Beaman v. Souk et al
Filing
68
OPINION and ORDER entered by Judge Joe Billy McDade on 3/26/12 - The Report and Recommendation 65 is ACCEPTED. The Motion to Dismiss filed by Defendants McLean County, Charles Reynard, and James Souk 54 is DENIED. The following claims remain:1. C ounts I-III (§ 1983 claims) against Defendants Freesmeyer, Hospelhorn, Warner, Brown, and Zayas; 2. Counts IV-VI (state law claims) against Defendants Souk, Reynard, Freesmeyer, Hospelhorn, Warner, Brown, and Zayas;3. Count VII (respondeat superior claim) against the Town of Normal;4. Count VIII (indemnification claim) against McLean County and Town of Normal.(see Opinion and Order for details) (SF, ilcd)
E-FILED
Monday, 26 March, 2012 03:38:11 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ALAN BEAMAN,
)
)
Plaintiff,
)
)
v.
)
)
JAMES SOUK, CHARLES REYNARD, )
TIM FREESMEYER, ROB
)
HOSPELHORN, DAVE WARNER, JOHN )
BROWN, FRANK ZAYAS, MCLEAN
)
COUNTY ILLINOIS, and TOWN OF
)
NORMAL ILLINOIS,
)
)
Defendants.
)
Case No. 10-cv-1019
O P I N I O N and O R D E R
Before the Court is the Motion to Dismiss Plaintiff‟s First Amended
Complaint filed by Defendants James Souk, Charles Reynard, and McLean County
(Doc. 54), Plaintiff Alan Beaman‟s Response to the Motion to Dismiss (Doc. 62), the
Report and Recommendation issued by Magistrate Judge Cudmore (Doc. 65), the
Objection filed by Defendants Reynard and Souk (Doc. 66), and the Response to
Objections filed by Plaintiff (Doc. 67).
For the reasons set forth below, the Report and Recommendation (Doc. 65) is
ACCEPTED and the Motion to Dismiss (Doc. 54) is DENIED.
1
BACKGROUND
In 1995, Plaintiff, Alan Beaman, was convicted and sentenced to 50 years of
incarceration for first degree murder in the 1993 death of Jennifer Lockmiller. The
case was investigated by Timothy Freesmeyer, Rob Hospelhorn, and Dave Warner,
detectives in the City of Normal Police Department, Frank Zayas, a lieutenant in
the Normal Police Department, and John Brown, a McLean County Deputy Sheriff.
Plaintiff was prosecuted by Charles Reynard, the McLean County State‟s Attorney,
and James Souk, an Assistant State‟s Attorney. Plaintiff‟s conviction was
overturned by the Illinois Supreme Court on May 22, 2008. People v. Beaman, 890
N.E.2d 500 (Ill. 2008).
The evidence against Plaintiff was circumstantial, there being no witness or
direct evidence to the crime. Lockmiller was killed in her apartment located in
Normal, Illinois. Her body was not discovered immediately and it was not possible
to pinpoint the exact time of death; however, investigators determined that she was
murdered around 12:00 p.m. on August 25, 1993. She had been both stabbed with
scissors and strangled with the cord from a clock radio (strangulation was the cause
of death). There was no evidence of a struggle or forced entry into the apartment.
Defendant Freesmeyer was the lead detective on the case. Plaintiff alleges that the
prosecutor Defendants, Reynard and Souk, were “intimately involved throughout
the course of the investigation.” Plaintiff allegedly became a suspect because he was
an ex-boyfriend, having broken up with Lockmiller a month prior to her death, and
because there were no other viable suspects. At the time of the death, Plaintiff lived
2
in Rockford, Illinois, 140 miles from Normal. Investigators theorized that Plaintiff
drove to Normal on August 25, 1993 after visiting a bank in Rockford at 10:11 a.m.,
killed Lockmiller at 12:00 p.m., and then drove back to Rockford where he was
observed by his mother (with whom he was living at the time) in his room at 2:16
p.m.
Plaintiff‟s alibi consisted of two phone calls that he made at 10:37 a.m. and
10:39 a.m. from his home in Rockford to a church: the timing of the calls would have
made it “practically impossible” for Plaintiff to have driven to Normal in order to
kill Lockmiller at 12:00 p.m. Freesmeyer attacked this alibi by testifying at trial
that it would have been impossible for Plaintiff to have driven from the bank to his
home in time to make the phone calls (that is, somebody else must have made the
calls). Freesmeyer‟s testimony was based on timed driving runs that he did from the
bank to Plaintiff‟s home via a “direct route.” Plaintiff alleges that both Souk and
Reynard were involved in or participated in these trial runs. Freesmeyer and Souk
also affirmatively represented to the grand jury and in pretrial proceedings that no
other persons were implicated in the murder.
Plaintiff filed an eight count Complaint in this Court alleging violations of his
Due Process Rights in addition to various state law claims of malicious prosecution
and intentional infliction of emotional distress. Plaintiff believes that his Due
Process Rights were violated when Defendants, individually, jointly, and/or in
furtherance of a conspiracy, withheld “material exculpatory evidence” from Plaintiff
and his counsel during his criminal trial. This evidence includes reports
3
documenting a second timed driving run (hereinafter “bypass route”) conducted by
police, of an alternate route from the bank to Plaintiff‟s home which showed that
Plaintiff could have made it home in time to make the phone calls to the church.
Plaintiff also alleges that Defendants withheld evidence of another person, John
Doe, who also could have committed the murder. According to Plaintiff, Defendants
knew that Doe was also an ex-boyfriend of Lockmiller, that he sold drugs to
Lockmiller in the past, that she owed him money for the drugs, that he was evasive
and nervous during interviews with police, that he had no alibi during the time of
the murder, that he failed to complete a polygraph examination, that he had been
arrested for domestic battery of his current girlfriend, that he expected to rekindle
his relationship with Lockmiller, and that he was taking steroids which made his
behavior erratic. Plaintiff states that he did not become aware of this evidence until
post-conviction proceedings. Plaintiff further alleges that Defendants violated his
Due Process Rights by failing to intervene to prevent constitutional violations. In
his allegations, Plaintiff groups Defendants together by alleging that they acted
“individually, jointly, and in conspiracy.”
Plaintiff also has alleged state law claims of malicious prosecution, that
Defendants engaged in a conspiracy “to accomplish an unlawful purpose by
unlawful means,” and intentional infliction of emotional distress. Finally, Plaintiff
asserts that Town of Normal is liable, under a theory of respondeat superior, for the
torts committed by its employees and that the Town of Normal and McLean County
must indemnify the individual Defendants.
4
In summary, Plaintiff alleges that all Defendants violated Due Process by
withholding exculpatory evidence with respect to John Doe and the bypass route
(Count I), that they engaged in a conspiracy to deprive Plaintiff of this exculpatory
evidence in violation of Due Process (Count II), that these Defendants failed to
intervene to prevent constitutional violations in violation of the Fourth Amendment
(Count III), that they maliciously prosecuted Plaintiff in violation of state law
(Count IV), that they engaged in a civil conspiracy in violation of state law (Count
V), that they intentionally inflicted emotional distress (Count VI), and claims for
respondeat superior (Count VII—against Town of Normal), and indemnification
(Count VIII).
PROCEDURAL HISTORY
On March 3, 2011, this Court dismissed Count I (§ 1983 Due Process) without
prejudice as to Defendants Brown, Reynard, and Zayas. (Doc. 48 at 15).
Additionally, the Court determined that prosecutor Defendants Reynard and Souk
were entitled to absolute immunity and qualified immunity on Count I. (Doc. 48 at
17-20). Accordingly, Count I was dismissed as to Reynard and Souk.
The Court also concluded that Count II (§ 1983 conspiracy), Count III (§ 1983
failure to intervene), and Count V (state law civil conspiracy) failed to meet notice
pleading requirements, as they were too vague and conclusory. (Doc. 48 at 23, 30).
The Court dismissed these counts without prejudice and granted Plaintiff leave to
file an amended complaint within 15 days. (Doc. 48 at 31). Because Plaintiff had
not objected to Magistrate Judge Cudmore‟s recommendation of dismissal of the
5
“bypass route” and respondeat superior claims against McClean County in that
court‟s first Report and Recommendation, those claims were dismissed. (Doc. 48 at
7-8, 30).
As for the state law claims, the Court found that the Defendants failed to
carry their burden of showing that they are entitled to absolute immunity on those
claims. In so finding, the Court focused on a possible conflict in Illinois case law
regarding whether a prosecutor‟s “malicious motive” precludes absolute immunity,
or conversely, whether Illinois prosecutorial immunity simply tracks federal
absolute prosecutorial immunity. (Doc. 48 at 25). Additionally, the Court
determined that Plaintiff‟s intentional infliction of emotional distress claim was not
time-barred, and that the issue of probable cause on the state malicious prosecution
claim was a factual inquiry that could not be resolved on a motion to dismiss. (Doc.
48 at 28-29). Finally, the Court indicated that “Plaintiff has generally failed to
sufficiently allege facts that would render each individual Defendant liable for the
alleged conduct,” and that Defendants therefore “cannot be placed on notice of the
claims against them.” (Doc. 48 at 30). The Court noted that this flaw marred both
Plaintiff‟s state law and federal law claims. The Court admonished Plaintiff to “give
serious consideration to parsing out which claims will be asserted against each
individual Defendant and the reasons therefore.” (Doc. 48 at 30).
On March 17, 2011, Plaintiff filed a First Amended Complaint (Doc. 50),
which was later replaced by a corrected First Amended Complaint (Doc. 63)
(corrected to reflect Defendant Brown‟s title as a McLean County Deputy Sheriff,
6
rather than as a lieutenant for the Town of Normal Police Department). The First
Amended Complaint adds detail regarding the involvement of the prosecutor
Defendants Reynard and Souk. For example, Plaintiff now alleges that
Reynard and Souk both approved a series of “consensual overhear”
requests, taped conversations that were later used as evidence against
Plaintiff at trial. Souk and Reynard also participated in the daily
“investigators‟ meetings” held in the Normal Police Department,
during which the State‟s Attorneys and detectives planned strategy,
discussed the available evidence, and developed potential suspects. It
was during one or more of these meetings that the investigative team,
which included defendants Zayas, Hospelhorn, Brown, Warner,
Freesmeyer, Souk, and Reynard, made the decision not to disclose
evidence to the defense concerning the existence of John Doe as an
alternative suspect. During another such meeting, in May 1994, the
team decided to arrest Plaintiff for the murder of Lockmiller.
(Doc. 63 at 5-6). Additionally, Plaintiff alleges that Reynard and others supported
Freesmeyer‟s reliance upon Michael Swain to help inculpate Plaintiff through
Swain‟s participation in “consensual overhears” (eavesdropping sessions over the
phone and in person), despite the fact that Swain himself was still a suspect at the
time the overhears took place. (Doc. 63 at 7).
The First Amended Complaint adds additional detail to Plaintiff‟s conspiracy
and failure to intervene claims. (Doc. 63 at 14-17). Plaintiff now alleges that
Defendants Freesmeyer, Hospelhorn, Warner, Brown, Zayas, Souk,
and Reynard entered into a voluntary agreement that they would not
disclose to Plaintiff any information concerning John Doe, and thereby
insured that Plaintiff was wrongfully prosecuted for Lockmiller‟s
murder. The individual Defendants held daily meetings during the
course of the investigation in which they discussed, among other
things, the viability of potential suspects. During one or more such
meetings, the individual Defendants made an agreement or series that
they would not disclose the existence of an alternative suspect, John
Doe, to Plaintiff or his criminal defense counsel.
7
(Doc. 63 at 15). Pursuant to this alleged conspiratorial agreement, Plaintiff
maintains that the police Defendants “purposefully omitted any significant mention
of Doe from police reports and any other records turned over to the defense.” (Doc.
63 at 15).
As to the conspiracy claim against the prosecutor Defendants specifically,
Plaintiff now argues that through their participation in the investigators‟ meetings
“Souk and Reynard learned about Doe‟s existence and the circumstantial evidence
suggesting his guilt.” (Doc. 63 at 16). However, Plaintiff alleges that after learning
of these facts “Souk and Reynard agreed with the individual police Defendants that
the information about Doe should be concealed.” (Doc. 63 at 16). Plaintiff also
maintains that Souk and Reynard actually “approved the overhear requests used to
attempt to develop evidence against plaintiff,” that “Souk signed the warrant for
Plaintiff‟s arrest,” and that “Souk intentionally and falsely stated that the police
had no other suspects, other than Plaintiff, for Lockmiller‟s murder” during a pretrial conference. (Doc. 63 at 17). In addition to Plaintiff‟s allegations that Souk and
Reynard participated in the daily investigators‟ meetings at the Normal Police
Department, Plaintiff claims that
[t]hroughout the investigation, Souk was in “daily contact” with
Freesmeyer, the lead investigator in the case; Souk reviewed all of
Freesmeyer‟s police reports (both those that became part of the official
investigation record and those that did not; Souk “knew what was
important” in the investigation “and what wasn‟t”; and Freesmeyer
looked to Souk for direction in handling the investigation.
(Doc. 63 at 17).
8
REPORT AND RECOMMENDATION
Defendants Reynard, Souk, and McLean County filed a Motion to Dismiss
Plaintiff‟s First Amended Complaint (Doc. 54). These Defendants moved to dismiss
only the state law claims, as Plaintiff indicated in the First Amended Complaint
that he included the federal claims only for purposes of appeal.
In their Motion to Dismiss, Defendants devote all of their efforts to
establishing that there is no “malicious motive” exception in the Illinois
prosecutorial immunity analysis. Defendants argue that because there is no such
exception, the prosecutor Defendants are necessarily entitled to absolute immunity
from Plaintiff‟s state law claims.
Judge Cudmore determined that there is no “malicious motive” exception to
the state law immunity afforded a prosecutor, and that state law on prosecutorial
immunity follows federal law. After reviewing the cases, Judge Cudmore concluded
that the public official immunity doctrine—the doctrine which allows for a
“malicious motive” exception to immunity—is separate from the doctrine of
prosecutorial immunity, and that the latter doctrine is more extensive than the
former in terms of coverage of actions. The former, however, is more extensive in
terms of who it covers: it applies to State officials and employees, not just to state‟s
attorneys. So, although prosecutors could ostensibly seek coverage under public
official immunity, they may also seek the (broader) protections of absolute
prosecutorial immunity.
9
However, Judge Cudmore went on to find that even though absolute
immunity is the proper standard under which to evaluate the prosecutor
Defendants‟ alleged actions, this finding does not necessarily entail that Souk and
Reynard are entitled to absolute immunity for the acts that Plaintiff alleges they
committed. Judge Cudmore found that the prosecutor Defendants failed to address
Plaintiff‟s new allegations in the First Amended Complaint—that they participated
in regular investigative meetings and decided with others in those meetings not to
disclose the information about John Doe, before Plaintiff was ever arrested and
before there was sufficient probable cause to arrest Plaintiff. Judge Cudmore noted
that such actions might be considered investigative (as opposed to prosecutorial)
conduct—conduct not afforded the protections of absolute immunity, despite the fact
that the actions were performed by a prosecutor. Because Judge Cudmore found
that the prosecutor Defendants failed to address Plaintiff‟s arguments on this issue,
and because it is their burden to demonstrate that absolute immunity protects them
from the state law claims, Judge Cudmore recommended that the their assertion of
absolute immunity on the state law claims be denied at this point, with leave to
renew at the summary judgment stage.
McLean County is named as a defendant for purposes of indemnification.
Judge Cudmore recommended that McLean County stay in as a defendant at this
time, because he recommended that Souk and Reynard‟s assertion of absolute
immunity on the state law claims be denied (therefore keeping them in the case),
10
and because the County does not dispute Plaintiff‟s assertion that the County must
also indemnify Defendant Brown.
Judge Cudmore also included a helpful section in the Report and
Recommendation clearing up the record to reflect which counts are remaining and
which have been dismissed—a necessary exercise, because Plaintiff repleaded
dismissed claims in the First Amended Complaint, apparently because he believed
he needed to do so in order to preserve them for appeal. Judge Cudmore
recommended that the claims which have already been dismissed without leave to
replead—those relating to the failure to disclose evidence about the bypass route;
the respondeat superior claim against McLean County; and the dismissal of Count I
as to Defendants Souk and Reynard on grounds of absolute and qualified
immunity—be dismissed again. Also in this section, Judge Cudmore noted that this
Court dismissed Count II (§ 1983 conspiracy) and Count III (§ 1983 failure to
intervene) against all Defendants without prejudice, but that Plaintiff apparently
interpreted the Court‟s ruling on absolute and qualified immunity to apply to all the
federal claims against Souk and Reynard. As a result, Plaintiff does not argue that
the additional allegations in the First Amended Complaint preclude immunity for
Reynard and Souk on Counts II and III, and Plaintiff mentions in the First
Amended Complaint that he continues to name Reynard and Souk in the federal
counts only to preserve the issue for appeal. As a result of this apparent concession,
Judge Cudmore recommended that Reynard and Souk be dismissed on Counts II
11
and III. Because the parties do not challenge Judge Cudmore‟s conclusion with
respect to this point, it is ACCEPTED.
Additionally, Judge Cudmore recommended that the Court not dismiss Count
I as to Defendants Brown and Zayas, because they have not moved to dismiss the
First Amended Complaint, which contains new allegations and details. Judge
Cudmore noted that these Defendants have filed Answers to the First Amended
Complaint. Similarly, Judge Cudmore recommended that Counts II and III should
remain against the Defendants other than Souk and Reynard, as again, Plaintiff
added new allegations relevant to these Counts, and no Defendants other than Souk
and Reynard have moved to dismiss the First Amended Complaint. Again, because
the parties do not challenge Judge Cudmore‟s conclusion on these issues, it is
ACCEPTED.
STANDARD
“In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded
allegations as true and draw all inferences in favor of the non-moving party.” In re
marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009) (citing Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008)). To survive a motion to dismiss under 12(b)(6),
a plaintiff‟s complaint must “plead some facts that suggest a right to relief that is
beyond the „speculative level.‟” EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773,
776-77 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-63
(2007)). “Specific facts are not necessary; the statement need only give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
12
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Erickson v. Pardus, 551
U.S. 89, 93 (2007)). Still, “threadbare recitals of elements of a cause of action” that
are only supported by legal conclusions are not sufficient, as they are not entitled to
presumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).
A district court reviews de novo any portion of a Magistrate Judge's Report
and Recommendation to which a “specific written objection has been made.” FED. R.
CIV. P. 72(b)(3). “The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Id.
DISCUSSION
1. Souk and Reynard
In order to determine whether Defendants‟ Motion to Dismiss should be
granted, the Court must consider two issues. First, the Court must decide whether
there is a “malicious motive” exception to the state law immunity afforded a
prosecutor, or whether state law on absolute prosecutorial immunity simply tracks
federal law. Second, the Court must decide whether Souk and Reynard‟s alleged
actions constitute conduct to which immunity should apply.
a. State Law Prosecutorial Immunity
First the Court must determine the legal standard for state law prosecutorial
immunity in Illinois. The Court notes that Souk and Reynard do not object to Judge
Cudmore‟s determination that “state law on absolute prosecutorial immunity
13
follows federal law.” (Doc. 65 at 11). However, Plaintiff dedicates a paragraph to the
issue in his Response to Defendants‟ Objections, in which he “maintains that the
„malicious motive‟ exception to public official immunity . . . applies to the unlawful
acts that were committed by the State‟s Attorney Defendants throughout the
Lockmiller investigation, during Plaintiff‟s criminal trial leading to his wrongful
conviction, and continuing throughout Plaintiff‟s incarceration.” (Doc. 67 at 15). The
Court will interpret this as an objection to Judge Cudmore‟s Report and
Recommendation, and will therefore review the issue de novo.
Plaintiff contends that the Court should follow Aboufariss v. City of Dekalb,
305 Ill. App. 3d 1054 (Ill. App. Ct. 1999), a case in which the plaintiff‟s state law
tort claims against the prosecutor were found to be subject to “public official
immunity,” which shields a public official from liability only to the extent that his
actions “fall within the scope of the official‟s authority” and are “not . . . the result of
„malicious motives.‟” Id. at 1064. At the same time, the court in Aboufariss found
that plaintiff‟s federal claims were subject to prosecutorial immunity under the
federal standard. Id. at 1063-64. Beaman posits that Aboufariss stands for the
proposition that Illinois and federal doctrines of prosecutorial immunity are not
coterminous, and that prosecutors defending state law tort claims must make a
showing beyond that which is required by federal Imbler-based prosecutorial
immunity. (Doc. 62 at 5).
However, Plaintiff admits that contrary precedent exists in the Illinois
Appellate Court. Specifically, Plaintiff points to White v. City of Chicago, 369 Ill.
14
App. 3d 765 (Ill. App. Ct. 2006). In White, the Appellate Court applied Imbler and
its progeny to determine that prosecutors were absolutely immune from plaintiff‟s
state law claims, because their actions were associated with the “„judicial phase of
the criminal process.‟” 369 Ill. App. 3d at 769 (quoting Imbler v. Pachtman, 424 U.S.
409, 430 (1976)). Beaman then asserts that “the federal courts, faced with this
recent split at the state appellate level, have also divided.” (Doc. 62 at 6). Beaman
suggests that the Court follow Aboufariss, because the rule in that case “is in
keeping with the historical common law tradition in Illinois of granting official
immunity only to those officials who act in good faith.” (Doc. 62 at 6).
In Aboufariss, the plaintiff alleged that Pauling, an assistant State‟s
Attorney, knew that statements made in the complaint for Plaintiff‟s arrest warrant
were false and omitted key information from the complaint in order to convince the
court that probable cause existed. 305 Ill. App. 3d at 1057. The court found that
“[i]n addition to absolute immunity barring the federal claims, Pauling is also
protected by public official immunity against Plaintiff‟s state law claims.” Id. at
1064 (emphasis added). To be protected by public official immunity, the court
explained that “a public official‟s actions must fall within the scope of the official‟s
authority and should not be the result of „malicious motives.‟” Id. at 1065.
Obviously, this language strongly suggests that the state law prosecutorial
immunity analysis differs from federal law prosecutorial immunity analysis: in the
federal law analysis, the only relevant issue is whether the prosecutor‟s actions
were “intimately associated with the judicial phase of the criminal process.” Imbler
15
v. Pachtman, 424 U.S. 409, 430 (1976). The prosecutor‟s motives in carrying out
those acts—be they “malicious” or otherwise—are immaterial.
However, after differentiating the two standards, the Aboufariss court noted
that “[b]ecause we have already concluded that Pauling‟s actions fell within the
scope of traditional prosecutorial functions and plaintiff‟s state law claims against
Pauling were based on the same factual allegations contained in the section 1983
claims”—on which the court had already determined Pauling was entitled to federal
prosecutorial immunity—“public official immunity operates to bar the state law
claims against Pauling.” 305 Ill. App. 3d at 1065. Standing alone, this sentence
seems to suggest that the state and federal immunity standards are coterminous—if
one is found to apply, the other will as well. But the sentence that follows it appears
to clarify: “Contrary to Plaintiff‟s assertion, there is no evidence in the record to
support plaintiff‟s argument that Pauling knowingly or recklessly withheld evidence
from the trial court.” Id. This suggests that had the prosecutor acted “knowingly or
recklessly,” he would not be entitled to immunity on the state law claims—despite
having been afforded immunity on the section 1983 claims.
There does appear to be one sentence in Aboufariss that is irreconcilable with
the court‟s conclusion that state law prosecutorial immunity includes a “malicious
motives” exception that is absent from the Imbler-based federal prosecutorial
standard. The court wrote that “[a] prosecutor acting within the scope of her
prosecutorial duties enjoys immunity from civil liability, the same immunity
afforded the judiciary.” Id. As other courts have noted, “[t]here is no question that
16
the immunity afforded the judiciary is absolute,” and therefore not subject to any
“malicious motives” exception. Hughes v. Krause, No. 06 C 5792, 2008 WL 2788722,
at *1 (N.D. Ill. July 17, 2008); see Lanza v. City of Chicago, No. 08 C 5103, 2009 WL
3229407, at *5 (N.D. Ill. Oct. 1, 2009); Gordon v. Devine, No. 08 C 377, 2008 WL
4594354, at *16 (N.D. Ill. Oct. 14, 2008). If the immunity afforded prosecutors is
truly the same as that afforded the judiciary, it follows that prosecutors should not
be subject to a “malicious motives” exception.
Like Aboufariss, in White v. City of Chicago the Illinois Appellate Court was
faced with—and squarely addressed—the issue of the immunity afforded
prosecutors facing state law claims. In White, the plaintiff—who was acquitted of
first degree murder charges after having already spent five years in jail—claimed
that a Cook County State‟s Attorney and an assistant State‟s Attorney concealed
information that would have exonerated him. 369 Ill. App. 3d 765, 766 (Ill. App. Ct.
2006). Specifically, White alleged wrongful imprisonment, intentional infliction of
emotional distress, and conspiracy against the prosecutor defendants. Id. at 769. In
determining that both prosecutors were entitled to the protections of absolute
immunity, the court applied federal precedents (Imbler, Buckley, Burns, and
Seventh Circuit authority), and made no mention of “public official immunity” or
any “malicious motive” exception to absolute prosecutorial immunity as delineated
in Imbler and its progeny. Id. at 769-71.
This division of authority as to the appropriate standard for state law
prosecutorial immunity has been confronted by federal district courts several times.
17
The courts have taken the approach of White in nearly all of these cases, finding
that Illinois and federal doctrines of prosecutorial immunity are coterminous, and
that there is no “malicious motive” exception to prosecutorial immunity under
Illinois law. See Kitchen v. Burge, 781 F. Supp. 2d 721, 736-37 (N.D. Ill. 2011)
(finding that “Illinois and federal doctrines of prosecutorial immunity are
coterminous” and rejecting plaintiff‟s argument “that prosecutors are immune from
suit under Illinois law only insofar as they have not acted with malice”); Lanza,
2009 WL 3229407, at *5 (noting that “[s]ome courts have analyzed prosecutorial
immunity under the rubric of „public official immunity,‟” but finding that the weight
of authority favors the application of absolute prosecutorial immunity without a
malice exception); Gordon v. Devine, No. 08 C 377, 2008 WL 4594354, at *17 (N.D.
Ill. Oct. 14, 2008) (finding that “[t]he recent trend in [federal district court cases
interpreting Illinois law] is to extend absolute immunity even when the plaintiff
alleges malice,” and adopting that approach); Hughes v. Krause, No. 06 C 5792,
2008 WL 2788722, at *2 (N.D. Ill. July 17, 2008) (“Although under Illinois law there
is a doctrine of public official immunity which has a lack of malice requirement,
such is not the immunity afforded prosecutors. Prosecutors, like judges, must be
allowed to perform the functions of their jobs fearlessly and without fear of
consequence.”); Barham v. McIntyre, No. 04-cv-4027-JPG, 2007 WL 1576484, at *8
(S.D. Ill. May 30, 2007) (reviewing the division of authority and concluding that “the
Supreme Court of Illinois would follow the Supreme Court of the United States and
18
hold that absolute prosecutorial immunity extends to willful and malicious
conduct”).
While the cases cited above explicitly considered the division of authority as
to the proper standard for prosecutorial immunity against state law claims in
Illinois, many more decisions simply adopted the approach of White without
considering Aboufariss or public official immunity. See Van Guilder v. Glasgow, 588
F. Supp. 2d 876, 880 (N.D. Ill. 2008) (citing White for the proposition that Illinois
courts considering immunity issues apply the same approach to state law claims
against prosecutors as the Supreme Court applies to federal claims against
prosecutors); Patterson v. Burge, No. 03 C 4433, 2010 WL 3894433, at *7 (N.D. Ill.
Sept. 27, 2010) (discussing and ultimately following White); Fonseca v. Nelson, No.
08-CV-0435-MJR-PMF, 2009 WL 78144 (S.D. Ill. Jan. 12, 2009) (citing White for the
proposition that “Illinois courts apply the same principles in determining whether
absolute immunity protects a prosecutor from liability for state law claims”); Brooks
v. Ross, No. 08 CV 2417, 2008 WL 5082995, at *5 (N.D. Ill. Nov. 25, 2008) (“A
prosecutor acting as an advocate, engaging in activities „intimately associated with
the judicial phase of the criminal process,‟ is absolutely immune from prosecution.”);
Young v. Rogers, No. 06 C 6772 (N.D. Ill. Dec. 15, 2008) (citing White for the
proposition that “[b]ased on the Buckley and Imbler decisions, Illinois courts
recognize the doctrine of absolute prosecutorial immunity as applied to state law
causes of action”).
19
But this is not to say that Aboufariss is no longer considered good law. Even
after White was decided, courts continued to cite Aboufariss—albeit not for the
language in the opinion which support Plaintiff‟s position. Instead, courts have cited
the Aboufariss court‟s statement that “[a] prosecutor acting within the scope of her
prosecutorial duties enjoys immunity from civil liability, the same immunity
afforded the judiciary,” 305 Ill. App. 3d at 1065, and entirely ignored and omitted
the court‟s discussion of “public official immunity.” See Tillman v. Burge, 813 F.
Supp. 2d 946, 980 (N.D. Ill. 2011) (citing Aboufariss for the proposition that “Illinois
law affords prosecutors acting within the scope of the prosecutorial duties the same
immunity as it does judges—absolute immunity”).
Plaintiff‟s interpretation of prosecutorial immunity is simply incorrect. Only
two recent decisions have followed Aboufariss and applied public official immunity
(instead of absolute prosecutorial immunity) in cases in which prosecutors faced
state law claims. The earliest of these decisions is Horstman v. County of DuPage,
284 F. Supp. 2d 1125, 1132 (N.D. Ill. 2003). In Horstman, Judge Elaine Bucklo
relied on Aboufariss in denying the defendant prosecutor‟s motion to dismiss on
absolute immunity grounds:
Mr. Horstman alleges that the prosecutor acted with the malicious
motive of harassing law-abiding gun owners. If true, this allegation
would bar an official immunity defense, but its truth has yet to be
tested. The reasoning of Aboufariss is dependent on the existence of a
factual record, and the case is thus inapplicable on a motion to dismiss
where there is no record to evaluate.
20
Id. This seems to vindicate Plaintiff‟s interpretation of Illinois law. Eight years after
Horstman was decided, however, Judge Bucklo asserted that her opinion in
Horstman had been misunderstood:
Gordon [v. Devine, No. 08 C 377, 2008 WL 4594354 (N.D. Ill. Oct. 14,
2008)] cited my decision in Horstman as refusing to dismiss a claim
based on prosecutorial immunity because the plaintiff had alleged
malice on the defendant‟s part. In point of fact, Horstman discussed
malice only in connection with public official immunity. I declined to
dismiss on prosecutorial immunity grounds because of factual
questions as to whether the defendant had been acting as an
investigator or a prosecutor.
781 F. Supp. 2d at 737 n.3 (internal citations omitted). It is not clear to this Court
why Horstman discussed public official immunity (instead of absolute immunity) at
all. However, it appears from the text of the opinion that this was the only type of
immunity sought by the prosecutor defendants in that case, Horstman, 284 F. Supp.
2d 1133, which may explain the absence of a discussion of an absolute immunity
defense. Regardless, the Court doubts the precedential value Horstman on this
issue.
The next (and more recent) case is Hughes v. Krause, No. 06 C 5792, 2008 WL
904898 (N.D. Ill. March 31, 2008). The conclusion of Hughes was unambiguous:
after reviewing White, Aboufariss, and other federal cases, the court followed
Aboufariss and found that the defendant prosecutor‟s “actions, as pleaded by
Plaintiff, suggest a „malicious motive‟ and as such are outside the bounds of Illinois
public official immunity.” 2008 WL 904898, at *6. However, less than four months
after Hughes was decided, the opinion was altered on reconsideration. Hughes v.
21
Krause, No. 06 C 5792, 2008 WL 2788722 (N.D. Ill. July 17, 2008). There the court
recognized that
[a]lthough the Illinois Appellate Court in Aboufaris [sic] may have
discussed the doctrine of public official immunity and a lack of malice
requirement in order for the official to be afforded protection for acts
performed within their official capacity, the Appellate Court ultimately
concluded that “a prosecutor acting within the scope of her
prosecutorial duties enjoys immunity from civil liability, the same
immunity afforded to the judiciary.”
Id. at *1 (quoting Aboufariss, 305 Ill. App. 3d at 1065). The court concluded that
“[a]lthough under Illinois law there is a doctrine of public official immunity which
has a lack of malice requirement, such is not the immunity afforded prosecutors.
Prosecutors, like judges, must be allowed to perform the functions of their jobs
fearlessly and without fear of consequence.” Id. at *2.
Based on the foregoing, the Court finds that “the Illinois and federal
doctrines of prosecutorial immunity are coterminous,” Kitchen, 781 F. Supp. 2d at
737, and that Illinois‟ “public official immunity” standard would be an inappropriate
standard under which to examine the Defendant prosecutors‟ actions.
b. Application of State Law Immunity to Souk and Reynard’s
Alleged Conduct
Having determined the appropriate standard for state law prosecutorial
immunity, the Court will now address the Defendant prosecutors‟ assertion that
they “are entitled to absolute immunity for Plaintiff‟s state law claims for the same
reasons they are so entitled on the federal claims.” (Doc. 55 at 11).
22
Souk
and
Reynard
argue
that
the
distinction
between
investigative/administrative conduct and conduct “intimately associated with the
judicial phase of the criminal process” is immaterial here, as “[t]his Court has
already assumed the prosecutor Defendants participated in the investigation, and
in fact, directed police officers to exclude exculpatory information from their reports,
but found nonetheless that immunity applied.” (Doc. 66 at 7). According to the
prosecutor Defendants, “[t]he only basis for the denial of that motion to dismiss the
state law claims was this Court‟s concern that there might be a „malicious motive‟
exception to state law prosecutorial immunity.” (Doc. 66 at 7). Because Judge
Cudmore found that such an exception should not be applied (a conclusion with
which this Court agrees), Souk and Reynard maintain that the remaining state law
claims should be dismissed on the basis of prosecutorial immunity.
The Court disagrees. As Judge Cudmore noted, the March 21, 2011 Order‟s
“ruling on absolute immunity was discussed in the context of Count I, not in the
context of the elements of the state tort claims.” (Doc. 65 at 21).1 While the Court
Furthermore, Defendants appear to assume that the Court‟s ruling on
absolute immunity alone would have been sufficient to bar Plaintiff‟s Count I claim
against Souk and Reynard, without any consideration of qualified immunity. This is
apparently why Souk and Reynard argue only for absolute immunity in the Motion
to Dismiss presently before the Court, in which no mention is made of Souk and
Reynard‟s potential entitlement to qualified immunity with respect to the state law
claims. However, Defendants are mistaken. In its March 3, 2011 Order, the Court
made clear that “these defendants are absolutely immune to the extent that
Plaintiff is alleging that they suppressed exculpatory evidence as prosecutors and
during the judicial phase of the action against Plaintiff . . . .” (Doc. 48 at 19,
emphasis added). In other words, this immunity only covered the prosecutors‟
conduct that was “prosecutorial” in nature—conduct that was “intimately associated
with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430-31. The
Court then went on to state that “[t]he analysis of qualified immunity, then, only
1
23
did cite the conflict in Illinois case law as to the existence of a “malicious motive”
exception as grounds for declining to dismiss the state law claims, the Court did not
indicate or in any way imply that the state law claims would be dismissed if such an
applies to those alleged actions taken by Reynard and Souk in their alleged capacity
as investigators of the crime, prior to the actual prosecution of the case,” (Doc. 48 at
19, emphasis added), and then analyzed whether Reynard and Souk were entitled
to qualified immunity. The Court explained:
In this respect, Plaintiff‟s Due Process claim, as outlined in Count I, is
that they suppressed material, exculpatory evidence during the
investigation of the crime. Certainly, if these Defendants are treated as
police officer [sic], they could not logically be liable for withholding
information from themselves as prosecutors. Moreover, such a Brady
violation occurs only when the evidence is suppressed in a manner that
would prevent Plaintiff and his counsel from timely access such that
they are unable to “make use” of the evidence. . . . Plaintiff alleges that
the suppression occurred prior to his arrest, his indictment, and prior
to his trial. Such a claim does not make out a Brady claim and hence, a
due process claim. Thus, to the extent that Plaintiff is alleging that
these Defendants acted as investigators, there is no plausible
argument that their conduct violated a constitutional right as
expressed in Brady and its progeny. Indeed, the allegations reveal that
these Defendant‟s [sic] are entitled to qualified immunity.
(Doc. 48 at 19-20). Thus, the Court did not engage in the qualified immunity
analysis as a mere thought exercise. Rather, this analysis was crucial to the Court‟s
finding that Souk and Reynard were immune from Plaintiff‟s Count I claim:
Defendants‟ alleged investigatory conduct was immune because such investigatory
misconduct cannot form the basis of a Brady violation, and therefore Plaintiff‟s own
“allegations reveal that these Defendants are entitled to qualified immunity” on
Count I. (Doc. 48 at 20).
It follows that even if the Court found that the results of the absolute
immunity analysis on Count I in the Court‟s March 3, 2011 Order could simply be
transposed onto the state law claims, it would do Defendants little good. This is
because the absolute immunity analysis in the March 3, 2011 Order did not address
whether the conduct alleged to be investigative was in fact investigative (such that
it would not be protected by absolute immunity), or whether the conduct was
sufficiently “associated with the judicial phase of the criminal process” to fall under
the umbrella of absolute immunity. For absolute immunity alone to be dispositive in
cases in which a Plaintiff alleges investigative misconduct on the part of
prosecutors, that distinction needs to be considered.
24
exception proved to be inapplicable. As such, the Court must determine whether the
alleged conduct that forms the basis of the state law claims is of a type that entitles
the prosecutor Defendants to the protections of absolute immunity.
A prosecutor is entitled to absolute immunity from suit for the actions and
decisions undertaken in furtherance of his or her prosecutorial duties. Imbler v.
Pachtman, 424 U.S. 409, 410 (1976). Whether such conduct falls within the scope of
a prosecutor‟s duties depends on the function of that conduct. See Van de Kamp v.
Goldstein, 555 U.S. 335, 342-43 (2010); Kalina v. Fletcher, 522 U.S. 118, 127 (1997)
(“[I]n determining immunity, we examine the nature of the function performed, not
the identity of the actor who performed it.”). “The analysis hinges on whether the
prosecutor is, at the time, acting as an officer of the court, as well as on his action‟s
relatedness to the judicial phase of the criminal process.” Fields v. Wharrie, —
F.3d—, No. 11-2035, 2012 WL 614714, at *3 (7th Cir. Feb. 28, 2012) (citing Imbler,
424 U.S. at 430). In other words, “the actions of a prosecutor are not absolutely
immune merely because they are performed by the prosecutor.” Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993) (“Buckley III”).
The Supreme Court has made clear that “acting as an officer of the court”
does not encompass the prosecutor‟s actions only during a trial. As the Court noted
in Buckley III,
acts undertaken by a prosecutor in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course of his
role as an advocate for the State, are entitled to the protections of
absolute immunity. Those acts must include the professional
evaluation of the evidence assembled by the police and appropriate
25
preparation for its presentation at trial or before a grand jury after a
decision to seek an indictment has been made.
Id. Even though such acts take place outside of the courtroom, they are deemed to
be “intimately associated with the judicial phase of the criminal process,” Imbler,
424 U.S. at 430-31, and therefore protected by absolute immunity.
But prosecutors will be denied absolute immunity when they act in a merely
investigative or administrative capacity. This distinction was explored in Buckley
III:
There is a difference between the advocate‟s role in evaluating
evidence and interviewing witnesses as he prepares for trial, on the
one hand, and the detective‟s role in searching for the clues and
corroboration that might give him probable cause to recommend that a
suspect be arrested, on the other hand. When a prosecutor performs
the investigative functions normally performed by a detective or police
officer, it is “neither appropriate nor justifiable that, for the same act,
immunity should protect the one and not the other.”
509 U.S. at 273 (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973)).
Performance of such functions by a prosecutor “entitle[s] him only to the qualified
immunity granted to the police and other members of the prosecution team who
share those duties.” Fields, 2012 WL 614714, at *3 (citing Buckley III, 509 U.S. at
273).
Viewing the alleged facts and all reasonable inferences drawn therefrom in
the light most favorable to Plaintiff, the First Amended Complaint suggests that the
prosecutor Defendants engaged in investigative acts—acts that should not be
afforded the protections of absolute immunity under Imbler and its progeny. Of
particular relevance is the timing of the alleged acts: Plaintiff alleges “actions on
26
the part of . . . [the prosecutors] that took place long before his arrest.” Horstman v.
County of DuPage, 284 F. Supp. 2d 1125, 1132 (N.D. Ill. 2003). Specifically, Plaintiff
alleges that “Souk and Reynard began committing the investigative misconduct in
issue here eight months before Plaintiff‟s arrest and a full 18 months before Plaintiff
went to trial on the wrongful charges.” (Doc. 67 at 11; see Doc. 63 at 14). While it is
true that absolute immunity applies to certain acts taken by prosecutors
“preliminary to the initiation of a prosecution,” Imbler, 424 U.S. at 431 n. 33,
numerous decisions have discussed the importance of the temporal proximity of the
allegedly investigative actions to the initiation of the prosecution. See Buckley III,
509 U.S. at 275 (finding that because plaintiff was not arrested until many months
after the acts for which the prosecutors sought absolute immunity occurred, “the
prosecutors‟ conduct occurred well before they could properly claim to be acting as
advocates”); Burns v. Reed, 500 U.S. 478, 492 (1991) (finding that a prosecutor‟s
appearance at a probable cause hearing is “connected with the initiation and
conduct of a prosecution, particularly where the hearing occurs after arrest . . . ”
(emphasis added)); Buckley v. Fitzsimmons, 20 F.3d 789, 794 (7th Cir. 1994)
(“According to the complaint, the interrogation and payments took place early in the
investigation, while the prosecutors were just beginning to piece events together.
Thus there cannot be absolute immunity.”); Houston v. Partee, 978 F.2d 362, 368
(7th Cir. 1992) (finding that because the alleged prosecutorial acts took place after
conviction, the prosecutors were not entitled to absolute immunity); White, 369 Ill.
App. 3d. at 772 (holding that the timing of the alleged actions of the prosecutor
27
supported the court‟s conclusion that the prosecutor‟s “actions were associated with
the judicial phase of the criminal process instead of the investigatory phase,”
because the conduct occurred one month before plaintiff‟s trial and more than five
years after the grand jury indicted plaintiff).
Additionally, the temporal remoteness of the conduct alleged by Plaintiff in
relation to Plaintiffs‟ arrest and trial is particularly relevant when one considers the
nature of the actions at issue. The prosecutor Defendants argue that “Plaintiff
cannot seriously contend that merely meeting with investigators to discuss evidence
is outside the realm of prosecutorial duties for which Reynard and Souk are entitled
to immunity.” (Doc. 66 at 6). Understandably, Defendants would have this Court
interpret Reynard and Souk‟s meetings with police as mere “preparation for trial.”
As the Supreme Court noted in Burns v. Reed, “[a]lmost any action by a prosecutor,
including his or her direct participation in purely investigative activity, could be
said to be in some way related to the ultimate decision whether to prosecute”—or,
as in this case, how to prosecute. 500 U.S. at 495. But the Court noted that it has
“never indicated that absolute immunity is that expansive. Rather, as in Imbler, we
inquire whether the prosecutor‟s actions are closely associated with the judicial
process.” Id. While “meeting with investigators to discuss evidence” could certainly
be considered “prosecutorial duties,” this misstates (or at least severely
understates) Plaintiff‟s allegations. Plaintiff alleges that the prosecutor Defendants
were working closely with investigators since September or October of 1993 (one to
two months after the murder took place, and a full seven to eight months before
28
Plaintiff was arrested), (Doc. 63 at 5, 14), with Souk “in „daily contact‟ with
Freesmeyer, the lead investigator in the case,” (Doc. 63 at 17), and with both Souk
and Reynard participating in daily meetings with investigators throughout the
course of the investigation (Doc. 63 at 15, 17). Plaintiff further alleges that Reynard
and Souk “approved the overhear requests used to attempt to develop evidence
against Plaintiff,” (Doc. 63 at 17), and that the lead investigator in the case “looked
to Souk for direction in handling the investigation,” (Doc. 63 at 17).
Assuming the truth of these allegations, it appears that for at least some of
the aforementioned acts, the prosecutor Defendants were not acting as advocates,
but were instead involved in “the preliminary investigation of an unsolved crime.”
Buckley III, 509 U.S. at 275. Because such conduct is investigatory and not “closely
associated with the judicial process,” the prosecutor Defendants are not entitled to
absolute immunity for the state law claims at this point. Souk and Reynard will be
granted leave to renew their absolute immunity argument at the summary
judgment stage when the Court will have before it a more fully developed factual
record.2
2. McLean County
Defendant McLean County did not file any objections to the Report and
Recommendation. Furthermore, because the Court has determined that the state
law claims against Souk and Reynard are not subject to dismissal, and because the
County does not dispute Plaintiff‟s assertion that the County must also indemnify
As noted by Judge Cudmore, in their Motion to Dismiss, Reynard and Souk have
not raised the issue of qualified immunity under Illinois state law on the state law
claims.
2
29
Defendant Brown, Plaintiff‟s indemnification claim against McLean County will not
be dismissed.
CONCLUSION
For the foregoing reasons, the Report and Recommendation (Doc. 65) is
ACCEPTED. The Motion to Dismiss filed by Defendants McLean County, Charles
Reynard, and James Souk (Doc. 54) is DENIED.
Additionally, Count II and Count III of the First Amended Complaint are
DISMISSED WITH PREJUDICE as to Defendants Charles Reynard and James
Souk, as Plaintiff concedes that those claims have been dismissed on the basis of
absolute and qualified immunity.
All of the claims that were dismissed in this Court‟s March 3, 2011 Order—
all claims related to the bypass route, the respondeat superior claim against
McLean County, and the Count I claim against Reynard and Souk—are once again
DISMISSED. Plaintiff is ORDERED to file a Second Amended Complaint within 15
days of this Order reflecting the dismissal of the aforementioned claims.3
To clarify, the following claims remain:
1. Counts I-III (§ 1983 claims) against Defendants Freesmeyer, Hospelhorn,
Warner, Brown, and Zayas;
2. Counts IV-VI (state law claims) against Defendants Souk, Reynard,
Freesmeyer, Hospelhorn, Warner, Brown, and Zayas;
3. Count VII (respondeat superior claim) against the Town of Normal;
4. Count VIII (indemnification claim) against McLean County and Town of
Normal.
As mentioned in Judge Cudmore‟s Report and Recommendation and supra,
Plaintiff need not replead dismissed claims in order to preserve them for appeal.
3
30
This matter is referred to the Magistrate Judge for further proceedings.
Entered this 26th day of March, 2012.
s/ Joe B. McDade
JOE BILLY MCDADE
United States Senior District Judge
31
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