The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Richard Montalvo filed a pro se complaint against
six Chicago police officers (defendants) claiming civil rights
violations under 42 U.S.C. § 1983. Along with his complaint,
plaintiff filed a petition to proceed in forma pauperis and a
motion for appointment of counsel. For the following reasons we
grant plaintiff's motion to proceed in forma pauperis and defer
on his motion for appointment of counsel.
Pursuant to 28 U.S.C. § 1915(a) we may authorize plaintiff to
proceed in forma pauperis if he demonstrates an inability to
pay the required costs and fees. In his financial affidavit
plaintiff states that he is a single father and has been
unemployed since December 2003. He receives $400 in rent payments
from his mother and $650 in "veterans compensation." With respect
to the veterans compensation, plaintiff mentions that he is
waiting "for the rest" of it and is appealing the withholding of
the money. Plaintiff also states that he has $20 in his checking
account. He owns a vehicle (a 1991 truck), but it is inoperable,
and he states he does not have the money to fix it. His mother
owns the house in which he lives, but he does not know the value
of that building. In light of these representations, plaintiff
has shown his financial need and an inability to pay court costs.
Our inquiry does not end with that finding of indigence. As
part of the initial review of a petition to proceed in forma pauperis, we analyze the
claims and dismiss the complaint if we determine that the action
is frivolous or malicious, it fails to state a claim upon which
relief may be granted, or seeks damages from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii);
Alston v Debruyn, 13 F.3d 1036, 1039 (7th Cir. 1994). In
reviewing the petition we apply the standard used in a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and
take petitioner's allegations as true. Zimmerman v. Tribble,
226 F.3d 568, 571 (7th Cir. 2000). We dismiss a claim only if
it appears beyond a doubt that there exist no facts to support
the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Complaints by pro se parties are held to less stringent
standards than pleadings drafted by attorneys. Alvarado v.
Itscher, 267 F.3d 648, 651 (7th Cir. 2001).
We take the following facts from plaintiff's complaint.
Plaintiff claims that on May 31, 2002, defendants surrounded him
with guns drawn as he was walking to his car, which was parked in
a gas station parking lot. After being detained, plaintiff
alleges that the defendants searched his person and his car, and
then arrested him. Plaintiff says that he never consented to any
search and claims that defendants lacked probable cause for the
detention and the subsequent search. He states that a police
report indicates that he nearly hit a police vehicle with his car
and then fled on foot through the gas station. Plaintiff contends
the defendants fabricated the facts in the report. That police
report was presented to a grand jury. Plaintiff then states that
he prevailed on a motion to suppress (but he does not state what
it was that he successfully suppressed).
Plaintiff has two claims against the defendants. First, he
claims that the defendants violated his Fourth Amendment right to
be free of unreasonable searches and seizures. Second, he brings
a conspiracy claim under 42 U.S.C. § 1983 that alleges the
defendants conspired to deprive him of his Fourth Amendment
rights. Reading plaintiff's complaint liberally, he asserts that the
defendants searched him and his vehicle without probable cause,
arrested him, and then fabricated a police report that depicted
an entirely different scenario in which police had probable cause
to arrest him. The central issue is whether there was probable
cause. If probable cause exists, then it would bar plaintiff's
suit. The existence of probable cause "precludes a § 1983 suit
for false arrest [because] a person arrested with probable cause
cannot cry false arrest." Juriss v. McGowan, 957 F.2d 345, 349
n. 1 (7th Cir. 1992). See also Sheik-Abdi v. McClellan,
37 F.3d 1240, 1247 (7th Cir. 1994) (probable cause for an
arrest precludes § 1983 liability for unlawful arrest). Thus,
probable cause to arrest would require dismissal under §
1915(e)(2)(B)(ii). Further, probable cause would also immunize
defendants, which would require dismissal under §
1915(e)(2)(B)(iii). A police officer is immune from suit if he
could have reasonably believed that probable cause existed for an
arrest, even if he was mistaken in his belief. Wollin v.
Gondert, 192 F.3d 616, 622-23 (7th Cir. 1999). Immunity
shields a police officer from damages if he had probable cause or
could have reasonably, but mistakenly, believed that probable
cause existed. Humphrey v. Staszak, 148 F.3d 719, 725 (7th
Cir 1998). See also Sheik-Abdi v. McClellan, 37 F.3d 1240,
1247 (7th Cir. 1994) (probable cause for an arrest precludes
§ 1983 liability for unlawful arrest). However, at this juncture
we cannot say that the police had probable cause.
Determining whether probable cause to arrest existed requires
us to ask if "at the time of the arrest, the facts and
circumstances within the officer's knowledge were sufficient for
the officer to form a reasonable belief to suspect criminal
activity." Smith v. Lamz, 321 F.3d 680, 684-85 (7th Cir.
2003). That is obviously a fact-sensitive inquiry, which is
inappropriate at this stage. But probable cause may still be
A grand jury indictment usually indicates the existence of
probable cause. Regarding the grand jury, plaintiff writes: "The fictionalized police
report was given to a Grand Jury for that jury to return an
indictment against the Plaintiff." That sentence does not
specifically mention that an indictment was actually issued, but
it also fails to indicate that the grand jury returned a "no
bill." Still, we assume that the grand jury indicted plaintiff
because the case against him continued. Historically, the grand
jury has had "the dual function of determining if there is
probable cause to believe that a crime has been committed and of
protecting citizens against unfounded criminal prosecutions."
United States v. Gardner, 860 F.2d 1391, 1395 (7th Cir.
1988); Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972). Also,
under Illinois law the grand jury determines whether probable
cause exists. See People v. DiVincenzo, 183 Ill.2d 239,
700 N.E.2d 981, 989 233 Ill. Dec. 273 (Ill. 1998) (noting that "the
grand jury determines whether probable cause exists that an
individual has committed a crime."); Phillips v. Graham,
86 Ill.2d 274, 472, N.E.2d 550, 554, 56 Ill. Dec. 355;
725 ILCS 5/112-4 (2004).
Even though all signs indicate that the grand jury returned an
indictment, we do not find that probable cause existed. Plaintiff
alleges that the "fictionalized police report" was presented to
the grand jury. That allegation would preclude us from using the
indictment as evidence of probable cause. In Cervantes v.
Jones, 188 F.3d 805, 811 n. 7 (7th Cir. 1999) the court
noted, "A grand jury indictment is usually prima facie evidence
of probable cause. But in construing the facts in the light most
favorable to [plaintiff], his allegation that the indictment was
the product of [defendant's] perjury precludes us from
considering the indictment in our probable cause analysis. A
contrary rule could allow an indictment procured by lies to
protect a witness from liability for his perjury." After
discounting the indictment, we cannot say that there is probable
cause here. There may have been additional evidence before the
grand jury that would have supported a finding of probable cause,
but that factual inquiry will have to wait. Plaintiff's allegations of a falsified police report may also
defeat an immunity defense. Police officers would not be immune
for falsified police reports since "no absolute testimonial
immunity attaches to the actions of the officers outside of
trial." Ienco v. City of Chicago, 286 F.3d 994 (7th Cir.
2002). Further, the decisions of the grand jury to indict, or the
prosecutor to proceed to trial, will not immunize "a police
officer who deliberately supplied misleading information that
influenced the decision." Jones v. City of Chicago,
856 F.2d 985, 994 (7th Cir. 1988).
The lack of probable cause also means that plaintiff's § 1983
conspiracy charge should not be dismissed. Section 1983 does not
provide a cause of action for conspiracy per se. Lesser v.
Braniff Airways, Inc., 518 F.2d 538, 540 (7th Cir. 1975).
For plaintiff to state a § 1983 conspiracy cause of action he
must allege both an agreement and a deprivation of his
constitutional rights. Vukadinovich v. Zentz, 995 F.2d 750, 756
(7th Cir. 1993). See also Lesser, 518 F.2d at 540 ("the
gist of the [§ 1983] cause of action is the deprivation and not
the conspiracy"). Plaintiff claims that the defendants "banded
together to intentionally deprive" him of his Fourth Amendment
rights. Plaintiff has thus stated both an agreement and a
deprivation of constitutional rights.
Plaintiff's petition to proceed in forma pauperis, is
granted. His motion for appointment of counsel is continued,
pending further developments in this case.
© 1992-2004 VersusLaw ...