Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 1 of 17 PageID #:114

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DISTRICT
______________________________________________________________________________
)
JOHN JENNINGS,
)
)
Plaintiff,
)
)
No: 13-cv-8811
v.
)
)
Honorable Rebecca R. Pallmeyer
CHICAGO POLICE OFFICERS
)
UGARTE (Star # 15050), MCCALLUM
)
(Star # 15180),VIVANCO (Star # 17269), )
HARRIS (Star # 14911), WILLIAMS
)
(Star # 4947), COLEMAN (Star #13056)
)
and THE CITY OF CHICAGO
)
)
Defendants.
)
)
JURY DEMANDED
)
FIRST AMENDED CIVIL COMPLAINT
NOW COMES the Plaintiff John Jennings, by and through his attorneys, Abby Bakos
and Shiller Preyar Law Offices, complaining of Defendants, and in support thereof states as
follows:
INTRODUCTION
1.

This action is brought pursuant to 42 U.S.C. 1983 to address deprivations of

Plaintiffs rights under the Constitution of the United States.

JURISDICTION
2.

The jurisdiction of this Court is invoked pursuant to the Civil Rights Act, 42

U.S.C. 1983; the Judicial Code, 28 U.S.C. 1331 and 1343(a); the Constitution of the
United States; and pendent jurisdiction for state claims as provided in 42 U.S.C. 1367(a).
VENUE

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 2 of 17 PageID #:115

3.

Venue is proper pursuant to 28 U.S.C. 1391(b). The events alleged within all

occurred in the Northern District of Illinois.

THE PARTIES
4.

John Jennings is a United States citizen who resides in the Northern District of

Illinois.
5.

Defendant Chicago Police Officers Ugarte (Star #15050), Vivanco (Star #17269),

McCallum (Star #15180), Harris (Star # 14911), Williams (Star #4947), and Coleman (Star
#13056) (referred to herein as Defendant Officers) are present or former employees of the
City of Chicago Police Department. The Defendant Officers engaged in the conduct
complained of while on duty and in the course and scope of their employment and under
color of law. Defendant Officers are sued in their individual capacities.
6.

Defendant City of Chicago is a municipal corporation duly incorporated under the

laws of the State of Illinois, and is the employer and principal of the Defendant Officers. At
all times relevant hereto, all Defendants were acting under the color of law and within the
scope of their employment with Defendant City of Chicago.
BACKGROUND
September 17, 2009 Incident
7.

On or about September 17, 2009, Plaintiff and two acquaintances were attempting

to repair his sisters car which was parked on the side of the road near the corner of 85th street
and Wabash in Chicago, Illinois.

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 3 of 17 PageID #:116

8.

Shortly after beginning the repairs, Defendant Officers Harris and McCallum

pulled up in their squad car next to Plaintiffs vehicle and asked Plaintiff Jennings and his
acquaintances where the gun was located.
9.

After denying that they had any weapons, Defendant Officer McCallum searched

Plaintiffs vehicle, then handcuffed Plaintiff and began to search his person.
10.

Defendant Officer McCallum did not have probable cause to search the vehicle or

Plaintiffs person.
11.

Defendant Officer McCallum did not have probable cause to seize Plaintiff by

placing him in handcuffs.

12.

During the search on the side of the road, Defendant Officer McCallum pulled

down Plaintiffs pants and underwear to his ankles and then penetrated Plaintiffs anus with
his fingers.
13.

Officer McCallum did not have probable cause to believe that contraband would

be found in Plaintiffs body.

14.

Officer McCallum did not find illegal guns or narcotics inside Plaintiff or in his

possession.
15.

Upon completion of their search, Defendants Harris and McCallum left the scene

without charging Plaintiff with any crime.

16.

Shortly thereafter, Plaintiff Jennings lodged a complaint with the Chicago Police

Department against Officer McCallum.

17.

Following Plaintiffs complaint, with Officer McCallum and Harris knowledge,

consent and direction, Defendant Officer Harris and McCallum, along with members of
3

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 4 of 17 PageID #:117

Tactical Response Unit 0662A, Defendant Officers Ugarte, Vivanco, Williams, and
Coleman, purposefully created a plan amongst themselves, to target, harass, and plant
contraband on the Plaintiff in retaliation for lodging the complaint against Officer McCallum.
At all relevant times, Defendant Officers Ugarte, Vivanco, Williams, and Coleman were
members of Sixth District, Tactical Response Unit 0662A.
June 2, 2010 Incident
18.

Thereafter, on or about June 2, 2010, at a car wash near 77th and State Streets in

Chicago, Plaintiff was waiting in line to get his car washed when several unmarked squad
cars pulled into the car wash parking lot and surrounded Plaintiffs vehicle.
19.

Defendant Officer Coleman proceeded to pull Plaintiff out of his vehicle and

place him in handcuffs.

20.

Defendant Officer Coleman began searching Plaintiffs vehicle while Defendant

Officer Ugarte escorted Plaintiff to the back of Officer Ugartes squad car.
21.

Therein, Officer Ugarte told Plaintiff that if he revealed the location of

contraband, he would make things much easier on Plaintiff.

22.

Plaintiff denied having any knowledge of contraband and in response, Officer

Ugarte produced an unknown substance from his pocket and informed Plaintiff that he could
make this whole thing go away if Plaintiff revealed the location of guns or drugs. Plaintiff
did not have anything illegal in his possession.
23.

Plaintiff insisted that he did not have contraband and thereafter, Defendant Officer

Ugarte formally placed Plaintiff under arrest and charged Plaintiff with possession of a
controlled substance.
4

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 5 of 17 PageID #:118

24.

On June 2, 2010, Defendant Officer Ugarte wrote an incident report that contains

falsehoods including, but not limited to, stating that reporting officers, Ugarte and Coleman,
observed a white pill suspect ecstasy on the passenger side floor board. Plaintiff did not
have a white pill suspect ecstasy in his car or on his person.
25.

On June 2, 2010 Defendant Officer Coleman wrote an arrest report that contains

falsehoods, including but not limited to stating that reporting officers, Officers Ugarte and
Officer Coleman, observed a white pill suspect ecstasy on the passenger side floor board.
26.

Although Plaintiff was not in possession of any controlled substance, Officer

Coleman signed a criminal complaint charging Plaintiff with possession of less than 15
grams of ecstasy.
27.

Officers Ugarte and Coleman did not have probable cause to arrest Plaintiff and

Plaintiff was never in possession of contraband.

28.

Plaintiff bonded out the same day and the charges were dismissed.

29.

On or about July 23, 2010, in response to the June 2, 2010 arrest, Plaintiff lodged

a complaint against Officer Ugarte with the Department of Internal Affairs.

30.

On December 19, 2010, Plaintiffs Complaint was determined to be unfounded by

Internal Affairs.
October 11, 2010 Incident
31.

In the spring of 2011, on four separate occasions, Defendant Officers were

observed driving past the Plaintiffs home, shining a light from their vehicles on the home.
32.

On October 11, 2010, a few blocks away from the car wash, Plaintiff was waiting

at a stoplight in a vehicle when Defendant Officers Ugarte and Vivanco spotted the Plaintiff,
5

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 6 of 17 PageID #:119

maneuvered their vehicle in front of Plaintiffs and proceeded to approach Plaintiff and his
passenger.
33.

Officers Ugarte and Vivanco had no probable cause to seize Plaintiff that time.

34.

Defendant Officer Vivanco then pulled Plaintiff out of the vehicle.

35.

Officer Ugarte then handcuffed and placed Plaintiff in the back of the squad car.

36.

Officer Ugarte informed Plaintiff that he had been looking for him ever since

Plaintiff lodged the complaint against Officer Ugarte from the June 2, 2010 incident.
37.

Officers Ugarte and Vivanco then placed Plaintiff under arrest, without probable

cause, and charged him with possession of a controlled substance with intent to distribute.
38.

While Plaintiff was in the holding cell at the district police station following the

October 11, 2010, Officer Harris, one of the officers from the initial seizure, said to the
Plaintiff, I knew wed get you, bitch.
39.

On October 11, 2010, Defendant Officer Vivanco wrote an arrest report that

contained several falsehoods, including but not limited to stating that Plaintiff was
committing a mobile traffic violation (using a mobile telephone), that Plaintiff held a
plastic bag containing several bags containing a white powder substance protruding from
subjects left hand between his palm and cell phone being clear knotted plastic bag
containing smaller clear knotted plastic bags each containing a white powdered substance
suspect heroin, that Plaintiff had within his waist area inside pants clear knotted plastic bag
containing 16 smaller clear knotted plastic bags each containing a white powdered substance
suspect heroin, that Plaintiff stated I paid off old school with 2 bags of heroin because he
cleaned my house.

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 7 of 17 PageID #:120

40.

On October 11, 2010, Defendant Officer Vivanco also wrote an incident report

that contained the same statements and the same falsehoods as those contained in the arrest
report.
41.

A result of the October 11, 2010 arrest and possession charge, a three day trial

commenced on or about June 22, 2013. Defendant officers testified falsely at trial.
42.

On June 25, 2013, Plaintiff was acquitted of all charges against him.
December 13, 2011 Incident

43.

In the interim, on December 13, 2011, while parked in front of his family home,

Defendant Office Vivanco and Officer Williams pulled up in front of Plaintiffs vehicle and
approached on foot.
44.

Defendant Officer Vivanco pulled Plaintiff out of his vehicle and began to search

Plaintiffs person.
45.

Officer Vivanco did not have probable cause to seize Plaintiff or to search his

person.
46.

After failing to discover contraband, Defendant Officer Vivanco and Officer

Williams left without charging Plaintiff with a crime.

History Involving Tactical Response Team Members Ugarte, Vivanco, Coleman,
Williams, McCallum and Harris
47.

Defendant Officers Ugarte, Vivanco, Williams, Coleman and McCallum have a

long history of lawsuits filed against them. Each of the foregoing suits were filed against two
or more combinations of the Defendant Officers. The following information is based on data
that is in the public domain and does not include any confidential information or data that is
likely to include even more accusations against these individual officers.
7

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 8 of 17 PageID #:121

a. In case number 1:12-cv-00189, a Chicago resident alleged that on October 12,

2010, Officers Coleman, Ugarte, Vivanco and Williams broke through the
back door of Plaintiffs apartment. Plaintiff alleged that Coleman proceeded to
strike Plaintiff in the face and then handcuffed him to a chair while the other
officers watched. Plaintiff alleged counts of excessive force, false arrest,
unreasonable seizure and conspiracy among the officers. This case settled on
or about May 7, 2013.
b. In case number 1:09-cv-05237, a Chicago resident alleged that on August 14,
2009, Officers Ugarte and Vivanco pulled the Plaintiff over. After pulling
Plaintiff out of his vehicle, Officer Ugarte then evasively searched Plaintiff by
inserting his fingers in Plaintiffs anus. Plaintiff alleged that no drugs or
weapons were found as a result of the search and released the Plaintiff without
initialing charges against him. This matter is currently pending in the Northern
District.
c. In case number 1:10-cv-07094, a Chicago resident alleged that on November
3, 2008, Officers Ugarte and Vivanco, in conjunction with two other Chicago
Police Officers, arrested the Plaintiff without probable cause, created false
police reports by including false statements therein and unlawfully caused the
Plaintiff to be held in custody for three weeks. This matter was settled on or
about February 8, 2013.
d. In case number 1:10-cv-06468, a Chicago resident alleged that on August 21,
2010, Officers Ugarte, McCallum, and Williams along with three other 6th
8

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 9 of 17 PageID #:122

district officers, grabbed the Plaintiff by the back of her hair and threw the
Plaintiff to the ground with such force that she defecated in her pants. The
officers proceeded to break the Plaintiffs personal property and then arrested
the Plaintiff without probable cause. This matter was settled on or about May
18, 2011.
e. In case number 1:09-cv-07043, a Chicago resident alleged that Officers
Vivanco and Ugarte stopped and searched the Plaintiff without probable cause
and then used excessive and unjustifiable force against him. On or about June
26, 2012, this matter was settled.
f. In case number 1:09-cv-04188, a Chicago resident alleged that on April 20,
2009, Officers Vivanco and Ugarte along with several other officers falsely
arrested the Plaintiff and then searched Plaintiff by performing a cavity search
without

probable cause. Plaintiff also alleged that he was maliciously

prosecuted for a crime he did not commit. This matter was dismissed for want
of prosecution.
g. In case number 1:12-cv-03608, a Chicago resident alleged that Officers
Vivanco and Ugarte along with a fellow officer unlawfully detained the
Plaintiff and then searched his person and vehicle without probable cause.
This matter is currently pending in the Northern District of Illinois.
h. In case number 1:09-cv-02370, a Chicago resident alleged that on April 19,
2008, Officers Vivanco and Harris, along with two other officers, searched
and seized the Plaintiff without probable cause to do so. Plaintiff further
9

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 10 of 17 PageID #:123

alleged that the officers subjected Plaintiff to a vicious attack. Thereafter, the
officers unlawfully caused criminal charges to be filed against the Plaintiff.
This matter was voluntarily dismissed on October 22, 2009.
COUNT I
42 U.S.C. 1983 Unlawful Seizure / False Arrest
Against Officer Vivanco
48.

Plaintiff re-alleges and incorporates all of the allegations in the preceding

paragraphs.
49.

On December 13, 2011, Defendant Officer Vivanco knowingly searched and

seized Plaintiff without probable cause or any other justification. Such actions constitute
deliberate indifference to Plaintiffs rights under the United States Constitution, in violation
of the Fourth and Fourteenth Amendments to the United States Constitution.
50.

As a result of the unlawful seizure, Plaintiff was injured, including loss of liberty,

emotional damages, trauma, humiliation, mental distress, and anguish. .

51.

The actions of the Defendant Officer Vivanco was objectively unreasonable and

were undertaken intentionally with malice, willfulness, and reckless indifference to

Plaintiffs rights.
WHEREFORE, Plaintiff demands judgment against the Defendant Officer Vivanco for
compensatory damages, punitive damages, costs and attorneys fees, and such other and
additional relief as this Court deems equitable and just.
COUNT II
State Claim- Malicious Prosecution
Against All Defendants
10

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 11 of 17 PageID #:124

52.

Plaintiff re-alleges and incorporates all of the allegations in the preceding

paragraphs.
53.

Defendant Officers knowingly and maliciously caused the criminal charge of

possession of a controlled substance to be filed and prosecuted against the Plaintiff for the
October 11, 2010 arrest.
54.

There was no probable cause for the institution of such criminal charges.

55.

Criminal charges against the Plaintiff for the October 11, 2010 arrest were

dismissed in June, 2013.

56.

Defendants actions were objectively unreasonable and undertaken intentionally

with malice, willfulness, reckless indifference to Plaintiffs rights.

57.

Defendant City of Chicago is the employer of the Defendant Officers who

participated in the investigation and prosecution.

58.

Defendant City of Chicago is liable, under the theory of respondeat superior, for

the malicious prosecution of Plaintiff by any of its employees as such acts were committed in
the course and scope of their employment and in furtherance of their employment with the
City of Chicago.
WHEREFORE, Plaintiff demands judgment against the Defendants for compensatory
damages, punitive damages, costs, and such other and additional relief as this Court deems
equitable and just.
COUNT III
42 U.S.C. 1983 - Equal Protection Class of One

11

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 12 of 17 PageID #:125

59.

Plaintiff re-alleges and incorporates all of the allegations in the preceding

paragraphs.
60.

Defendant Officers targeted Plaintiff and then falsely arrested him, intimidated

him, knew that prosecutors would rely on their false reports, knew that Plaintiff faced felony
criminal charges and knew that charges against Plaintiff following the June 2, 2010 and
October 11, 2010 arrests were baseless.
61.

Defendant Officers continued their pattern of misconduct targeting Plaintiff by

attempting to intimidate him through unlawful searches of his vehicle and person without
probable cause on four separate occasions over the course of three years.
62.

Defendant Officers intentionally treated Plaintiff differently than others similarly

situated.
63.

There was no rational basis for the difference in treatment.

64.

Defendant Officers were motivated by illegitimate animus against the Plaintiff.

65.

WHEREFORE, Plaintiffs demand judgment against the Defendants for

compensatory damages, punitive damages, costs, and such other and additional relief that this
Court deems equitable and just.
COUNT IV
42 U.S.C. 1983 Due Process Claim
Against All Individual Defendant Officers
66.

Plaintiff re-alleges and reincorporates all previous paragraphs.

67.

Under 42 U.S.C. 1983, a person who, acting under color of state law, deprives

another person of his federal constitutional rights is liable to the injured party.
12

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 13 of 17 PageID #:126

68.

The Fourteenth Amendment to the United States Constitution, enforceable

pursuant to 42 U.S.C. 1983, provides that no state shall deprive any person of life, liberty,
or property, without due process of law. The individual Defendants conduct violated
Plaintiffs rights to due process.
69.

Beginning on September 17, 2009, through and including the eventual acquittal of

Plaintiff on June 24, 2013, Defendant Officers expressly or impliedly formed an agreement
amongst themselves to deprive Plaintiff of his constitutionally protected rights to be free
from false arrest, to have his due process rights and to have a fair trial, as guaranteed by the
United States Constitution.
70.

Plaintiff was prejudiced by the above described actions of the Defendant Officers

because disclosure of suppressed, exculpatory evidence would have affected the

prosecutions decision to take the charges against him to trial.
71.

Said suppressed, exculpatory evidence includes, but is not limited to, false reports

and false testimony, including the entirety of the arrest report and incident report from June
2, 2010 and the arrest report and incident report from October 11, 2011 further described
herein.
72.

The conduct described above has been done willfully, wantonly, and intentionally

to obstruct justice and deprive Plaintiff of due process of law.

73.

As a result of this conspiracy to deprive Plaintiff of his constitutional rights,

Plaintiff was injured, including loss of liberty, conditions of bond, physical damages, legal
fees, trauma, mental distress, and emotional damages.

13

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 14 of 17 PageID #:127

WHEREFORE, Plaintiff demands judgment against the Individual Defendant Officers,

jointly and severally, for compensatory damages, punitive damages, reasonably attorneys
fees, costs, and expenses, and such other additional relief that this Court deems equitable and
just.
COUNT V
42 U.S.C. 1983 Civil Conspiracy to Interfere with the Rights of Plaintiff
Against All Defendant Officers
74.

Plaintiff re-alleges and incorporates all of the allegations in the preceding

paragraphs.
75.

Beginning after Plaintiff filed his first complaint against Officer McCallum with

the Chicago Police Department, through and including Plaintiffs trial in June of 2013,
Defendant Officers, among themselves, expressly or impliedly formed an agreement to
falsely arrest, illegally seize, and prosecute Plaintiff based on false allegations, in violation of
his constitutional rights and deprive Plaintiff of his right to a fair trial.
76.

In furtherance of this conspiracy, Defendant Officers agreed to fabricate and

conceal material evidence, testify falsely, destroy or hide exculpatory evidence, harass and
intimidate Plaintiff.
77.

Specifically, Defendant Officers fabricated police reports and incident reports as

detailed herein, and made, sworn, false statements to fabricate probable cause.
78.

The conduct described above has been done willfully, wantonly, and intentionally

to obstruct justice by attempting to conceal the misconduct of Defendant Officers.

14

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 15 of 17 PageID #:128

79.

As a result of this conspiracy to deprive Plaintiff of his constitutional rights,

Plaintiff was injured, including loss of liberty, conditions of bond, legal fees, trauma, mental
distress, and severe emotional damages.
WHEREFORE, Plaintiff demands judgment against Defendants for compensatory
damages, punitive damages, costs, and such other and additional relief that this Court deems
equitable and just.
COUNT VI
Respondeat Superior Liability Against the City of Chicago
for State Law Claims Against Individual Officers
80.

Plaintiff re-alleges and incorporates all previous paragraphs.

81.

Defendant City of Chicago is the employer of Defendant Officers.

82.

Defendant City of Chicago is liable for its employees actions committed while in

the scope of their employment as duly appointed police officers under the doctrine of
respondeat superior.
83.

The acts of Defendant Officers described in the state law claims specified above

were willful and wanton and committed in the scope of their employment as employees of
the Defendant City of Chicago.
84.

As a proximate cause of Defendant Officers unlawful acts, which occurred

within the scope of their employment activities, Plaintiff was injured.

WHEREFORE, Plaintiff demands judgment against Defendant City of Chicago for
compensatory damages, costs, and such other and additional relief that this Court deems
equitable and just.
15

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 16 of 17 PageID #:129

COUNT VII
State Indemnity Claim - 745 ILCS 10/9-102
85.

Plaintiff re-alleges and incorporates all of the allegations in the preceding

paragraphs.
86.

In committing the acts alleged, the Defendant Officers were members and agents

of the Chicago Police Department, acting at all relevant times within the scope of their
employment.
87.

Defendant City of Chicago is the employer of the Defendant Officers.

88.

In Illinois, public entities are directed to pay for any tort judgment for

compensatory damages for which employees are liable within the scope of their employment
activities. 745 ILCS 10/9-102.
89.

As a proximate cause of Defendant Officers unlawful acts, which occurred

within the scope of their employment activities, Plaintiff suffered physical and emotional
injuries.
WHEREFORE, Plaintiff Jennings, demands judgment against the Defendants jointly and
severally, for compensatory damages, punitive damages, costs, and attorneys fees, lost
wages, medical expenses, and such other and additional relief as this court deems equitable
and just.
PLAINTIFF DEMANDS TRIAL BY JURY.
Respectfully submitted,
JOHN JENNINGS
By One of HIS Attorneys:
16

Case: 1:13-cv-08811 Document #: 30 Filed: 04/18/14 Page 17 of 17 PageID #:130

s/Abby D. Bakos
Abby D. Bakos
One of the Attorneys for Plaintiff
Abby D. Bakos
Shiller Preyar Law Offices
1100 W. Cermak Rd., Suite B401
Chicago, Illinois 60608
312-226-4590

17