Opinion
Case No. 03 C 3678
November 10, 2003
Arthur Loevy, Jon Loevy, Kurt Feuer, Loevy Loevy, Chicago for Plaintiff
Professor Andrea D. Lyon DePaul, Chicago for Plaintiff
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE CITY'S MOTION FOR RECONSIDERATION
Since the entry of this court's Memorandum Opinion of October 14, 2003 (the "October 14 Opinon") [dkt SO] setting out the reasons for granting the Plaintiffs Second Motion to Compel [dkt 39], and the show cause hearing on October 20, 2003, this court has received submissions from counsel for the City and counsel for the plaintiff assuring the court that they value their reputations as lawyers. See City's Mot. Reconsider, Ex. A, Puiszis Aff. ¶ 1 [dkt 52]; PL's Resp. at 8, 10. [Dkt 55.] Unquestionably, a lawyer's reputation is very important to him or her. That is precisely why the Federal Rules of Civil Procedure require that every discovery response be signed by at least one attorney of record in the attorney's individual name as a certification that the response is consistent with the rules and not interposed for any improper purpose. Fed.R.Civ.P. 26(g) (2003). The purpose of that certification is to "oblige each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection." Fed.R.Civ.P. 26, Advisory Committee "Notes, 1983 Amendment. The issue that touched off this controversy is whether the City's "Legal Objections" were signed in violation of that requirement.
After reviewing the submissions of the parties, and hearing argument on this matter, for the following reasons, the City's Motion to Reconsider the October 14, 2003 Opinion is granted in part and denied in part. The City's objections to the plaintiffs first set of interrogatories and first set of document requests are waived except as set out herein. Attorney Robert Shannon shall pay plaintiffs counsel the amount of $590 pursuant to Fed.R. Civ, P. 26(g)(3).
The City's counsel explain their failure to appear at the initial hearing on Plaintiffs Second Motion to Compel, held on October 8, 2003, by saying that they did not receive a copy of the minute order setting that hearing. (Puiszis AIT. ¶ 6.) That is surprising because counsel for all of the other parties received the minute order and appeared on time at the October 8, 2003 hearing. Furthermore, there were at least two additional ways that the City's counsel could have learned of the October 8, 2003 hearing. As described on this court's web site, after a motion has been referred by a District Judge, this court sets an initial hearing on the motion. Accordingly, shortly after the referral of Plaintiff's Second Motion to Compel, that motion was set for initial hearing on October 8, 2003, by order entered on September 30, 2003 and docketed on October 1, 2003. [Dkt 46.] The City's counsel state that they checked the docket on September 30, 2003 (City's Mot. Reconsider, Ex. B, Shannon Aff. ¶ 5), but apparently that counsel never checked the docket on October 1st or anytime during the week thereafter, although they knew that the Second Motion to Compel had been referred to this court, (Id. ¶ 4.) Furthermore, the October 8 hearing was listed in the October 7, 2003 Chicago Daily Law Bulletin's, calendar of hearings for October 8, 2003. CHICAGO DAILY LAW BULLETIN, Oct. 7, 2003, at 8. While the court accepts counsel's representation that their failure to appear was not intentional, there is no explanation for the City's counsel's failure to utilize either of those two common means of keeping informed about the status of a case.
DISCUSSION
I. The Plaintiff's Discovery Requests and the City's "Legal Objections."In this action under 42 U.S.C. § 1983, plaintiff Madison Hobley claims that he was tortured while in the custody of Chicago police as part of a pattern and practice by certain Chicago police officers, and convicted on the basis of false testimony, resulting in his spending 13 years in prison on Death Row before being released. On July 14, 2003, plaintiff's counsel served the counsel for the City with first sets of interrogatories and requests for documents, (PL's Second Mot. Compel, Ex. A.) On August 13, 2003, the City's counsel served documents entitled "Defendant City's Legal Objections to Interrogatories" and "Defendant City's Legal Objections to Request for Production." (Id., Ex. B.) The City's "Legal Objections" objected to each and every interrogatory and each and every document request propounded by the plaintiff, including the request for insurance agreements that might provide coverage. Cf. Fed.R.Civ.P, 26(a)(1)(D). The City did not provide any information in response to any interrogatory and did not commit to producing a single document.
Both "Legal Objections" were prefaced as follows; "Now comes the Defendant, The City of Chicago, by and through its attorney, Mara S. Georges, Corporation Counsel for the City of Chicago, through Steven M. Puiszis of the law firm Hinshaw Culbertson. . . ." (PL's Second Mot, Compel, Ex. B.) The signature block for both "Legal Objections" stated: "Hinshaw . Culbertson/ by ________/ One of the Attorneys for the Defendant/ The City of Chicago." (Id.) On the signature line was an illegible scrawl. On the left side of the last page of both documents was a list of attorneys' names: Steven M. Puiszis, John P. Goggin, Robert T. Shannon, and Corrine Cantwell. (Id.) Based on these facts, this court concluded that the signature was that of Mr. Puiszis, and, accordingly, Mr. Puiszis was ordered to show cause why he should not be sanctioned for signing the "Legal Objections" in violation of Rule 26(g). [Dkt 47,]
The City has now stated that attorney Robert T Shannon, not Mr. Puiszis, prepared and signed both "Legal Objections" although Mr. Shannon's name docs not appear on either document except as the third of the four attorneys in the list on the last page, (Shannon Aff. ¶ 2.) Thus, the October 14 Opinion is corrected to reflect that the motion to show cause should have been directed to Mr. Shannon, although Mr. Puiszis bears some responsibility as supervising attorney in whose name the "Legal Objections" were served, presumably with his permission.
2. The. "Legal Objections" violated the Federal Rules.
The October 14 Opinion recited the many ways that the "Legal Objections" violated the Federal Rules of Civil Procedure relating to discovery responses. Significantly, the City does not attempt to defend the sufficiency of its "Legal Objections." Nowhere in the City's Response or Reply does the City argue that the objections it stated were proper or justified, with the one exception discussed in the next paragraph. On the contrary, the City admits that it never intended its "Legal Objections" to be its real response to the plaintiffs discovery requests, and states that its "actual" responses to plaintiffs discovery would be "forthcoming." (Id.)
The exception relates to the City's objection to producing discovery related to its pattern and practices, so-called Monell discovery. The City appropriately takes issue with that part of the October 14 Opinion stating that the City did not move to stay or structure discovery, (October 14 Opinion at 2-3.) That statement was not correct. Following the service of the "Legal Objections," the City presented a motion to the District Judge to structure discovery by staying the plaintiffs Monell policy claims until discovery of the claims against the individual officers was completed. (City's Mot. Structure Discovery.) [Dkt 31.] That motion was granted by the District Judge on September 11, 2003, prior to the filing of Plaintiffs Second Motion to Compel. [Dkt 36.] Because that motion was never before this court, this court was not aware of that motion or the District Judge's order. The plaintiffs Second Motion to Compel did not inform this court that the District Court had stayed the production of certain discovery that the plaintiffs motion sought to be compelled. Under the District Court's order, this court could not grant all of the relief requested by the plaintiffs Second Motion to Compel. The plaintiffs counsel should have brought that fact to this court's attention. The City's Motion to Reconsider is granted and the October 14 Opinion is modified to reflect that the City moved to structure discovery and that motion was granted by the District judge.
3. The Federal Rules do not authorize a faux response.
With respect to the balance of the October 14 Opinion, the Motion for Reconsideration is denied. The City's argument as to why its counsel should not be sanctioned for signing the "Legal Objections" reflects a failure to understand the purpose and significance of responses to discovery under the Federal Rules.
The City's counsel state that "the legal objections filed on behalf of the City were never intended to represent the City's `sole response' to plaintiff's written discovery. . . .[T]hose objections were made simply to preserve them against claims of waiver under F.R.C.P. 34." (City's Mot. Reconsider at 2.) The City argues that it was "moving on two parallel tracks, one preserving possible objections to plaintiffs written discovery requests while moving forward with responses to that discovery. . . ." (Id.) (emphasis added,)
Mr. Shannon states that he wanted to avoid the waiver that would result from failing to serve timely objections to the discovery requests. (Shannon Aff. ¶ 2.) However, in considering part of Rule 33(b), the City's counsel failed to consider other parts of that Rule, in particular subparagraph 4 ("All grounds for an objection to an interrogatory shall be stated with specificity"), and subparagraph I ("[T]he objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable"). Rule 34(b) contains the same requirements regarding responses to document requests: "The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts,"
While Rule 34 does not contain an express provision for waiver of objections not timely made, failure to respond to a document request subjects the party to sanctions under Rule 37(d). Furthermore, courts have interpreted Rule 34 as containing an implicit waiver provision to parallel the express provision of Rule 33(b)(4) so that the discovery rules arc read as an integrated mechanism. Drexel Heritage Furnishings, Inc. v. Furniture USA, Inc., 200 F.R.D. 255, 258 (M.D. N.C. 2001). That interpretation is reinforced by considering that, under Rule 34, a responding party who does not object to the production of certain categories of documents may nonetheless propose an alternative date or time for production than that identified in the request, 8A Charles Alan Wright, Arthur R, Miller Richard L. Marcus, Federal Practice Procedure § 2213, at 425 (1994)("Wright Miller"), In light of the fact that what is required within 30 days is a response, with the responsive documents to be produced at a specified, reasonable time and place thereafter, it is hard to see why that 30 day time period is not sufficient to allow the attorneys for a party to articulate and serve proper objections. If additional time is needed, for example, to prepare the privilege log required for asserting an objection based on privilege (Rule 26(b)(5)), the process for obtaining additional time is set oat in Rule 34(b).
The City's notion that it could preserve "possible objections" flies in the face of the text of these Rules. The City was required to enunciate its actual objections and its actual responses within the time required by the Rules. The City's tactic of serving a faux response in order to buy time to consider "possible" objections is simply contrary to the Federal Rules.
Mr. Shannon attempts to justify the City's "Legal Objections" to the interrogatories by arguing that the City needed more time to get the information to answer the interrogatories. (Shannon Aff. ¶ 11.) However, both Rule 33(b)(3) and Rule 34(b) contain express provisions under which the responding party may obtain additional time to serve a response by agreement of the parties or with leave of court. The City did not seek any additional time to respond, either by agreement or from the court.
It is apparent from the City's Motion to Reconsider that the "Legal Objections" were simply a self-help method to buy time and avoid committing to producing anything, As such, Mr. Shannon's signature on those "Legal Objections" violated not only Rule 26(g)(2)(A), which requires responses to be consistent with the Rules, but also Rule 26(g)(2)(B), which prohibits responses interposed for an improper purpose such as causing unnecessary delay. If the City needed additional time to formulate a proper response, the method of obtaining that time is set out in Rule 33(b)(3) and Rule 34(b); serving a faux response is not the way.
The irony, of course, is that the types of objections served by the City are insufficient to preserve any proper objections. As discussed in the October 14 Opinion (at 3), it is well established that generalized, boilerplate objections are insufficient. See, e.g., Josephs v. Hams Corp., 677 F.2d 985, 992 (3d Cir. 1982) (holding that "the mere statement by a party that the interrogatory was `overly broad, burdensome, oppressive and irrelevant' is not adequate to voice a successful objection to an interrogatory.") Objections must not only be timely, they must be proper, or the result is waiver. "There is no provision in the Federal Rules for preserving objections . . . Having failed to answer or make specific legitimate objections to particular interrogatories within the time allowed, defendants were held to have waived objections to all interrogatories." Cosson Const. Co., Inc, v. Armco Steel Corp., et al, 91 F.R.D. 376, 379-80 (D. Kan. 1980) (affirming magistrate's order that defendants had waived any objections and did not preserve the right to make "substantive" objections after the response date had passed),
4. The. City's faux response was unfair to the plaintiff and the court.
The City argues that there was no real harm to the plaintiff because the City was also proceeding along the second, "parallel track." (City's Mot. Reconsider at 2.) The City points to the fact that it produced to plaintiffs counsel 10,000 pages of documents that the City had obtained by way of subpoena from the States Attorney. (Puiszis Aff. ¶ 2.) The plaintiff disputes that this is meaningful production by the City because the City has not produced its own files. (PL's Resp. Chicago's Mot. Reconsider at 3.) The City responds that the 10,000 pages included documents originally from the City's files, and thus are responsive to the plaintiffs document requests. (Def. City's Reply Supp. Mot. Reconsider at 8-9.) The City also states that it has produced the complaint registers relating to the individual defendant officers to the attorney representing those officers, and that the plaintiff's counsel knows that those complaint registers will be produced to the plaintiff after the attorney for the individual defendants has redacted personal information. (Puiszis Aff. ¶ 2.) The City also states that certain other documents were produced prior to the October 8, 2003 hearing on Plaintiffs Second Motion to Compel. (Def. City's Reply Supp. Mot. Reconsider at 8-9.)
With respect to answering the plaintiffs interrogatories, the City initially stated that it had served supplemental answers to the plaintiffs first set of interrogatories on October 8, 2003, "subject to its previously identified objections," (City's Mot. Reconsider at 10.) In an embarrassing gaffe, the City's counsel inadvertently served not supplemental answers but the same "Legal Objections" only this time verified by one of the individual defendants. (Def. City's Mot. Correct Record ¶ 3.) [Dkt 58.] The City states that it actually served the supplemental answers on October 22, 2003. (Id. at ¶ 4.) Thus, Plaintiff's Second Motion to Compel is moot in so far as it sought an order compelling supplemental answers to the interrogatories. [Dkt 60.] However, this is not a ruling on the sufficiency of those answers, which is not before the court.
Although the City's document production was not "nothing," as suggested in Plaintiffs Second Motion to Compel (at ¶ 8), the history illustrates what is wrong and unfair about the City's approach here. The plaintiff served his discovery requests in July 2003. On August 19, 2003, the District Judge ordered the defendants to "expedite responses to any outstanding discovery," [Dkt 30.] The first "real" answers to plaintiffs interrogatories were not served until October 22, two months after the answers were due. As of the hearing before this court on November 3, 2003, the City had not yet withdrawn its faux document response and served its actual, genuine response to plaintiffs first set of document requests. The City has been ordered to do so by November 10, 2003. [Dkt 60.] Thus, the City's faux responses bought it more than two months of additional time, all without agreement from the plaintiff or order of court.
That approach is patently unfair to the plaintiff. Efficiency and common practice suggest that ordinarily at least the first round of written discovery be substantially completed before depositions are taken. Specific written objections to discovery are required so that the propounding party can know precisely what will be produced or answered, and what is disputed. The propounding party can then attempt to resolve the disputes, and, if no agreement can be reached, bring the matter to the court for resolution. By its two "parallel tracks," the City avoided making a commitment about what it would produce and what it would answer. The City's "second track" of document production was completely unfettered by any obligation reflected in a discovery response. The plaintiff was left with a moving target, unable to get a comprehensive catalogue of specific disputes for the court's resolution so that discovery could proceed in the expeditious manner ordered by the District Judge.
The City's approach is also unfair to any court that would attempt to resolve any discovery dispute between the parties. Although the Federal Rules and Local Civil Rule 37.2 contemplate that the parties will attempt to resolve disputes before they are brought to the court, a process that necessarily involves some adjustment of positions, the court has a right to expect that discovery responses served and signed pursuant to Rule 26(g) contain a genuine and professional articulation of the responding party's original objections. The court should not be required to work its way through pages of boilerplate objections only to hear that those objections were not the responding party's "real" position, and that the "real" position was expressed in a series of conversations, many of which are disputed by the propounding party. That is not what the Rules contemplate and require of attorneys practicing in federal court.
5. The appropriate remedies here.
Pursuant to the authorities cited in the October 14 Opinion, as well as those discussed herein, the City's faux responses were not sufficient to preserve any objections the City might have made to the plaintiffs discovery requests, with the exception of the objection to Monell discovery. However, commentators have cautioned against making "hair-trigger findings of waiver" regarding privilege objections. 8A Wright Miller § 2213 at 428 (quoted in Drexel Heritage., 200 F.R.D. at 258). Rule 33(b)(4) suggests that the proper remedy here is to deem that any objections by the City to the plaintiffs first set of interrogatories and first set of document requests are waived except for "good cause shown," The only exceptions to this waiver are: 1) the objection to Monell discovery as reflected by the District Judge's order; and 2) objections based on privilege that are asserted in a privilege log meeting the requirements of Rule 26(b)(5), which must be served on plaintiffs counsel no later than December 2, 2003. That includes any documents that the City is withholding because of any claimed "governmental privilege." See. e.g., City's Legal Objections Request Production ¶ 11, Because a request for a protective order requires a justification under Rule 26(c), and because the City states that it has not delayed the production of documents because of its request for a protective order (Puiszis Aff ¶ 16), this finding of waiver does not preclude a request for a protective order governing certain discovery. The court will determine what is "good cause shown," but the City-and indeed all parties — are cautioned that this court will not tolerate any conduct inconsistent with the intention of the Federal Rules,
It is apparent that the "Legal Objections" signed by Mr. Shannon not only were contrary to the Federal Rules but also caused plaintiffs counsel to incur expense in getting this matter before the court. The court finds, pursuant to Fed.R.Civ.P. 26(g)f that the "Legal Objections" were signed without substantial justification, and accordingly, assesses against Mr. Shannon the reasonable attorneys' fees incurred by plaintiffs counsel in the amount of $590.00 reflecting two hours of the time of plaintiff's counsel, Jon Loevy, at the rate of $295 per hour. See Garcia v. City of Chicago, No. 01 C 8945, 2003 WL 22175620 (N.D. Ill. Sept. 19, 2003) (Holderman. J.) (awarding Mr. Loevy that hourly rate), Mr. Shannon shall pay that amount to plaintiffs counsel by November 24, 2003,
CONCLUSION
Accordingly, the City's Motion to Reconsider is granted in part and denied in part as set out herein.
IT IS SO ORDERED.
NOTICE OF FILING
TO:
Steven M. Puiszis Robert Shannon Hinshaw Culbertson 222 North LaSalle Chicago, IL 60601
James G. Sotos Hervas, Sotos, et a 333 Pierce Road Suite 195 Itasca, IL 60143
Please take notice that on November 10, 2003, I filed the attached FILING at the United States Courthouse, 219 South Dearborn in Chicago, IL,
Attorney for LOEVY LOEVY 312 N. May, Ste. 100 Chicago, IL 60607 (312) 243-5900 ANDREA D. LYON Center for Justice in Capital Cases DePaul College of Law 25 E-Jackson Blvd. Chicago, II 60604(312) 363-S402
PLAINTIFF'S SUPPLEMENTAL FILING REGARDING GAUGER v. HENDLE
NOW COMES Plaintiff, MADISON HOBLEY, by his attorneys, LOEVY LOEVY and ANDREA D. LYON, and submits the following filing pursuant to Chicago's latest Motion for additional briefing in light of the Seventh Circuit's recent Gauger decision. In support. Plaintiff states as follows.
Background
After Defendants' Motion to Dismiss and Plaintiff's Response were filed with the Court, the Seventh Circuit decided Gauger v. Hendle. 2003 WL 22455958 (7th Cir. Oct. 30, 2003), Plaintiff's position is that Defendants' Motion to Dismiss should be denied, and the Gauger case hardly alters that result. In fact, the Gauger case ensures the survival of Plaintiff's Fourth Amendment claims, as explained immediately below.
I. GAUGER PREVENTS THE DISMISSAL OF PLAINTIFF'S FOURTH AMENDMENT CLAIMS
If nothing else, the Gauger decision is a resounding vindication of Plaintiff's analysis on the issue of Heck's interplay with the Fourth Amendment. Plaintiff had argued in his Response Brief that the Seventh Circuit's apparent per se "categorical" exclusion of all Fourth Amendment cases as outside of Heck made no sense for three reasons: (a) the recent opinion in Okoro applying a fact-specific analysis even without articulating a change in the law; (b) the lack of support for such an interpretation from the language of Heck itself, and (c) the logical incoherence of such a rule, to wit, the statement that a Fourth Amendment violation "does not necessarily invalidate a conviction" does not itself necessarily dictate the conclusion — as it had been interpreted previously — that no particular Fourth Amendment violation could ever imply a conviction's invalidity.See Plaintiff's Resp. at 10-12.
Relying on these three reasons, Plaintiff's Response had argued that the categorical exclusion of all Fourth Amendment cases fromHeck (articulated most recently by the Seventh Circuit inSnodderly) could not and should not be the law. Relying on precisely those same three reasons, Judge Posner explained inGauger that the categorical exclusion is not the law,Gauger. 2003 WL 22455958 at *6-*7.
Given this recent clarity that the accrual and thus viability of Fourth Amendment claims turns on the specific facts as pled, it is plain that Plaintiff's Fourth Amendment claims survive for the reasons set forth in his Response Brief. But for the false arrest and resulting interrogation, Plaintiff could never have been convicted. See Plaintiff's Response at 10-14, Similarly, as also argued in Plaintiff's Response, a contemporaneous allegation that the Defendant Officers had attempted to torture a confession from him would certainly have implied the invalidity of the resulting conviction and would thus have been barred inHeck terms. Id., citing, inter alia, Defendants' Memo at 25 ("The absence of physical coercion was necessary to allow Hobley's confession to be admitted into evidence. Had excessive force in fact been used against plaintiff to procure a confession, his confession would not have been admitted"). Plaintiff's Fourth Amendment claims are therefore timely, and cannot be dismissed II. GAUGER DOES NOT DEFEAT ANY OF PLAINTIFF'S DUE PROCESS CLAIMS
In dicta, Judge Posner1 s Gauger opinion proceeds to discuss a damages issue which is nowhere implicated by the present Motion to Dismiss Plaintiff's claims. Whether and to what extent Plaintiff's damages for the false arrest count (and only the false arrest count) may or may not be limited by Gauger is a question not raised in the present Motion to Dismiss, and Plaintiff would request an opportunity to brief the question before the Court reached it at a later stage of this litigation.
The pending Motion to Dismiss tests the sufficiency of the legal causes of action pled in the Complaint, and there is nothing in Gauger which merits dismissal. While Plaintiff does not know what arguments Defendants intend to raise (and thus is at a disadvantage in attempting to anticipate them) Defendants may point to Gauger's discussion about how withholding the circumstances of Mr. Gauger's interrogation did not constitute a Brady violation on the facts of that case. Plaintiff has two responses.
A. GAUGER IS DISTINGUISHABLE
First, Gauger is not this case. Whereas the interrogators inGauger did not employ any unconstitutional means whatsoever to extract the confession (a point which was conceded by the Gauger plaintiff, as Judge Posner went out of his way to stress, Id., at *2) the circumstances surrounding the torture utilized in the instant case was something that certainly should have been disclosed to the prosecutors under Brady. While Defendants will likely respond that the Gauger plaintiff lost because he "already knew" he did not confess, this principle, does not translate to Mr. Hobley's interrogation, At a minimum, for example, the Defendant Officers could have produced in discovery the typewriter cover which was used to suffocate Mr. Hobley, Instead, they withheld it. The Defendants also could have disclosed that Defendant Burge or the other alleged co-conspirators who were not present in the room at the time nonetheless had knowledge of the torture. They withheld that information as well. Finally, the Defendant Officers could have (but did not) disclose to the prosecutors the existence and identities of dozens of other torture victims who could have bolstered Mr. Hobley's testimony with strikingly similar testimonials of their own. Thus, unlike the Gauger case, where there was nothing which Mr. Gauger did not have equal access to which the defendants could have provided the prosecutors, the instant case presents a different scenario altogether,
B. GAUGER DOES NOT DEFEAT PLAINTIFF'S DUE PROCESS CLAIM BECAUSE PLAINTIFF ALLEGES MUCH MORE THAN WAS ALLEGED IN GAUGER
The claim in Gauger was based entirely on the contention that the interrogators failed to disclose to the prosecutors that the supposed confession had really just been hypothetical. Because theGauger plaintiff already had possession of that particular information, his Brady-based claim was unsuccessful.
Plaintiff here alleges far more than withholding from the prosecution the fact that he never confessed. Specifically, the Complaint alleges that Mr. Hobley's Due Process rights were violated by Defendants' acts of: (a) planting physical evidence at the crime scene; (b) creating a false written confession, albeit one which was supposedly destroyed; (c) manipulating witness testimony in a manner which the Seventh Circuit found unconstitutional in Newsome: and (d) falsifying police reports which were then used to induce Mr. Hobley's prosecution. Without belaboring all of the caselaw set forth in Plaintiff's Response, these allegations slate a constitutional claim. Indeed, the Gauger opinion went out of its way to reaffirm the cause of action for framing someone for a crime he did not commit. Gauger, 2003 WL 22455958, at *3 (citing numerous decisions, includingJones, recognizing that "if police falsify their reports in a successful effort to persuade the prosecutors to prosecute a suspect, they have violated his civil rights and he can sue the police without worrying about immunity").
For these reasons, there is nothing about the Gauger opinion which justifies dismissal of any Plaintiff's legal theories. Because Mr. Hobley's claims survive, the extent to which Gauger may or may not affect the ability to collect damages for the specific allegation surrounding the fabricated confession is an issue which remains to be fleshed out in later stages of this litigation.
Although Plaintiff is at a disadvantage in anticipating how exactly the Defendants will try to interpret Gauger in their Reply, Plaintiff urges the Court to reject an attempt by Defendants to expand the case more broadly than its holding would dictate. Every innocent person, for example, "knows" he is innocent, and therefore also already "knows" that any evidence supposedly "proving" his guilt is necessarily "tainted". That reality simply does not mean, however, that the police can therefore withhold any and all information which would show this evidence is in fact tainted. Put simply, Gauger cannot be stretched ad absurdum to support an argument that an innocent person can never be the victim of a Brady violation because he "already knows" he is innocent.
Conclusion
Defendants Motion should be denied for all of the reasons discussed in Plaintiff's Response, and there is nothing about the Gauger opinion which changes that result.