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October 14, 1998

LARRY JONES, Defendant.

The opinion of the court was delivered by: MAROVICH


 Plaintiff James J. Cervantes ("Cervantes") filed this action against Defendant South Elgin Deputy Chief of Police Larry Jones ("Jones") pursuant to 42 U.S.C. § 1983 ("§ 1983") and Illinois law alleging claims of malicious prosecution. Cervantes alleges that Jones fabricated evidence that made it falsely appear that Cervantes had committed murder. Cervantes further alleges that Jones falsely testified before a grand jury to the truthfulness of the fabricated evidence and that, as a result, Cervantes was indicted for murder. Now before the Court is Jones' motion for summary judgment. For the reasons set forth below, this Court grants Jones' motion.


 At approximately 6:30 a.m. on July 20, 1992, a neighbor of Sally Lavergne ("Lavergne") notified the police after hearing Lavergne's alarm clock ringing and finding Lavergne's door open. The police subsequently found Lavergne dead in her home in South Elgin, Illinois. A post-mortem evaluation of Lavergne suggested, among other things, that Lavergne died of multiple stab wounds to her chest and abdomen.

 Upon finding Lavergne, the police immediately began an investigation by, among other things, interviewing Lavergne's co-workers, family and friends. The investigation regarding Lavergne's murder took place over several months and included various officers and agents from the South Elgin Police Department, Illinois State Police Department, St. Charles Police Department, West Dundee Police Department and the FBI. One of the police officers investigating Lavergne's murder was Jones.

 After receiving information suggesting that Cervantes had been intimately involved with Lavergne prior to her death, Jones interviewed Cervantes on July 20, 1992 and again, with another detective, on July 25, 1992. On December 8, 1992, Jones and two other detectives again interviewed Cervantes at Cervantes' apartment. Later that night, Cervantes went to the police station around midnight and took a polygraph examination.

 At about 5:00 a.m. the next morning, December 9, 1992, Jones gave Cervantes a ride home from the police station. During the ride home, Jones stated to Cervantes that it seemed like Cervantes wanted to admit what he had done and "come clean." (Def. 12(m), Ex. 1(b) at 21; Ex. 4 at 74.) The parties dispute Cervantes' response to this statement. According to Jones' grand jury testimony given March 16, 1993, Cervantes stated: "Yes, I would like to do that. But I've got too much too [sic] lose. If I admit I killed Sally, what would my defense be?" (Id. at 21-22.) According to Cervantes' testimony at a hearing held January 24, 1994 regarding a motion to suppress, Cervantes responded to Jones by stating: "If I confess to a crime that I did not commit, what would my defense be? I got too much to lose." (Def. 12(m), Ex. 4 at 75.)

 In February of 1993, Jones went to John A. Barsanti ("Barsanti"), Chief of the Criminal Division of the Kane County State's Attorney's Office, regarding the possibility of seeking a warrant for hair and blood samples from Cervantes in connection with the Lavergne murder investigation. Upon his independent review of the investigative reports, Barsanti concluded that there were sufficient grounds to take the matter before the grand jury and to seek an indictment of Cervantes for Lavergne's murder. (Def. 12(m) P 40; Pl. 12(n) P 40.)

 Jones testified before the grand jury after being subpoenaed by Barsanti, and Cervantes was subsequently indicted. Following the grand jury indictment, Cervantes was arrested and remained in custody from March 17, 1993 until March 7, 1996, when he was found not guilty and released.

 On March 6, 1997, Cervantes filed this action alleging that Jones engaged in malicious prosecution in violation of the Fourth Amendment and Illinois law. Cervantes contends that as a result of Jones' actions, Cervantes lost wages, suffered severe emotional distress and, while incarcerated, was seriously injured by other inmates. Cervantes seeks compensatory and punitive damages.

 On July 29, 1997, this Court denied Jones' motion to dismiss in which Jones argued that: (1) Cervantes had failed to state a claim for malicious prosecution; and (2) he enjoyed absolute immunity for any false testimony given to the grand jury. See Cervantes v. Jones, 1997 U.S. Dist. LEXIS 11449, 1997 WL 433685 (N.D. Ill. July 29, 1997). Jones now moves for summary judgment.


 Summary judgment should be granted when "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). When making such a determination, the court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment is appropriate, however, when the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). See also Courtney v. Biosound, 42 F.3d 414, 418 (7th Cir. 1994).


 To state a claim for malicious prosecution under § 1983, a plaintiff must demonstrate that: (1) he has satisfied the requirements of a state law cause of action for malicious prosecution; (2) the malicious prosecution was committed by state actors; and (3) he was deprived of liberty. See Washington v. Summerville, 127 F.3d 552, 558 (7th Cir. 1997); Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996). To state a claim for malicious prosecution under Illinois law, a plaintiff must allege that: (1) he was subjected to judicial proceedings; (2) for which there was no probable cause; (3) the defendant instituted or continued the proceedings maliciously; (4) the proceedings terminated in plaintiff's favor; and (5) there was an injury. See Sneed v. Rybicki, 146 F.3d 478, 481 (7th Cir. 1998).

 In his motion for summary judgment, Jones argues that: (1) Cervantes cannot demonstrate all of the factors necessary to state a claim for malicious prosecution under Illinois law; and (2) Jones enjoys absolute immunity for presenting any false testimony to the grand jury. This Court will address these ...

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