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August 29, 1990

Jean STOKES, et al., Plaintiffs,
CITY OF CHICAGO, et al., Defendants

James B. Zagel, United States District Judge.

The opinion of the court was delivered by: ZAGEL


 This case arises from a murder case in the Circuit Court of Cook County in which James Allen and Willie Stokes were defendants.

 Count III of plaintiffs' Fourth Amended Complaint is brought under 42 U.S.C. § 1983 and alleges that two defendants, Police Officers Rotkvich and Pochordo, violated the fourth and fourteenth amendment rights of plaintiff James Allen and plaintiff's decedent Willie Stokes by suborning perjury in the state court proceedings. Specifically, plaintiffs assert that Rotkvich and Pochordo paid large sums of money and offered other non-monetary inducements to Darryl Moore, Franklin Freeman and James Allen for the purpose of obtaining false testimony against Willie Stokes. Plaintiffs contend that, as a result, Allen and Stokes were illegally indicted, arrested and prosecuted.


 Defendants seek summary judgment and offer a variety of theories for finding in their favor: 1) that Stokes and Allen are collaterally estopped from raising these issues which were the subject of motions to dismiss their indictments in state court; 2) that § 1983 was never intended to provide a remedy for suborning perjury; 3) that absolute immunity attaches to giving testimony and therefore defendants cannot be liable under § 1983 for arranging testimony to be presented; 4) that even if defendants do not have absolute immunity, they are entitled to qualified immunity for their actions because no law at the time of Allen and Stokes' arrest held that suborning perjury violated the U.S. Constitution, and, finally, 5) that under Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), plaintiffs do not have a claim because they received all the process that is required under the Constitution. *fn1"

 For purposes of the motion for summary judgment I view the facts in the light most favorable to the non-moving party, as I must, and assume what the defendants vigorously deny, that they did suborn perjury in order to convict Allen and Stokes. See U.S. v. Diebold, 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). *fn2"


 Defendants claim that Allen's civil rights action is barred by the doctrine of collateral estoppel because the issue of the suborned testimony was previously litigated and decided in state court. Defendants cannot rely on this theory with respect to Stokes because, although a similar motion was filed in the Circuit Court on his behalf, it was withdrawn and a hearing was never held.

 The doctrine of collateral estoppel applies to civil rights suits under § 1983. Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 419-20, 66 L. Ed. 2d 308 (1980). With respect to plaintiff Allen, I must give preclusive effect to state court judgment if the matter has already been litigated and Illinois' preclusion rules apply to bar the claim. Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983). Under Illinois rules collateral estoppel applies when: 1) the party against whom the estoppel is asserted was a party to the prior adjudication, 2) the issues which form the basis of the estoppel were actually litigated and decided on the merits in the prior suit, 3) the resolution of the particular issues was necessary to the court's judgment, and 4) those issues are identical to the issues raised in the subsequent suit. E.g., County of Cook v. MidCon Corp., 773 F.2d 892, 898 (7th Cir. 1985); Raper v. Hazelett and Erdal, 114 Ill. App. 3d 649, 449 N.E.2d 268, 70 Ill. Dec. 394 (1983).

 The issues raised in Circuit Court are the same as the issues raised here in Count III of the Fourth Amended Complaint. After a hearing, Judge Michael P. Toomin determined that there was no credible evidence that the inducements to Allen, Freeman and Moore were offered in order to secure false statements or testimony; that there was no credible evidence as to any threats of bodily harm upon Freeman or Allen; that there was no evidence shown that Pochordo had knowledge of any perjury committed before the grand jury; that Allen and Freeman failed to prove that perjury was committed before the grand jury and, finally, that the allegations against Rotkvich were made with reckless abandon.

 Allen makes no response to the argument that his claims are barred in this court. The issue is, thus, conceded and on this basis Count III can be dismissed. But because Allen is a pro se plaintiff, I consider the arguments Stokes' counsel makes on Allen's behalf. Counsel relies on Whitley v. Seibel, 613 F.2d 682, 685 (7th Cir. 1980), to argue that collateral estoppel does not apply to an issue if different burdens of proof are required to determine the issue in state and federal court. Stokes argues, on behalf of Allen, that in state court the burden was on Allen to prove the motion to dismiss. Now, the burden is on the defense to show it is entitled to summary judgment in its favor based on qualified immunity. This argument fails for a number of reasons.

 First, qualified immunity is not the basis of the argument here, at issue is whether plaintiff's indictment and arrest-prosecution were the result of fourth and fourteenth amendment violations, and the burden is on plaintiff to support the factual allegations of his complaint. Second, even if the issue in the state and federal litigation was qualified immunity, the burden in both was on plaintiff; once defendants plead qualified immunity, Allen must refute the claim. See Landstorm v. Ill. Dept. of Children & Family Serv., 892 F.2d 670, 680 (7th Cir. 1990). The issues Allen raises here are the same as those presented before Judge Toomin. The rules which determine when collateral estoppel ...

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