Harper v. Matthews et al

Filing 70

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 11/26/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court dismisses Count 1 of Harper's second amended complaint but otherwise denies defendants' motions to dismiss [dkt. nos. 61 & 64]. At tomorrow morning's status hearing, the parties should be prepared to set a discovery schedule. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BRIAN HARPER,
Plaintiff,
vs.
BRIAN WAINSCOTT, VILLAGE
OF MUNDELEIN, BEN FAPSO,
and CITY OF NORTH CHICAGO,
Defendants.

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Case No. 16 C 11208

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In 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.
The 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.
Harper 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. 1
In an 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).

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It is conceivable that Harper is also asserting state-law claims, but that is unclear.
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Discussion
1.

Count 1
Though 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.
2.

Count 2
The 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.

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"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.
Defendants 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.
The 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 context.
The 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

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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.
Finally, 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. Jones likewise squarely holds that an
officer is not entitled to qualified immunity in this situation. Id. at 994.
3.

Count 3
Defendants' argument for dismissal of Count 3 is that both Counts 1 and 2 fail to

state a claim. Because Count 2 survives defendants' motions to dismiss, Count 3
remains in the case as well.
Conclusion
For the reasons stated above, the Court dismisses Count 1 of Harper's second
amended complaint but otherwise denies defendants' motions to dismiss [dkt. nos. 61 &
64]. At tomorrow morning's status hearing, the parties should be prepared to set a
discovery schedule.

Date: November 26, 2017

________________________________
MATTHEW F. KENNELLY
United States District Judge
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