 26, 2003, the district
court granted the defendant’s motion in its entirety.
Specifically, the trial judge concluded that Evans could not
prevail on his malicious prosecution claim because he could
not establish that the circumstances surrounding the nolle
prosequi of the May 12, 1997 charge and the withdrawal of
the violation of probation charge were “consistent with his
innocence.” Id. at *18-20. In addition, as to Evans’ First
Amendment civil rights claims and his state law intentional
infliction of emotional distress claims, the court found that
because the alleged illegal acts took place in 1997, and that
suit was not filed until 2000, they were both well beyond
the two-year statute of limitations for First Amendment
civil rights claims in the State of Illinois, see Kelly v. City of
Chicago, 4 F.3d 509, 511 (7th Cir. 1993), and the applicable
one-year statute of limitations for tort claims against
governmental employees in Illinois, see 745 ILCS 10/8-101.
Id. at *15-17, *22-23. Finally, the district judge concluded
that Evans’ RICO claims must also fail as a matter of law,
due to the fact that he lacked standing to bring that claim
because he had failed to establish that he had been injured
in his “business or property by reason of a violation of
Section 1962” within the meaning of 18 U.S.C. § 1964(c). Id.
at *10-14. Judgment was entered in favor of the City of
Chicago and the officers, and Evans timely appealed.
12 No. 03-3844
II. ANALYSIS
We review the district court’s grant of summary judgment
in favor of the City and the individual officers de novo, See
Stark v. PPM America, Inc., 354 F.3d 666, 670 (7th Cir.
2004), and view the record in the light most favorable to the
non-moving party, here Evans. See Dunn v. Nordstrom, Inc.,
260 F.3d 778, 783 (7th Cir. 2001). Summary judgment is
proper only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact
presents a “genuine issue” if it is “one on which a reason-
able factfinder could find for the nonmoving party.”
Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th
Cir. 2004) (quoting Patel v. Allstate Ins. Co., 105 F.3d 365,
370 (7th Cir. 1997)). An issue of fact is “material” if it is
outcome determinative. Id. However, “bare allegations not
supported by specific facts are not sufficient in opposing a
motion for summary judgment.” Id. (quoting Hildebrandt v.
Ill. Dept. of Natural Res., 347 F.3d 1014, 1036 (7th Cir.
2003)).
A. Issues
On appeal, Evans challenges only the district court’s
grant of summary judgment as to his RICO, First Amend-
ment, § 1983 claims and his state law tort claim for inten-
tional infliction of emotional distress. In doing so, Evans
argues that the loss of income and attorneys fees that he
incurred was the direct and proximate result of
the defendant-appellees RICO violations, thus providing
him with standing to sue pursuant to 18 U.S.C. § 1964.
Evans also argues that his First Amendment civil rights
claims and his state law tort claims are not barred by the
applicable statutes of limitation because he was the victim
No. 03-3844 13
of a continuing tort, see, e.g., Hyon Waste Management
Services, Inc. v. City of Chicago, 214 Ill.App.3d 757, 762-763
(Ill. App. Ct. 1991), which did not cease until the year 2000,
when his civil case was filed.
1. RICO Standing
The civil RICO statute, 18 U.S.C. § 1964(c), provides
that “[a]ny person injured in his business or property by
reason of a violation of section 1962 of this chapter may sue
. . . in any appropriate United States district court and shall
recover threefold the damages he sustains and the cost of
the suit, including a reasonable attorney’s fee.” § 1964(c).
The phrase “injured in business or property” has been
interpreted as a standing requirement—rather than an
element of the cause of action—which must be satisfied in
order to prevail on a RICO claim. See Gagan v. American
Cablevision, Inc., 77 F.3d 951, 958-59 (7th Cir. 1996). The
causation component of § 1964(c)—whether an alleged
RICO injury was caused “by reason of” a violation of the
statute—has also been considered a component of standing.
See, e.g., Beck v. Prupis, 529 U.S. 494 (2000); Lerner v. Fleet
Bank, 318 F.3d 113, 123 (2d Cir. 2003). As such, the issue
“represents a jurisdictional requirement which remains
open to review at all stages of the litigation.” Id. (quoting
National Organization for Women, Inc. v. Scheidler, 510
U.S. 249, 255 (1994)).
a. Injury to Business or Property
In order for Evans to secure standing to sue under RICO,
he must first present the court with evidence that he
incurred an injury to his “business or property” within the
meaning of § 1964. Gagan, 77 F.3d at 959. Evans claims he
has done this in two ways. First, he claims that because
he was the target of an illegal campaign to persecute and
14 No. 03-3844
harass by Chicago Police Officers, he was wrongly “targeted
for prosecution” and unjustifiably imprisoned. As a result,
he argues that he was damaged in his “business
or property” by being falsely imprisoned—even though he
pled guilty to and was convicted of some of the
charges—because he lost potential income during that
period of time.19 Also, Evans claims that because he
was wrongfully targeted for prosecution and illegally
imprisoned, he was forced to incur attorneys fees to de-
fend himself in the resulting criminal actions constitut-
ing an injury to his “business or property.” We disagree.
Although the RICO statute is to be construed broadly, and
we are charged with liberally construing the law to “effectu-
ate its remedial purpose,” Sedima S.P.R.L. v. Imrex Co., 473
U.S. 479, 498 (1985), not every injury is cognizable under §
1964. See Doe v. Roe, 958 F.2d 763, 768 (7th Cir. 1992).
Indeed, in Sedima, the Supreme Court quoted with ap-
proval this Court’s admonition that “[a] defendant who
violates section 1962 is not liable for treble damages to
everyone he might have injured by other conduct, nor is the
defendant liable to those who have not been injured.”
Sedima, S.P.R.L., 473 U.S. at 496-97 (quoting Haroco, Inc.
v. American National Bank & Trust Co. of Chicago, 747
F.2d 384, 398 (1984)). Building on this concept, this court
has determined that “[t]he terms ‘business or property’ are,
of course, words of limitation which preclude recovery for
personal injuries and the pecuniary losses incurred there-
from.” Doe v. Roe, 958 F.2d at 767. See Schiffles v. Kemper
Financial Servs., Inc., 978 F.2d 344, 353 (7th Cir. 1992),
abrogated on other grounds by Beck, 529 U.S. at 495-507
(citing Berg v. First State Ins. Co., 915 F.2d 460, 464 (9th
Cir. 1990)); see also Reiter v. Sonotone Corp., 442 U.S. 330,
339 (1979) (analyzing an identical phrase in the Clayton
19
As discussed infra, Evans had been unemployed for three years
prior to his imprisonment.
No. 03-3844 15
Act); Rylewicz v. Beaton Servs., 888 F.2d 1175, 1180 (7th
Cir. 1989).
This seems quite proper when one considers that personal
injuries lie outside the “business or property” standing
provision of the Clayton Act, see 15 U.S.C. § 15, which is
identical to the standing requirement contained in the civil
RICO statute.20 Indeed, in Reiter v. Sonotone Corp., the
Supreme Court directly addressed the question of whether
the Clayton Act’s standing provision, which like civil RICO
requires injury to “business or property,” encompassed
personal injuries. See Reiter, 442 U.S. at 339. The Court
stated that although actual monetary losses would, under
most circumstances, be sufficient to confer standing under
20
The Clayton Act provides that “any person who shall be in-
jured in his business or property by reason of anything forbidden
in the antitrust laws may sue therefor in any district court of the
United States.” 15 U.S.C. § 15(a) (emphasis added). As the
Supreme Court acknowledged: “Even a cursory comparison of
the two statutes reveals that the civil action provision of RICO
was patterned after the Clayton Act.” Agency Holding Corp. v.
Malley-Duff & Associates, Inc., 483 U.S. 143, 150 (1987); compare
15 U.S.C. § 15(a) and 18 U.S.C. § 1964(c). During Congressional
debates over the civil RICO statute, the American Bar Association
recommended that the bill be amended “to include a provision
authorizing private damage suits based upon the concept of
Section 4 of the Clayton Act.” 116 Cong. Rec. 25190-25191 (1970).
The reason for this is that prior to the introduction of the
“business or property” standing requirement, the civil RICO bill
did “not do the whole job . . . [i]t [made] the mistake of merely
authorizing such suits, without resolving the many and varied
procedural questions which [would] arise in its application, and
without granting to the courts the full extent of remedial author-
ity contained in comparable antitrust laws.” 116 Cong. Rec. 35227
(1970) (remarks of Rep. Steiger). Accordingly, the Clayton Act’s
standing requirement was introduced by amendment into the bill
in order to enhance the “clarity and contours of the title’s proce-
dural provisions.” Id.16 No. 03-3844
the Clayton Act, “Congress must have intended to exclude
some class of injuries by the phrase ‘business or property,’”
and the Act “would, for example, exclude personal injuries
suffered.” Id.Relying on the Supreme Court’s decision in Reiter, this
court has gone on to hold, not only that personal injuries do
not provide standing in civil RICO actions, see Rylewicz, 888
F.2d at 1180, but also that pecuniary losses flowing from
those personal injuries are insufficient to confer standing
under § 1964(c). Roe, 958 F.2d at 767. In the civil RICO
context, personal injuries which may result in pecuniary
losses, but are nonetheless insufficient to provide standing
under § 1964(c) have been found to include injury to mental
health or emotional distress; see Genty v. Resolution Trust
Corp., 937 F.2d 899, 918 (3d Cir. 1991); sickness, poisoning
and emotional distress, Drake v. B.F. Goodrich Co., 782
F.2d 638, 643-44 (6th Cir. 1986); emotional distress due to
loss of security and peace, Berg v. First State Ins. Co., 915
F.2d 460, 464 (9th Cir. 1990); injury stemming from the
harassment and intimidation of federal witnesses, Rylewicz,
888 F.2d at 1180; loss of income due to wrongful death of a
family member/source of support, Gorogan v. Platt, 835 F.2d
844, 846-47 (11th Cir. 1988), and inability to pursue or
obtain meaningful employment, id.Applying the concept that personal injuries and attendant
pecuniary losses flowing from those injuries do not satisfy
the standing requirements of § 1964,we now turn to Evans’
claims.
i. Loss of Employment Income
Evans initially claims—most creatively we must admit
but nevertheless without merit—that he has established
RICO standing as evinced by his loss of income during the
period of time while he was lawfully and properly incar-
cerated because he was unable to seek or obtain gainful
No. 03-3844 17
employment. The crux of Evans’ argument is that, due
to the fact that he was allegedly maliciously prosecuted and
falsely imprisoned, he thus lost the ability to pursue gainful
employment and also lost potential income from that
employment. As such, his claim must fail.21
The loss of income as a result of being unable to pur-
sue employment opportunities while allegedly falsely
imprisoned22—similar to monetary losses flowing from the
loss of consortium, loss of security and peace, wrongful
death and similar claims sounding in tort—are quint-
essentially pecuniary losses derivative of personal injuries
arising under tort law. See, e.g., Doe, 958 F.2d at 770.
Under Illinois law, which in this instance defines the
scope of tort law, both malicious prosecution and false
imprisonment constitute traditional tort claims which result
in a personal injury. See Swick v. Liautaud, 169 Ill.2d 504,
512 (Ill. 1996) (malicious prosecution); Cruthis v. Firstar
21
We note that, while this case is before this court on sum-
mary judgment and all facts must be taken in the light most
favorable to Evans, the record suggests that Evans was lawfully
incarcerated at all times pertinent to this suit.
22
Because Evans’ complaint was dismissed on summary judg-
ment, we view the evidence in the light most favorable to him. See
Hottenroth, 388 F.3d at 1026. However, it is worth noting that
Evans’ claim that he was falsely imprisoned borders on
the absurd. There is no dispute that Evans was found guilty to one
charge of possession of a controlled substance and pled no contest
to another. Therefore, even if we were to find that loss of potential
employment income provided standing pursuant to 18 U.S.C.
§ 1964(c), Evans’ claim would fail the “but for” causation test
enumerated by the Supreme Court in Holmes v. Sec. Investor Prot.
Corp., 503 U.S. 258, 268 (1992). This is due to the fact that Evans
would be unable to establish that “but for” the acts of the officers
he would have been able to gain employment, because he was
lawfully imprisoned at the time he alleges he suffered those
injuries.
18 No. 03-3844
Bank, N.A., 354 Ill.App.3d 1122, 1136 (Ill. App. Ct. 2004)
(false imprisonment). These torts often result in personal
injuries, such as those enumerated above, including the
inability to pursue or obtain gainful employment. Evans’
claim of loss of employment income is nothing more than an
indirect, or secondary effect, of the personal injuries that he
allegedly suffered, the inability to seek or obtain employ-
ment, and therefore such a claim does not constitute a
cognizable injury to “business or property” within the
meaning of § 1964(c). Doe, 958 F.2d at 770 (holding that
“Doe’s loss of earnings . . . are plainly derivatives of her
emotional distress—and therefore reflect personal injuries
which are not compensable under RICO”) (citing Rylewicz,
888 F.2d at 1180).
To illustrate the point that personal injuries and inciden-
tal monetary losses flowing from them do not confer
§ 1964(c) standing further, it is helpful to employ an
analogous situation. In the oft-cited case, Grogan v. Platt,
the Eleventh Circuit held that the plaintiffs had failed
to establish RICO standing by pleading economic loss
and loss of employment income related to the wrongful
death of their loved ones. See Grogan, 835 F.2d at 846-47.
The Grogan court concluded that “pecuniary losses are so
fundamentally a part of personal injuries that they
should be considered something other than injury to ‘busi-
ness or property.’ ” Id. at 847. Like the plaintiffs in Grogan,
Evans has failed to allege anything more than pecuniary
losses antecedent to a personal injury. The fact that Grogan
was premised on a tort claim of wrongful death and Evans’
case is premised on false imprisonment and malicious
prosecution is of no import. The real question is whether
Congress intended RICO laws to compensate plaintiffs for
pecuniary losses, such as loss of income, stemming from
what is essentially a personal injury like the inability to
work or seek employment. We are of the opinion that
Congress did not intend to do so. See infra p. 24 n.21. This
No. 03-3844 19
is particularly true given the “restrictive significance” of the
RICO standing requirement, which was adopted directly
from the Clayton Act. See Reiter, 442 U.S. at 339; see also
infra, p. 20 n.23. Indeed, we are inclined to agree with the
United States District Court for the District of Columbia’s
statement in Morrison v. Syntex Labs. that “[h]ad Congress
intended to create a federal treble damages remedy for
cases involving bodily injury, injury to reputation, mental
or emotional anguish, or the like, all of which will cause
some financial loss, it could have enacted a statute referring
to injury generally, without any restrictive language.” 101
F.R.D. 743, 744 (D.D.C. 1984), cited with approval in
Grogan, 835 F.3d at 847 (citation omitted) (emphasis in
original).
In Doe v. Roe, this court held that the loss of income
resulting from the personal injury of emotional distress was
not sufficient to establish standing under § 1964(c). 958
F.2d at 765-67. In doing so, we noted that “[m]ost personal
injuries—loss of earnings, loss of consortium, loss of
guidance, mental anguish, and pain and suffering, to name
a few—will entail some pecuniary consequences.” Id. at 770.
However, we concluded that although “the economic aspects
of such injuries could, as a theoretical matter, be viewed as
injuries to ‘business or property,’ . . . engaging in such
metaphysical speculation is a task best left to philosophers,
not the federal judiciary.” Id. Likewise, although the
economic aspects of Evans’ alleged loss of employment
income injury could conceivably be regarded as affecting
“business or property,” Congress specifically foreclosed this
possibility by adopting the civil RICO standing requirement
and its “restrictive significance” from the Clayton Act. See
Reiter, 442 U.S. at 339, see also infra p. 20 n.23.
This is not to say that a plaintiff may never recover under
RICO for loss of an employment opportunity. Where an
employee is able to establish that he has been unlawfully
deprived of a property right in promised or contracted for
wages, the courts have been amenable to classifying the loss
20 No. 03-3844
of those wages as injury to “business or property.” See, e.g.,
Williams v. Mohawk, Industries, Inc., 411 F.3d 1252, 1260
(7th Cir. 2005). However, Evans does not claim that he was
engaged in a lawful business enterprise or activity which
was interfered with by the City or the officers who allegedly
harassed him. Cf. Rosario v. Livaditis, 963 F.2d 1013, 1020-
21 (7th Cir. 1992). In addition, he does not claim that he
was discharged from his employment as the result of his
refusal to participate in a racketeering scheme. Cf. Shearin
v. E.F. Hutton Group, Inc., 885 F.2d 1162-63 (3d Cir. 1989).
Indeed, Evans only claims that he was effectively prevented
from “seek[ing] temporary day labor work.” Personal
injuries such as these are most decidedly not the type of
injury that the RICO laws were designed to address.23
23
The RICO laws were developed as “an aggressive initiative to
supplement old remedies and develop new methods for fighting
crime.” Sedima, 473 U.S. at 498. The United States Congress
envisioned a set of laws that would facilitate the “irradication of
organized crime in the United States, by strengthening the
legal tools in the evidence-gathering process, by establishing
new penal prohibitions and by providing enhanced sanctions
and new remedies to deal with the unlawful activities of those
engaged in organized crime.” 116 Cong. Rec. 35216 (1970) (re-
marks of Rep. Donohue). It is unlikely that the legislature would
have had the foresight to see the law being utilized in an action
against a municipality or its police officers; however, the law
was “aimed at keeping organized crime out of legitimate busi-
nesses” as well as illegitimate criminal enterprises. Id. at 35200;
see also United States v. Turkette, 452 U.S. 576, 587 (1981)
(holding that the civil RICO statute applies to criminal as well as
legitimate enterprises).
Also, as the Supreme Court recognized in Sedima, “RICO is
to be read broadly. This is the lesson not only of Congress’ self-
consciously expansive language and overall approach, but also of
its express admonition that RICO is to ‘be liberally construed to
effectuate its remedial purposes.’ ” Sedima, 473 U.S. at 497-98(continued...)
No. 03-3844 21
Thus, our holding is limited to plaintiffs such as Evans,
whose claims of injury are framed in terms of pecuniary
losses incurred as a result of what can only properly be
classified as a personal injury—such as the inability to
seek or obtain employment opportunities arising out of false
imprisonment or malicious prosecution tort claims. See
Grogan, 835 F.2d at 847.
23
(...continued)
(quoting Pub. L. 91-452, § 904(a), 84 Stat. 947.) (internal quot-
ations and citations omitted). However, it would be contrary to the
intent of Congress for this court to construe the statute so broadly
that we completely read the “restrictive significance,” see Reiter,
442 U.S. at 339, of the “business or property” standing require-
ment out of 18 U.S.C. § 1964(c). As illustrated above, the provision
incorporated into § 1964(c) was adopted directly and expressly
from § 4 of the Clayton Act, 15 U.S.C. § 15. See supra p. 18-19
n.19.
Congressional lawmakers well understood that adopting the
Clayton Act’s standing requirement would magnify the “clarity
and [reinforce the] contours of the title’s procedural provisions.”
116 Cong. Rec. 35227 (remarks of Rep. Steiger). The
denouement—whether good or bad—of increased “clarity” in this
instance was the adaptation of the Clayton Act’s standing
requirement that a prospective plaintiff be injured in his “busi-
ness or property” and the “restrictive significance” that those
words retain. See Reiter, 442 U.S. 339. Although Congress may
have been concerned with “a private litigant [who] would have to
contend with a body of precedent . . . setting strict requirements
on questions such as ‘standing to sue’ and ‘proximate cause,’ ” that
is exactly what was inherited by incorporating the Clayton Act’s
standing requirement. Sedima, 473 U.S. at 498 (quoting 115 Cong.
Rec. 6995 (1969)). While this consequence may have been unin-
tended, we are bound by the words of the statute, which exclude
personal injuries as grounds for standing under the civil RICO
statute. See Reiter, 442 U.S. 339. Expanding the class of injuries
sufficient to confer standing under the statute is a job best left up
to the United States Congress, not the federal courts.
22 No. 03-3844
Our conclusion is bolstered by the fact that Illinois law
also does not recognize the right to seek out employment
opportunities as a cognizable property right. Often, courts
will look to state law to determine the meaning of a “prop-
erty” right pursuant to federal statutes such as RICO. See
Doe, 958 F.2d at 768 (“While federal law governs most
issues under RICO, whether a particular interest amounts
to property is quintessentially a question of state law.”).
This has indeed proved to be an acceptable and appropriate
method for determining the meaning that should be given
to property interests. See Ledford v. Sullivan, 105 F.3d 354,
357 (7th Cir. 1997) (stating that “[p]roperty interests ‘are
not created by the constitution’ . . . [r]ather, they are
created and their dimensions are defined by existing rules
or understandings that stem from an independent source
such as state law . . . .”) Pertinent here is the fact that the
Illinois Supreme Court has specifically held that a person
has a property interest in employment only where that
person has a legitimate expectation of continued employ-
ment. See Fumarolo v. Chicago Board of Ed., 142 Ill.2d 54,
107 (Ill. 1990) (holding that “a property interest in employ-
ment as a tenured teacher can be created where there is a
legitimate expectation of continued employment”). In
addition, under Illinois law, to state a claim for “interfer-
ence with prospective economic advantage” which is es-
sentially what Evans claims the City and the officers did by
allegedly falsely imprisoning him thereby denying him the
opportunity to seek or obtain gainful employment, “a
plaintiff must allege (1) a reasonable expectancy of entering
into a valid business relationship, (2) the defendant’s
knowledge of the expectancy, (3) an intentional and unjusti-
fied interference by the defendant that induced or caused a
breach or termination of the expectancy, and (4) damage to
the plaintiff resulting from the defendant’s interference.”
Anderson v. Vanden Dorpel, 172 Ill.2d 399, 406-07 (Ill.
1996) (citing Fellhauer v. City of Geneva, 142 Ill.2d 495, 511
(1991)). Evans has proffered no evidence, much less case
No. 03-3844 23
law that could or would lead us to conclude that, by lawfully
prosecuting and imprisoning him, the City or the Officers,
in any way, interfered with his “legitimate expectation of
continued employment,” nor has he alleged that he had a
“reasonable expectancy of entering into a valid business
relationship.” There is no question that the State of Illinois
has the right, and indeed the obligation, to arrest and
incarcerate individuals that violate the State’s drug laws, as
Evans did by possessing a controlled substance. The fact
that this precluded him from seeking employment was
merely a derivative of his criminal behavior, and does not
constitute the deprivation of a property right.24 Therefore,
looking to state law to define “property” in this context does
not help Evans’ claim, for he is still unable to establish that
he was injured in his “business or property” based on the
fact that he was denied the opportunity to seek work while
incarcerated.25
Accordingly, we reaffirm our holding in Doe v. Roe, and in
doing so reiterate this court’s understanding that personal
injuries, and the pecuniary losses flowing from those
injuries, are insufficient to establish standing under the
24
Indeed, aside from conclusory allegations of police misconduct,
Evans does not offer any evidence that he was either falsely
imprisoned or maliciously prosecuted. Also, it is undisputed that
the convictions the State gained against Evans in Cook County
Circuit Court are valid and have not been overturned. See supra
p. 7-9. As such, Evans’ claim that he was somehow denied a
property interest by being incarcerated borders on the ridiculous.
25
It should be noted, however, that we need not adopt a state
law definition of “business or property” which is so broad that
it contravenes Congress’ intent in enacting the RICO law. See
Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204,
208 (1946) (holding that federal courts are justified disregard-
ing state law if the Congressional purposes underlying federal law
would be undermined).
24 No. 03-3844
civil RICO, § 1964(c).26 We also hold that foregone
26
We are cognizant of the fact that our decision today is at odds
with that of the United States Court of Appeals for the Ninth
Circuit in Diaz v. Gates, 420 F.3d 897 (9th Cir. 2005) (en banc).
The Diaz majority, however, blurs the distinction between
whether an alleged injury satisfies the statutory definition of
“business or property” and whether a “business or property” injury
was proximately caused by a predicate RICO act. This is evinced
by the court’s statement that: “Diaz suffered two types of injuries:
(1) the personal injury of false imprisonment and (2) the prop-
erty injury of interference with current or prospective contractual
relations. Treating the two as separate, and denying recovery
for the first but letting the suit go forward on the second, is both
analytically cleaner and truer to the language of the statute.” Id.
at 902. This analysis is equal parts mischaracterization of the
RICO statute and red herring. For one thing, in the Diaz case,
false imprisonment would not be a “personal injury,” as the Ninth
Circuit characterized it; instead, it would be a cause of action in
tort, which would give rise to a personal injury such as loss of
employment, loss of consortium, etc. See, e.g., Guaranty Nat. Ins.
Co. v. International Ins. Co., 994 F.2d 1280, 1285 (7th Cir. 1993).
Also, simply because a personal injury—in Diaz’s case “interfer-
ence with current or prospective contractual relations”—entails
some pecuniary consequence, does not mean that RICO standing
has been established, for it is part and parcel of the underlying
personal injury, i.e., it flows from it. See id. And as the Supreme
Court has made clear, the phrase “ ‘business or property’ . . .
exclude[s] personal injuries suffered.” Reiter, 442 U.S. at 339.
Diaz’s loss of employment and the related monetary losses he
suffered merely represent pecuniary losses derivative of a
underlying, non-compensable personal injury, and as such those
losses cannot constitute an independent grounds for RICO
standing. See id.; Roe, 958 F.2d at 770.
In addition, the Ninth Circuit’s decision seems to weigh
significantly on that court’s understanding of what constitutes
a “property interest” pursuant to California law. For example,
court concluded that the loss of income stemming from the
(continued...)
No. 03-3844 25
earnings stemming from the lost opportunity to seek or gain
employment are, as a matter of law, insufficient to satisfy
§ 1964(c)’s injury to “business or property” requirement
where they constitute nothing more than pecuni-
ary losses flowing from what is, at base, a personal injury.
See Doe, 958 F.2d at 770. Thus, because Evans’ claims of
loss of earnings due to the inability to seek out or obtain
employment constitute pecuniary losses stemming from
personal injury, he lacks standing under RICO to ad-
vance this portion of his claim and the district court did not
err in granting the defendant’s motion for summary judg-
ment.
ii. Attorney’s fees
Evans also claims that he suffered monetary losses
sufficient to establish standing under § 1964(c), in the form
26
(...continued)
inability to pursue employment did constitute a cognizable in-
jury sufficient to establish standing under RICO, concluding
that Diaz had “alleged both [a] property interest and [a] finan-
cial loss,” under California law. Diaz, 420 F.3d at 900. The court
stated that the “harms [Diaz] allege[d] amount[ed] to intentional
interference with contract and interference with prospective
business relations, both of which are established torts under
California law.” Id. (emphasis added). In doing so the court stated
that the distinction between current and prospective employment
was “untenable” due to the fact that “California law protects the
legal entitlement to both current and prospective contractual
relations.” Id. However, as discussed above, Illinois law does no
such thing. In fact, Illinois law explicitly protects only the
“legitimate expectation of continued employment,” See Fumarolo,
142 Ill.2d at 107, or a “reasonable expectancy of entering into a
valid business relationship,” Anderson, 172 Ill.2d at 406-07, none
of which apply to Evans. Therefore, because the Diaz decision is
neither controlling law nor persuasive in its rationale, we need not
alter our opinion today in light of that decision.
26 No. 03-3844
of attorney’s fees, when he was forced to defend himself
against the charges levied by the Illinois State’s Attorney.
Specifically, Evans argues that the fees he incurred to
defend against the withdrawn violation of probation charge
and the May 12, 1997 possession of a controlled substance
charge constitute a cognizable RICO injury. We disagree.
As discussed at length above, personal injuries and the
pecuniary losses stemming therefrom do not establish
standing under the civil RICO statute. See Roe, 958 F.2d at
770. Like pecuniary losses stemming from the inability to
seek or gain employment due to a plaintiff’s alleged false
imprisonment, pecuniary losses which emanate from a
personal injury such as the acquisition of attorney fees due
to alleged malicious prosecution or false imprisonment do
not provide a plaintiff with standing under the civil RICO
statute. In Doe v. Roe, we addressed precisely this issue and
held that monies expended in retaining a “new attorney
[were] plainly derivatives of her emotional distress—and
therefore reflect personal injuries which are not compensa-
ble under RICO.” Id. The fees that Evans allegedly paid his
attorney with regard to the withdrawn violation of proba-
tion charge and the May 12, 1997 possession of a controlled
substance charge which was nolled, are clearly derivative of
his alleged false imprisonment and malicious prosecution
claims and therefore represent non-compensable pecuniary
losses related to personal injuries. See Swick v. Liautaud,
169 Ill.2d at 512 (describing the elements of a tort claim for
malicious prosecution). As such, they are also insufficient
to supply him with standing under RICO.
However, even if we were to assume arguendo that Evans
had established a “business or property” injury within the
meaning of § 1964(c) of the RICO statute, he has failed to
prove that his payment of attorney’s fees was proximately
caused by the alleged racketeering activity undertaken by
the city.
No. 03-3844 27
The Supreme Court, in Holmes v. Sec. Investor Prot.
Corp., 503 U.S. 258, 268 (1992), analogized § 1964(c) to
§ 4 of the Clayton Act, and concluded that a defendant’s
RICO violation, in addition to being the “but for” cause of a
plaintiff’s injuries, must also be the “proximate” cause. In
doing so, the Court outlined a number of reasons why a
direct relationship between an injury and an alleged RICO
violation is so important, stating that “[a]lthough . . .
directness of relationship is not the sole requirement of
Clayton Act causation, it has been one of its central ele-
ments.” Id. at 269 (citing Associated General Contractors of
Cal., Inc. v. Carpenters, 459 U.S. 519, 540 (1983)).
In line with the Supreme Court’s guidance in Holmes and
previous decision such as Sedima, S.P.R.L. v. Imrex Co.,
Inc., 473 U.S. 479, 497 (1985), which states that “[a]ny
recoverable damages occurring by reason of a violation of
§1962(c) will flow from the commission of predicate acts,” a
number of appellate courts have held that a showing of
RICO injury requires proof of a “concrete financial loss” and
does not encompass mere “injury to a valuable intangible
property interest.” See, e.g., Anderson v. Kutak, Rock &
Campbell, 51 F.3d 518, 523 (5th Cir. 1995) (quoting Steele
v. Hospital Corp. of Am., 36 F.3d 69, 71 (9th Cir. 1994)).
Indeed, every court that has addressed this issue has
held that injuries proffered by plaintiffs in order to confer
RICO standing must be “concrete and actual,” as opposed to
speculative and amorphous. See, e.g., Regions Bank v. J.R.
Oil Co., LLC, 387 F.3d 721, 728 (8th Cir. 2004); Steele, 36
F.3d 69, 70; Anderson v. Lincoln Insurance Agency, Inc.,
2003 WL 291928, at *3 (N.D.Ill. Feb. 10, 2003); Pelfresne v.
Village of Rosemont, 22 F.Supp.2d 756, 765 (N.D.Ill. 1998).
Recently, this court adopted a similar standard, holding
that “a cause of action does not accrue under RICO until the
amount of damages becomes clear and definite.” Motorola
Credit Corp. v. Uzan, 322 F.3d 130, 135 (2d Cir. 2003).
28 No. 03-3844
Evans claims that, due to the alleged racketeering
activities of the named police officer defendants, he was
forced to incur additional attorney’s fees to defend against
charges on which he was later vindicated. In addition,
Evans claims that he incurred fees for “many court sessions
where witness after witness was put on to testify about
harassing incidents involving the defendants.” However,
even when viewed in the light most favorable to Evans, the
evidence concerning the attorney’s fees is far too speculative
to confer RICO standing.
The problem is that Evans was convicted of two of those
charges, i.e., the June 8, 1997 possession of a controlled
substance charge and the June 14, 1997 possession of a
controlled substance charge, while the other two charges
(the violation of parole charge and the May 12, 1997
possession of a controlled substance charge) were aban-
doned. Even if we were to assume that Evans “prevailed” on
the charges that were abandoned, the question remains:
What portion, if any, of the attorney’s fees that Evans
incurred is attributable to the charges that were aban-
doned?
The attorneys that represented Evans tell us, via affidavit
testimony, that they would have charged Evans the same
amount of money—$20,000 or $10,000 a piece— regardless
of the number of charges pending against him at the time.
In addition, they themselves state that they did not appor-
tion their time amongst the criminal charges, i.e., they only
kept an aggregate total of the hours worked and did not bill
based on which charge they were addressing at any given
time. Whether billing in such a manner constitutes a good
business decision or not, we, along with the attorneys
that represented Evans, are unable to discern what, if
any, percentage of that $20,000 would constitute dam-
ages even if Evans were to prevail on his RICO claim. He
does state in an affidavit that “[h]ad there been less than
four cases, I would have incurred less than a $10,000 debt
No. 03-3844 29
to attorney Alexander.” However, Evans offers no other
support for this statement and, as this court has repeatedly
held, the self-serving affidavit of a plaintiff is ipso facto,
insufficient to create an issue of material fact. See, e.g.,
Cichon v. Exelon Generation Co., 401 F.3d 803, 810-813 (7th
Cir. 2005); Laborers’ Pension Fund v. RES Environmental
Servs., Inc., 377 F.3d 735, 739 (7th Cir. 2004); see also Buie
v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004)
(“self-serving statements contained in an affidavit will not
defeat a motion for summary judgment when those state-
ments are ‘without factual support in the record’ ”) (quoting
Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.
1993)). Indeed, speculative damage claims like Evans’ are
precisely the type of situation the Supreme Court was
trying to avoid in Holmes v. Securities Investor Protection
Corp., when the court instituted a proximate cause require-
ment in order to establish standing in civil RICO cases. 503
U.S. 258, 269 (“the less direct an injury is, the more difficult
it becomes to ascertain the amount of a plaintiff’s damages
attributable to the violation, as distinct from other, inde-
pendent, factors”).27
27
In addition, even if were able to parse the record and the
affidavits in order to determine which charges were incurred with
respect to certain criminal charges, Evans has not established
that the attorney’s fees he incurred were caused by a predicate act
within the meaning of the RICO statute. See 18 U.S.C. §§ 1964(c),
1962; see also Beck v. Prupis, 529 U.S. 494, 500-07 (2000) (holding
that in order for a RICO plaintiff to have standing he must
establish that his injuries were caused by a predicate act within
the meaning of 18 U.S.C. § 1962). In order to establish standing,
Evans must point to an illegal act enumerated in 18 U.S.C. §
1962, that was the proximate cause of his alleged injuries, which
he has failed to do. See id. There is no indication in the record
whatsoever that Evans was mistakenly or incorrectly arrested or
charged with the offenses that were later abandoned, i.e.,
(continued...)
30 No. 03-3844
Because Evans has failed to create an issue of material
fact, and because his RICO claim fails as a matter of law,
we conclude the district court did not err when it granted
summary judgment to the defendants, finding that Evans
lacks RICO standing.
2. First Amendment and Intentional Infliction of Emo-
tional Distress Claims
Evans also claims that the district court erred in granting
summary judgment to the defendants on his First Amend-
ment civil rights and state law intentional infliction of
emotional distress claims. Evans argues his First Amend-
ment, § 1983 claim and his intentional infliction of emo-
tional distress claims should not be considered time barred
“because (1) suit was filed within one year of the termina-
tion of the criminal prosecutions . . . and (2) both claims
involve a continuing tort, where a repeated course of
tortious conduct continued even after the filing of the suit.”
Evans is mistaken.
The statute of limitations applicable to claims under 42
U.S.C. § 1983 in Illinois is the same two-year provision
27
(...continued)
violation of parole and possession of a controlled substance on
May 12, 1997. As mentioned above, the May 12 charge was
abandoned as part of a pre-arranged plea agreement with Evans
and his counsel. See supra p. 11-12. Also, although the violation
of probation charge was abandoned, even viewing the record in the
light most favorable to Evans, as we must at this stage, there is
nothing to suggest that Evans had not violated his parole and was
correctly charged with this offense. As the state’s attorney trying
Evans’ cases stated in affidavit testimony, he moved to have the
violation of probation charge resolved as “probation terminated
unsatisfactory” because Evans had served the maximum amount
of time for his 1996 conviction while awaiting trial and the
prosecutor believed the charge to be “moot.” See supra p. 11.
No. 03-3844 31
which governs personal injury actions in the state, 735
ILCS 5/13-202. Williams v. Lampe, 399 F.3d 867, 869-70
(7th Cir. 2005) (citing Hileman v. Maze, 367 F.3d 694, 696
(7th Cir. 2004)). The limitations period for tort claims, such
as intentional infliction of emotional distress, against
governmental entities and their employees, however, is only
one year pursuant to 745 ILCS 10/8-101. See id. It is
undisputed that the vast majority of events giving rise to
Evans’ complaint took place in 1997. It is also undisputed
that Evans did not file his suit until 2001. Therefore, unless
he is able to identify some legal rationale for us to extend
the statute of limitations or conclude that acts giving rise to
his claim continued for a substantial amount of time
following the incidents in 1997, his claim must fail.
Evans’ initial argument is that the cause of action did not
accrue until the termination of the state criminal proceed-
ings against him in 2000. What Evans fails to take into
consideration is that the default rule, under Illinois law, is
that “a cause of action for personal injuries accrues when
the plaintiff suffers injury.”28 Golla v. General Motors Corp.,
167 Ill.2d 353, 360 (Ill. 1995) (citing West American Ins. Co.
v. Sal E. Lobianco & Son Co., 69 Ill.2d 126, 130 (Ill. 1977),
and Hermitage Corp. v. Contractors Adjustment Co., 166
Ill.2d 72 (Ill. 1995)). In addition, as the district court
correctly found, nothing in either federal law or Illinois law
28
Because Evans has not alleged that he did not discover the
existence of an injury until after the injury actually took place, the
Illinois default rule on this subject controls. See Golla, 167 Ill.2d
at 360 (“To alleviate the harsh consequences that would flow from
the literal application of the limitations period, the judiciary
created the ‘discovery rule.’ The effect of the discovery rule . . . is
to postpone the commencement of the relevant statute of limita-
tions until the injured plaintiff knows or reasonably should know
that he has been injured and that his injury was wrongfully
caused.” (internal citations omitted)).
32 No. 03-3844
tolls or delays the running of an applicable statute of
limitations on a § 1983 claim until criminal proceedings are
concluded. See Pitts v. City of Kankakee, 267 F.3d 592, 595
(7th Cir. 2001) (stating that “[n]ormally, the statute begins
to run from the date of an injury” on a § 1983 claims); Kelley
v. Myler, 149 F.3d 641, 645 (7th Cir. 1998); see also Day v.
Morgenthau, 909 F.2d 75, 79 (2d Cir. 1990). Thus, both
Evans’ § 1983 claims and his intentional infliction of
emotional distress claims are barred, unless the “doctrine
of continuing violation” applies. See Heard v. Sheahan, 253
F.3d 316, 319 (7th Cir. 2001).
The doctrine of continuing violation, as the Illinois
Supreme Court has held, “does not involve tolling the
statute of limitations because of delayed or continuing
injuries, but instead involves viewing the defendant’s
conduct as a continuous whole for prescriptive purposes.”
Feltmeier v. Feltmeier, 207 Ill.2d 263, 279 (Ill. 2003) (citing
Pavlik v. Kornhaber, 326 Ill.App.3d 731, 745 (Ill. App. Ct.
1991)). Indeed, the in Feltmeier v. Feltmeier, the Illinois
Supreme Court made clear that “the statute of limitations is
only held in abeyance until the date of the last injury
suffered or when the tortious acts cease.” Id. at 284.
Applying this common-sense rule to the facts concern-
ing Evans’ allegations of continuing torts and First Amend-
ment violations, we are convinced that the district court
correctly granted summary judgment in the defendants’
favor. It is undisputed that the last, confirmed interaction
between Evans and the police officers named in the com-
plaint29 took place sometime in December of 1997. Thus, the
last injury Evans suffered, and indeed the last possible date
of a tortious act against Evans, was in December of 1997,
well beyond both the two-year statute of limitations for
§ 1983 claims and the one-year statute of limitations for
29
Aside from court appearances at which the officers appeared.
No. 03-3844 33
tort claims against governmental entities or employees. In
order to subvert this result, Evans introduced an affidavit
statement claiming that in March of 2000, after he had been
released from prison, two unidentified persons told a friend
of Evans’ that officers would be “coming around looking for
him.” However, this quite obvious attempt by Evans to
manipulate the doctrine of continuing violations is woefully
insufficient to survive summary judgment. As stated above,
the self-serving affidavit statement of a plaintiff is ipso
facto, insufficient to create an issue of material fact. See,
e.g., Cichon, 401 F.3d at 810-813; Laborers’ Pension Fund,
377 F.3d at 739; Buie, 366 F.3d at 504.
Thus, because the statute of limitations began running in
late December 1997 and Evans didn’t file suit until three
years later, in November of 2000, both Evans’ § 1983 claim
and his state law intentional infliction of emotional distress
claim were properly dismissed as being beyond
the respective two and one year statutes of limitation.
III. CONCLUSION
The decision of the district court is
AFFIRMED.
34 No. 03-3844
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-6-06