The opinion of the court was delivered by: Reagan, District Judge
On June 12, 2008, Fonseca filed this action alleging causes of action under federal and Illinois state law (Doc. 2). Fonseca's claims relate to his April 2008 Illinois state murder trial, in which a jury found him not guilty. Fonseca's complaint includes nine counts against Defendant Charles David Nelson, the State's Attorney who charged and prosecuted him. In Counts 1 through 5, which are brought under 42 U.S.C. § 1983, Fonseca alleges that Nelson violated his Fourth Amendment rights by assisting in his false arrest (Count 1) and violated his Fourteenth Amendment due process rights by assisting in a malicious prosecution (Count 2), fabricating evidence (Count 3), prosecuting Fonseca without probable cause (Count 4), and interfering with Fonseca's right to interstate travel (Count 5). As for Fonseca's Illinois tort claims, he alleges that Nelson carried out a malicious prosecution (Count 6), intentionally inflicted emotional distress (Count 7), defamed him in the press (Count 8), and conspired with others to "convict him of charges that are unsupported by the evidence" (Doc. 2, Ct. 9, ¶ 31).*fn1
On August 25, 2008, Nelson filed a motion to dismiss (Doc. 33) arguing that he is entitled to absolute prosecutorial immunity. In the alternative, he argues that an absolute privilege shields him from claims related to statements he made to the media, that the Eleventh Amendment protects him from claims against him in his official capacity, that Fonseca fails to state a cause of action for civil conspiracy, that Fonseca's due process rights were not violated in the state proceedings, and that violations of certain portions of the Illinois Constitution are not actionable for damages.
Having fully reviewed the parties' filings, the Court hereby GRANTS IN PART AND DENIES IN PART Nelson's motion to dismiss (Doc. 33).*fn2
B. Standards Governing a Motion to Dismiss
Dismissal is warranted under Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face."Bell Atlantic Corp. V. Twombly, --U.S.--, 127 S.Ct. 1955, 1965 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in plaintiff's favor. Tricontinental Industries, Inc., Ltd. v. PriceWaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, 128 S.Ct. 357 (2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006); Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir. 1989).
The factual background as taken from Fonseca's complaint is as follows. Fonseca took Ashleigh Miller to the hospital on May 28, 2007 "after she fell out of the car he was driving" in Saline County, Illinois (Doc. 2, ¶ 21). Miller died on June 6, 2007. An investigation ensued, and Fonseca was initially charged and arrested for aggravated DUI, aggravated driving with a revoked license, obstructing justice, and leaving the scene of and failing to report a personal injury accident. Nelson ultimately chose to drop the initial charges.
On June 13, 2007, Fonseca was charged with two counts of first degree murder and an arrest warrant was issued. That same day Fonseca voluntarily turned himself in. Fonseca was held on a one-million dollar bond, which he could not meet, and thus remained in jail until his trial in April 2008. On June 19, 2007, Nelson made a comment to the Southern Illinoisan, a local newspaper, that he "wouldn't have filed the murder charges 'if I didn't think I had a case'" (Doc. 2, ¶ 26).
Fonseca appeared before Judge Walden E. Morris on July 5, 2007 for a preliminary hearing to determine whether the State had probable cause to charge Fonseca with two counts of murder. A nurse and two police officers testified and provided possible medical reasons for Miller's injuries and subsequent death, but none testified that she had been beaten. Nonetheless, Judge Morris determined that probable cause existed to support the murder charges.
In April 2008, Fonseca went to trial. Fonseca claims that one of the State's witnesses was coerced into testifying against him, and that the rest of the testimony was speculative, biased, and unfounded. Trial concluded on April 8, 2008, and the jury found Fonseca not guilty. Upon leaving the courthouse, Fonseca was required to wear a bulletproof vest, as the publicity surrounding the case had resulted in threats that Fonseca might be killed if acquitted. Fonseca claims that this publicity was the result of statements made by Nelson and law enforcement to the press, though he fails to specifically identify these statements.
D. Absolute Prosecutorial Immunity
As noted above, Nelson's primary argument is that all claims against him must be dismissed because he is entitled to absolute prosecutorial immunity. Fonseca's first five counts are § 1983 claims alleging various violations of Fonseca's federal constitutional rights. Section 1983 provides that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The Supreme Court has explained that § 1983 does not "abrogate immunities 'well grounded in history and reason.'" Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). Indeed, under certain circumstances, government officials may enjoy absolute or qualified immunity. Id. at 268--69.
The official claiming the protection of absolute immunity bears the burden of showing that the function involved in the underlying conduct justifies the immunity. Burns v. Reed, 500 U.S. 478, 486 (1991). In determining whether absolute immunity applies in a given situation, the Court considers "the nature of the function performed, not the identity of the actor who performed it." Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting Forrester v. White, 484 U.S.219, 229 (1988)). Stated another way, the focus is on the official's conduct, "not on the harm that the conduct may have caused or the question whether it was lawful." Buckley, 509 U.S. at 271.
The Supreme Court has identified a narrow range of prosecutorial functions wherein absolute immunity applies.*fn3 As a general rule, prosecutors are absolutely immune from liability for conduct "in initiating a prosecution and in presenting the State's case" to the extent that such conduct is "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430--31 (1976). A prosecutor is entitled to absolute immunity even for duties undertaken outside the courtroom in preparation for initiating judicial proceedings, so long as they are done in his role as an advocate for the State. See Buckley, 509 U.S. at 272.
However, "the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley, 509 U.S. at 273. Indeed, prosecutor is not entitled to qualified immunity when his functions involve administrative duties and investigatory functions unrelated to an advocate's preparation for the initiation of a prosecution or for judicial proceedings. Imbler, 424 U.S. at 431, n.33; Buckley, 509 U.S. at 273 (explaining that absolute immunity does not shield a prosecutor from liability "[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer").
In addressing whether Nelson is entitled to absolute immunity for any of the conduct alleged by Fonseca, it is useful to look at each count separately.
1. Count 1: § 1983 Action for False Arrest/Imprisonment
Count 1 alleges that Nelson violated Fonseca's Fourth Amendment rights by falsely arresting and imprisoning him. The factual basis of this claim, according to Fonseca, is that Nelson wrongly charged him with murder despite the lack of probable cause to do so. Additionally, Fonseca argues that by charging him with a severe crime, Nelson ensured a high bail that Fonseca could not meet, leaving him imprisoned through the conclusion of his trial.
As already explained above, prosecutors are absolutely immune from liability for conduct "in initiating a prosecution and in presenting the State's case." Imbler, 424 U.S. at 431. Clearly, a prosecutor acting in the function of charging a suspect with a crime and subsequently advocating a high bond before a court falls within the Imbler rubric. Absolute immunity protects Nelson from liability for these activities because such conduct is "intimately associated with the judicial phase of the criminal process." Id. at 430.
Fonseca argues that absolute immunity does not protect Nelson because he lacked probable cause to initiate the charges in the first place. According to Fonseca, lack of probable cause compels a finding that Nelson was not acting as an advocate for the State. To support this contention, Fonseca quotes language from Buckley that "[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." 509 U.S. at 274. However, Fonseca stretches the Court's application of the Imbler test. The language Fonseca quotes is preceded by an explanation of the facts of that case, which involved police investigation at the crime scene during the period before they even convened a grand jury. Id. Indeed, in the footnote following the language at issue, the Court indicates that "a prosecutor would be entitled to absolute immunity for the malicious prosecution of someone whom he lacked probable cause to indict." Id. at n.5.
Again, this Court's focus must be on the prosecutorial function being undertaken. Here, that function is Nelson's representation of the State in conducting a probable cause hearing. In Kalina, the Supreme Court explained that a prosecutor's function can be properly characterized as advocacy "for her drafting of the certification [for determination of probable cause], her determination that the evidence was sufficiently strong to justify a probable-cause finding, her decision to file charges, and her presentation of the information and the motion to the court." 522 U.S. at 130. And in Burns, the Supreme Court found that absolute immunity applied where the prosecutor participated in a probable cause hearing aimed at obtaining a search warrant, despite the allegation that the prosecutor suborned perjury at the hearing. 500 U.S. at 481--83. In analyzing these circumstances, the Court stated:
The prosecutor's actions at issue here-appearing before a judge and presenting evidence in support of a motion for a search warrant-clearly involve the prosecutor's "role as advocate for the State," rather than his role as "administrator or investigative officer," the protection for which we reserved judgment in Imbler. . . . Moreover, since the issuance of a search warrant is unquestionably a judicial act . . . appearing at a probable-cause hearing is "intimately associated with the judicial phase of the criminal process." It is also connected with the initiation and conduct of a prosecution, particularly where the hearing occurs after arrest, as was the case here.
Id. at 491--92 (citations omitted). The same general analysis applies to the probable cause hearing here. The hearing was unquestionably "connected with the initiation and conduct of a prosecution."
In his response, Fonseca also argues that Nelson was "involved in the investigation and fabrication of evidence prior to the arrest" (Doc. 42, p. 7). However, a thorough review of the complaint reveals no allegations that Nelson engaged in any such conduct prior to Fonseca's voluntary surrender on June 13, 2007-which is also the day Fonseca was charged. In fact, the only allegation of fabrication of evidence in the complaint pertains to testimony offered at trial via "the coerced testimony of a jailhouse snitch" (Doc. 2, ¶ 28). There is no indication that this alleged fabrication is in any way related to the false arrest claim in Count 1.*fn4
As a result, the Court finds that Nelson has met his burden of showing that absolute prosecutorial immunity protects him ...