Hobbs v. Cappelluti (899 F. Supp. 2d 738, 2012)

OPINION AND ORDER

JOAN HUMPHREY LEFKOW, District Judge.

On May 9, 2005, plaintiff Jerry Hobbs realized every parent’s worst nightmare when he discovered the bodies of his young daughter, Laura, and her friend, Krystal Tobias, in the park by their house. Laura had been sexually assaulted and both girls had been brutally murdered. Hobbs’s nightmare did not end there, however. Police quickly identified him as a suspect and, after interrogating him for 24 hours, coerced him into falsely confessing. This confession was then used to detain him on murder charges for over five years until he was exonerated by DNA evidence and eventually released.

Shortly thereafter, Hobbs filed the present action under 42 U.S.C. §§ 1983 and 1985 against the police officers who investigated and interrogated him (defendants Domenic Cappelluti, Charles Schletz, William Valko, Kevin Harris and Andrew Jones, (collectively “defendant officers”)), the municipalities that employed them (the Cities of Waukegan and Zion and the Village of Vernon Hills), the state’s attorneys who prosecuted him (Lake County State’s Attorney Michael Waller and Assistant Lake County State’s Attorney’s Jeff Pavletic and Michael Mermel (collectively “defendant prosecutors,” collectively with defendant officers “defendants”)), and the county that employed them (Lake County) (collectively with Waukegan, Zion and Vernon Hills “municipal defendants”). In his third amended complaint, Hobbs alleges multiple claims of police and prosecutorial misconduct under both state and federal law. (Dkt. # 94.) Presently before the court are motions to dismiss by defendant officers (dkt. # 98 # 106), defendant prosecutors (dkt. # 100) and municipal defendants (dkt. # 103, # 106, # 107, # 109, # 111). For the reasons set forth herein, these motions will be granted in part and denied in part.

BACKGROUND

On Sunday, May 8, 2005, eight-year-old Laura Hobbs went missing. At the time, her father Jerry Hobbs (“Hobbs”) was living in Zion, Illinois with Laura’s mother, Sheila, and their children Jerry, Jr. (age 10), Laura (age 8), and Jeremy (age 6), and Meagan (age 13) (Sheila’s child from a previous relationship). Laura had gone outside to play and was supposed to return by dark. When she did not, Hobbs and several family members began searching for her. -They soon learned that Laura’s friend, Krystal (age 9), was also missing. Not finding Laura that night, Hobbs continued the search the next morning with the help of his family and the police.

The next day Hobbs resumed his search in nearby Beulah Park where children often played. There, in a grassy, open area, Hobbs discovered the bodies of Laura and Krystal. Both were lying face up about two or three feet apart. Laura had been stabbed twenty times, including in both eyes; Krystal had been stabbed eleven. Four years later, DNA evidence would reveal that Laura had also been sexually assaulted, although this fact was unknown to Hobbs at the time.

Interrogation

The murder investigation was handled by the Lake County Major Crimes Task Force (the “task force”), which included officers from the Cities of Waukegan and Zion, the Village of Vernon Hills and members of the Lake County State’s Attorney’s Office. Defendant officers and defendant prosecutors were all members of the task force. Shortly after discovering the bodies, Hobbs was taken to the Waukegan Police Department and was placed in a small, windowless room with no clock. Over the next 24 hours, he was interrogated approximately ten times. He was never told that he was under arrest or that he was free to leave. Defendant officers proceeded on the theory that Hobbs lost his temper when disciplining Laura and, as a result, murdered both her and Krystal. During his interrogation, Hobbs alleges that defendant officers took the following actions:

• Schletz and Harris entered the room and Schletz told Hobbs to sign a form that he described as “nothing really ... [it] just said [that Hobbs] was agreeing to let [the officers] ask [him] questions.” Hobbs signed the form, a Miranda waiver, without reading it, and Schletz did not read it to him.

• Officers Schletz began to interrogate Hobbs about the crime, reviewing each gruesome fact in detail. Schletz forced Hobbs to view pictures of the girls’ mutilated bodies. When Hobbs refused Schletz grabbed his head and knocked him to the floor. Schletz taunted Hobbs, making obscene suggestions like “How did their neck feel when you cut it?” Schletz and Harris told Hobbs that his alibi of being at home could not be verified and Schletz sad that physical evidence linked him to the crime.

• Hobbs repeatedly asked for a lawyer but his requests were ignored. Hobbs became so exhausted that each time the officers left the room, he tried to rest by lying on the floor. Schletz and Harris told Hobbs he could go home if he passed a voice stress analysis test, which they falsely said could determine whether Hobbs was lying. After completing the test four times, Hobbs was falsely informed that he had failed and that the tests conclusively showed he was lying. Schletz then suggested that Hobbs grab his gun so Schletz would have a justification for killing him.

• Cappelluti said that the fact that Hobbs discovered the bodies was “like winning the lottery,” accusing Hobbs of committing the murders because he had found the victims. Cappelluti asked Hobbs if he believed in God and the two men prayed together for Laura. Hobbs cried. Cappelluti lied and said that there was an eyewitness who placed Hobbs at the crime scene.

• Schletz and Harris took Hobbs into a large room with a camera and told him that a light test would reveal evidence on his person. Officer Valko, the direct supervisor of Schletz, Harris and Cappellutti, was also present. The lights were turned out and shined on Hobbs’s clothes revealing a mark on his pant leg. Hobbs responded that he had wiped his nose there when he was crying. Schletz and Harris then made Hobbs remove his clothes and put on a see-through paper suit, which he was forced to wear for part of his interrogation. The officers took Hobbs’s clothes, telling him that a special camera would reveal evidence on his clothing that showed he was guilty.

• Back in the interrogation room, Hobbs was told that his family had not inquired about him, and that “everybody [the police] talked to, including [Hobbs’s] family, thinks [he] did it.” Cappelluti told Hobbs that there was an officer just outside the room who was not happy about what happened to the girls and whom Hobbs would not want to come into the room. When Hobbs again refused to confess, Cappellutti and Schletz left the room and Cappellutti said, “I warned you.”

• Officer Jones, an extremely large man, entered the room alone and began interrogating Hobbs. When Hobbs again denied committing the crime, Jones punched him in the side of his head, slamming his head into the wall. Jones threatened that if Hobbs responded to being hit, that Jones would kill him and make up a story that Hobbs had tried to seize his gun. As Jones turned to leave he threatened, “Don’t make me have to come back in here.” Officer Valko was present during Hobbs’s interrogation and approved these tactics and others used by Schletz, Harris, Cappelluti and Jones.

• After officer Jones left, Schletz and Cappelluti resumed the interrogation and demanded that Hobbs confess. Hobbs replied that they did not want to hear the truth that he did not commit the crimes, to which Schletz replied, “Well then tell us some lies Jerry.”

At this point, Hobbs had been in custody for at least 24 hours and had not slept in the last 48 hours. He had no idea what time it was, whether it was day or night, and he had not been allowed to leave the police station or to speak with a lawyer. He had been stripped of his clothes and forced to sit almost naked as defendant officers forced him to examine gruesome photographs of his daughter and her friend, accusing him of their murders. He had been physically assaulted and threatened with additional violence, all after enduring the most traumatic event of his life, discovering his daughter’s mutilated body. His will was finally overborne.

Confession

Hobbs told defendant officers he would confess and that they should take him to a judge, thinking that a judge would see that his confession was forced. Schletz and Cappelluti devised a story that Hobbs went looking for the girls, trying to get Laura to come home, and when he found them Krystal attacked him, causing him to lose control and kill them both. Schletz asked Hobbs about the knife and Hobbs replied that Krystal had attacked him with a potato peeler, thinking a judge would realize that a potato peeler could not have inflicted those types of wounds on the girls.

Jones then reentered the room, sitting close to Hobbs to physically intimidate him. Schletz demanded that Hobbs write the confession on paper. When Hobbs refused, Schletz said he would type it. Cappellutti told Hobbs to write an apology to his and Krystals’ families but Hobbs refused. Cappellutti then threatened to have Jones and Schletz return. Schletz and Jones entered the room, and Scheltz put the statement he had typed in front of Hobbs, ordering him to sign it. Feeling intimidated by the threat of physical violence from Jones, Hobbs signed the paper.

After signing the confession, Hobbs was given a county jail uniform to wear instead of the paper suit. Schletz and Harris escorted Hobbs to a car, which transported him and several officers to Beulah Park. Schletz and Harris told Hobbs to show them where the knife was, and Hobbs walked down the trail to show them where he found the girls. The officers again insisted Hobbs show them where the knife was and Hobbs said that there was no knife and he did not kill the girls. Jones then took Hobbs back to the car and began punching him in the side.

At 8:40 a.m. on May 10> 2005, defendant prosecutors Waller and Pavletic met with members of the task force to review the facts of the case and received all the details of Hobbs’s interrogation. Defendant officers told Waller and Pavletic they did not have any notes, audiotape or videotape of Hobbs’s confession. Waller and Pavletic needed to obtain evidence that the confession was voluntary, and they knew that the written confession had been coerced. Over the next few hours they coached and prepared defendant officers to obtain a video confession from Hobbs by threatening to charge Sheila, the mother of his children.

Defendant officers then brought Hobbs into a larger room where he was placed in front of a camera and ordered to read his confession. When Hobbs refused, Jones punched him in the head. Jones told Harris to go get Sheila because they were going to charge her as well. Hobbs agreed to read the statement, fearing that Sheila would be arrested if he did not.

In the first videotape, Hobbs called the typed statement a “bunch of lies.” This video was reset to erase Hobbs’s comment. Hobbs then read the statement a second time. After completing the video, Hobbs again told Schletz that the confession was “lies.” Schletz responded that Hobbs would surely receive the death penalty. Waller and Pavletic watched and listened to both videotaped statements and knew that Hobbs had been threatened and punched in the first videotape. Defendant prosecutors did not disclose the existence of the first videotape to Hobbs’s counsel during his prosecution.

Hobbs was arrested at 4:30 p.m. on May 10, 2005 after reading his videotaped confession. Hobbs was read his Miranda rights only after giving his false confessions. Defendant officers worked individually and together to prepare false reports, stating that Hobbs’s confession was voluntary. They destroyed notes from their investigation and interrogation of Hobbs. A few hours after the videotaping, a jail guard overheard a conversation between Schletz and Hobbs where Hobbs denied killing the girls and told Schletz that he did not know the location of the knife. The guard later wrote a report stating that Hobbs “said that officers told him to lie so he lied to them about what had taken place.”

Criminal Proceedings

Hobbs was charged with the murders of Laura and Krystal. A bond hearing took place on May 11, 2005. Based on his confession, Hobbs was denied bond and detained in Lake County Jail. Defendant Waller notified the state of his intent to seek the death penalty. No other evidence except Hobbs’s confession implicated him in the crime.

During his incarceration, Hobbs was kept in isolation. He was never given a cell mate or permitted to interact with other inmates. An internal jail memo dated May 18, 2005, instructed officers to keep Hobbs in isolation due to the high profile nature of his case and the desire to keep him away from lawyers. Hobbs was also prevented from accessing the law library and other legal material relevant to his case. Additionally, as a result of his incarceration, Hobbs was unable to attend his daughter’s funeral and was not listed in her obituary. He later learned, however, that the real killer had been allowed to attend.

Motion to Suppress

In late August 2006, the court held a hearing on Hobbs’s motion to suppress his confession. Officers Schletz, Harris, and Cappelluti all testified that the confession was voluntary and that Hobbs never requested a lawyer. Hobbs was too afraid and intimidated by Jones’s threat to kill him during the interrogation that he did not testify at his suppression hearing. Hobbs’s lawyer, Keith Grant, was also intimidated by Assistant State’s Attorney Mermel, and advised Hobbs that it was unsafe for him to testify.

DNA Evidence

During the autopsies of Laura and Krystal, the medical examiner took vaginal, rectal and oral swabs to preserve potential DNA evidence. These swabs were tested at the Northeastern Illinois Regional Crime Laboratory, which took direction from the Lake County State’s Attorney’s Office and defendant officers. The lab technicians were told which, if any, tests to perform for the purpose of corroboration and which tests not to perform. Hobbs’s defense requested to have its own forensic expert present for the testing, and the prosecution made misrepresentations to the court, stating that the lab would have to shut down and no other tests could occur because of confidentiality and contamination concerns. The Lake County State’s Attorney’s Office directed the lab not to speak with Hobbs’s lawyer, and significantly, defendants did not request any DNA testing on the vaginal, oral and rectal swabs. The only examination done by the lab was a microscopic one, which failed to reveal the presence of spermatozoa.

At some point during Hobbs’s detention and upon a motion from his lawyer, the court ordered that the swabs taken from Laura and Krystal be delivered to the Serological Research Institute (SERI) for forensic testing. On August 29, 2007, SERI reported that there were spermatozoa and semen on the vaginal, rectal and oral swabs taken from Laura and spermatozoa on the skirt she was wearing at the time of the murder. There was also biological material from an unknown male on swabs taken from Laura’s hands. Hobbs was excluded as the source of the semen, spermatozoa, and biological material and a single male was determined to be the source of all of the material.

Motion for Review of Bond

On November 12, 2008, Hobbs’s attorneys moved for a review of his bond on the basis of the DNA findings. The court conducted a hearing on December 2, 2008, but the court denied the motion. Mermel falsely told the court that the DNA evidence showed “one errant sperm which is impossible to deposit by the offender.” He also stated that the biological material “doesn’t have the underlying P30 base substrate that would be left with an offender, a killer, leaving his sperm on her.” This was false; all of the swabs tested positive for the P30 substrate, which is found in seminal fluid. In addition, Mermel stated to the Chicago Tribune that “none of the sperm they found was in [a] significant place,” and at one point said that the semen found inside Laura and on her clothes was the result of her playing around the crime scene, a place where couples go to have sex. At no time did defendant officers take any steps to reveal that Hobbs’s confession, the sole evidence of his guilt, was false. Defendant prosecutors refused to dismiss the charges against Hobbs even though there was no physical evidence linking him to the murders. Despite the fact that the DNA evidence implicated another, Hobbs remained in custody for three more years.

Hobbs’s Release

On June 24, 2010, a search of the national offender databases revealed a match between the DNA profile found on Laura and the DNA profile of Jorge Torrez, a former resident of Zion and a friend of Krystal’s brother. Torrez’s profile was on the national offender database because he had been arrested and charged with various sexual offenses in the Commonwealth of Virginia. Based on this match, on August 4, 2010, the Lake County State’s Attorney’s office nolle prosequi the charges against Hobbs and he was released after spending 1,912 days in jail.

After Hobbs’s release, Lake County State’s Attorney Waller told the press that “he was not convinced that Hobbs didn’t have a role in the killings” but that “he didn’t believe that the case could be proved beyond a reasonable doubt.” He stated that Hobbs had previously taken police to Beulah Park where he “threw the murder weapon” and stated that there could have been sexual contact beforehand, raising doubt as the exonerating power of the DNA evidence. Finally, he stated he had studied the case and “[he didn’t] believe that law enforcement did anything wrong.” Eight months after the termination of Hobbs’s prosecution, Mermel told a national news organization that the evidence demonstrated that “Hobbs did it” and the sperm got on Laura “some other way.”

On December 1, 2010, Hobbs filed the present lawsuit, alleging the following federal claims against defendant officers and defendant prosecutors: coerced confession in violation of the Fourteenth Amendment (procedural due process) (Count I); coerced confession in violation of the Fourteenth Amendment (substantive due process) (against defendant officers only) (Count II); coerced confession and violation of Miranda and in violation of the Fifth and Fourteenth Amendments (Count III); failure to intervene (Count IV); conspiracy (Count V); and denial of access to the courts (Count X). He also alleges the following state law claims against defendant officers and defendant prosecutors: malicious prosecution (Count XI); intentional infliction of emotional distress (Count XII); conspiracy (Count XIII); defamation (against Mermel only) (Count XIV); and false light (against Waller only) (Count XV). Finally, Hobbs brings a state law claim for indemnification (Count XVI) against municipal defendants.

LEGAL STANDARD

I. Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss under Rule 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997). In reviewing a Rule 12(b)(6) motion, the court takes as true all facts in the complaint and draws all reasonable inferences in favor of the plaintiff. Dixon v. Page, 291 F.3d 485, 486-87 (7th Cir.2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of the claim’s basis but must also establish that the requested relief is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations in the complaint must be “enough to raise a right of relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. At the same time, the plaintiff need not plead legal theories. Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 742-43 (7th Cir.2010), cert. denied — U.S.-, 131 S.Ct. 1603, 179 L.Ed.2d 500 (2011). Rather, it is the facts that count.

II. 42 U.S.C. § 1983

To state a claim under § 1983, a plaintiff must allege that he or she was deprived of a federal right, privilege, or immunity by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The Fourteenth Amendment states that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law,” U.S. CONST, amend. XIV, § 1, and is the source of three distinct constitutional protections.

“First, the Clause incorporates many of the specific protections defined in the Bill of Rights. A plaintiff may bring suit under § 1983 for state officials’ violation of his rights to, e.g., freedom of speech or freedom from unreasonable searches and seizures. Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government action regardless of the fairness of the procedures used to implement them.... [Third,] [a] § 1983 action may be brought for a violation of procedural due process, but ... [i]n procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.”

Colon v. Schneider, 899 F.2d 660, 666 (7th Cir.1990) (internal quotation marks, citations and emphasis omitted).

The Fifth Amendment, made applicable to the states by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), requires that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. “The thrust of the Constitutional privilege against self-incrimination has two interrelated objectives, ‘[t]he Government may not use compulsion to elicit self-incriminating statements, and the Government may not permit use in a criminal [proceeding] of self-incriminating statements elicited by compulsion.’ ” Napolitano v. Ward, 457 F.2d 279, 282-83 (7th Cir.1972) (quoting Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 57 n. 6, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)); see Chavez v. Martinez, 538 U.S. 760, 766, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). Failure to give the warnings established by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), during a custodial interrogation constitutes a Fifth Amendment violation if the unwarned statement is introduced into evidence in pretrial or trial proceedings. See Chavez, 538 U.S. at 766, 123 S.Ct. 1994; Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1026-27 (7th Cir.2006).

A civil conspiracy claim may also serve as a source of § 1983 liability provided the plaintiff can show that “he was deprived of a right secured by the Constitution or laws of the United States and that the deprivation was caused by a person acting under color of state law.” Kelley v. Myler, 149 F.3d 641, 648 (7th Cir. 1998). The conspiracy itself is not an independent basis of § 1983 liability; there must be an underlying constitutional injury or the attendant conspiracy claim necessarily fails. See Hill v. City of Chicago, No. 06 C 6772, 2009 WL 174994, at *9 (N.D.Ill. Jan. 26, 2009). “To be liable as a conspirator [a defendant] must be a voluntary participant in a common venture ... [and] it is enough if [the defendant] understand[s] the general objectives of the scheme, accept[s] them, and agree[s], either explicitly or implicitly, to do [his] part to further them.” Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.1988).

Finally, in some circumstances, a state actor’s failure to intervene in a violation of an another’s constitutional rights can serve as a basis for § 1983 liability. See Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.2005) (“In order for there to be a failure to intervene, it logically follows that there must exist an underlying constitutional violation.”). A plaintiff may state a claim for failure to intervene by showing that “any constitutional violation has been committed by a law enforcement official; and the [defendant] had a realistic opportunity to intervene to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.1994) (emphasis omitted).

ANALYSIS

Defendants seek to dismiss all of the counts in the third amended complaint arguing that Counts I through V and XII are barred by the statute of limitations; Count I is duplicative of Count III; Count II is precluded by other state law remedies; defendant officers have qualified immunity on Count III; defendant prosecutors have absolute immunity on Counts I, III through V, X through XIII and XIV; defendant prosecutors have Eleventh Amendment immunity on Counts XI through XV; absolute executive privilege precludes liability on Count XV; and Counts I, II through V, X, XIII, XV, and XVI fail to state a claim upon which relief may be granted.

I. Whether Counts II through V are Timely

Defendants have moved to dismiss Counts II through V arguing, inter alia, that they are barred by the statute of limitations. The statute of limitations is an affirmative defense that need not be anticipated in the complaint to survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005). A plaintiff may, however, “plead [himself] out of court by pleading facts that establish an impenetrable defense to [his] claims.” Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir.2008). Where “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense” the court may dismiss a claim in a Rule 12(b)(6) motion if the claim is precluded by a statute of limitations defense. Lewis, 411 F.3d at 842; see Brooks v. Ross, 578 F.3d 574, 579 (7th Cir.2009) (granting motion to dismiss based on statute of limitations defense where the relevant dates were set forth unambiguously in the complaint). “Unless the complaint alleges facts that create an ironclad defense,” however, “a limitations argument must await factual development” of the record. Foss v. Bear, Stearns & Co., 394 F.3d 540, 542 (7th Cir.2005).

Section 1983 does not contain an express statute of limitations and to determine the limitations period the court looks to the forum state’s statute of limitations for personal injury claims, which is two years. See Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (Wallace II), aff'g Wallace v. City of Chicago, 440 F.3d 421 (7th Cir.2006) (Wallace I); 735 Ill. Comp. Stat. 5/13-202. Although state law governs the statute of limitations, federal law controls when the claim accrues. See Wallace II, 549 U.S. at 388, 127 S.Ct. 1091; Gonzalez v. Entress, 133 F.3d 551, 554 (7th Cir.1998). Accrual marks the date on which the statute of limitations begins to run. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.1990). The court applies a two-part test to determine the accrual date of a § 1983 claim. Hileman v. Maze, 367 F.3d 694, 696 (7th Cir.2004). “First, a court must identify the [constitutional] injury ... [and second], it must determine the date on which the plaintiff could have sued for that injury.” Id. A § 1983 claim accrues under federal law “when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief.” Wallace II, 549 U.S. at 388, 127 S.Ct. 1091 (internal quotation marks and citation omitted); see Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir.1993) (section 1983 claims “accrue when the plaintiff knows or should know that his or her constitutional rights have been violated”).

A. Deferred Accrual under Heck

Defendants argue that Hobbs’s federal claims arose out of his coerced confession and therefore accrued when his confession was obtained, not when the charges against him were dismissed. The question of whether Hobbs’s federal claims are timely turns on whether Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) is controlling. In Heck, the United States Supreme Court held that a § 1983 plaintiff may not bring a claim that implies the invalidity of his criminal conviction, unless that conviction has been set aside by the court. Id. at 486-87, 114 S.Ct. 2364; see Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir.2008). In Heck, the Court considered whether a state prisoner could challenge the constitutionality of his conviction in a suit for damages under § 1983. The plaintiff was convicted in state court of voluntary manslaughter for killing his wife. While his state appeal was pending, he filed a § 1983 lawsuit against those involved in his arrest and prosecution alleging various constitutional violations. His state conviction was subsequently upheld, and the Seventh Circuit affirmed the dismissal of his § 1983 claims. Heck v. Humphrey, 997 F.2d 355, 359 (7th Cir.1993). The Supreme Court affirmed. Heck, 512 U.S. at 490, 114 S.Ct. 2364. The Court analogized the plaintiffs § 1983 claims to a state law claim for malicious prosecution. Id. at 484, 114 S.Ct. 2364. One element of a malicious prosecution claim is that the underlying criminal action be terminated in the accused’s favor; an element that Heck had not met. This led the Court to conclude that “when [a plaintiff] seeks damages in a § 1983 suit” and “judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ... the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487, 114 S.Ct. 2364.

In Wallace II, the Court declined to apply its holding in Heck to a Fourth Amendment claim for false arrest, concluding that where an arrest is followed by a criminal proceeding, the statute of limitations commences when the petitioner appears before the examining magistrate and is bound over for trial, not when his conviction is invalidated. 549 U.S. at 391, 127 S.Ct. 1091. In Wallace II, the Court noted that a claim for false imprisonment, which it analogized to a claim for false arrest, begins to run when “when the alleged false imprisonment ends,” i.e., when the prisoner is bound over by a magistrate or arraigned on charges. Id. at 389, 127 S.Ct. 1091. A malicious prosecution claim, on the other hand, begins to run when the criminal proceeding is terminated in favor of the accused. See Heck, 512 U.S. at 489, 114 S.Ct. 2364. Noting this difference, the Court stated that

the Heck rule for deferred accrual is called into play only when there exists a conviction or sentence that has not been invalidated, that is to say, an outstanding criminal judgment. It delays what would otherwise be the accrual date of a tort action until the setting aside of an extant conviction which success in that tort action would impugn.

Wallace II, 549 U.S. at 393, 127 S.Ct. 1091 (internal quotation marks omitted, emphasis in original). The Court held that Heck would not apply to Wallace’s Fourth Amendment claim because “there was in existence no criminal conviction that the cause of action would impugn.” Id.

B. Count II

In Count II Hobbs alleges that defendant officers violated his substantive due process rights by using force and physical violence to coerce him into confessing to the crime in a manner that is “shocking to the conscience.” (3d Am. Compl. ¶¶ 199-201.) This claim accrued at the time of the alleged violation and is unaffected by Heck. In Hudson v. Cassidy, No. 05 C 5623, 2006 WL 3524420, at **6-7 (N.D.Ill. Dec. 5, 2006), the court held that a substantive due process claim, which alleged that the police obtained a false confession from the plaintiff through physical and psychological force, accrued on the date that the force was applied. Finding that there was “nothing in Wallace [I] that creates a different test for the accrual of substantive due process claims than that used for other constitutional violations,” the court declined to apply Heck and dismissed the plaintiffs claim as untimely. Id. at *7. Here, the constitutional injury for which Hobbs complains is the use of force and violence to coerce him into confessing. As in Hudson, Hobbs had a complete claim for this injury on the day the force was applied. Hobbs cites no authority to the contrary, and Count II must be dismissed unless it is tolled as discussed in Part II, infra.

C. Counts III, IV and V

In Count III Hobbs alleges that defendants forced him to incriminate himself against his will by using his coerced confession against him in court on three occasions: first, at his bond hearing on May 11, 2005; second, at the hearing on his motion to suppress in August 2006; and third, at his hearing on his motion for review of bond on December 2, 2008. Hobbs admits that the first two instances fall outside the statute of limitations but argues that Count III is a continuing violation that did not accrue until he was released on August 4, 2010. Alternatively, Hobbs argues that the use of his coerced confession was a series of discrete acts, each independently actionable, and that the present lawsuit was filed within two years of the last courtroom use of his confession on December 2, 2008.

Unlike many plaintiffs who bring Fifth Amendment claims, Hobbs’s situation is unique because his confession was used to detain him but was never used against him at trial. In similar extended detention cases, judges in this district have held that Heck does not apply to delay the accrual of the plaintiffs Fifth Amendment claim. See, e.g., Williams v. City of Chicago, No. 10-cv-2423, 2011 WL 2637238, at *2 (N.D.Ill. July 6, 2011) (“Fifth Amendment violations arising from coerced confessions begin to accrue on the date that the coerced confession was first used in a courtroom proceeding.”) (emphasis in original); Lanza v. City of Chicago, No. 08 C 5103, 2009 WL 1543680, at *3 (N.D.Ill. June 2, 2009) (“Lanza learned of the coerced confession at his 2001 probable cause hearing and moved to have it suppressed at a hearing in 2002. Therefore, Lanza had a complete cause of action in either 2001 or 2002 and knew or reasonably should have known of the use of the confession against him at that time.”); Hudson, 2006 WL 3524420, at *7 (“Plaintiff was on notice as early as January 2000, when the suppression hearing commenced, that the State sought to use the confession ... against him in the criminal proceeding. Thus, any fifth amendment claim resulting from an attempt to use that confession accrued as early as January 2000.”).

Hobbs acknowledges this authority but argues that the continuing violation doctrine applies to his claim. “The continuing violation doctrine allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period. For purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period.” Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992). A violation is considered “continuing” if “it would be unreasonable to require or even permit [a plaintiff] to sue separately over every incident of the defendant’s unlawful conduct.” Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir.2001) (holding that an Eighth Amendment deliberate indifference claim accrued not when the prisoner was denied medical care but when he was released from jail, finding that “[t]he injuries about which the plaintiff is complaining ... are the consequence of a numerous and continuous series of events”).

Hobbs argues that his coerced confession was used against him every day for five years to sustain the murder charges against him and to prolong his incarceration. The Lanza court considered a similar argument and rejected it, finding Heard distinguishable. Lanza, 2009 WL 1543680, at *4.

First, Heard was a deliberate indifference claim under the Eighth Amendment and did not involve the Fifth Amendment. Second, Heard’s claim was based on repeated denial of medical attention while in prison, which is different from the discrete use of an alleged coerced confession at issue in Lanza’s case. Third, courts have not extended the [continuing violation] doctrine to include Fifth Amendment claims.

Id. (internal citations and parenthetical explanations omitted). Hobbs’s confession was used against him in court on three discrete occasions. Although he may have experienced ongoing harm as a result of these uses, his injuries were not “the consequence of a numerous and continuous series of events.” Heard, 253 F.3d at 319. The reasoning in Lanza is persuasive. See Williams, 2011 WL 2637238, at *5 (distinguishing Heard and declining to apply the continuing violation doctrine to plaintiffs Fifth Amendment coerced confession claim).

In the alternative, Hobbs argues that each courtroom use of his coerced confession was its own distinct constitutional violation subject to its own accrual date. In Williams the plaintiff argued that the last courtroom use of his coerced confession marked the accrual date for all prior uses of the same. Id. at * 1. The court rejected this theory and held that Williams’s Fifth Amendment claim accrued on the first date his confession was used against him in court. Id. at *2. Hobbs picks up where Williams left off, arguing that the last courtroom use of his coerced confession, during the hearing on his motion for review of bond, is its own discrete violation. Under this theory, Hobbs would only be able to recover for the harm arising from this last in-court use. There is some legal support for Hobbs’s position. See Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 902 (7th Cir.2004) (“The period of limitations for antitrust litigation runs from the most recent injury caused by the defendants’ activities rather than from the violation’s inception.... Each discrete act with fresh adverse consequences starts its own period of limitations.”) (internal citations omitted); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“Each discrete discriminatory act starts a new clock for filing charges alleging that act” under Title VII.); Davis v. Wells Fargo Bank, No. 07 C 2881, 2008 WL 1775481, at *4 (N.D.Ill. April 17, 2008) (declining to apply the continuing violation doctrine but holding that “to the extent that ... allegations [of discrete acts] fit within the claim-specific statutes of limitations, [the plaintiff] may use them to state her claims”); see also Diaz v. Shallbetter, 984 F.2d 850, 855 (7th Cir.1993) (“[E]very constitutional tort actionable under § 1983 is treated as a personal injury, with the claim accruing when the injury is inflicted.”) (emphasis omitted). Hobbs argues that he did not know until December 2, 2008 that defendants would use his coerced confession to defeat his motion for review of bond, which is the day the in-court hearing on his motion was held. As such, argues Hobbs, a new statute of limitations began to run on this date.

The court will allow Hobbs some leeway to develop this theory. “[B]ecause the period of limitations is an affirmative defense, it is rarely a good reason to dismiss under Rule 12(b)(6).” Reiser v. Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir.2004). Given the aforementioned legal authority, defendants’ position on this issue cannot be fairly characterized as “ironclad.” Foss, 394 F.3d at 542. As such, the court declines to foreclose relief at this stage in the proceedings and defendants’ motion to dismiss as to the last courtroom use of Hobbs’s confession (December 2, 2010) is denied. The first two uses of Hobbs’s confession (May 11, 2005 and August 2006), however, are time barred unless tolled as discussed in Part II, infra. Moreover, because at least one of Hobbs’s constitutional claims remains viable, and defendants fail to challenge Counts IV and V (conspiracy and failure to intervene) on other grounds, defendants’ motion to dismiss as to these two counts is also denied. See Tillman v. Burge, 813 F.Supp.2d 946, 990 (N.D.Ill.2011); Gordon v. Devine, No. 08 C 377, 2008 WL 4594354, at *6 (N.D.Ill. Oct. 14, 2008).

II. Tolling of Hobbs’s Federal Claims

For those claims that accrued before Hobbs filed his lawsuit, Hobbs argues that defendants’ conduct equitably estops them from asserting the statute of limitations as a defense. In addition, Hobbs alleges that a change in the law tolled his claims. Federal law applies to Hobbs’s equitable estoppel claim and state law applies to his equitable tolling claim. See Smith v. City of Chicago Heights, 951 F.2d 834, 840-41 (7th Cir.1992).

A. Equitable Estoppel

“Equitable estoppel prevents a party from asserting the expiration of the statute of limitations as a defense when that party’s improper conduct has induced the other into failing to file within the statutory period.” Ashafa v. City of Chicago, 146 F.3d 459, 462 (7th Cir.1998). Federal estoppel law “focuses on whether the defendant acted affirmatively to stop or delay the plaintiff from bringing suit within the limitations period” id. (quoting Smith, 951 F.2d at 841) (emphasis in original), and “comes into play if the defendant takes active steps to prevent the plaintiff from suing in time.” Cada, 920 F.2d at 451. To invoke equitable estoppel, “a plaintiff must show not only misconduct by the defendants, but also that he actually and reasonably relied on the misconduct.” Ashafa, 146 F.3d at 463. Once the circumstance giving rise to the estoppel is removed the plaintiff must file suit. See Shropshear v. Corp. Counsel of City of Chicago, 275 F.3d 593, 597-98 (7th Cir. 2001).

Hobbs argues that defendants’ deliberate and blameworthy conduct, namely their use of force and threats of violence, equitably estops them from asserting a statute of limitations defense. Specifically, Hobbs alleges that defendants threatened and battered him during his interrogation and that defendant Mermel intimidated him during the hearing on his motion to suppress. {See PL’s Officer Resp. at 7-8.) For equitable estoppel to apply, Hobbs must allege “efforts by ... the defendant[s]-above and beyond the wrongdoing upon which [his] claim[s] [are] founded-to prevent [him] from suing in time.” Cada, 920 F.2d at 451; see Smith, 951 F.2d at 841. In Cook v. City of Chicago, No. 06 C 5930, 2008 WL 1883437, at *1 (N.D.Ill. April 25, 2008), the case upon which Hobbs relies, the plaintiff met this test. Cook alleged that police officers illegally entered his home and beat and threatened him in front of his family. Id. When he reported the incident to the Chicago Police Department, an investigator told him that if he pursued his complaint the police would plant drugs on him and cause him to lose his job. Id. Cook delayed filing his § 1983 claims until after the offending officers were arrested on unrelated grounds. The court concluded that the investigator’s threats qualified as blameworthy conduct and, as a result, the officers were' estopped from arguing a statute of limitations defense. Id. at *2.

Unlike the plaintiff - in Cook, Hobbs fails to allege that defendants took affirmative steps “above and beyond” those that support his claims to prevent him from filing the instant lawsuit. See Ramirez v. City of Chicago, No. 08 C 5119, 2009 WL 1904416, at *5 (N.D.Ill. July 1, 2009) (finding that “a general fear of police reprisal” is not enough for equitable estoppel to apply); Reyes v. City of Chicago, 585 F.Supp.2d 1010, 1015 (N.D.Ill.2008) (distinguishing Cook and dismissing claims as time barred where “there [were] no allegations describing any steps taken by defendants after the initial incident that prevented plaintiffs from filing a -lawsuit”). For this reason, defendants’ conduct during Hobbs’s interrogation and criminal proceedings does not estop them from pleading the statute of limitations as an affirmative defense.

B. Equitable Tolling

Next, Hobbs argues that the doctrines of equitable estoppel and equitable tolling combine to make his claims timely because the change in law occasioned by Wallace II equitably tolled his claims until February 21, 2007, and thereafter defendants actively prevented him from learning of the change in the law. “Equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if despite the exercise of all due diligence he is unable to obtain vital information bearing on the existence of his claim.” Shropshear, 275 F.3d at 595. Illinois law controls the availability of equitable tolling in this case. Smith, 951 F.2d at 842. The Seventh Circuit has stated that equitable tolling “permits a plaintiff to sue after the statute of limitations has expired if through no fault or lack of diligence on his part he was unable to sue before, even though the defendant took no active steps to prevent him from suing.” Singletary v. Cont’l Ill. Nat’l Bank & Trust Co. of Chicago, 9 F.3d 1236, 1241 (7th Cir.1993). The Illinois Supreme Court, on the other hand, has stated that “[e]quitable tolling ... may be appropriate if the defendant has actively misled the plaintiff, or if the plaintiff has been prevented from asserting his or her rights in some extraordinary way.” Clay v. Kuhl, 727 N.E.2d 217, 223, 189 Ill.2d 603, 244 Ill.Dec. 918 (Ill. 2000). As noted by the Seventh Circuit and the lower courts, the Illinois Supreme Court’s “position appears to conflate the doctrines- of equitable tolling and equitable estoppel.” Richards v. Burgett, Inc., No. 10 C 7580, 2011 WL 6156838, at *5 (N.D.Ill. Dec. 12, 2011) (citing Hollander v. Brown, 457 F.3d 688, 694 n. 3 (7th Cir.2006) (“Illinois cases appear, at times, to use ‘equitable estoppel’ interchangeably with the related principle of equitable tolling”)); Fidelity Nat’l Title Ins. Co. of N.Y. v. Howard Sav. Bank, 436 F.3d 836, 839 (7th Cir.2006) (“The Illinois cases that mention the term [equitable tolling] seem to mean by it equitable estoppel”). Whether the Illinois Supreme Court would recognize a distinction between equitable tolling and equitable estoppel remains unresolved. See Hollander, 457 F.3d at 694 n. 3; Fidelity Nat’l Title Ins. Co. of N.Y., 436 F.3d at 839.

Citing Clay, Hobbs argues that a change in the law tolled his federal claims. As explained in Part I.A., supra. Wallace II changed the rule as to when a plaintiff may file a § 1983 claim. The previous rule under Washington v. Summerville, 127 F.3d 552 (7th Cir.1997), prevented a § 1983 plaintiff from filing “a claim that, if successful, would necessarily imply the invalidity of the conviction on a pending criminal charge” until after that charge was dismissed in the plaintiffs favor. Id. at 556; see Wiley v. City of Chicago, 361 F.3d 994, 996 (7th Cir.2004). This rule, however, was “soundly rejected” by the Supreme Court in Wallace II, making clear that Heck did not apply to pending convictions. Lynch v. Nolan, 598 F.Supp.2d 900, 903 (C.D.Ill.2009); see Wallace II, 549 U.S. at 393-94, 127 S.Ct. 1091 (describing the application of Heck to “an anticipated future conviction” as “bizarre”).

Under Washington and Wiley, Hobbs’s § 1983 claims would not have accrued until his release in 2010 and Hobbs argues that the change occasioned by Wallace II created an “extraordinary circumstance” that tolled his claims until February 21, 2007. See Hargroves v. City of N.Y., 694 F.Supp.2d 198, 211 (E.D.N.Y.2010) (“the change in law occasioned by Wallace is the type of extraordinary circumstance that justifies equitable tolling”), rev’d on other grounds 411 Fed.Appx. 378 (2d Cir.2011). After this date, argues Hobbs, defendants actively prevented him from learning of Wallace II and timely filing the present action by placing him in total isolation, preventing him from interacting with other inmates, denying him access to the law library, and preventing him from consulting with lawyers.

Even assuming Wallace II excused Hobbs’s failure to file his claims prior to February 21, 2007, he fails to show that defendants played a direct role in preventing him from learning of the change. Hobbs makes no specific allegations as to the actions defendants took during his incarceration, alleging only that “police officers” told him that he was to be kept in isolation, and that “defendants” denied him access to the law library. (3d Am. Compl. ¶¶ 184, 239.) Hobbs’s position is perplexing considering that defendants were not his jailers; and the complaint fails to allege that defendants somehow controlled the day-to-day conditions of his incarceration. Hobbs must plead facts that plausibly suggest that defendants prevented him from learning of Wallace II once he was in jail. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”) His position on this point proves too much; equitable estoppel and equitable tolling do not combine to prevent defendants from pleading the statute of limitations as an affirmative defense.

Finally, Hobbs argues that defendants and his jailers prevented him from learning of Wallace II, which “prevented [him] from asserting his ... rights in some extraordinary way” thereby tolling his claims until his release. Clay, 727 N.E.2d at 223, 244 Ill.Dec. 918. Hobbs alleges that he was denied access to legal counsel for his civil claims and prevented from interacting with inmates and accessing legal materials during his incarceration. Essentially, Hobbs argues that his conditions of confinement tolled his claims. As explained by the Illinois Appellate Court,

The limitations period can be tolled against a defendant who did not mislead the plaintiff if the plaintiff faced an extraordinary barrier to asserting her rights in a timely fashion. Extraordinary barriers include legal disability, an irredeemable lack of information, or situations where the plaintiff could not learn the identity of proper defendants through the exercise of due diligence.

Thede v. Kapsas, 897 N.E.2d 345, 351, 386 Ill.App.3d 396, 325 Ill.Dec. 97 (Ill.App.Ct. 2008). Thede provides an illustrative list of extraordinary barriers. Whether Hobbs’s conditions of confinement constituted such a barrier is not clear from the complaint. Hobbs was incarcerated for five years. He must plead specific facts demonstrating that despite his due diligence, he was unable to learn of the accrual of his claims under Wallace II and was otherwise prevented from filing his claims during this time. Rather than foreclose relief, the court will allow Hobbs leave to replead his tolling claim to allege specific facts that show that the conditions of his confinement prevented him from asserting his rights in some extraordinary way.

III. Whether Count XII is Timely

Count XII alleges a state law claim of intentional infliction of emotional distress against defendants. Defendant officers argue that the claim is time-barred because the one-year statute of limitations provided by the Illinois Tort Immunity Act accrued from “the date of the last injury or the date the tortious acts cease,” Feltmeier v. Feltmeier, 798 N.E.2d 75, 85, 207 Ill.2d 263, 278 Ill.Dec. 228 (2003), which defendant officers argue was in August 2006 when some of them testified at Hobbs’s suppression hearing. Hobbs counters that because his IIED claim is intertwined with his malicious prosecution claim, it did not accrue until criminal proceedings were terminated in his favor.

Applying the continuing violation rule courts have held that when a plaintiffs IIED claim incorporates the conduct underlying his malicious prosecution claim, the claim does not accrue until the criminal proceedings against him are terminated. See Chagolla v. City of Chicago, No. 07 C 4557, 2012 WL 403920, at *9 (N.D.Ill. Feb. 8, 2012); Carroccia v. Anderson, 249 F.Supp.2d 1016, 1028 (N.D.Ill.2003) (collecting cases). Hobbs alleges that defendant officers physically and mentally abused him during his interrogation and failed to come forward with a truthful version of events during his detention. He alleges that defendants Waller and Pavletic participated in this coercion by advising defendant officers how to proceed, and that defendant prosecutors initiated and maintained criminal proceedings against him using evidence they knew to be false. Hobbs’s IIED claim incorporates the same allegations as his malicious prosecution claim, see 3d Am. Compl. ¶¶ 248, 243, and the two are sufficiently intertwined to demonstrate that defendants’ wrongful conduct continued through the termination of his criminal proceedings. This is the date upon which Hobbs’s IIED claim accrued. See, e.g., Wallace v. City of Zion, No; 11 C 2859, 2011 WL 3205495, at *5 (N.D.Ill. July 28, 2011) (holding that “[because Plaintiffs’ IIED claim is based on the facts that support Plaintiffs’ malicious prosecution claim, Plaintiffs’ IIED claim did not accrue until the charges against them were dismissed”); Gvozden v. Mill Run Tours, Inc., No. 10-CV-4595, 2011 WL 1118704, at *10 (N.D.Ill. Mar. 28, 2011) (finding IIED claim accrued upon termination of criminal proceedings where plaintiff “claims that throughout the investigation and the trial Defendants suppressed exculpatory evidence that resulted in severe emotional distress”); Beaman v. Souk, 10-cv-1019, 2011 WL 832506, at **13-14 (C.D.Ill. Mar. 3, 2011) (Beaman I) (finding that were defendants allegedly suppressed and/or conspired to suppress exculpatory evidence throughout the investigation and trial, IIED claim accrued at the same time as malicious prosecution claim); Walden, 755 F.Supp.2d at 962 (finding IIED claim accrued at the same time as malicious prosecution claim where plaintiff alleged inter alia that defendant officers tortured a false confession from plaintiff, fabricated, coerced and suppressed evidence and continued his false imprisonment after procuring his wrongful conviction); see also Parish v. City of Elkhart, 614 F.3d 677, 684 (7th Cir.2010) (applying Indiana law, concluding that IIED claim did not accrue until criminal conviction was favorably disposed where the “heart” of plaintiffs complaint was “that the defendant officers fabricated an entire case against him that led to his wrongful conviction”); but see Brooks, 578 F.3d at 579 (holding that IIED claim accrued at the time of plaintiffs indictment, not upon the dismissal of his criminal case “even if the damages that [plaintiff] suffered ... continued throughout his trial”); Evans v. City of Chicago, 434 F.3d 916, 935 (7th Cir.2006) (declining to apply the continuing violation doctrine to extend the statute of limitations for plaintiffs IIED claim against police). Hobbs’s IIED claim against defendants is timely because he filed it within one year of the date that his criminal conviction was nolle prosequi by the state.

IY. Immunity from Suit

A. Defendant Officers

To the extent that Count III is not time barred, defendant officers argue that it must be dismissed because they are entitled to qualified immunity. “Government officials performing discretionary functions enjoy qualified immunity from suit to the extent that their conduct ‘could reasonably have been thought consistent with the rights they are alleged to have violated.’” Somberger, 434 F.3d at 1013 (quoting Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)); see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The court follows a two-step inquiry to determine whether a police officer qualifies for this defense. Sornberger, 434 F.3d at 1013. First, the court “ask[s] whether the plaintiff has asserted the violation of a federal constitutional right”; second, if such a violation occurred, the court determines “whether the right was so clearly established at the time of the alleged violation that a reasonable officer would know that his actions were unconstitutional.” Id.; see Anderson, 483 U.S. at 640, 107 S.Ct. 3034. “[T]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034 (internal citation omitted); see Chelios v. Heavener, 520 F.3d 678, 690-91 (7th Cir.2008) (a clearly established right is one where “there is a clearly analogous case establishing a right to be free from the specific conduct at issue or that the conduct is so egregious that no reasonable person could have believed that it would not violate clearly established rights”) (internal quotation marks and citation omitted); see also Baird v. Renbarger, 576 F.3d 340, 345 (7th Cir.2009) (“In ascertaining whether a right is clearly established, this court looks to controlling Supreme Court and 7th Circuit precedent.”). The plaintiff bears the burden of establishing that the constitutional right was clearly established. Snyder v. Nolen, 380 F.3d 279, 290 (7th Cir.2004).

Hobbs has satisfied the first prong of the test because Count III adequately alleges a Fifth Amendment violation. The remaining question is whether this violation was clearly established at the time of Hobbs’s interrogation. Since 1936, the Supreme Court has recognized that “[statements compelled by police interrogations ... may not be used against a defendant at trial.” Chavez, 538 U.S. at 767, 123 S.Ct; 1994 (citing Brown v. Mississippi 297 U.S. 278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (1936)); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (“The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants ..[and] a constitutional violation occurs only at trial”) (citations omitted). In 1966, in the landmark case of Miranda v. Arizona, the Court held that a police officer must inform a suspect in custody of his right to remain silent and his right to an attorney before interrogating him. 384 U.S. at 444-45, 86 S.Ct. 1602. The remedy for such a violation, however, was exclusion of the nn-Mirandized statement from trial, not an action for damages under § 1983. See Husband v. Turner, No. 07-CV-391-bbc, 2008 WL 2002737, at *4 (W.D.Wis. May 6, 2008) (collecting cases). Indeed, until recently, the Court has declined to acknowledge Miranda as establishing a constitutional right. See Dickerson v. United States, 530 U.S. 428, 440, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (holding that Miranda was “constitutionally based” but declining to “go further than Miranda ” to establish a constitutional right); Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) (describing the “procedural safeguards” required by Miranda as “not themselves rights protected by the Constitution but ... measures to insure that the right against compulsory self-incrimination was protected” to “provide practical reinforcement for the right”).

In 2003, a plurality of the Court recognized that a violation of Miranda could constitute a Fifth Amendment violation but held that “mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness.” Chavez, 538 U.S. at 769, 123 S.Ct. 1994. Thus, “at the very least ... the instigation of legal proceedings” was required before a Miranda violation could rise to the level of a constitutional injury. Id. at 766, 123 S.Ct. 1994. Four years later, in Somberger the Seventh Circuit clarified Chavez by holding that “where ... a suspect’s criminal prosecution was not only initiated, but was commenced because of her allegedly un-warned confession, the ‘criminal case’ contemplated by the Self-Incrimination Clause