Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 787-Charles R. Norgle, Sr.,Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
Before BAUER, EVANS, and SYKES, Circuit Judges.
In March 2002, the house Mary Johnson was leasing in Hanover Park, Illinois, sustained severe fire damage. Johnson submitted a claim for her losses to her insurer, The Allstate Insurance Company.
Rather than having her claim paid, however, Johnson was arrested five months later and charged with arson. She was in jail for about a month before she posted bail. In January 2004, she was tried and convicted. She was sentenced to 9 1/2 years in prison, where she remained from January 23, 2004, through February 10, 2005, when her court-appointed counsel discovered a previously undisclosed exculpatory report of the DuPage County Fire Investigation Task Force. Based on the report, she filed a motion for a new trial, a request which was granted. She was released from custody, and in September 2005, following a new trial, she was acquitted. Pursuant to 42 U.S.C. § 1983, Johnson sued a number of defendants-including Hanover Park and its police department, the DuPage County state's attorney, the DuPage County Fire Investigation Task Force, Dropka & Rayburn Fire Investigation, Inc., The Allstate Insurance Company, and others. The defendants filed various motions to dismiss the case, in response to which Johnson filed a motion to amend her complaint. Ultimately, the district judge dismissed the case. He said there was probable cause to arrest Johnson and that the statute of limitations had run out on her § 1983 claim. The pendent state law claims were dismissed as well. He also denied the request to amend. Johnson appeals.
We will return to the facts in more detail after we explain why the facts to which we return must be derived from Johnson's amended complaint. As relevant here, Rule 15(a) of the Federal Rules of Civil Procedure provides that a "party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . ." A motion to dismiss the complaint is not a responsive pleading. Crestview Vill. Apartments v. U.S. Dep't of Hous. and Urban Dev., 383 F.3d 552 (7th Cir. 2004); Duda v. Franklin Park Pub. Sch. Dist. 84, 133 F.3d 1054 (7th Cir. 1998). When an amended complaint is filed, the prior pleading is withdrawn and the amended pleading is controlling.
In this case, no responsive pleading has ever been filed. Johnson therefore had a right to file an amended complaint. There was no need for her to file a motion to amend her pleading, and in fact her doing so may have caused some confusion.
Confusion aside, the amended pleading should have been filed, and it controls the remainder of our discussion, which continues because, although we have said that the right to amend is "absolute," see Peckham v. Scanlon, 241 F.2d 761 (7th Cir. 1957), we have acknowledged one exception. A district court need not allow the filing of an amended complaint, even when no responsive pleading has been filed, if it is clear that the proposed amended complaint is deficient and would not survive a motion to dismiss. Duda; Mitchell v. Collagen Corp., 67 F.3d 1268 (7th Cir. 1995). As we said in Duda,
Rather than simply reverse the judgment and remand the case to the district court, considerations of judicial economy counsel that we scrutinize the amended complaint at this stage of the proceedings and determine its viability.
At 1057. With that principle in mind, we will look at the amended complaint to see whether filing it would be an exercise in futility.
Johnson's amended complaint sets forth claims under 42 U.S.C. § 1983 and state tort law-false imprisonment, malicious prosecution, and conspiracy. We, of course, take the facts as she alleges them. Conley v. Gibson, 355 U.S. 41 (1957). The defendants in the amended complaint are John Dossey, a Hanover Park police officer; Dennis Rogers, an officer with the DuPage County sheriff's department; Kevin Laude, an assistant state's attorney for DuPage County; John Rayburn a certified fire investigator employed by defendant Dropka & Rayburn Fire Investigation, Inc., and Kevin McMahon, an insurance claims investigator who is an agent of defendant The Allstate Corporation a/k/a Allstate Insurance Company. Essentially, Johnson alleges that the defendants conspired to deny her insurance claims by prosecuting her (or having her prosecuted) for arson even though they were in possession of documents which cast significant doubt on any contention that the fire which destroyed the home was caused by arson.
Right after the fire, on March 26, 2002, Johnson was interviewed by Officers Dossey and Rogers, and the same day she made a claim for loss to her insurer, Allstate. A few days later, Rogers discussed the investigation with McMahon, Allstate's claims adjuster. Then McMahon and Rayburn, on behalf of Allstate, inspected the property but did not take any evidence from the scene. Also, McMahon interviewed Johnson regarding her claim. On April 5, the DuPage County Fire Investigation Task Force issued its report indicating that the cause and origin of the fire were undetermined and that, after a thorough search, no flammable or combustible accelerants which could have triggered the fire were found. Dossey, Rogers, Laude, McMahon, and Rayburn met and made a joint decision to disregard the findings of the task force. At this point, Rayburn returned to the scene of the fire and collected samples, which were submitted to Great Lakes Analytical, Inc. for analysis. The report was provided to the other defendants.
Allstate denied Johnson's claim and, in turn, her attorney sent a letter to Allstate raising issues of bad faith. Meanwhile, McMahon was in communication with law enforcement personnel regarding the investigation. The results of both the law enforcement investigation and Allstate's investigation remained inconclusive. Neverthe- less, Johnson was arrested and charged with arson on August 13, 2002, even though there was no probable cause to believe that a crime had been committed. She accuses Dossey of lying to the grand jury when he knowingly testified falsely that the lab analysis showed that charcoal lighter fluid was used to start the fire. She says the criminal prosecution of her was instigated by Allstate, who wanted to deny her claim for damages under its insurance policy.
Because federal jurisdiction is dependent on the § 1983 claims, we will look at them first. The essence of the claims is that withholding the task force report was a violation of Johnson's due process rights, as set out long ago in Brady v. Maryland, 373 U.S. 83 (1963). Brady held that the suppression of evidence favorable to the accused violates due process where the evidence is material either to guilt or to punishment. Clearly the amended complaint sufficiently alleges a Brady violation. Running through the briefing in this case, though, is the argument, relied on by the district court in dismissing the original complaint, that Johnson's claims are barred by the 2-year Illinois statute of ...