Nakiya Moran v. Calumet City, Illinois ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1043
NAKIYA MORAN,
Plaintiff-Appellant,
v.
CALUMET CITY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-2027 — Robert W. Gettleman, Judge.
____________________
ARGUED SEPTEMBER 22, 2022 — DECIDED NOVEMBER 23, 2022
____________________
Before WOOD, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. A jury convicted Nakiya Moran of
attempted murder and aggravated battery with a firearm for
a 2006 shooting in Calumet City, Illinois. After the trial, the
prosecution learned that exculpatory evidence, including a
ballistics report linking the gun used in the Calumet City
shooting to a different shooting, had not been turned over to
the defense as required by Brady v. Maryland, 373 U.S. 83(1963). Moran sought postconviction relief based on the Brady
2 No. 22-1043
violation, and a state court vacated his conviction. Moran was
retried in a bench trial and acquitted in 2017.
Moran then filed this suit in federal court, seeking redress
for the decade he spent behind bars. He brought federal and
state claims against the city, two detectives who investigated
the shooting, and a crime scene technician who mishandled
the ballistics report. The district court granted the defendants’
motion for summary judgment. In its ruling, the district court
noted a mistaken allegation in Moran’s complaint. This alle-
gation was a judicial admission that negated an essential ele-
ment of one of Moran’s theories of liability. Hoping for an-
other chance to pursue this legal theory, Moran moved for
leave to amend his complaint, but the court denied his mo-
tion. Moran appealed.
We affirm. The district court properly entered summary
judgment in the defendants’ favor and did not abuse its dis-
cretion in denying Moran leave to amend his complaint.
I. Background
A. The Calumet City Shooting
The summer of 2006 was a time of conflict for the Latin
Dragons and Latin Kings, two rival street gangs active in the
Calumet City area. In the evening of August 22, 2006, the Ros-
tro family and several friends gathered outside the Rostros’
Calumet City home. At least one member of the Rostro family,
Eduardo, was a member of the Latin Kings. At around 9:00
p.m., a man emerged from the bushes in an alley across the
street and opened fire, hitting Tomas Rostro, Eduardo’s fa-
ther; Yadira Rostro, his sister; and Desiree Dolata, a friend of
Yadira’s. Tomas ran toward the shooter and was within 16 feet
of him when the shooter fled. Eduardo and Yadira were
No. 22-1043 3
farther away, but they recognized the shooter as Nakiya Mo-
ran, a member of the Latin Dragons whom they had known
since childhood.
The police arrived soon after, including Detectives Mitch-
ell Growe and Kevin Rapacz of the Calumet City Police De-
partment (“CCPD”), who are defendants in this lawsuit. The
record indicates that Eduardo identified Moran to the police
at the scene, but it is disputed when Yadira first identified Mo-
ran as the shooter. Although she has never wavered in her
identification of Moran as the shooter, Yadira denies that she
identified him on the night of the shooting. Detective Growe,
however, indicated in a police report written in 2008 and in
testimony at a pretrial hearing that Yadira had identified Mo-
ran at the crime scene.
B. The Investigation
The next day, August 23, 2006, Detectives Growe and Ra-
pacz interviewed Yadira, Eduardo, and Tomas separately.
Yadira stated that Moran was the shooter and identified him
in a photo array the detectives showed her. In a second photo
array, Yadira identified Horatio “Bobby” Loera, another
member of the Latin Dragons. She later testified that it was
possible she told the detectives she saw Loera in the alley with
Moran during the shooting, and she stated that she thought
Eduardo had said something about Loera. The detectives pre-
sented Eduardo with a clean copy of the first photo array; he
too identified Moran as the shooter. Tomas described the
shooter as “a young Asian male who was wearing glasses and
a baseball hat” but was unable to positively identify the
shooter when shown photos of potential suspects. Neither
Loera nor Moran is of Asian descent.
4 No. 22-1043
That evening, police arrested Loera and a woman named
Amanda Torres on information “that they drove [Moran].”
Loera and Torres were given Miranda warnings, interrogated
by Detectives Growe and Rapacz, and released approximately
26 hours later. Little is known about the content of the inter-
rogations. Detectives Growe and Rapacz could not recall de-
tails but thought that the long duration of the detention “was
consistent with Yadira identifying [Loera] as being in the alley
at the time of the shooting” and therefore implicated in the
crime. While preparing for trial, Frank Celani, Moran’s attor-
ney, took a sworn statement from Torres, but that statement
is not in the record. A note in the Cook County State’s Attor-
ney’s Office file indicates that Loera and Torres were cleared
because “their alibis checked out.”
Based on Eduardo’s and Yadira’s identification of Moran
as the shooter, police arrested him on August 24, 2006. A
grand jury indicted Moran for attempted first-degree murder,
aggravated battery with a firearm, and aggravated discharge
of a firearm. He remained incarcerated while awaiting trial.
C. The Hammond Shooting and Ballistics Evidence
Another gang-related shooting occurred on October 22,
2006, this time in Hammond, Indiana, just across the state line
from Calumet City. Several days later, police arrested and re-
covered a 9 mm handgun from a suspect in the shooting:
Nicholas Chavez, a member of the Latin Dragons who resem-
bled Moran. Ballistics analysis performed on Chavez’s gun in-
dicated that it was a possible match for shell casings recovered
from the Calumet City shooting.
On January 7, 2009, while Moran’s prosecution was still
pending, Cook County forensic scientist Leah Kane informed
No. 22-1043 5
Marco Glumac, a CCPD crime scene technician and a defend-
ant in this case, about the potential match. Kane asked Glu-
mac to resubmit the Calumet City shell casings for analysis,
which he did in April 2009. In May 2009, Kane told Glumac
that the Calumet City shell casings had been fired from the
gun used in the Hammond shooting, and in June 2009, Kane
faxed Glumac an Illinois State Police (“ISP”) ballistics report
containing the same information.
The ballistics match was exculpatory evidence that should
have been turned over to the defense under Brady v. Maryland.
Under CCPD procedures, Glumac should have forwarded the
ISP report to Detectives Growe and Rapacz, who would then
have turned it over to the prosecution. Although Glumac
wrote the detectives’ “star numbers” on the report, he never
forwarded it to them. Why he did not is a hotly contested is-
sue. Glumac testified that he intended to forward the report
and his failure to do so was an “inadvertent omission.” For
their part, Detectives Growe and Rapacz testified that they
were unaware of the ISP report prior to Moran’s trial. Moran
disputes both points, arguing that Glumac intentionally or at
least recklessly failed to produce the report and that the de-
tectives knew about it before the trial.
In any event, lead prosecutor Assistant State’s Attorney
(“ASA”) Cordelia Coppleson testified that the prosecution did
not receive the report prior to Moran’s trial.1 As a result, Mo-
ran’s counsel did not receive the report in time to use it in Mo-
ran’s defense.
1 As discussed in more detail below, however, in the operative com-
plaint Moran alleged that ASA Coppleson knew about the ballistics match.
6 No. 22-1043
D. State Court Proceedings
Moran went to trial in August 2009. The prosecution’s ev-
idence included testimony about Eduardo’s and Yadira’s
prior identifications of Moran, in-court identifications of Mo-
ran as the shooter by Eduardo and Yadira, and testimony
from Glumac and Detectives Growe and Rapacz. Moran pre-
sented an alibi defense, offering testimony from witnesses
who stated that Moran had been with them until 9:00 p.m. on
August 22, 2006, so it was “physically impossible” for Moran
to have shot the victims. The jury found Moran guilty of five
counts of attempted murder and two counts of aggravated
battery with a firearm.
In October 2010, while Moran’s direct appeal was pend-
ing, ASA Coppleson spoke with a CCPD detective who in-
formed her that a shell casing from the Calumet City shooting
matched the gun recovered from the suspect in the Hammond
shooting. ASA Coppleson obtained a copy of the ISP report
and sent it to the public defender representing Moran on ap-
peal and Celani, who had represented Moran at trial. Moran
took no immediate action, and the Illinois Appellate Court
upheld his conviction in February 2013.
Moran then sought postconviction relief in state court, ar-
guing that the failure to produce the ISP report violated Brady
v. Maryland. The court agreed and vacated Moran’s conviction
in June 2015. Moran was retried in a bench trial in November
2016 and January 2017. Eduardo and Yadira maintained that
Moran was the shooter, but the trial court found that their tes-
timony was insufficient evidence to prove Moran’s guilt be-
yond a reasonable doubt given the alibi witnesses’ testimony
and the subsequent use of the gun in a different shooting. The
No. 22-1043 7
court acquitted Moran in February 2017, and he was released
after more than 10 years’ imprisonment.
E. District Court Proceedings
Moran brought this suit in federal district court in March
2017 and amended his complaint six days later. He asserted
claims under 42 U.S.C. § 1983 and state law against Glumac,
Detectives Growe and Rapacz, and Calumet City. The follow-
ing claims survived the motion-to-dismiss stage: (1) a § 1983
claim against the individual defendants, alleging that they
suppressed exculpatory evidence in violation of Brady; (2) a
§ 1983 claim against Detectives Growe and Rapacz, alleging
that they fabricated evidence in violation of Brady; (3) state
law malicious prosecution and civil conspiracy claims against
Detectives Growe and Rapacz; and (4) state law respondeat
superior and indemnity claims against Calumet City.
During discovery, if not earlier, Moran learned that ASA
Coppleson denied having received the ISP ballistics report
prior to his 2009 trial. This contradicted Moran’s operative
complaint, which alleged that ASA Coppleson received the
report three months before the trial. Despite learning that this
allegation was untrue, Moran made no attempt to amend his
complaint before the summary judgment stage.
The district court granted the defendants’ motion for sum-
mary judgment in July 2021. The court found that Moran
could not establish the elements of a Brady suppression claim
with respect to any of the allegedly suppressed evidence. The
court held that Moran’s allegation that ASA Coppleson knew
about the report was a judicial admission that negated an es-
sential element of the claim because prosecutorial knowledge
of exculpatory evidence blocks civil liability for police
8 No. 22-1043
officers. Moreover, even without the judicial admission, the
record could not allow a reasonable jury to find that the evi-
dence had been suppressed. As to the fabrication-of-evidence
claim, the court found that even if the evidence in question
had been fabricated, it was not material because there was not
a reasonable probability that the evidence influenced the
jury’s verdict. The district court also rejected Moran’s state
law claims. It found that the malicious prosecution claim
failed because the detectives had probable cause to arrest Mo-
ran and there was no evidence that they acted with malice to-
ward him. It further found that the civil conspiracy claim
failed because the record contained no evidence of a scheme
or agreement to violate Moran’s rights. The respondeat supe-
rior and indemnity claims depended on Moran succeeding on
one of his other claims; once the court concluded that the
other claims failed, these claims failed too.
In an attempt to remedy the judicial admission the district
court identified, Moran moved for relief from the judgment
under Federal Rule of Civil Procedure 59(e), seeking leave to
file a second amended complaint. The district court denied
this motion.
Moran appeals the grant of the defendants’ motion for
summary judgment and the denial of his motion for leave to
amend his complaint.
II. Summary Judgment
We review the grant of a motion for summary judgment
de novo, drawing reasonable inferences and interpreting the
facts in the light most favorable to the nonmovant. Stockton v.
Milwaukee County, 44 F.4th 605, 614 (7th Cir. 2022). Summary
judgment is appropriate where “there is no genuine dispute
No. 22-1043 9
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Moran is the non-
movant, but if he does not meet his burden to produce suffi-
cient evidence—not mere speculation—on each essential ele-
ment of his claims, then the defendants are entitled to sum-
mary judgment in their favor. Stockton, 44 F.4th at 614; Khun-
gar v. Access Cmty. Health Network, 985 F.3d 565, 573 (7th Cir.
2021).
A. Suppression of Evidence
With respect to his § 1983 suppression claim, Moran al-
leges that the individual defendants—Glumac and Detectives
Growe and Rapacz—violated his due process rights under
Brady v. Maryland, 373 U.S. 83 (1963), by suppressing exculpa-
tory evidence. Before turning to the merits of this claim, we
review the difference between Brady’s application in the crim-
inal and civil contexts.
The suppression of material, exculpatory evidence in a
criminal case violates due process. Brady, 373 U.S. at 87. Evi-
dence is “‘suppressed’ if (1) the prosecution failed to disclose
the evidence before it was too late for the defendant to make
use of the evidence, and (2) the evidence was not otherwise
available to the defendant through the exercise of reasonable
diligence.” United States v. Are, 590 F.3d 499, 510 (7th Cir. 2009)
(quoting United States v. O’Hara, 301 F.3d 563, 569 (7th Cir.
2002)); accord Goudy v. Cummings, 922 F.3d 834, 838 (7th Cir.
2019). Nondisclosure of exculpatory evidence violates Brady
“irrespective of the good faith or bad faith of the prosecution,”
Brady, 373 U.S. at 87, so a Brady violation requires a conviction
to be vacated regardless of whether the violation was inten-
tional, reckless, or negligent. Strickler v. Greene, 527 U.S. 263,
281–82 (1999). The duty to disclose exculpatory evidence
10 No. 22-1043
primarily belongs to the prosecution, but it “extends to police
officers, insofar as they must turn over potentially exculpa-
tory evidence … to the prosecution.” Holloway v. City of Mil-
waukee, 43 F.4th 760, 767–68 (7th Cir. 2022) (quoting Harris v.
Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007)). Because exculpatory
evidence including the ISP report was not disclosed to the de-
fense before Moran’s 2009 jury trial, his conviction was va-
cated, and he received a new trial.
But a Brady violation in the criminal context does not nec-
essarily equate to civil liability under § 1983. Absolute im-
munity bars suits against prosecutors, at least when the non-
disclosure of exculpatory evidence occurs after arrest and be-
fore a conviction becomes final. Fields v. Wharrie, 672 F.3d 505,
512–15 (7th Cir. 2012). And while police officers and employ-
ees can be held liable for suppressing evidence, they may be
entitled to qualified immunity. Roldan v. Stroud, 52 F.4th 335,
338 (7th Cir. 2022). To prevail on a Brady suppression claim
against a police officer, a plaintiff must prove that “(1) the
[nondisclosed] evidence is favorable to him; (2) the evidence
was concealed by the officer; and (3) the concealed evidence
resulted in prejudice.” Jones v. York, 34 F.4th 550, 559 (7th Cir.
2022) (quoting Cairel v. Alderden, 821 F.3d 823, 832 (7th Cir.
2016)). These elements require more than simply proving that
exculpatory evidence was not disclosed to the defense.
First, a plaintiff cannot show that a police officer sup-
pressed evidence if the prosecution was aware of it. A police
officer’s Brady obligation extends only “insofar as they must
turn over potentially exculpatory evidence … to the prosecu-
tion.” Holloway, 43 F.4th at 768 (quoting Harris, 486 F.3d at
1014). Thus, police officers “discharge their Brady duty by
turning over exculpatory evidence to the prosecutor, thereby
No. 22-1043 11
triggering the prosecutor’s disclosure obligation.” Beaman v.
Freesmeyer, 776 F.3d 500, 512 (7th Cir. 2015) (citation omitted).
Further, a Brady violation only exists when suppressed evi-
dence is material, meaning that “there is ‘a reasonable proba-
bility’ that the outcome would have been different if the evi-
dence had been disclosed.” Jones, 34 F.4th at 559 (quoting
United States v. King, 910 F.3d 320, 327 (7th Cir. 2018)). Thus,
an officer generally cannot be held liable for failing to disclose
exculpatory evidence if the prosecution obtained that evi-
dence from another source; once the prosecution has the evi-
dence, it is the prosecution’s—not the officer’s—duty to dis-
close it to the defense. 2
Second, for purposes of civil liability, “negligent conduct
does not offend the Due Process Clause.” Miranda v. County of
Lake, 900 F.3d 335, 353 (7th Cir. 2018) (citing Daniels v. Wil-
liams, 474 U.S. 327, 330–31 (1986)). Therefore, evidence is con-
sidered suppressed in a § 1983 suit only if a police officer
“acted intentionally or at least recklessly” in failing to turn it
over to the prosecution. See Cairel, 821 F.3d at 832 n.2. We have
2 The defendants believe this proposition is absolute. They argue that
because Brady “encompasses evidence ‘known only to police investigators
and not to the prosecutor,’” Strickler, 527 U.S. at 280–81 (quoting Kyles v.
Whitley, 514 U.S. 419, 438 (1995)), and information known by one prosecu-
tor “must be attributed” to other attorneys in the prosecutor’s office, see
Giglio v. United States, 405 U.S. 150, 154 (1972), that a single prosecutor’s
knowledge of certain evidence necessarily shields all police officers from
civil Brady liability with respect to that evidence. We are skeptical that
Strickler and Giglio establish that, as a matter of law, a single prosecutor’s
knowledge always protects police officers from liability irrespective of the
officers’ conduct or the prosecutor’s level of involvement with the prose-
cution in question. Because this issue is not dispositive here, however, we
do not decide it.
12 No. 22-1043
not yet decided whether a defendant may be held liable for a
Brady suppression claim based on reckless conduct, id., but for
present purposes, we assume without deciding that a reckless
failure to disclose exculpatory evidence constitutes suppres-
sion.
Moran identifies five “baskets” of evidence that he argues
the individual defendants suppressed in violation of Brady.
See Camm v. Faith, 937 F.3d 1096, 1108–09 (7th Cir. 2019). He
argues that the district court erred in granting summary judg-
ment on this claim because for each basket of evidence, there
was a triable issue of fact. 3 We consider each in turn.
1. The ISP Ballistics Report
The first basket of evidence Moran identifies is the ISP bal-
listics report. He alleges that the individual defendants vio-
lated his Brady rights by suppressing the report.
The district court found that although “[t]here is no doubt
that this information should have been provided to the
defense,” Moran could not succeed on a civil Brady claim
based on its nondisclosure. As the district court correctly
observed, the allegation in Moran’s complaint that “on May
3Moran also argues that because “[t]he state court determined that
[the defendants] violated [his] rights under Brady,” collateral estoppel pre-
cludes them from relitigating this factual issue. This argument is facially
implausible. The defendants were not parties to the prior proceedings, so
they did not have a full and fair opportunity to litigate this issue in an
earlier proceeding. See Creation Supply, Inc. v. Selective Ins. Co. of Se., 51
F.4th 759, 764 (7th Cir. 2022). Furthermore, Moran has waived his chance
to convince us otherwise by discussing collateral estoppel in a single un-
derdeveloped footnote of his opening brief. See Harmon v. Gordon, 712 F.3d
1044, 1053 (7th Cir. 2013).
No. 22-1043 13
19, 2009, Forensic Scientist Kane again contacted ASA
Cordelia Coppleson and confirmed” the content of the ISP
report dooms this part of his claim. If ASA Coppleson knew
about the report, then Glumac and the detectives had no duty
to disclose it, and Moran’s suppression claim fails. See Beaman,
776 F.3d at 512. An allegation in a complaint is a judicial
admission that can be used against the plaintiff. See Help At
Home Inc. v. Med. Cap., L.L.C., 260 F.3d 748, 753 (7th Cir. 2001)
(“It is a ‘well-settled rule that a party is bound by what it states
in its pleadings.’” (quoting Soo Line R.R. v. St. Louis Sw. Ry.,
125 F.3d 481, 483 (7th Cir. 1997))); Whitlock v. Brown, 596 F.3d
406, 412 (7th Cir. 2010) (“A judicial admission trumps
evidence.” (quoting Murrey v. United States, 73 F.3d 1448, 1455
(7th Cir. 1996)). Here, Moran was far from prompt in seeking
to amend his complaint after receiving information that
contradicted it. He waited until after the defendants relied on
his complaint in their motion for summary judgment and the
court ruled on that motion. We have no reservations about
treating this allegation as a judicial admission, and we affirm
on this basis.
Although the judicial admission was sufficient grounds to
reject a suppression claim based on this evidence, the district
court went on to analyze the merits, concluding that even
without this misstep, Moran’s claim would fail. As to Detec-
tives Growe and Rapacz, the court found that no evidence in
the record showed that they were personally involved in the
alleged suppression of the ISP report, so they could not be
held liable under § 1983. See Johnson v. Rimmer, 936 F.3d 695,
710–11 (7th Cir. 2019). As to Glumac, the court found that
“[t]here is simply no evidence in the record from which a rea-
sonable jury could find that Glumac’s actions were anything
14 No. 22-1043
but a simple mistake,” so the requisite state of mind was not
satisfied. See Cairel, 821 F.3d at 832 n.2.
Moran does not challenge the district court’s conclusion
about the detectives’ personal involvement. He argues solely
that granting summary judgment as to his claim against Glu-
mac was inappropriate because liability depends on Glumac’s
state of mind, and “[i]t is rarely appropriate on summary
judgment for a district court to make a finding on state of
mind.” While that is true, this is a rare case in which making
a finding about a defendant’s state of mind at summary judg-
ment is appropriate.
As the plaintiff, Moran bears the burden to produce suffi-
cient admissible evidence on every element of his claims, in-
cluding the defendant’s state of mind. He cannot simply cast
doubt on Glumac’s version of events because discrediting the
defendant “is not proof that the opposite of [his] statements is
true; disbelief would mean that the record is empty, and on
an empty record the plaintiff loses ….” Est. of Logan v. City of
South Bend, 50 F.4th 614, 615 (7th Cir. 2022) (citations omitted).
In effect, that is all Moran does. Glumac testified that his fail-
ure to forward the ISP report to Detectives Growe and Rapacz
was an inadvertent mistake, and Moran did not produce ad-
missible, relevant evidence to rebut that testimony.
An expert witness called by Moran testified that he had
“no idea whether [the nondisclosure] was intentional or neg-
ligent,” but that in his prior experience working with Glumac,
he considered Glumac truthful and “held him in high re-
gard.” Moran also points to three subpoenas that were served
on Glumac before the 2009 trial, arguing that Glumac’s failure
to produce the ISP report in response to the subpoenas raises
an inference that Glumac intentionally withheld the report.
No. 22-1043 15
But the two subpoenas that ordered Glumac to produce evi-
dence were issued before he received the report, and the third
simply requested Glumac’s presence at trial. A reasonable
jury could not conclude from this evidence that Glumac acted
intentionally or recklessly in failing to disclose the ISP report.
Moran falls back on the contention that even though it was
unrebutted, Glumac’s testimony that he made an inadvertent
mistake itself supports an inference that he acted at least reck-
lessly. Put differently, Moran argues that Glumac’s story is so
unbelievable that a jury could conclude from it alone that Glu-
mac is lying. We doubt that calling a defendant untruthful
without any other evidence can satisfy a plaintiff’s burden at
summary judgment. See Igasaki v. Ill. Dep’t of Fin. & Pro. Regul.,
988 F.3d 948, 956 (7th Cir. 2021) (“‘Conclusory allegations’ like
these ‘alone cannot defeat a motion for summary judgment.’”
(quoting Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892–
93 (7th Cir. 2003))).
Due to Moran’s judicial admission, we need not defini-
tively answer that question here, and besides, other evidence
supports Glumac’s account. Leah Kane, the ISP employee
who drafted the report, had an independent obligation to for-
ward it to the prosecution, and Glumac knew about this re-
porting practice. Glumac had reason to believe that the ISP
report would be sent to the prosecution regardless of what he
did, so he could not have thought that he had the power to
conceal the report. This fact undermines any motive Glumac
could have had to conceal the report and corroborates his ac-
count that he made an inadvertent mistake. Further, during
the postconviction proceedings, the state court found Glu-
mac’s account credible, stating that he “was honest” in testi-
fying about the reason he failed to forward the ISP report. Our
16 No. 22-1043
assessment of Glumac’s position might be different if the rec-
ord lacked this evidence corroborating Glumac’s testimony
that he made an honest mistake. But nothing contradicts that
statement, and in the absence of any other evidence, this rec-
ord does not support an inference that Glumac acted inten-
tionally or recklessly.
Because Moran pleaded that the prosecution knew about
the ISP report, it cannot support a Brady suppression claim.
2. Yadira’s Identification of Loera
Next, Moran contends that Detectives Growe and Rapacz
suppressed Yadira’s statements about seeing Bobby Loera in
the alley with Moran on the night of the shooting and her
identification of Loera from a photo array the day after the
shooting.
The district court found that this evidence “was material
and at least impeaching, and should have been disclosed,” but
it could not support a civil Brady claim because it was known
to the defense and prosecution. Moran argues that this was an
error because no “facts in the record … establish that [he] had
personal knowledge of Yadira’s photo-array identification”
and his attorney denied knowing about the identification and
statements. But Moran admitted that the prosecution knew
about the identification, which defeats his claim against the
detectives. 4
4
Moran admitted that “[t]he State’s Attorney’s Office also prepared a
Case Fact Sheet on August 25, 2006 which contained notes that Yadira saw
[Bobby] Loera at the scene in the alley, but there was no other evidence to
support charges, as he says he was at home.”
No. 22-1043 17
Moran offers two reasons why the prosecution’s
knowledge of this evidence does not doom his Brady claim.
First, he argues that the prosecution’s knowledge does not
foreclose his claim because no “reports” about this evidence
were ever given to the prosecution. In other words, Moran ar-
gues that, for Brady purposes, a report about the identification
constitutes different evidence than the knowledge that the
identification occurred, and therefore the detectives had an
obligation to prepare and produce a formal report about the
identification.
We disagree. The form of evidence produced is only rele-
vant for Brady purposes when evidence in one form would be
more helpful to the defense than evidence in another form—
that is, when there is a material difference between the two
forms of evidence. See Goudy, 922 F.3d at 840–41 (explaining
why producing a copy of a videotape and the accompanying
notes would have been more helpful to the defense than de-
scribing that evidence). Here, however, Moran does not ex-
plain why knowing that an identification occurred is materi-
ally different than receiving a report about the identification,
and we see no distinction ourselves. Thus, the detectives had
no duty to provide a separate report about the identification.
Second, Moran argues that Detectives Growe and Rapacz
did not satisfy their Brady obligations because they informed
an ASA about the identification “before any criminal charges
were filed and any discovery obligations arose.” Moran cites
no support for this position, and we find it unpersuasive. Of-
ficers have a Brady duty to “turn over potentially exculpatory
evidence when they turn over investigative files to the prose-
cution.” Holloway, 43 F.4th at 767–68 (quoting Harris, 486 F.3d
at 1014). In a typical case, much evidence is turned over to the
18 No. 22-1043
prosecutor’s office before charges are filed—indeed, that evi-
dence is often necessary to support the charges. Requiring po-
lice officers to turn over already-disclosed evidence a second
time after charges are filed would create extra work with no
benefit. While officers have a continuing duty to turn over
newly discovered exculpatory evidence to the prosecutors,
we reject the idea that turning over exculpatory evidence be-
fore charges are filed is insufficient to discharge police offic-
ers’ Brady obligations.
Although Detectives Growe and Rapacz did not produce
evidence of Yadira’s identification of and statements about
Loera in Moran’s preferred form, the record establishes that
the prosecution was aware of the evidence. Moran’s Brady
claim based on this evidence therefore fails.
3. Loera’s and Torres’s Arrests
Information about Bobby Loera’s and Amanda Torres’s
arrests, detention, and interrogation is the third basket of ev-
idence Moran argues the detectives suppressed. In particular,
he argues that Detectives Growe and Rapacz should have dis-
closed Loera’s and Torres’s arrest sheets and signed Miranda
waivers. While the district court did not discuss this evidence
in conjunction with the suppression claim, it found that the
information was known to the defense and the prosecution,
which means it cannot form the basis of a Brady suppression
claim. Even viewing the evidence in the light most favorable
to Moran, his claim fails because he admits that his trial attor-
ney, Celani, knew about the arrests.5
5Moran admits that “Mr. Celani took a sworn statement of Desiree
Dolata … and asked … about … ‘Bobby’ Loera and Amanda Torres, in-
cluding whether Dolata … knew that they … were arrested” and that “Mr.
No. 22-1043 19
In resisting this conclusion, Moran argues that because he
was personally unaware of the statements and the statements
are not in the record, Celani’s knowledge of the arrests should
not be imputed to him. This argument misses the point: the
content of these statements is irrelevant. The fact that Celani
asked about the arrests proves that he knew about them, and
evidence known to the defense cannot support a Brady sup-
pression claim. Goudy, 922 F.3d at 838.
Moran also argues that, like with Yadira’s identification of
Loera, Celani’s knowledge of the arrests does not defeat his
claim because the arrest records and Miranda waivers were
materially more exculpatory than mere knowledge of the ar-
rests; therefore, the detectives were obligated to disclose those
records. But the arrest records and Miranda waivers do little
more than note the time of the arrest and release and the fact
that Loera and Torres were advised of their Miranda rights. In
other words, the records disclose little more than the fact that
the arrests occurred, which the defense already knew, and
Moran has not stated what additional information he could
glean from the records or how they would have enabled him
to conduct more effective cross-examinations.
Thus, for Brady purposes, the records of Loera’s and
Torres’s arrests are equivalent to Celani’s knowledge that
they were arrested. This evidence cannot support a Brady sup-
pression claim.
Celani took a sworn statement of [Moran’s] girlfriend …. [Mr. Celani
asked] if she was aware of the fact that Amanda Torres and Horatio
(“Bobby”) Loera were arrested in connection with the Rostro shooting ….”
20 No. 22-1043
4. The Police Dispatch Log
The fourth basket of allegedly suppressed evidence is the
record of the CCPD’s dispatch log from August 22, 2006. The
log, Moran alleges, contains no record of a witness identifying
the shooter. Detectives Growe and Rapacz acknowledge that
“if [they] were provided the identity of the shooter at the
scene by a victim[,] that would be important information that
[they] would relay to dispatch.” Moran asserts that the ab-
sence of such an identification in the dispatch log is exculpa-
tory evidence that the detectives should have disclosed.
The district court did not address this basket of evidence,
and for good reason: Moran has waived his ability to rely on
it. During discovery, Moran answered an interrogatory ask-
ing him to “[s]tate the factual basis for the allegation” that the
defendants “deliberately with[held] exculpatory evidence.”
His response consisted of boilerplate objections and referred
the defendants to the factual allegations in his complaint. This
is poor discovery practice, 6 and it was costly here. The com-
plaint does not reference the dispatch log, so Moran’s inter-
rogatory answer does not include the dispatch log as a factual
basis for his claim. Parties have a duty to update interrogatory
answers that are “incomplete or incorrect.” Fed. R. Civ. P.
26(e)(1)(A). Moran’s failure to do so means he “is not allowed
to use that information … to supply evidence” at summary
judgment “unless the failure was substantially justified or is
6
See Fed. R. Civ. P. 33(b)(4) (“The grounds for objecting to an inter-
rogatory must be stated with specificity.”); 8B Charles Alan Wright et al.,
Fed. Prac. & Proc. § 2177 (3d ed. Apr. 2022 update) (explaining that an-
swering interrogatories by “[s]imply referring to pleadings … is fre-
quently found insufficient”).
No. 22-1043 21
harmless.” Id. r. 37(c)(1). Moran argues that any Rule 26(e) vi-
olation was harmless because the allegations in question were
part of a single Brady suppression claim, not a freestanding
claim, so they did not prejudice or surprise the defendants.
Rule 37(c)(1) refers to “information,” not “claims,” however,
and it would prejudice the defendants if they had to contend
with allegations at summary judgment that Moran did not
disclose during discovery. Rule 37(c)(1) thus precludes Moran
from basing his Brady suppression claim on this assertion.
5. Tomas’s Inability to Identify Moran
The final basket of alleged Brady evidence is Tomas Ros-
tro’s inability to identify Moran as the shooter. During the
shooting, Tomas ran toward the shooter and was 16 feet from
him when the shooter fled. Eduardo and Yadira, in contrast,
were farther away. Moran argues that the fact that Tomas was
unable to positively identify Moran as the shooter despite
knowing Moran and seeing the shooter from the closest dis-
tance is exculpatory evidence that the detectives suppressed
in violation of Brady.
The district court did not address this argument, but Mo-
ran has waived it for the same reason that he cannot rely on
the police dispatch log. Moran’s answer to the interrogatory
discussed above directed the defendants to his complaint,
which contained no allegations that Tomas’s failure to iden-
tify Moran as the shooter was exculpatory evidence the de-
fendants suppressed. Moran did not amend his interrogatory
answer as required by Rule 26(e)(1)(A), and his failure to do
so was neither substantially justified nor harmless. Thus, Rule
37(c)(1) precludes Moran from basing his Brady suppression
22 No. 22-1043
claim on Tomas’s inability to identify Moran as the shooter.7
* * *
Moran cannot establish a civil Brady suppression claim us-
ing any of the five baskets of evidence that he alleges the de-
fendants suppressed. The district court correctly entered
summary judgment in the defendants’ favor on this claim.
B. Fabrication of Evidence
In addition to his suppression claim, Moran raises a sec-
ond claim under Brady, alleging that the detectives fabricated
evidence. To prevail on this claim, Moran must prove that “a
police officer … manufacture[d] false evidence against” him,
which was “later used to deprive [him] of [his] liberty in some
way.” Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir.
2012). The fabricated evidence must be material, which means
“there is a reasonable likelihood the evidence affected the
judgment of the jury.” Patrick v. City of Chicago, 974 F.3d 824,
835 (7th Cir. 2020) (citing United States v. Agurs, 427 U.S. 97,
103 (1976)).
Moran alleges that the detectives fabricated evidence that
Yadira identified Moran as the shooter while still at the scene
of the crime on August 22, 2006. This evidence comes in three
forms, all allegedly reporting the fabricated identification: (1)
a police report written in 2008 by Detective Growe; (2) testi-
mony by Detectives Growe and Rapacz at a pretrial hearing;
7Additionally, we note that all parties knew that Tomas was unable
to identify the shooter. A police report containing this information would
therefore have been immaterial for Brady purposes.
No. 22-1043 23
and (3) testimony by Detective Rapacz at Moran’s 2009 jury
trial. Moran believes the detectives fabricated this testimony
because “Yadira has explicitly denied that she ever identified
[Moran] at the scene.”
The district court held that even if this evidence were fab-
ricated, Moran could not show materiality because there was
not a reasonable likelihood that it affected the jury’s decision.
The court noted the undisputed facts that Eduardo identified
Moran at the crime scene; that on the day after the shooting,
both he and Yadira identified Moran verbally and in photo
arrays; and that they both identified him at the 2009 trial,
where Yadira testified that the first time she identified Moran
was the day after the shooting. The court concluded that “the
jury undoubtedly reached their verdict based on [Yadira’s]
and Eduardo’s unwavering testimony and in-court identifica-
tions.”
Before turning to the legal analysis, we consider whether
Moran has raised a genuine dispute of material fact with re-
spect to the fabricated evidence. The record contains evidence
that Yadira did not identify Moran at the crime scene, that De-
tectives Growe and Rapacz testified that she did at the pretrial
hearing, and that Detective Growe’s police report indicates
that Yadira identified Moran at the crime scene. The record
contains no evidence, however, that Detective Rapacz testi-
fied to Yadira’s on-scene identification during Moran’s jury
trial. He testified that he interviewed Desiree Dolata and Ed-
uardo, Yadira, and Tomas Rostro and that after talking to
them, he had “an idea of what happened” and the police were
“looking for” Moran. But Detective Rapacz did not state, and
a reasonable jury could not conclude he implied, that
Yadira—as opposed to one of the other witnesses—identified
24 No. 22-1043
Moran at the scene. Therefore, Moran has raised genuine dis-
putes of material fact about Yadira’s on-scene identification of
Moran, Detective Growe’s police report (written two years
later), and the detectives’ pretrial testimony, but not about
Detective Rapacz’s trial testimony. Accordingly, we do not as-
sume that Detective Rapacz’s trial testimony was fabricated.
We agree with the district court that the allegedly fabri-
cated evidence was not material. Recall that the relevant ques-
tion is whether “there is a reasonable likelihood the evidence
affected the judgment of the jury.” Patrick, 974 F.3d at 835. Be-
cause the evidence we assume was fabricated—the police re-
port and the detectives’ pretrial testimony—was not intro-
duced at the trial, it could not have influenced the jury’s ver-
dict. 8 And the evidence that the jury did hear—Detective Ra-
pacz’s testimony—does not support an inference of fabrica-
tion.
Moran cannot establish that the allegedly fabricated evi-
dence was material, so his Brady fabrication-of-evidence claim
fails. The district court correctly granted summary judgment
on this claim.
C. State Law Claims
Moran’s state law claims fare no better than his federal
claims. The district court found that Moran had failed to cre-
ate a genuine dispute as to at least one element of his mali-
cious prosecution and civil conspiracy claims and, after
8Moran argues that “[t]he detectives’ alteration of the report to state
that Yadira identified [Moran] at the scene … no doubt bolstered the case
against” him, but the content of the police report is irrelevant because Mo-
ran offers no evidence that the report was introduced into evidence at trial.
No. 22-1043 25
entering summary judgment on all claims against the individ-
ual defendants, the derivative liability claims against Calumet
City necessarily failed.
1. Malicious Prosecution
Under Illinois law, malicious prosecution requires proof
of: “(1) the commencement or continuance of an original crim-
inal or civil judicial proceeding by the defendant; (2) the ter-
mination of the proceeding in favor of the plaintiff; (3) the ab-
sence of probable cause for such proceeding; (4) the presence
of malice; and (5) damages resulting to the plaintiff.” Swick v.
Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996) (quoting Joiner v.
Benton Cmty. Bank, 411 N.E.2d 229, 232 (Ill. 1980)). The district
court found that Moran’s claim failed on the third element be-
cause the eyewitness identifications constituted probable
cause. We agree. Moran makes no attempt to overcome the
fact that an eyewitness “identification[], even if questionable,
[is] enough to give [the police] probable cause to arrest,” Cole-
man v. City of Peoria, 925 F.3d 336, 351 (7th Cir. 2019), and here
there were two witnesses who insisted that Moran was the
shooter.9 The district court correctly entered summary judg-
ment on this claim.
2. Civil Conspiracy
Moran’s civil conspiracy claim requires him to prove: “(1)
an agreement between two or more persons; (2) to participate
in an unlawful act, or a lawful act in an unlawful manner; (3)
an injury caused by an unlawful overt act performed by one
of the parties; and (4) the overt act was done pursuant to and
9The district court also found that there was no genuine dispute as to
malice. This point is unnecessary to our decision, so we do not reach it.
26 No. 22-1043
in furtherance of the common scheme.” Vance v. Chandler, 597
N.E.2d 233, 236 (Ill. Ct. App. 1992) (citation omitted). This
claim fails because, as the district court found, Moran “pre-
sented no evidence of any agreement or scheme among the
defendants or between the defendant officers and the prose-
cutors to violate [his] rights.” Moran argues that the record
discloses “multiple baskets of exculpatory and impeachment
evidence” and that “[t]he repeated unlawful concealment of
exculpatory and impeachment evidence constitutes a com-
mon scheme ….” But Moran points to no evidence suggesting
an agreement or scheme. The record cannot even support an
inference that Glumac recklessly failed to forward the ISP re-
port; it is devoid of evidence suggesting that he acted in con-
cert with the detectives. Speculation is not enough, so the dis-
trict court did not err in entering summary judgment on this
claim. See Khungar, 985 F.3d at 573.
3. Respondeat Superior and Indemnity
Moran’s final claims are for respondeat superior and in-
demnity against Calumet City. These are derivative liability
claims that depend on Moran prevailing against at least one
of the individual defendants. See Beaman v. Freesmeyer, 183
N.E.3d 767, 794 (Ill. 2021). Because the individual defendants
are entitled to summary judgment in their favor, the claims
against Calumet City must fail as well. The district court cor-
rectly entered summary judgment in Calumet City’s favor on
these claims.
III. Leave to Amend the Complaint
We turn next to the denial of Moran’s motion for leave to
amend his complaint to remove his allegation that the prose-
cution was aware of the ISP report prior to his trial. Federal
No. 22-1043 27
Rule of Civil Procedure 15(a)(2) supplies the standard for
amending a pleading when the time to amend as a matter of
course has expired: “a party may amend its pleading only
with the opposing party’s written consent or the court’s
leave.” District courts “should freely give leave when justice
so requires,” id., that is, unless there is a good reason not to,
such as “futility, undue delay, prejudice, or bad faith.” Law
Offs. of David Freydin, P.C. v. Chamara, 24 F.4th 1122, 1133 (7th
Cir. 2022) (quoting R3 Composites Corp. v. G&S Sales Corp., 960
F.3d 935, 946 (7th Cir. 2020)). 10 We review the denial of a mo-
tion for leave to amend for abuse of discretion, but “our re-
view for abuse of discretion of futility-based denials includes
de novo review of the legal basis for the futility.” Fin. Fiduci-
aries, LLC v. Gannett Co., 46 F.4th 654, 667 (7th Cir. 2022)
10 The fact that Moran moved for leave to amend after summary judg-
ment complicates matters. “[O]nce a district court has entered final judg-
ment dismissing a case, the plaintiff may not amend under Rule 15(a) un-
less the judgment is modified, either by the district court under Rule 59(e)
or 60(b), or on appeal.” O’Brien v. Village of Lincolnshire, 955 F.3d 616, 629
(7th Cir. 2020) (citations omitted). Generally, “[a] motion under Rule 59(e)
may be granted only if there has been a manifest error of fact or law, or if
there is newly discovered evidence that was not previously available.”
Robinson v. Waterman, 1 F.4th 480, 483 (7th Cir. 2021) (citation omitted). But
this rule has an exception: “we review post-judgment motions for leave to
amend according to the Rule 15 standard when a district court enters judg-
ment at the same time it first dismisses a case.” O’Brien, 955 F.3d at 629
(citations omitted). We doubt that this exception applies when claims are
disposed of for the first time at summary judgment, see, e.g., id. at 628–29;
NewSpin Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 310 (7th Cir. 2018);
Runnion ex rel. Runnion v. Girls Scouts of Greater Chi. & Nw. Ind., 786 F.3d
510, 520–22 (7th Cir. 2015), but we need not resolve this issue here. Because
the result in this case would be the same under either standard, we assume
without deciding that the more liberal Rule 15(a)(2) standard applies.
28 No. 22-1043
(quoting Heng v. Heavner, Beyers & Mihlar, LLC, 849 F.3d 348,
354 (7th Cir. 2017)).
The district court denied Moran’s motion. First, it found
that Moran had unduly delayed in seeking to amend his com-
plaint because he should have known that his complaint con-
tained factual errors at the outset. And even assuming he
learned about the errors for the first time in discovery, he gave
no explanation for his failure to seek to amend his complaint
until after the entry of summary judgment. Second, the court
found that the defendants would be unduly prejudiced if it
granted leave to amend, “having based their defense on the
allegations in the operative complaint.” Third, the court con-
cluded that amendment would be futile because Moran’s
claim based on the ISP report would fail even without the ju-
dicial admission.
Moran’s arguments target the district court’s findings of
undue delay and prejudice, but we need not address them be-
cause we affirm on the basis of futility. As discussed above,
the record contains no evidence that Detectives Growe and
Rapacz knew about the ISP report before Moran’s 2009 trial,
and the record does not support an inference that Glumac in-
tentionally or recklessly failed to disclose the report. If Moran
is permitted to amend his complaint to remove his allegation
that ASA Coppleson knew about the ISP report, the defend-
ants would still be entitled to summary judgment in their fa-
vor because a reasonable jury could not find for Moran. The
district court was correct as a matter of law that amendment
would be futile. Therefore, its denial of leave to amend was
not an abuse of discretion.
No. 22-1043 29
IV. Conclusion
We regret that Moran was unable to present certain argu-
ments at the 2009 trial and that he spent substantial time im-
prisoned for a crime of which he was eventually acquitted.
Strategic missteps may have hurt Moran’s chances of success
in this lawsuit. Even though Moran was wrongfully impris-
oned for a decade, on this record he is not entitled to the relief
he seeks.
The district court did not err in granting the defendants’
motion for summary judgment and did not abuse its discre-
tion in denying Moran’s motion for leave to amend his com-
plaint. The district court’s decision must therefore be
AFFIRMED.