In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3598
JOVAN M OSLEY,
Plaintiff-Appellant,
v.
T HE C ITY OF C HICAGO, a municipal corporation,
and Chicago Police Officers C LARENCE H ILL,
D ERAIL E ASTER, C HARLES W ILLIAMS, AND
E DWARD H OWARD , JR.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06-c-6314—David H. Coar, Judge.
A RGUED M AY 25, 2010—D ECIDED JULY 29, 2010
Before F LAUM, R OVNER and W OOD , Circuit Judges.
F LAUM, Circuit Judge. This is an appeal from a grant
of summary judgment in favor of the defendants in a
§ 1983 action that arose from the arrest and prosecution
of plaintiff-appellant Jovan Mosley. Mosley was at the
scene when a group of individuals beat Howard Thomas
2 No. 09-3598
to death in 1999. Mosley arrived at the scene with the
group that attacked Thomas and left the scene with the
same group. Mosley and three other individuals were
charged with Thomas’s murder. After approximately
five years in jail, Mosley was acquitted at trial. Shortly
thereafter he filed this suit. Mosley’s § 1983 claim centers
around the allegation that the investigating officers
withheld evidence of an exculpatory statement made
by the key eyewitness during the line-up when this
witness identified Mosley. We agree with the district
court that the record does not support Mosley’s due
process violation claim or any of his related state law
claims. We affirm.
I. Background
A. The Prosecution of Mosley in the Thomas Murder
Shortly after midnight on August 6, 1999, Howard
Thomas was beaten to death near 7330 South Calumet
Avenue in Chicago. Two teenage individuals, Jori Garth
and Anton Williams, witnessed the attack. That evening,
Garth and Williams were sitting on Garth’s front porch.
Frad Muhammad, Lawrence Wideman, Marvin Treadwell,
Jovan Mosley and Gregory Reed approached the porch.
Garth knew Treadwell and Reed socially. Reed, who
had been drinking heavily, joined Garth and Williams
on the porch while the others stayed at foot of the stairs.
While the group was talking, Thomas walked by and
someone in the group said, “there go the motherfucker
right there.” The group standing at the base of the
stairs ran at Thomas. There is some testimony that Reed
No. 09-3598 3
initially ran out and quickly ran back to the porch. Eventu-
ally, the beating ended and Muhammad, Wideman,
Treadwell, and Mosley all walked off together, leaving
Thomas in a pool of his own blood. The police arrived
shortly thereafter. Garth and Williams did not come
forward as witnesses right away.
The police interviewed Garth and Williams about six
months after the attack. Garth told the police about the
group coming to her porch to talk with her and Wil-
liams. She said that shortly into the conversation Thomas
walked by and three of the members of the group ran and
attacked him. She said that a tall, light-skinned, black man
was the one with the baseball bat and the other two
individuals had braided hair. None of these descriptions
fit Mosley. Mosley does not allege that the police with-
held Garth’s statement.
Williams also gave a statement to the police. He told
the officers that five individuals came to the porch. He
recognized Reed, Treadwell, and Muhammad. He did not
recognize the other two individuals. Officers Charles
Williams, Clarence Hill, and Edward Howard, Jr. testified
that Anton Williams told them that everyone in the
group except Reed attacked Thomas. After Williams gave
his statement, the officers assembled a line-up with
Mosley. Williams identified Mosley as having been on
the scene of Thomas’s murder. The officers did not create
a report to document the line-up at that time. Fifteen
months later, Detective Hill documented the line-up in
vague and general terms. The report does not say
precisely what role Mosley played in the attack, but it did
4 No. 09-3598
indicate that Williams identified Mosley as being
involved in the murder in some fashion. This report was
turned over to Mosley’s attorney before trial. At his
deposition in this case, Williams indicated that the
report was a fair representation of the results of the
line-up.
In addition to giving his initial statement and iden-
tifying Mosley in the line-up, Williams testified before
the grand jury and at Mosley’s trial. Before the grand
jury Williams gave the following testimony:
Q: After you heard somebody say that, what did
you see then?
A: They started beating on him.
Q: When you say they, who specifically did you see?
A: Frad, Marvin, Red.
Q: And did you see where the fourth black male
who you described to the Grand Jury, where did he
go as those three people were beating on the victim?
A: I didn’t see him beat him, but he was around
the area.
Q: Did you see him where the three people that
you knew were beating on the victim?
A: Yes.
Q: And was he down in that area?
A: Yes.
At trial, Williams gave direct testimony consistent with
his grand jury testimony. Then, on cross-examination
No. 09-3598 5
Williams agreed with a statement by defense counsel
that one could interpret as making Mosley less culpable:
Q: [Mosley is] the person you identified as having
been out there but not having done anything, correct?
A: Correct.
Q: You never at any time told the police officers
that Jovan Mosley did hit or strike or kick
Mr. Thomas, did you?
A: No. No.
Williams testified in his deposition that he told the
officers that five men, including Mosley, attacked
Thomas. Williams also testified that he consistently
told the officers that Mosley was part of the group that
ran toward Thomas but that he did not see Mosley
throw any punches. Other than agreeing with defense
counsel’s statement on cross-examination, Williams
never claimed to have definitively seen Mosley abstain
from participation in the attack.
The detectives also took a statement from Reed. Reed
implicated all four defendants in the attack. In the state-
ment, Reed claimed that Mosley hit Thomas a couple
of times. In discussing that statement during his deposi-
tion in this case, Reed stated that he had no independent
recollection of what happened but provided the state-
ment based on what he had heard from other individuals.
Reed claimed that he told the officers of that fact before
he gave the statement, but he did not acknowledge his
lack of personal recollection in his statement. Reed gave
deposition testimony that the officers did not tell him
6 No. 09-3598
what to say in his statement. On the eve of trial, Reed
told the prosecutor, Andrew Varga, that he was drunk
on the night of the incident and did not have any inde-
pendent recollection of the event. At that time, Varga
decided not to call Reed as a witness at trial. There is
no information in the record regarding whether Varga
ever informed Mosley’s defense attorney about this
discovery.
All of Mosley’s co-defendants also implicate Mosley
in the beating in some fashion. Muhammad said that
Mosley was part of the group that attacked Thomas, but
did not say what Mosley did in the beating. Wideman
said that Mosley was part of the earlier discussions
when the group planned to rob and beat someone.
Wideman also said that Mosley was present at the scene
of the beating and left with the group after the beating.
Treadwell did not implicated Mosley by name, but did
say that Frad’s friend was the fifth member of the
group and was one of the men who hit Thomas. Mosley
also gave a statement implicating himself. Throughout
his briefs, Mosley characterizes his statement as “a state-
ment given after twenty-eight hours of being handcuffed
to a wall in an interrogation room.” However, the
manner in which that statement was obtained is not
challenged in this lawsuit.
Mosley’s trial was originally scheduled for April 2000.
However, by agreement of the parties, the court con-
tinued the trial until November 2005. Mosley remained
in the maximum-security wing of the Cook County Jail
while awaiting trial. In November 2005, Mosley was
No. 09-3598 7
acquitted by a jury. Wideman, Treadwell, and Muhammad
were convicted of first-degree murder.
B. Procedural History
Mosley filed this case against the City of Chicago,
Clarence Hill, Maverick Porter, Derail Easter, Charles
Williams, and Edward Howard, Jr. All of the individual
defendants are Chicago Police Department officers who
were involved in the investigation of the Thomas mur-
der. The initial complaint contained the following
claims: Count I—the defendants violated Mosley’s due
process rights by withholding exculpatory evidence
and fabricating false reports; Count II—the defendants
falsely imprisoned Mosley; Count III—defendants
violated Mosley’s right to equal protection of the laws;
Count IV—defendants conspired to deprive Mosley of
his constitutional rights; Count V—the defendants sub-
jected Mosley to malicious prosecution; Count VI—the
defendants engaged in a civil conspiracy; Count VII—the
defendants subjected Mosley to intentional infliction of
emotional distress; Count VIII— defendant City of
Chicago is bound by the doctrine of respondeat superior;
and Count IX—defendant City of Chicago is obligated
to indemnify the Chicago Police Officer defendants.
Defendants moved to dismiss all of the claims. Mosley
voluntarily dismissed the claims for false imprison-
ment, violation of equal protection, and conspiracy to
deprive Mosley of his constitutional rights. The district
court denied the motion to dismiss on all other counts.
Discovery ensued. Prior to the close of discovery, defen-
8 No. 09-3598
dants filed for summary judgment on the remaining
counts. Discovery continued while the motion for sum-
mary judgment was pending. At the close of discovery,
the district court granted defendants’ motion for sum-
mary judgment on all remaining counts. The district
court found that the defendants did not violate
Mosley’s due process rights because any failure to
disclose exculpatory evidence did not rise the level of a
Brady violation. The district court granted summary
judgment on the malicious prosecution claim because
it found that there was probable cause to proceed with
the prosecution. The district court found that without a
valid claim for the due process violation or the malicious
prosecution, the civil conspiracy claim could not stand
because there was no legally cognizable injury. The
district court granted summary judgment on the inten-
tional infliction of emotional distress claim because the
statute of limitations had run. Finally, the district court
found that the claims against the City of Chicago were
inapplicable because Mosley did not put forward any
valid claims against the individual officers. Mosley now
appeals the district court’s grant of summary judgment
on the counts for denial of due process, malicious pros-
ecution, and civil conspiracy. He also asks us to
reinstate the claims against the City of Chicago if we
reinstate any of the claims against the individual defen-
dants.
II. Discussion
We review a district court’s grant of summary judg-
ment de novo. Barricks v. Ely Lilly & Co., 481 F.3d 556, 559
No. 09-3598 9
(7th Cir. 2007). Summary judgment is proper if “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c).1 If the moving
party meets this burden, the non-moving party must
submit evidence that there is a genuine issue for trial.
Fed. R. Civ. P. 56(e); Ptasznik v. St. Joseph Hosp., 464 F.3d
691, 694 (7th Cir. 2006). The existence of merely a
scintilla of evidence in support of the non-moving
party’s position is insufficient; there must be evidence
on which the jury could reasonably find for the
non-moving party. Ptasznik, 464 F.3d at 694.
1
Mosley contends that the district court erred by formulating
the test for summary judgment as “a party seeking summary
judgment has the burden of showing that there are no gen-
uine issues of material fact that would prevent judgment as
a matter of law.” Mosley claims that by formulating the test in
this manner, the district court improperly intermingled the
analysis of the record facts with the legal tests for prevailing
as a matter of law. Tied to this claim, Mosley argues that the
district court did not view the facts in the light most favorable
to Mosley when granting summary judgment. This argument
is without merit. The district court did not disregard the
proper standard of review for summary judgment—it consid-
ered whether the record presented any issues of material
fact with regard to the legal issues presented. There was no
conflation or confusion of facts and the law. Furthermore, as
defendants point out, we review a claim for summary judg-
ment de novo, and therefore we review the record and legal
issues anew.
10 No. 09-3598
A. Brady Violation Claim
The main issue in this appeal is whether the officers
violated their duty under Brady v. Maryland, 373 U.S. 83
(1963), to turn over all exculpatory evidence and thereby
violated Mosley’s due process rights. Mosley claims
Williams told the officers that he recognized Mosley
from the group of individuals who beat Thomas to
death but that Williams saw that Mosley did not partici-
pate in the beating. Mosley insinuates that there was
an original line-up report created that contained that
statement and the officers destroyed the report to keep
it from Mosley’s attorney. In the alternative, Mosley
claims that the officers did not create the line-up report
for fifteen months to hide the fact that Williams saw
that Mosley did not participate in the beating. Addition-
ally, Mosley claims that the officers committed a Brady
violation by not informing Mosley’s attorney that Reed
was too drunk to have any independent recollection of
the night.
We begin our analysis by determining what Mosley
would need to show to prevail on a Brady due process
violation claim. A Brady violation occurs when the gov-
ernment fails to disclose evidence materially favorable
to the accused. Youngblood v. West Virginia, 547 U.S. 867,
869 (2006). The Brady duty extends to impeachment
evidence as well as exculpatory evidence. Id. at 870. A
defendant may demonstrate that a Brady violation has
occurred by “showing that the favorable evidence
could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the ver-
No. 09-3598 11
dict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). In
granting summary judgment, the district court identified
the logical tension inherent in claiming a Brady viola-
tion occurred when the predicate trial resulted in an
acquittal—exclupatory evidence coming to light after the
trial would reaffirm, not undermine, the confidence in
a not guilty verdict. Several of our sister circuits have
held that the standard set out in Kyles indicates that a
trial that results in an acquittal can never lead to a
valid claim for a Brady violation because the trial produced
a fair result, even without the exculpatory evidence. See
Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)
(“Regardless of any misconduct by government agents
before or during trial, a defendant who is acquitted
cannot be said to have been deprived of the right to a
fair trial.”); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir.
1998) (finding no Brady violation in the face of an
acquittal because Brady protects a defendant from an
unfair trial and an acquitted defendant does not suffer
the effects of an unfair trial); McCune v. City of Grand
Rapids, 842 F.2d 903, 907 (6th Cir. 1988) (holding that
where criminal charges are dropped before trial, and
thus the underlying criminal proceeding terminated in
an appellant’s favor, there is no injury caused by the act
of suppressing exculpatory evidence). But see Haupt v.
Dillard, 17 F.3d 285, 287-88 (9th Cir. 1994) (holding that
where the trial judge was biased, defendant’s acquittal
speaks only to the amount of damages due and is irrele-
vant to whether he has a cause of action for a violation
of his due process right to a fair trial). Our circuit
has not directly resolved whether a plaintiff can assert
12 No. 09-3598
a claim for a Brady violation when the trial resulted in
an acquittal. We were recently confronted with this
issue in Bielanski v. County of Kane, 550 F.3d 632, 644 (7th
Cir. 2008). However, we did not directly address the
question because we found that even if we recognized a
cause of action for a Brady violation when the trial results
in an acquittal, the plaintiff in Bielanski would still have
failed to state a claim. In coming to that conclusion, we
set aside the issue of whether such a claim could poten-
tially exist. We held that to state a Brady violation
claim when the criminal trial ended in acquittal, if such
a claim exists, the plaintiff would need to show that
“the decision to go to trial would have been altered by
the desired disclosure.” Bielanski, 550 F.3d at 645 (citing
Carvajal v. Dominguez, 542 F.3d 561, 570 (7th Cir. 2008)).
Following Bielanski, we now ask whether there is any
evidence in the record that would show: (1) that the
officers withheld materially favorable evidence from
Mosley, and (2) had the officers disclosed that evidence
sooner, it would have altered the decision to go to trial. In
other words, Mosley must show that if all parties had
known of some piece of exculpatory evidence, the pros-
ecution would not have moved forward with charges,
the grand jury would not have indicted Mosley, or the
trial court would have granted a motion to dismiss the
indictment. Because Mosley cannot meet this bar, we
reserve the question of whether our circuit recognizes a
claim for a Brady violation when the trial results in an
acquittal for a later case when this standard is met.
There is no evidence in the record that the officers
withheld any materially favorable piece of evidence.
No. 09-3598 13
Mosley contends that during the lineup identification
of him, Williams told the officers that he saw Mosley
during the attack and he saw that Mosley did not par-
ticipate in the beating; that the officers withheld that
information; and that this withholding amounts to a
Brady violation. Mosley does not contend that the
officers withheld Williams’s initial statement to the
police or his grand jury testimony that he saw Mosley
in the area of incident but did not see Mosley participate
in the attack. Mosley stresses the distinction between
not seeing someone participate in a crime and seeing
someone not participate in the crime. Even if this distinc-
tion is meaningful, Mosley’s claim fails because there is
no evidence that Williams told the officers that he saw
Mosley not participate in the beating that led to Thomas’s
death. To support his claim, Mosley points our attention
to the cross-examination at trial where Williams replied
“yes” to the defense counsel’s statement: “[Mosley is] the
person you identified as having been out there but not
having done anything, correct?” We agree with the district
court that Williams’s one word answer to that leading
question must be interpreted in light of all of Williams’s
testimony. This is not an impermissible credibility deter-
mination. It is a necessary interpretive step to give any
meaning to that piece of testimony. In every situation
where Williams articulated what he told the police
officers—his grand jury testimony, his direct examination
testimony at trial, and his deposition testimony in this
case—Williams consistently said that he told the officers
that he saw Mosley with the group that committed the
attack but did not see or could not remember seeing
14 No. 09-3598
Mosley participate. In light of the fact that he has consis-
tently testified, both before and after the trial, that he told
the officers that Mosley was in the area of the attack but
that he did not know or did not see if Mosley participated,
the one word answer on cross-examination cannot create
a genuine issue of material fact on this issue. Mosley also
points to the fifteen-month delay in the creation of a lineup
report as evidence that the officers were intentionally with-
holding information. While fifteen months is an unusu-
ally long delay for the creation of a report, there is no
evidence that the delay was the result of anything
other than an oversight.
Even if we were to determine that Williams’s agree-
ment on cross-examination creates an issue of material
fact as to whether or not Williams ever told the officers
that he saw Mosley not participate in the beating, this
withholding would not rise to the level of a Brady viola-
tion under the standard we set forth in Bielanski because
it would not have altered the prosecution’s decision to
go to trial. The prosecutor testified at his deposition that
he moved forward against Mosley on an accountability
theory of murder. To purse the accountability theory of
murder, the state did not need to show that Mosley
actively participated in the beating. Instead, the state
needed to show that Mosley, with the intent to promote or
facilitate the attack, solicited, aided, abetted, agreed or
attempted to aid, others in the attack. 21 Tracy Bateman &
Susan L. Thomas, Ill. Law and Prac. Homicide § 9 (2010).
Williams’s alleged statement would not have changed
the viability of this theory of criminal liability for
Mosley. Taking Mosley’s most favorable formulation of
No. 09-3598 15
Williams’s testimony, Williams saw Mosley with the
group who carried out the attack and saw Mosley in the
area of the attack. Wideman stated that Mosley partici-
pated in earlier discussions planning to attack, beat, and
rob an individual. After the attack, Mosley left with the
group of perpetrators. This evidence would have been
sufficient for the prosecutor to pursue the accountability
theory of murder under Illinois law.
Mosley also contends that the officers committed a
Brady violation by withholding the evidence that Reed
was “drunk as hell” on the night of the incident and had
no independent recollection of the incident. Mosley
argues that this is impeachment evidence and therefore
Brady material that should have been disclosed. This
argument fails because the state did not call Reed at trial
and therefore the state had no obligation to turn over
evidence that could impeach his testimony. Further-
more, the prosecution did decide to move forward with
the trial even after learning this fact. Therefore, even
assuming that a Brady violation could occur when a trial
ends in acquittal, this claim cannot rise to the level de-
scribed in Bielanski.
B. Malicious Prosecution Claim
In order to prevail on a malicious prosecution claim
under Illinois law, the plaintiff must prove: (1) the com-
mencement or continuance of judicial proceedings by
the defendant against the plaintiff; (2) a lack of probable
cause for those proceedings; (3) malice in instituting
the proceedings; (4) termination of the proceedings in
16 No. 09-3598
the plaintiff’s favor; and (5) damages resulting to the
plaintiff. The district court concluded that the defendants
had probable cause to press forward with the prosecution
and therefore Mosley could not maintain a claim for
malicious prosecution. Probable cause is defined as “a
state of facts that would lead a person of ordinary
caution and prudence to believe, or to entertain an
honest and strong suspicion, that the person arrested
committed the offense charged.” Reynolds v. Menard, Inc.,
850 N.E.2d 831, 837 (Ill. App. Ct. 2006).
Mosley erroneously claims that the district court
impermissibly weighed the credibility of the witnesses
in determining that the officers had probable cause.
We look to the totality of the circumstances when con-
sidering whether the officers had probable cause to
arrest and initiate proceedings against a defendant.
Illinois v. Gates, 462 U.S. 213, 231 (1983). In finding that
the officers had probable cause, the district court relied
on the testimony of the officers and Williams that
Williams told the officers Mosley was in the group that
attacked Thomas and Reed’s statement to the officers
that he heard Mosley had been a part of the attack. Al-
though Reed’s hearsay statements would not have
been admissible at trial, they can still serve as a basis for
probable cause when considered with the other evidence.
See Ebert v. Gaetz, ___ F.3d ___, 2010 WL 2508771 (7th
Cir., June 23, 2010) (“probable cause to arrest can rest
upon information that would not be admissible at trial,
such as hearsay, if the information is supported by
some indicia of reliability.”). In addition to Reed and
Williams’s statements, the officers also acted on the
No. 09-3598 17
statements of Muhammad, Wideman, and Treadwell, all
of which implicated Mosley. While Mosley is correct to
argue that the testimony of confederates is not always
the most credible in front of a jury, it certainly can be
credited in forming the basis for probable cause.
C. Civil Conspiracy Claim
Lastly, Mosley claims that the district court erred in
granting summary judgment on his civil conspiracy
claim. To show a civil conspiracy, Mosley must show
an agreement to accomplish either an unlawful purpose
or a lawful purpose by unlawful means. McClure v. Owens
Corning Fiberglass Corp., 720 N.E.2d 242, 258 (Ill. 1999).
Mosley must show that each of the defendants “know-
ingly and voluntarily participated in a common scheme
to commit an unlawful act or a lawful act in an
unlawful manner.” Id. Proof of accident or negligence is
not enough. Id. Mosley does not point to any evidence
of a common scheme. Instead, Mosley points to allega-
tions he made in his complaint. This is not the proper
standard for summary judgment. At this stage, Mosley is
required to offer support for those allegations. In place
of evidence, Mosley points to the absence of reports from
his interrogation and the line-up. He is correct that
this indicates an oversight by the police officers in
this case. However, without more, this omission
does not amount to evidence of conspiracy to obtain an
unlawful result or to obtain a lawful result through
unlawful means.
18 No. 09-3598
III. Conclusion
For the reasons set forth above, we A FFIRM the dis-
trict court’s grant of summary judgment on all claims.
7-29-10