United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge
March 2015, a Lake County grand jury indicted plaintiff Brian
Harper and 26 others on state racketeering and gang narcotics
conspiracy charges. Lake County prosecutors dismissed the
charges against Harper in February 2016, before trial. Harper
contends that the charges against him were based on false
information. He has sued Mundelein police officer Brian
Wainscott and North Chicago police officer Ben Fapso,
asserting claims under 42 U.S.C. § 1983 for violating
his constitutional rights.
Court has dismissed two previous versions of Harper's
complaint. The Court dismissed his original complaint on the
ground that it did not sufficiently inform each defendant
what he was claimed to have done. The Court later dismissed
Harper's amended complaint, concluding that he had
stated, at most, a state-law claim for malicious prosecution
that could be brought, if at all, only in state court. The
Court also concluded that Harper's claims against
Wainscott and Fapso were barred by absolute immunity because
the claims were predicated on the two officers' testimony
before a grand jury. Harper also sued Lake County assistant
state's attorney Reginald Matthews, but the Court
dismissed the claims against him based on absolute
prosecutorial immunity. See Order of Aug. 23, 2017.
then sought leave to file a second amended complaint. In the
second amended complaint, he alleges that Wainscott and Fapso
falsely identified him to prosecutor Matthews as a narcotics
distributor and a member of a street gang. 2d Am. Compl.
¶¶ 12-13. Harper says that this false information
"was the basis of the probable cause to arrest, charge
and prosecute" him. Id. ¶ 14. Harper
alleges that Wainscott and Fapso relayed false information
about the contents of monitored phone calls and falsely
stated that Harper distributed narcotics for the street gang,
even though they knew there was no evidence to support this.
Id. ¶¶ 17-26. Harper makes no allegations
regarding testimony by Wainscott or Fapso before the grand
jury. He asserts a due process claim; a claim for
unreasonable detention in violation of his Fourth Amendment
rights; and a claim for indemnification against Wainscott and
Fapso's employers under 745 ILCS 10/9-102.
order on Harper's motion for leave to amend, the Court
dismissed his claims against Matthews, saying that he is
entitled to absolute prosecutorial immunity from suit.
See Order of Oct. 13, 2017. The Court granted leave
to amend with regard to Wainscott and Fapso, subject to their
right to file a motion to dismiss. Id. Wainscott and
Fapso have now moved to dismiss the second amended complaint
under Federal Rule of Civil Procedure 12(b)(6).
Count 1 of Harper's complaint is entitled "claim for
deprivation of right to a fair trial and for wrongful
conviction, " Harper was neither tried nor convicted.
Rather, the charges against him were dismissed before trial.
His claim is that "a form of legal process resulted in
pretrial detention unsupported by probable cause."
Manuel v. City of Joliet, 137 S.Ct. 911, 919 (2017).
For this reason, the appropriate claim is a claim for
violation of his Fourth Amendment rights, id., not
for violation of the Fourteenth Amendment's Due Process
Clause. Id. The Court therefore dismisses Count 1.
same Supreme Court decision that undercuts Harper's due
process claim entitles him to pursue a claim for violation of
his Fourth Amendment rights, as alleged in Count 2. In
Manuel, the Supreme Court overturned
long-established Seventh Circuit precedent to the effect that
once a defendant is detained pursuant to legal process (like
an arrest warrant issued upon an indictment), the Fourth
Amendment drops out of the picture and the Due Process Clause
controls. See Manuel, 137 S.Ct. at 916. The Court
concluded that "those objecting to a pretrial
deprivation of liberty may invoke the Fourth Amendment when
(as here) that deprivation occurs after legal process
commences." Id. at 918. "If the complaint
is that a form of legal process resulted in pretrial
detention unsupported by probable cause, then the right
allegedly infringed lies in the Fourth Amendment."
Id. at 919. And the fact that the legal process
arose from a grand jury indictment, as opposed to a criminal
complaint or some other probable cause determination, makes
no difference, as the Court ruled in Manuel. See
Id. at 920 n.8. "Whatever its precise form, if the
proceeding is tainted-as here, by fabricated evidence-and the
result is that probable cause is lacking, then the ensuing
pretrial detention violates the confined person's Fourth
Amendment rights . . . ." Id.
argue that Harper's revision of his complaint is an
improper attempt to get around the Court's immunity
ruling regarding claims based on the defendants' false
testimony. The Court disagrees. Harper alleges that Wainscott
and Fapso knowingly conveyed false information about him and
his activities to the prosecutor, who relied on what they had
conveyed. As the Seventh Circuit held nearly thirty years
ago, this is sufficient to give rise to a claim against the
officers; "a prosecutor's decision to charge [and] a
grand jury's decision to indict . . . will [not] shield 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).
Defendants have offered no viable legal basis for a
determination that the fact that they also gave
false testimony along the same line immunizes them from
liability resulting from their conveyance of false
information to the prosecutor.
Court overrules defendants' contention that the complaint
does not adequately describe their transmission of false
information to prosecutors. Harper has identified what the
false information was and who transmitted it to whom; he
cannot reasonably be expected, prior to discovery, to be able
to identify the precise time and place of these events.
Harper has, under the circumstances, satisfied whatever
requirement of particularity-of-pleading applies in this
Court also disagrees with defendants' contention that
Harper has conceded the existence of probable cause. His
allegation that "[t]his false evidence was the basis of
the probable cause to arrest, charge and prosecute Mr.
Harper, " 2d Am. Compl. ¶ 14 is anything but an
admission. To the contrary, it is an allegation that the
defendants' false statements were the basis for the
prosecutor's or grand jury's probable cause
determination. If anything is clear from Harper's
complaint, it is that he is alleging that an accurate
rendition of the evidence would have demonstrated the absence
of probable cause, not its existence.
defendants' claim of qualified immunity lacks merit. As
indicated earlier, it has been established law in this
Circuit for nearly thirty years that a law enforcement
officer may be liable for violating a person's
constitutional rights if he knowingly conveys false
information to a prosecutor that causes the person's
arrest, detention, or prosecution. See Jones, 856
F.2d at 993-94. Jon ...