Dominguez, S. Alejan v. Hendley, Paul ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-1004, 07-1005 & 07-3030
S. A LEJANDRO D OMINGUEZ,
Plaintiff-Appellee,
v.
P AUL H ENDLEY and C ITY OF W AUKEGAN,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2907—Milton I. Shadur, Judge.
A RGUED M AY 30, 2008—D ECIDED S EPTEMBER 30, 2008
Before B AUER, R IPPLE, and W OOD , Circuit Judges.
W OOD , Circuit Judge. In September 1989, when Alejandro
Dominguez was fifteen years old, he was arrested on
charges of home invasion and sexual assault, based on the
allegations of eighteen-year-old Lisa Kraus, who lived in
the same building as he did. Dominguez was convicted
and spent four years incarcerated before being paroled.
Throughout this process and the period following his
release, he maintained his innocence and worked to
2 Nos. 07-1004, 07-1005 & 07-3030
exonerate himself. With the help of a new lawyer,
Dominguez eventually proved that his DNA did not
match the semen found on Kraus’s underwear, and on
April 26, 2002, his conviction was vacated. In August 2005,
Dominguez received a pardon from the Governor.
On April 23, 2004, Dominguez filed a complaint under
42 U.S.C. § 1983 against the City of Waukegan and the
police officers—in particular Officer Paul Hendley—
involved in the investigation of the incident with Kraus.
After the complaint was amended more than once to
add parties and claims and drop parties who had died, the
case went to trial with only Hendley and the City as
defendants. After all evidence was submitted to the jury
but before the jury rendered its verdict, the district court
dismissed the City from the suit, based on a failure
of proof, but with the express understanding that the
City was bound to indemnify Hendley for any judgment
incurred. After a ten-day trial, the jury found in favor
of Dominguez and awarded him a judgment of $9,063,000,
based on its finding that Hendley had violated
Dominguez’s right to due process by taking actions that
denied him a fair trial. At that point, the City repudiated
its prior position and stated that it might not indemnify
Hendley, prompting Dominguez to move for post-judg-
ment relief. Based on the City’s judicial admissions on
the issue of indemnification, the district court reinstated it
as a defendant and amended the judgment to make
Hendley and the City jointly and severally liable for the
judgment in favor of Dominguez. Hendley and the City
appeal, and we affirm.
Nos. 07-1004, 07-1005 & 07-3030 3
I
Hendley’s first argument on appeal is that Dominguez’s
claim is barred by the statute of limitations. We review a
district court’s ruling with respect to a limitations defense
de novo. United States v. Gibson, 490 F.3d 604, 608 (7th Cir.
2007).
In Illinois, the statute of limitations for § 1983 claims is
two years. See 735 ILCS 5/13-202; Williams v. Lampe, 399
F.3d 867, 870 (7th Cir. 2005). Dominguez filed his com-
plaint on April 23, 2004, and so if his claim accrued on or
after April 23, 2002, then his lawsuit was timely. His
conviction was vacated on April 26, 2002, which falls
within this window. The real question is whether that
is the proper event on which to focus.
The jury was instructed to find for Dominguez if it
found that the defendant caused Dominguez’s criminal
trial to be unfair. A § 1983 claim for a due process viola-
tion based on the denial of a fair criminal trial may be
brought only after the conviction is set aside. Otherwise,
that civil claim would imply the invalidity of the out-
standing conviction and would thus constitute a collateral
attack on the conviction through an impermissible route.
Heck v. Humphrey, 512 U.S. 477 (1994). So viewed,
Dominguez’s claim did not accrue until 2002 and is
therefore timely.
Hendley argues, however, that the underlying reason
why Dominguez asserts that his trial was unfair relates to
his arrest, and thus we should find that his claim accrued
no later than the time when his unlawful seizure was
terminated—that is, the time of his arraignment. Fourth
4 Nos. 07-1004, 07-1005 & 07-3030
Amendment claims for false arrest or unlawful searches
accrue at the time of (or termination of) the violation.
Wallace v. Kato, 549 U.S. 384 (2007). Even if no convic-
tion could have been obtained in the absence of the vio-
lation, the Supreme Court has held that, unlike fair trial
claims, Fourth Amendment claims as a group do not
necessarily imply the invalidity of a criminal conviction,
and so such claims are not suspended under the Heck
bar to suit.
Hendley, however, is assuming that Dominguez’s claim
is limited to his arrest and does not also include independ-
ent charges of due process violations. That assumption
overlooks critical parts of the case. Dominguez has
asserted all along that the defendant officers violated his
right to due process by manipulating or tampering with
identification and testimonial evidence. He backed up
these allegations with evidence at the trial. His due
process claim is thus more than a Fourth Amendment
claim by another name, and for that reason, it is not barred
by the limitations rule announced in Wallace. Dominguez’s
right to sue arose only after his criminal conviction was
set aside, and, as the district court held, he filed within
the two years permitted by law.
II
Hendley next argues that he was entitled to qualified
immunity because he did not proximately cause any
constitutional violations at Dominguez’s criminal trial. It
is somewhat unusual to encounter a qualified immunity
defense this late in the proceedings, because qualified
Nos. 07-1004, 07-1005 & 07-3030 5
immunity is normally raised during the pretrial phase so
that the public official can avoid the burdens of trial. It is
technically possible, however, to raise the defense after a
jury verdict, if the immunity question itself depended on
disputed issues of material fact. See Johnson v. Jones, 515
U.S. 304, 313 (1995).
In this case, the defendants raised the defense of quali-
fied immunity in their answer, but they did not move
for summary judgment. This was a reasonable way to
proceed, because Hendley denied that he had engaged
in the misconduct of which Dominguez accused him:
withholding material exculpatory evidence from the
defense and prosecutor, orchestrating a show-up identifi-
cation procedure that caused the criminal trial to be
unfair, and fabricating evidence against Dominguez. There
was and is no disputing that such conduct violates
clearly established constitutional rights. Hendley merely
hoped that the jury would credit his version of what
happened rather than Dominguez’s.
Hendley’s biggest problem is that qualified immunity
is a doctrine designed to respond to legal uncertainty, but
causation (a factual matter) has nothing to do with legal
uncertainty. His contention about a lack of “proximate
cause” is really just an assertion that the evidence was
insufficient to support the jury’s finding that his
conduct proximately caused Dominguez’s damages. Citing
cases discussing proximate cause and superseding cause
in § 1983 claims, Hendley asserts that “numerous circuits
have held that police officers who provide truthful infor-
mation to subsequent decisionmakers in the criminal
6 Nos. 07-1004, 07-1005 & 07-3030
justice system cannot be held liable under § 1983 for
allegedly wrongful convictions.” Quoting from Townes v.
City of New York, 176 F.3d 138, 147 (2d Cir. 1999), he argues
that the supervening cause doctrine applies “in ‘the
absence of evidence that the police officer misled or
pressured the official who could be expected to exercise
independent judgment.’ ” These cases are of no help to
Hendley, however, for they merely highlight the dif-
ferences between those cases and Dominguez’s.
Dominguez submitted sufficient evidence at trial to
allow the jury to find that Hendley did not provide
truthful information to subsequent decisionmakers, and
that he did mislead the official who could be expected to
exercise independent judgment. For example, the crim-
inal prosecutor testified that he was never told about any
showup used in Kraus’s identification of Dominguez.
Dominguez also proved that Hendley received an exculpa-
tory document, known to the parties as the “Navy Report,”
but that this report was missing from the official file
that had been provided to the prosecutor during the
criminal trial, and was not part of the materials furnished
to Dominguez in discovery. The Navy Report would have
provided valuable exculpatory evidence for Dominguez.
After Kraus was allegedly sexually assaulted, she visited
a Navy hospital and was interviewed about the incident.
The account that she gave to the naval officer differed
in significant ways from accounts she later gave in the
investigation of the incident. Hendley denied that he
arranged a showup, and denied that he had ever seen
the exculpatory Navy Report. The jury therefore had to
decide who was telling the truth on these points, and
Nos. 07-1004, 07-1005 & 07-3030 7
ultimately whether Hendley misled the prosecution and
caused Dominguez to receive an unfair criminal trial.
This determination had nothing to do with qualified
immunity.
Hendley also argues that Dominguez has not proved
that Hendley arrested him without probable cause. This
would be relevant only if the verdict were based on a
false arrest claim, but it was not. Even supposing Hendley
did have probable cause at the time of arrest, the question
is whether Hendley took actions (whether before or after
the arrest) that caused Dominguez to receive an unfair
trial. Probable cause at the time of arrest would not
sanitize such acts.
III
The jury was instructed that, in order to find for
Dominguez, it had to find that Hendley caused
Dominguez’s criminal trial to be unfair through any of
three specified courses of conduct: (1) withholding mate-
rial, exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963); (2) causing an unreliable identifica-
tion procedure to be used at his trial; or (3) fabricating
evidence. Hendley argues that the first of these—the Brady
basis—should not have been submitted to the jury. He
contends that Dominguez failed adequately to plead and
support that theory, and also that he failed to prove it
at trial. Neither point has merit.
Fundamentally, the first point overstates the importance
of pleadings by the time a case reaches trial. The purpose
8 Nos. 07-1004, 07-1005 & 07-3030
of a complaint is to put the defendant on notice of the
claim that is being asserted against him, her, or it; by the
time of trial, the case has normally proceeded through
discovery and the parties have provided whatever
notice of their trial issues and evidence the district court
ordered. This record suggests no lack of notice to Hendley
or the City. They did not object to Dominguez’s evidence
at trial about the Brady violations—indeed, that evidence
was a prominent part of the trial. The defense sub-
mitted evidence that materials were not withheld from
the criminal prosecutor. As Dominguez points out, even
if something is missing entirely from the pleadings, it can
be tried by consent. See F ED. R. C IV. P. 15(b) (“When an
issue not raised by the pleadings is tried by the parties’
express or implied consent, it must be treated in all re-
spects as if raised in the pleadings. A party may move—at
any time, even after judgment—to amend the pleadings
to conform them to the evidence and to raise an
unpleaded issue. But failure to amend does not affect the
result of the trial of that issue.”). The record easily
shows that supposed flaws in the way that Dominguez
described his Brady point in the pleadings had no effect on
the trial.
Hendley’s assertion that the evidence was insufficient to
support Dominguez’s Brady theory is also unpersuasive.
Once again, Hendley must show that no matter how the
evidence is weighed or credited, no reasonable jury
could have found by a preponderance that he withheld
material exculpatory evidence from Dominguez when
Dominguez was being criminally prosecuted. The trial
record simply does not support such a conclusion, given
Nos. 07-1004, 07-1005 & 07-3030 9
Hendley’s failure to disclose the showup and the Navy
Report.
IV
Hendley next attacks the court’s instructions to the
jury. He has three complaints. First, he argues that the
court erred in not giving his proposed instruction re-
minding the jury that Hendley may be held accountable
only for conduct in which he was personally involved, not
for what others did or did not do. He accuses Dominguez
of trying to blur the lines by laying all responsibility at
Hendley’s feet, referring to “they,” and characterizing
the investigation as Hendley’s. The district court declined
to give the proposed instruction because the instruction
it had already given referred only to results caused by
Hendley. The plaintiff was entitled to try to prove
Hendley’s responsibility for various acts, and Hendley
had the opportunity to disclaim control, involvement, or
responsibility and convince the jury not to find him liable.
Hendley thinks, however, that the jury remained con-
fused on this point, and as proof he points to the question
it submitted to the judge during deliberation: “If we get to
the point of considering damages, do we consider the
total amount of damages or do we conclude the amount
of damages in light of the degree of possible wrong-
doing of the defendant.” At that point, Hendley renewed
his request for an instruction on personal involvement,
but the court decided to give the jury a proximate
cause instruction.
10 Nos. 07-1004, 07-1005 & 07-3030
The jury’s question does not necessarily show that they
were considering assigning liability to Hendley for the
acts of others. It might have suggested that they were
thinking of discounting his liability to take into account
the actions of others. Under ordinary principles of tort
law, the fact that tortfeasor A’s negligent act proximately
caused $100 in damages means that A is liable for the
entire sum of $100, even if co-tortfeasor B could also
have been liable for that same amount (with no double
collection by the victim, of course). Not only does this
explanation undermine Hendley’s claim that his instruc-
tion was necessary to clear up confusion, it also sup-
ports the district court’s decision to respond to the ques-
tion by giving a proximate cause instruction.
Second, Hendley claims that the court erred by failing
to instruct the jury that Hendley had no post-arrest duty
to investigate. This argument is premised on Hendley’s
effort to characterize Dominguez’s claim as exclusively
based on false arrest. Because it is not, and because
Dominguez presented evidence from which a jury could
conclude that Hendley engaged in post-arrest conduct
(like manipulation of evidence) that deprived Dominguez
of a fair trial, Hendley’s proposed instruction on “no post-
arrest duty to investigate” was inappropriate and the
district court properly rejected it.
Finally, Hendley claims that the elements instruction
was erroneous because it failed to discuss superseding
cause, improperly submitted the Brady theory, and failed
to limit recovery to the period of incarceration between
arrest and arraignment as contemplated by this court’s
Nos. 07-1004, 07-1005 & 07-3030 11
decision in Wallace v. City of Chicago, 440 F.3d 421 (7th Cir.
2006), aff’d on other grounds sub nom. Wallace v. Kato, 549 U.S.
384 (2007). But the court gave a proximate cause instruc-
tion, and so Hendley was not prejudiced by the absence
of an instruction discussing superseding cause. We have
already explained why there was no error in the court’s
treatment of the Brady issue. Finally, with respect to the
proper recovery period, the district court correctly con-
cluded that the limitation Hendley proposed was not
appropriate, since Dominguez’s claim was for deprivation
of a fair trial rather than false arrest. The district court
did hold that damages for any unlawful seizure of
Dominguez had to be directly related to his thirteen
days of detention preceding indictment, but that was prior
to this court’s issuance of Wallace v. City of Chicago, when
the circuits were split on the time of accrual of Fourth
Amendment claims, and certainly prior to the Supreme
Court’s affirmance in Wallace v. Kato. Thus, at the time,
Dominguez’s Fourth Amendment claim was still a poten-
tial theory of recovery. The district court specifically noted
that its ruling “would not serve as a limitation on the
admissibility of evidence as to the state law claims in-
cluded in Dominguez’s Complaint that are to be resolved
in the same trial as his Section 1983 Fourth Amendment
claim.” Hendley points out that the court “failed to recog-
nize that the only state law claims were asserted against
Kraus and McCandless, both of whom had already been
dismissed.” The district court might inadvertently have
referred to state law claims while meaning to allude to
claims other than the Fourth Amendment claim, namely,
the federal due process claim. In any event, the Fourth
12 Nos. 07-1004, 07-1005 & 07-3030
Amendment claim was eventually dismissed as time-
barred and only the due process claim remained. After
that, Hendley’s proposed recovery-period limitation
was no longer an appropriate instruction.
V
Hendley’s final argument is that the cumulative effect
of a number of trial errors deprived him of a fair trial, and
thus the district court abused its discretion when it
denied his motion for a new trial. We will examine
each alleged error individually; if we find two or more
errors, we will assess the cumulative effect to determine
whether the district court abused its discretion in not
granting a new trial. See United States v. Allen, 269 F.3d
842, 847 (7th Cir. 2001).
Each error alleged by Hendley is itself subject to the
abuse of discretion standard. See Thompson v. City of
Chicago, 472 F.3d 444, 453 (7th Cir. 2006) (evidentiary
rulings); Gorlikowski v. Tolbert, 52 F.3d 1439, 1444 (7th Cir.
1995) (enforcement of a pretrial order); United States v.
Miller, 276 F.3d 370, 373 (7th Cir. 2002) (improper
remarks by counsel); United States v. Vasquez-Ruiz, 502
F.3d 700, 704 (7th Cir. 2007) (potential juror bias). Once
again, he faces an uphill battle because of the standard
of review.
Hendley first raises a number of complaints about
things that Dominguez’s lawyer did during the trial. For
example, he argues that the lawyer, in his opening and
closing remarks and witness examinations, misstated
Nos. 07-1004, 07-1005 & 07-3030 13
facts and misled the jury. First, he objects to the fact that
counsel called Hendley a “bad officer.” We do not believe
that the district court abused its discretion in letting the
remark stand. The language involved here is hardly
inflammatory, and much of Dominguez’s case involved
trying to prove that Hendley engaged in a deliberate
frame-up of Dominguez; a fleeting reference to his being
a “bad officer” seems rather trivial in light of the whole
record and unlikely to influence the jury if it was not
otherwise inclined to credit the evidence against Hendley.
Next Hendley complains that Dominguez’s counsel
misled the jury by referring to “they,” so as to obscure
who was responsible for what actions. For example,
counsel said things like “they interrogated [Dominguez],”
and “they kept him there all night and deprived him of a
lawyer.” Hendley points out that, for example, it was
Officer Marquez rather than Hendley who interviewed
Dominguez. Nonetheless, we conclude that the district
court did not abuse its discretion in allowing these re-
marks, because Dominguez was not misleading the jury if
he could show that these acts were taken under Hendley’s
direction. The defense was free to point out who engaged
in the physical acts and to refute the contention that
Hendley was leading the investigation. Most importantly,
the jury was instructed to find for the plaintiff only if
Hendley caused the denial of a fair trial. The district court
was entitled to take the position that this was sufficient
to eliminate the risk that the jury would find Hendley
liable for acts for which he had no responsibility.
In addition, Hendley believes that Dominguez’s counsel
confused the jury about when exactly Hendley became
14 Nos. 07-1004, 07-1005 & 07-3030
aware of various facts relating to Dominguez’s criminal
case. This argument relies on Hendley’s insistence that
information available only after the time of arrest is
irrelevant. Once again, this flows from Hendley’s refusal
to acknowledge that the trial was about the deprivation of
a fair criminal trial for Dominguez, not about the
alleged false arrest.
Hendley also argues that questioning Mr. Carter,
Dominguez’s crim inal defense attorney, using
hypotheticals because Carter could not remember
Dominguez specifically, was improper, but he cites no
authority in support of this position. He also argues that
Carter’s claim—that Carter would have used the alleged
Brady material to support Dominguez’s criminal de-
fense—is undermined by the fact that Carter did not
use any of the documents that actually were provided. We
see no error here: it was up to the jury to decide what
weight, if any, to give to Carter’s testimony.
Hendley’s next set of arguments relates to the district
court’s decision to enforce the final pretrial order strictly
against the defense (as he sees it), but not against the
plaintiff. He points out that when the defense took issue
with the fact that Dominguez did not include the Brady
issue as a contested issue of law in the final pretrial order,
the court said, “we don’t need that as part of the final
pretrial order”; by contrast, certain defense objections
during trial were overruled because the defense had not
objected to the admission of the exhibits listed on the
final pretrial order. The Brady issue was a factual one
rather than a legal one, and so we see no error there. The
Nos. 07-1004, 07-1005 & 07-3030 15
fact that the pretrial order form did not have the
customary spaces in which to indicate an objection does
not relieve a party from the duty to notify the court in a
timely manner that it objects.
Hendley also asserts that the district court should not
have admitted a document referred to as the “Chancey
Memo,” because the memo was speculative, irrelevant, and
highly prejudicial. This was a memorandum written by
Matt Chancey, chief of the felony division of the Lake
County State’s Attorney’s Office. The memo informed
prosecutors that their obligation to scrutinize cases care-
fully was “especially true in the case of Officer Hendley
because of the questions which exist about his credibility.”
The Chancey Memo directed those reviewing felony
cases to (1) refuse to approve cases involving confessions
supposedly obtained by Hendley without recorded or
written confessions unless the case is prosecutable with-
out the confession; (2) refuse to approve charges in cases
where Hendley interviewed key witnesses, until the
accuracy of the purported statements was verified;
(3) require corroboration in any case where Hendley
handled physical evidence or would be called to testify
about his observations.
Naturally, this was quite prejudicial, but the question
is whether it was unfairly prejudicial. The claim against
the City was still alive during the trial, and this memo
was relevant and highly probative for the question
whether the City of Waukegan was aware that there were
problems with Officer Hendley. The district court did not
abuse its discretion in admitting the Chancey Memo.
16 Nos. 07-1004, 07-1005 & 07-3030
Hendley claims that it was error for the district court to
limit the defense’s examination of the prosecutor from
Dominguez’s criminal case. This inquiry was important to
him, he says, because the procedures followed by the
prosecutor would have helped support Hendley’s
defense that other actors were superseding causes of the
wrongful conviction, or equivalently, that Hendley did
not proximately cause it. A look at the record shows,
however, that the district court was simply managing the
trial appropriately. The defense’s examination of this
witness took up 114 trial-transcript pages, and Hendley
has not shown that the district court abused its discretion
in urging defense counsel to stay on track and refrain
from confusing the jury.
Hendley also complains about a grab-bag of “prejudicial
testimony.” He objects to the amount of evidence that
Dominguez’s attorney elicited about Dominguez’s inno-
cence and the inadequacy of the facilities where he was
detained. But this information was relevant to liability
and damages, and the district court had no reason to
exclude it. Hendley also objects to Dominguez’s attempt
to blame Hendley for the actions and omissions of others,
but we have already explained why this does not accu-
rately reflect Dominguez’s purpose. Hendley also tries to
find fault with the fact that Dominguez urged the jury to
credit certain parts of Lisa Kraus’s testimony, while
painting her as a liar with regard to other matters. There
is nothing improper about this. He also claims that
Dominguez misled the jury by pushing the theory that
Hendley should have continued investigating up to the
Nos. 07-1004, 07-1005 & 07-3030 17
time of Dominguez’s criminal trial. But this is just
another variation on Hendley’s theme that any events
subsequent to Dominguez’s arrest are irrelevant, so long
as there was probable cause at the time of arrest. This
argument lacks merit, for the reasons we have already
given.
Finally, Hendley claims that the plaintiff gave an im-
proper pretrial interview. As Dominguez notes, and
Hendley does not dispute, the defense did not seek a
mistrial in the court below based on this interview—it
merely sought to broaden voir dire. At voir dire, it was
established that no member of the venire knew about the
interview, and no seated juror even watched the news
channel on which the interview aired. Thus, the defense
was not prejudiced by this interview, and no error oc-
curred as a result of allowing the trial to proceed.
Finding no errors among the issues raised by Hendley,
we have no occasion to assess any cumulative effect.
* * *
We AFFIRM the judgment of the district court.
9-30-08