Lovett v. Neff et al

Filing 29

ORDER DENYING WITHOUT PREJUDICE 27 MOTION for Order toProduce Grand Jury Transcript filed by Harding Lovett. Signed by Magistrate Judge Reona J. Daly on 5/7/2018. (ely)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HARDING LOVETT,
Plaintiff,
v.
JARRETT NEFF, et al.,
Defendants.

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Case No. 17-cv-1023-JPG-RJD

ORDER
DALY, Magistrate Judge:
This matter is before the Court on Plaintiff’s Motion for Production of Grand Jury
Transcript (Doc. 27). Plaintiff has brought a civil rights action pursuant to 42 U.S.C. § 1983.
His claims arise from his arrest and criminal proceedings while he was detained at the St. Clair
County Jail. Following threshold screening, Plaintiff is proceeding on the following claims:
Count 1:

Neff obtained a search warrant based on false information about Plaintiff’s
alleged illegal activity, then searched Plaintiff’s home and arrested him
using that warrant which lacked probable cause;

Count 2:

Neff and/or other sheriff’s officer(s) used excessive force against Plaintiff
during his arrest, by throwing him against a wall.

This Court held Plaintiff’s Fourth Amendment claim in Count 1 falls within the realm of
claims that are not barred by Heck, so long as the claim stops short of seeking damages for
Plaintiff’s imprisonment. Plaintiff’s conviction rests on his guilty plea; thus his conviction will
not be impugned even if he were to prevail on his claim that the search warrant and arrest lacked
probable cause because they were based on Neff’s allegedly false statements.
Plaintiff’s Complaint, filed pro se, raises questions concerning the timing of the grand jury
proceedings, the timing of his indictment, the legitimacy of the grand jury proceedings, and the
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accuracy of information provided by, in part, certain defendants. Plaintiff was appointed counsel
by order of this Court on March 6, 2018. Plaintiff’s counsel seeks a copy of the grand jury
transcript in order to determine whether the grand jury proceedings were handled appropriately.
Counsel seeks to review the transcript in order to analyze the merits, or lack thereof, of the theories
of liability currently pending, to advise Plaintiff concerning his rights, and to timely determine the
nature and extent of any possible amendments to Plaintiff’s complaint that may be warranted.
The Seventh Circuit has ruled that, before a federal court orders the release of state grand
jury testimony, the party seeking to discover the testimony should first bring the matter to the
supervising state court to determine whether that grand jury testimony should be disclosed.
Lucas v. Turner, 725 F.2d 1095, 1099 (7th Cir.1984) (“comity dictates that the federal courts defer
action on any disclosure requests until the party seeking disclosure shows that the state supervisory
court has considered his request and has ruled on the continuing need for secrecy.”)
The court went on to note that:
“federal law determines the scope of the privilege covering these materials, and the
requirement that these plaintiffs first seek disclosure through the avenues available to them
in the state court does not give the state courts a veto over disclosure in this federal civil
rights case. This preliminary stage is designed merely to forestall unnecessary intrusion by
the federal courts in state grand jury proceedings or, at least, to ensure that the important
state interest in secrecy is thoroughly considered. On the other hand, although the state
court may determine that the materials are privileged under state law, only the federal court
may determine whether the materials are privileged under federal common law. In this way
the federal interest in disclosure will be properly considered preliminarily to a final
decision on the privilege issue.”
Id. Accordingly, Plaintiff’s counsel is directed to first seek release of the grand jury transcripts in
state court. Plaintiff’s Motion for Production of Grand Jury Transcript is DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
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DATED: May 7, 2018
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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