Koontz v. BI Incorporated GPS Tracking et al

Filing 7

ORDER DISMISSING CASE. Pursuant to 28 U.S.C. § 1915A(b)(1) this action is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. The dismissal of this action counts as a "strike" for purposes of 28 U.S.C. § 1915(g). Signed by Judge G. Patrick Murphy on 6/22/2011. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEVIN KOONTZ, IDOC # N57678,

)
)
Plaintiff,
)
)
vs.
)
)
BI INCORPORATED GPS TRACKING, )
et al.,
)
)
Defendants.

CIVIL NO. 11-522-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Kevin Koontz, a prisoner in the custody of the Illinois Department of Corrections
(“IDOC”) who currently is incarcerated in the Big Muddy River Correctional Center, brings this
action pro se pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights by
persons acting under color of state law. This case is before the Court for screening pursuant to 28
U.S.C. § 1915A, which states, in relevant part:
(a) Screening. – The court shall review, before docketing, if feasible or, in any event,
as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal. – On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint –
(1) is frivolous, malicious, or fails to state a claim upon which relief may
be granted[.]
28 U.S.C. § 1915A. An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which
relief may be granted if it does not plead “enough facts to state a claim to relief that is plausible on

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its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009). Though the Court is obligated to accept factual allegations as true, “some
factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to
defendants of the plaintiff’s claim.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Also,
“courts should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. However, the factual allegations of a pro se complaint are to be
liberally construed. See Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006) (citing Haines v.
Kerner, 404 U.S. 519, 520 (1972)).
According to Koontz’s pro se complaint and the documentation submitted by Koontz in
support thereof, in 2007 Koontz was on mandatory supervised release (parole) from IDOC custody
for the offense of aggravated criminal sexual abuse of a family member.1 As a condition of Koontz’s
parole, Koontz, who was living and working in Alton, Illinois, at the time, was required to wear a
global positioning system (“GPS”) device manufactured and monitored by Defendant BI
Incorporated GPS Tracking (“BI”) for the purpose of tracking Koontz’s whereabouts on parole.
While on parole, Koontz was indicted for the offense of aggravated criminal sexual abuse of a family
member in connection with an incident that occurred at 103 Mather Street in Alton on

1.
The Court’s account of the background of this case is supplemented by information about
Koontz available on the IDOC’s official website (http://www.idoc.state.il.us/), which information
the Court can judicially notice. See Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2
(S.D. Ill. 2006) (“The Court may of course judicially notice public records and
government documents, including those available from reliable sources on the Internet.”)
(collecting cases).
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October 26, 2007. It appears that, at the time of the 2007 sexual abuse incident, the GPS device
malfunctioned, so that there were no GPS records as to where Koontz was when the incident
occurred. Koontz believes that GPS records would have shown that at the time of the 2007 sexual
abuse incident he was at work at 226 E. Elm Street in Alton, approximately eight tenths of a mile
from the Mather Street address where the sexual abuse incident occurred. Defendant Rocky Turner
was Koontz’s parole officer at the time of the 2007 sexual abuse incident, and testified in connection
with the incident that there were no GPS records showing Koontz’s whereabouts when the incident
occurred; Koontz charges Turner with withholding evidence that would have exculpated him.
Defendant Jennifer Tierney was a detective with the Alton police department who investigated
the 2007 sexual abuse incident. Koontz charges Tierney with giving false testimony before a grand
jury about the distance between the Mather Street address where the sexual abuse incident occurred
and the Elm Street address where Koontz worked. Koontz was convicted in connection with
the 2007 sexual abuse incident and sentenced to eight years’ imprisonment. Koontz alleges
violations of his due process rights in connection with his prosecution for the 2007 sexual abuse
incident and demands damages.
As an initial matter, the Court notes that Koontz’s claim against BI and Turner appears to
sound basically in negligence, e.g., that through lack of due care by BI and Turner GPS evidence that
would have exculpated Koontz as to the 2007 sexual abuse incident was lost. However, a “mere lack
of due care by a state official” does not “‘deprive’ an individual of life, liberty, or property under the
Fourteenth Amendment.” Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Nonetheless, assuming
that Koontz is alleging intentional misconduct by BI and Turner, his claim against BI, Turner, and
Tierney is essentially one for malicious prosecution and thus not actionable pursuant to 42 U.S.C.
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§ 1983. The Supreme Court of the United States has not “explored the contours of a Fourth
Amendment malicious-prosecution suit under § 1983[.]” Wallace v. Kato, 549 U.S. 384, 390 n.2
(2007) (citing Albright v. Oliver, 510 U.S. 266, 270-71, 275 (1994)). In the Seventh Circuit,
however, “the existence of a tort claim [for malicious prosecution] under state law knocks out any
constitutional theory of malicious prosecution.”

Newsome v. McCabe, 256 F.3d 747, 750

(7th Cir. 2001). See also McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir. 2003) (“[T]o the
extent McCann maintains that Mangialardi denied him due process by causing him to suffer a
deprivation of liberty from a prosecution and a contrived conviction . . . deliberately obtained from
the use of false evidence, his claim is, in essence, one for malicious prosecution, rather than a due
process violation.”) (quotation and brackets omitted); Penn v. Harris, 296 F.3d 573, 576
(7th Cir. 2002) (“A plaintiff . . . may not state a § 1983 claim simply by alleging that he was
maliciously prosecuted.”). The reason the existence of a state-law tort of malicious prosecution
defeats a due process claim for malicious prosecution is that “when a state-law remedy exists . . . due
process of law is afforded by the opportunity to pursue a claim in state court[.]” Newsome, 256
F.3d at 751. See also Parish v. City of Chicago, 594 F.3d 551, 553-54 (7th Cir. 2009) (the existence
of a malicious prosecution tort claim under state law precludes any federal constitutional theory of
malicious prosecution under Section 1983); Posey v. Pruger, 762 F. Supp. 2d 1086, 1093
(N.D. Ill. 2011) (same). Because the common-law tort of malicious prosecution exists in Illinois,
an Illinois litigant cannot pursue a constitutional tort of malicious prosecution under Section 1983.
See McCullah v. Gadert, 344 F.3d 655, 658 (7th Cir. 2003); Mutual Med. Plans, Inc. v. County of
Peoria, 309 F. Supp. 2d 1067, 1079 (C.D. Ill. 2004); Swick v. Liautaud, 662 N.E.2d 1238, 1242
(Ill. 1996).
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The cases do not hold, however, that a wrongfully-convicted plaintiff is always limited to
state-law remedies when attacking an unconstitutional or otherwise illegal confinement. In certain
circumstances, a plaintiff may bring constitutional claims under the language of the Constitution
itself, such as a claim for a violation of Brady v. Maryland, 373 U.S. 83 (1963), requiring a
prosecutor or police to disclose exculpatory evidence to a criminal defendant. See Ienco v. City of
Chicago, 286 F.3d 994, 998-99 (7th Cir. 2002) (citing Newsome, 256 F.3d at 751). However,
accrual of a claim for a Brady violation is controlled by the principles announced in Heck v.
Humphrey, 512 U.S. 477 (1994). See Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir. 2008).
Under Heck v. Humphrey,
in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a [civil-rights] plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254.
512 U.S. at 486-87 (footnote omitted). Under Heck, until a conviction or sentence has been
invalidated, a claim for damages based upon the conviction or sentence simply “does not accrue[.]”
Id. at 490. Here Koontz does not allege that his conviction in connection with the 2007 sexual abuse
incident has been invalidated, although he does state that the conviction is on appeal, and therefore
under Heck any constitutional claim he may have for non-disclosure of exculpatory evidence has not
accrued.2 Finally, with respect to Koontz’s claim that Tierney testified falsely before a grand jury

2. It perhaps is worth noting that a claim for malicious prosecution under Illinois law also depends
upon invalidation of a plaintiff’s underlying conviction. See National Cas. Co. v. McFatridge, 604
F.3d 335, 344-45 (7th Cir. 2010) (citing Cult Awareness Network v. Church of Scientology Int’l, 685
N.E.2d 1347, 1351 (Ill. 1997)).
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in connection with the 2007 incident, police, like other witnesses, have absolute immunity from
liability under 42 U.S.C. § 1983 for testimony given in a criminal proceeding. See Briscoe v.
LaHue, 460 U.S. 325, 332 (1983) (a police officer who gave perjured testimony at a
plaintiff’s criminal trial was absolutely immune from subsequent damages liability under
Section 1983 “even if the witness knew the statements were false and made them with malice”).
The United States Court of Appeals for the Seventh Circuit has extended absolute immunity to
police witnesses testifying before a grand jury. See Kincaid v. Eberle, 712 F.2d 1023, 1023-24
(7th Cir. 1983) (police officers testifying before a grand jury have absolute immunity from
Section 1983 liability for giving false testimony). The Court concludes that Koontz’s complaint is
due to be dismissed.
To conclude, pursuant to 28 U.S.C. § 1915A(b)(1), the Court finds that Koontz has failed to
state a claim upon which relief may be granted under 42 U.S.C. § 1983, and this action
is DISMISSED with prejudice. Koontz is advised that the dismissal of this case will count as one
of his three allotted “strikes” under 28 U.S.C. § 1915(g). The Clerk of Court will enter judgment
in accordance with this Order.
IT IS SO ORDERED.
DATED: June 22, 2011

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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