### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 3742

R ONALD O LSON and C INDY O LSON

, Plaintiffs

‐ Appellants,

v.

C HAMPAIGN C OUNTY

, I LLINOIS

, et al.

Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 11

‐ 2147

— Harold A. Baker

, Judge

.

____________________

A RGUED O CTOBER 31, 2014

— D ECIDED A PRIL 30, 2015

____________________

Before P OSNER

, R OVNER

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. Plaintiffs Ronald and Cindy Ol

‐

son appeal the district court’s dismissal of their civil suit chal

‐ lenging the arrest of Mr. Olson by local officials in Illinois.

The Olsons allege that two police detectives and a prosecutor

violated Mr. Olson’s Fourth Amendment rights by causing his

arrest without probable cause. The district court dismissed2 No. 12

‐ 3742

the suit for failure to state a claim, finding that the prosecutor

was entitled to absolute prosecutorial immunity and the de

‐

tectives were entitled to qualified immunity because they had

a warrant for Olson’s arrest. The district court then declined

supplemental jurisdiction over state law claims arising out of

the same events.

We reverse the dismissal of the federal claims and remand

for the district court to consider both the federal and state law

claims. The prosecutor is not entitled to absolute immunity

because the plaintiffs allege he swore to the truth of facts to

obtain the arrest warrant for Olson. In swearing to facts, he

was acting as a witness, not as an advocate of the state, and so

is not protected by absolute prosecutorial immunity. See Kali

‐

na v. Fletcher

, 522 U.S. 118, 129–30 (1997). Neither the detec

‐

tives nor the prosecutor are entitled to dismissal on qualified

immunity. The allegations of the complaint permit the rea

‐

sonable inference that the two detectives, the prosecutor, or

all three gave false information to the state judge who issued

the warrant for Olson’s arrest. The plaintiffs allege that the

detectives exhaustively investigated the theft of a trailer and

lawn mowers but found no evidence or witnesses that linked

Olson to the crime. The fact that Olson was arrested anyway

on a warrant based on information from the defendants plau

‐ sibly suggests that the defendants gave false information, and

they are not entitled to qualified immunity if they lied to ob

‐

tain the arrest warrant.

I. Factual and Procedural History

We recount the facts as alleged in the second amended

complaint because we must accept the plaintiffs’ allegations

as true when reviewing a dismissal under Federal Rule of

Civil Procedure 12(b)(6). Parish v. City of Elkhart

, 614 F.3d 677,No. 12

‐ 3742 3

679 (7th Cir. 2010); Parish v. City of Chicago

, 594 F.3d 551, 552

(7th Cir. 2009).

A. Investigation and Olson’s Arrest

This suit stems from an exhaustive police investigation in

‐

to the burglary of Marie Buhr’s property in Royal, Illinois, a

town located in Champaign County. On October 6, 2008, Ma

‐

rie Buhr and her grandson, Christopher Buhr, reported to the

Champaign County Sheriff that a red trailer and lawn mow

‐

ers were stolen from the Buhr property.

Also in October 2008, plaintiffs Ronald and Cindy Olson

noticed that their neighbor, Vilven Tire Company, had placed

an eight

‐ foot

‐ long trailer on the Olsons’ property just outside

Royal. Mr. Olson concluded that the trailer was abandoned.

The trailer was deteriorated and had no lights or license

plate. Olson planned to fix up the abandoned trailer to give to

his daughter and son

‐ in

‐ law, Brandy and Brent Vinson. He

painted the trailer and placed brackets and anchor boards on

it. He left the trailer on his property where it could be seen

from the road. Three days after he completed these repairs,

the trailer disappeared. The Olsons did not file a police report

because they did not care if someone took it.

On October 23, 2008, a detective working for the Cham

‐ paign County Sheriff, defendant David Sherrick, discovered a

black trailer with a flat tire abandoned in a ditch on a country

road near Ogden, Illinois. Sherrick took fingerprint samples

from the trailer. In a police report, Sherrick wrote that he ob

‐

served tire marks that looked as if a riding lawn mower had

been transported on the trailer. He also saw bean stalks on

the trailer. Sherrick concluded the trailer had been driven4 No. 12

‐ 3742

through a field to transport the lawn mowers that were re

‐ ported stolen from the Buhr property.

Another investigator in the Sheriff’s office ran the finger

‐ prints from the trailer through a database but found no

match, which was documented in a December 4, 2008 report.

Sherrick nevertheless suspected that Ronald Olson had stolen

the trailer and lawn mowers, so on June 3, 2009 he applied for

and received search warrants that authorized the collection of

DNA samples and fingerprints from Ronald Olson, as well as

a search of the Olsons’ property. Sherrick searched the prop

‐

erty with defendant Stuart Shaw, another detective working

for the Champaign County Sherriff.

The searches allegedly yielded nothing to confirm Sher

‐

rick’s suspicions. A June 9, 2009 laboratory report by the Illi

‐

nois State Police found no match between Ronald Olson’s

DNA or fingerprints and the samples collected from the trail

‐

er or any other Buhr building. Even after the searches, there

was a “lack of any forensic evidence [or a] statement of any

witness connecting Ron Olson in [any way] to the Buhrs, their

trailer, their property or any other matter that would lead a

reasonable police officer to believe there was probable cause

to believe Ron Olson had committed a crime.”

Despite the lack of any evidence implicating Olson, Detec

‐

tives Sherrick and Shaw allegedly told an assistant state’s at

‐

torney, defendant Steven Ziegler, that Ronald Olson should

be arrested and charged for stealing the trailer and lawn

mowers. The Olsons allege that “Officers Sherrick and Shaw

provided false statements of probable cause for charges and

the arrest of Ron Olson to Assistant State’s Attorney Steven

Ziegler [that] resulted in his filing the information which re

‐ quired the arrest of Ron Olson.”No. 12

‐ 3742 5

On June 11, 2009, Ziegler filed an information in state

court charging Ronald Olson with felony burglary of the

Buhr property. Ziegler had no personal knowledge of the in

‐ vestigation into the burglary. He swore that the facts set forth

in the information were true, relying on statements made by

Sherrick and Shaw. The complaint alleges that those state

‐

ments were false. The information sets forth the charges

against Mr. Olson and also contains a section where a person

signs to swear to the truth of the facts in the information:

The State’s Attorney of said County charges:

That on or about OCTOBER 6, 2008, in Cham

‐ paign County, RONALD L. OLSON committed

the offense of BURGLARY CLASS 2 FELONY in

that the said defendant, or one for whose con

‐

duct he is legally responsible, without authority,

knowingly entered a building of Marie Buhr, lo

‐

cated at [address], Royal, Illinois, with the in

‐

tent to commit therein a theft, in violation of 720

Illinois Compiled Statutes 5/19

‐ 1(a). s/ Julia R.

Rietz, State’s Attorney

The undersigned, being duly sworn, states up

‐

on information and belief that the facts set forth

in the foregoing information are true. s/ Illegi

‐

ble, Asst. State’s Attorney, SWORN TO before

me June 11, 2009, s/ Linda S. Frank, Circuit

Clerk6 No. 12

‐ 3742

The signature of the prosecutor swearing to the truth of the

facts in the information, which is marked “Illegible” in the

certified copy in the record in this case, belongs to Ziegler. 1

Also on June 11, 2009, a state judge issued a warrant for

the arrest of Olson. That warrant is reproduced in its entirety

here, omitting only certain identifying personal information:

IN THE CIRCUIT COURT OF CHAMPAIGN

COUNTY, ILLINOIS

THE CIRCUIT COURT OF THE SIXTH

JUDICIAL CIRCUIT IN CHAMPAIGN

COUNTY, STATE OF ILLINOIS TO: ANY

PEACE OFFICER OF THE STATE OF ILLINOIS

WHEREAS

, a verified information by Cham

‐ paign County State’s Attorney has been made

before me that DEFENDANT: Ronald L. Olson

...

At and within the County of Champaign in the

State aforesaid, on or about October 06, 2008,

did commit the offense of Burglary

‐ a class 2

felony in violation of 720 Illinois Compiled

Statutes 5/19

‐ 1(a).

YOU ARE COMMANDED

, by order of said

Court to arrest the said Ronald L. Olson and

1 As a general rule, we may take judicial notice of public records not

attached to the complaint in ruling on a motion to dismiss under Rule

12(b)(6). E.g., Geinosky v. City of Chicago

, 675 F.3d 743, 745 n.1 (7th Cir.

2012); see also Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986). The defend

‐

ants filed the information and arrest warrant in the district court as exhib

‐

its supporting their motion to dismiss. Both documents are certified cop

‐

ies of public state court records.No. 12

‐ 3742 7

bring him/her forthwith before me, or in case of

my absence or inability to act, before the nearest

Associate Circuit Judge or Magistrate within the

said County, to answer said complaint and be

dealt with according to law.

Bail for the foregoing offense(s) hereby fixed at

$50,000.00.

Issued this 11 th day of June, A.D. 2009, in the

County of Champaign, State of Illinois.

s/ Richard P. Klaus, Judge of said Circuit

Court/Associate Circuit Judge

Olson was arrested on June 11, 2009. The complaint alleges

Sherrick and Shaw are liable for “obtaining the arrest” of

Ronald Olson. Fifteen months later, on September 21, 2010,

the circuit court dismissed the charge against Olson on mo

‐

tion of the prosecutor.

B. Procedural History of the Federal Civil Case

The Olsons filed suit on June 6, 2011. They sued Detec

‐

tives Sherrick and Shaw in their individual capacities; Dan

Walsh, Sheriff of Champaign County, in his individual and

official capacities; Assistant State’s Attorney Steven Ziegler in

his individual capacity; and Champaign County itself.

The Olsons alleged that the arrest of Ronald Olson violat

‐

ed his Fourth Amendment right to be free from unreasonable

seizure. This federal claim against local officials was brought

under 42 U.S.C. § 1983 and was asserted against Sherrick and

Shaw for providing false information that led to the arrest

and Ziegler for attesting to the truth of the facts alleged in the

information. Plaintiffs also asserted state law claims for mali

‐8 No. 12

‐ 3742

cious prosecution and false arrest against Sherrick, Shaw, and

Ziegler for their roles in the arrest, as well as against Sheriff

Walsh based on respondeat superior liability for the actions of

Sherrick and Shaw. Champaign County was joined as a nec

‐

essary party because it is obliged by law to pay judgments

against employees acting within the scope of their employ

‐

ment. See 745 Ill. Comp. Stat. 10/9

‐ 102. The Olsons sought

damages for Mr. Olson’s brief detention, the bond restrictions

requiring him to stay in Illinois, and Cindy Olson’s inconven

‐

ience in being unable to travel outside Illinois with her hus

‐

band. 2

The district court dismissed the Olsons’ first amended

complaint for failure to state a claim but granted plaintiffs

leave to file another. The district court then dismissed the

second amended complaint as well and entered final judg

‐

ment for the defendants.

The district court dismissed all claims for five different

reasons. First, the court concluded that Sherrick and Shaw

were entitled to qualified immunity because they arrested Ol

‐

son pursuant to a warrant issued by a state judge. Second, the

court concluded that prosecutor Ziegler was entitled to abso

‐

lute immunity because he was acting in his capacity as an ad

‐

2 When the Olsons first filed suit, they joined their claims based on

the arrest of Ronald Olson with the claims of his daughter and son

‐ in

‐ law,

Brandy and Brent Vinson. The Vinsons sued various local officials and

local governments for the allegedly unlawful search of their property in

Vermilion County, which adjoins Champaign County. That search took

place on June 4, 2009, after the search of the Olson property. On February

27, 2012, the district court severed the claims of the Vinsons and Olsons

into two separate lawsuits. For our disposition of the Vinsons’ claims, see

Vinson v. Vermilion County

, 776 F.3d 924 (7th Cir. 2015).No. 12

‐ 3742 9

vocate for the state when he signed and filed the charging in

‐

formation. Third, the court found the complaint failed to state

a federal claim against Sheriff Walsh because a supervisor is

not liable under § 1983 for a subordinate’s violation of a per

‐

son’s constitutional rights. E.g., Chavez v. Illinois State Police

,

251 F.3d 612, 651 (7th Cir. 2001). Fourth, the plaintiffs failed to

state a viable Monell claim against Champaign County be

‐

cause they did not point to a municipal policy or practice (or

person with policymaking authority) that caused the consti

‐

tutional injury. See Monell v. New York City Dep’t of Social Ser

‐

vices

, 436 U.S. 658 (1978) (explaining when a local govern

‐

ment may be liable under § 1983). Finally, after finding no

valid federal claims, the court declined to accept supple

‐

mental jurisdiction over the state law false arrest and mali

‐

cious prosecution claims. The court entered final judgment in

favor of the defendants. This appeal followed.

II. Analysis

We review de novo the district court’s dismissal for failure

to state a claim under Fed. R. Civ. P. 12(b)(6). E.g., Parish v.

City of Elkhart

, 614 F.3d 677, 679 (7th Cir. 2010). We reverse the

dismissal. The complaint plausibly alleges that the defend

‐

ants unlawfully caused the arrest of Ronald Olson. At this

stage of the proceedings, Sherrick and Shaw are not entitled

to qualified immunity, and Ziegler is not entitled to absolute

immunity or qualified immunity.

A. Legal Standard

To survive a motion to dismiss, the plaintiffs’ complaint

need contain only “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). While specific facts are not necessary, Erickson v. Par

‐10 No. 12

‐ 3742

dus

, 551 U.S. 89, 93 (2007) (per curiam), the complaint must

“‘give the defendant fair notice of what the

... claim is and

the grounds upon which it rests.’” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (omission in original), quot

‐ ing Conley v. Gibson

, 355 U.S. 41, 47 (1957).

We must determine if the allegations in the complaint

state a plausible claim for relief. Twombly

, 550 U.S. at 570;

Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009). “Factual allegations

must be enough to raise a right to relief above the speculative

level

... .” Twombly

, 550 U.S. at 555; see also Brooks v. Ross

, 578

F.3d 574, 581 (7th Cir. 2009) (plausibility requirement “‘simp

‐ ly calls for enough facts to raise a reasonable expectation that

discovery will reveal evidence’ supporting the plaintiff’s alle

‐ gations”), quoting Twombly

, 550 U.S. at 556.

These factual allegations must be more than “[t]hreadbare

recitals of the elements of a cause of action, supported by

mere conclusory statements.” Iqbal

, 556 U.S. at 678. We “are

not bound to accept as true a legal conclusion couched as a

factual allegation.” Twombly

, 550 U.S. at 555 (internal quota

‐

tion marks omitted), quoting Papasan v. Allain

, 478 U.S. 265,

286 (1986). This is a fine line, though, and it is appropriate to

give plaintiffs a chance to amend a complaint to provide

more factual detail, as the district court did here after its first

dismissal. See, e.g., Bausch v. Stryker Corp

., 630 F.3d 546, 562

(7th Cir. 2010) (“Generally, if a district court dismisses for

failure to state a claim, the court should give the party one

opportunity to try to cure the problem, even if the court is

skeptical about the prospects for success.”), citing Foster v.

DeLuca

, 545 F.3d 582, 584 (7th Cir. 2008).

“The plausibility standard is not akin to a ‘probability re

‐ quirement,’ but it asks for more than a sheer possibility that aNo. 12

‐ 3742 11

defendant has acted unlawfully.” Iqbal

, 556 U.S. at 678, quot

‐ ing Twombly

, 550 U.S. at 556. A claim should survive a Rule

12(b)(6) motion to dismiss if the complaint contains well

‐ pled

facts—that is, not just legal conclusions—that permit the

court to infer more than the mere possibility of misconduct.

Iqbal

, 556 U.S. at 679. In deciding or reviewing a Rule 12(b)(6)

motion, we do not ask did these things happen; instead, “the

proper question to ask is still ‘ could these things have hap

‐ pened.” Carlson v. CSX Transportation, Inc

., 758 F.3d 819, 827

(7th Cir. 2014), quoting Swanson v. Citibank, N.A

., 614 F.3d 400,

404–05 (7th Cir. 2010).

B. Claim Against Detectives Sherrick and Shaw

The plaintiffs claim that detectives Sherrick and Shaw are

liable for arresting Ron Olson without probable cause in vio

‐

lation of the Fourth Amendment. The district court dismissed

this claim after concluding the officers could not be liable be

‐

cause they had a warrant for the arrest and so were entitled to

qualified immunity.

We evaluate claims for qualified immunity by the stand

‐

ard of objective reasonableness. Malley v. Briggs

, 475 U.S. 335,

344 (1986); see also Harlow v. Fitzgerald

, 457 U.S. 800, 818–19

(1982) (holding that officials who act objectively reasonably,

by reference to clearly established law, are entitled to quali

‐

fied immunity). This is the same standard that applies in de

‐ ciding whether to suppress evidence in a criminal trial ob

‐

tained through an invalid warrant, and precedents regarding

suppression rulings therefore provide guidance to the quali

‐

fied immunity inquiry for civil § 1983 suits. Malley

, 475 U.S. at

344, citing United States v. Leon

, 468 U.S. 897 (1984).12 No. 12

‐ 3742

Officers do not act reasonably if they intentionally or reck

‐ lessly provide false information to obtain a warrant. Leon

, 468

U.S. at 926; see also United States v. Garcia

, 528 F.3d 481, 487

(7th Cir. 2008) (holding that a criminal defendant can rebut

the presumption that an officer is acting in good faith by ap

‐ plying for a warrant if “the officer was dishonest or reckless

in preparing the affidavit”). A police officer is not entitled to

qualified immunity for submitting “an affidavit that con

‐

tained statements he knew to be false or would have known

were false had he not recklessly disregarded the truth and no

accurate information sufficient to constitute probable cause

attended the false statements.” Lawson v. Veruchi

, 637 F.3d 699,

704 (7th Cir. 2011) (internal quotation marks omitted), quot

‐ ing Olson v. Tyler

, 771 F.2d 277, 281 (7th Cir. 1985). This stand

‐

ard applies to officers “who provided information material to

the probable

‐ cause determination.” Leon

, 468 U.S. at 923 n.24.

The plantiffs’ allegations allow a reasonable inference that

Sherrick and Shaw provided false information to obtain the

warrant and so are not entitled to qualified immunity. The

plaintiffs allege that Sherrick and Shaw lied to Ziegler about

having probable cause to arrest Mr. Olson. The complaint

states that “Officers Sherrick and Shaw provided false state

‐

ments of probable cause for charges and the arrest of Ron Ol

‐

son to Assistant State’s Attorney Steven Ziegler [that] resulted

in his filing the information which required the arrest of Ron

Olson.”

The defendants respond that this is a bare legal conclusion

and fails to give them notice of the claim against them in light

of the pleading requirements set out in Twombly and Iqbal

. They suggest that the plaintiffs were required to specify what

statements were false and led to Olson’s arrest. But the OlsonsNo. 12

‐ 3742 13

alleged all of the facts they could reasonably be expected to

know and have provided much more detail than the bare le

‐ gal conclusion that Sherrick and Shaw “provided false state

‐

ments of probable cause.”

Plaintiffs’ “pleading burden should be commensurate

with the amount of information available to them.” Bausch

,

630 F.3d at 561 (citation and internal quotation marks omit

‐ ted). It is unreasonable to require plaintiffs to plead the spe

‐

cific statements with more particularity when they have no

knowledge of the specific falsehoods and can learn of them

only through discovery. The Olsons do not know what false

information was the purported basis for the arrest warrant

because the warrant itself is so conclusory. It refers only to an

information with the conclusory allegation that Ronald Olson

committed burglary. The well

‐ pled facts in the complaint

make it reasonable to expect that discovery will reveal evi

‐

dence about the precise statement that the Olsons contest is

false and that is all that is required at this stage. See Brooks v.

Ross

, 578 F.3d 574, 581 (7th Cir. 2009) (complaint is plausible if

it contains facts that “raise a reasonable expectation that dis

‐

covery will reveal evidence” supporting the allegations),

quoting Twombly

, 550 U.S. at 556.

The complaint recounts in detail the investigation leading

up to Mr. Olson’s arrest and the absence of evidence implicat

‐ ing him in any theft of the lawn mowers and trailer. Viewed

as a whole, the complaint supports a plausible inference that

Sherrick and Shaw lied about the factual basis for the proba

‐

ble cause to arrest Olson. See Twombly

, 550 U.S. at 555–56.

The Olsons allege that every step of Sherrick and Shaw’s

extensive investigation failed to yield any evidence that Mr.

Olson was involved in the theft of the trailer and lawn mow

‐14 No. 12

‐ 3742

ers. The officers found an abandoned trailer that they be

‐

lieved was the trailer stolen from the Buhrs. They took fin

‐ gerprint samples from that trailer, had the samples analyzed,

and found no match in their database. The officers then ob

‐

tained a search warrant for the Olson residence as well as for

Mr. Olson’s DNA and fingerprints. They executed both

searches but allegedly found nothing linking Olson to the sto

‐

len trailer. Olson’s DNA and fingerprints did not match sam

‐ ples collected from the abandoned trailer or samples from the

Buhr property. And the search of the Olson residence also

turned up nothing implicating Mr. Olson in the theft or even

linking him to the Buhr property, the scene of the crime. The

Olsons also allege that the police did not have any statements

from witnesses that implicated Ron Olson.

In short, the Olsons allege in detail that Sherrick and

Shaw’s unusually elaborate investigation of the theft of a

trailer revealed no evidence that Mr. Olson had anything to

do with it. These well

‐ pled facts permit the reasonable infer

‐

ence that Sherrick and Shaw knew no facts that would sup

‐

port probable cause to arrest Olson. And yet they allegedly

gave statements to Ziegler that provided the factual basis for

his arrest. We can draw the reasonable inference from these

allegations that whatever Sherrick and Shaw said to Ziegler,

it included false information that led to the unlawful arrest of

Ronald Olson.

The defendants rely heavily on Burton v. City of Franklin

,

No. 1:11

‐ cv

‐ 00267

‐ JMS

‐ TAB, 2011 WL 2938029 (S.D. Ind. July

18, 2011), to argue that plaintiffs’ complaint is deficient, and

we find it useful to compare the Olsons’ complaint to the

complaint in that case. In Burton

, the district court dismissed

the plaintiffs’ complaint because the allegation that a searchNo. 12

‐ 3742 15

warrant was “[b]ased upon false information” provided by

police officers was conclusory and not supported by well

‐ pled facts that would give the defendants notice of the claim.

Id

. at *4–5. The problem with the Burton complaint was that

all the facts alleged showed that the police actually did have

probable cause. Before requesting the search warrant, two po

‐

lice officers had monitored an informant who made con

‐

trolled drug buys at Burton’s house. Id

. at *2. Based on that

allegation, the district court concluded that the search war

‐

rant for the house had been supported by probable cause. The

only possible “false information” provided by the police was

an overstatement of the quantity of drugs bought by the in

‐

formant. Id

. at *5. But even that inference—itself “a strained

reading of the Complaint”—was not sufficient to state a claim

for a wrongful search because the facts in the complaint es

‐

tablish that the police had probable cause to seek the search

warrant even if the quantity of drugs was exaggerated. Id

.

None of the alleged facts could support a reasonable infer

‐

ence that the defendants had violated any law, so the court

had no choice but to dismiss the complaint for failure to state

a claim. Id

.

In contrast to the Burton complaint, the complaint here al

‐ leges facts that Sherrick and Shaw investigated Ronald Olson

but turned up no evidence linking him to the crime. Yet the

officers nevertheless told prosecutor Ziegler that they had

probable cause to believe Olson had stolen the trailer and

lawn mowers, and Olson was arrested for burglary. These

facts permit the reasonable inference that defendants inten

‐ tionally or recklessly caused his arrest without probable

cause. Viewing the complaint as a whole, the Olsons have

provided much more than the “mere allegation that a search

warrant [was] based on ‘false information.’” Burton

, 2011 WL16 No. 12

‐ 3742

2938029, at *4. The factual allegations in the Olson complaint

state a plausible claim against detectives Sherrick and Shaw

for false arrest.

C. Claim Against Prosecutor Ziegler

The plaintiffs also alleged that prosecutor Ziegler is liable

for Olson’s false arrest because he verified that the allegations

in the charging information were true and therefore was act

‐ ing as a witness. Ziegler protests that he is entitled to abso

‐

lute immunity because he was acting as prosecutor in signing

and filing the information to initiate the prosecution of Olson

for burglary. Both sides agree that courts conduct a functional

analysis to determine if a prosecutor has absolute immunity

because he is entitled to absolute immunity only for conduct

that relates to his role as an advocate for the state. See Buckley

v. Fitzsimmons

, 509 U.S. 259, 269 (1993); Burns v. Reed

, 500 U.S.

478, 486 (1991). A prosecutor’s immunity turns on “the nature

of the function performed, not the identity of the actor who

performed it.” Forrester v. White

, 484 U.S. 219, 229 (1988).

The question of how to categorize Ziegler’s conduct is

controlled by Kalina v. Fletcher

, 522 U.S. 118, 120 (1997), where

the Court examined whether a prosecutor was entitled to ab

‐

solute prosecutorial immunity for “making false statements

of fact in an affidavit supporting an application for an arrest

warrant.” Prosecutor Kalina had initiated a criminal proceed

‐ ing against Fletcher by filing three documents in state court.

Two were unsworn pleadings: an information charging

Fletcher with burglary and a motion for a warrant for his ar

‐

rest. The third document was an affidavit that summarized

the evidence supporting the charge—a “Certification for De

‐

termination of Probable Cause” required by state law to sup

‐

port the arrest warrant. The prosecutor “personally vouchedNo. 12

‐ 3742 17

for the truth of the facts set forth in the certification under

penalty of perjury.” Id

. at 120–21. Fletcher alleged that the

prosecutor’s affidavit contained inaccurate statements, which

caused him to be arrested and jailed in violation of the Fourth

Amendment.

The Court ruled that the prosecutor was entitled to abso

‐

lute immunity for filing the information and motion for the

arrest warrant but could be sued for personally swearing to

the truth of the facts in the supporting affidavit. Id

. at 129–31.

In executing the certification under penalty of perjury, she

acted as a complaining witness and not as a lawyer:

Testifying about facts is the function of the wit

‐

ness, not of the lawyer. No matter how brief or

succinct it may be, the evidentiary component

of an application for an arrest warrant is a dis

‐

tinct and essential predicate for a finding of

probable cause. Even when the person who

makes the constitutionally required “Oath or af

‐

firmation” is a lawyer, the only function that

she performs in giving sworn testimony is that

of a witness.

Id

. The prosecutor in Kalina was performing essentially the

same function as police officers who obtain a warrant by

swearing to false information, and police officers can be sued

for such actions under Malley v. Briggs

, 475 U.S. 335 (1986).

See Kalina

, 522 U.S. at 122.

Employing the functional approach and applying the

teachings of Kalina here, we conclude that Ziegler is not enti

‐

tled to absolute immunity. He performed the same function

as a police officer witness when he swore to facts. A police18 No. 12

‐ 3742

officer witness would not be entitled to absolute immunity

for swearing to false information, so neither is Ziegler. His

signature is below the following statement: “The under

‐ signed, being duly sworn, states upon information and belief

that the facts set forth in the foregoing information are true.”

It is irrelevant that his affidavit was not on a separate piece of

paper. In signing that he stated “upon information and belief

that the facts set forth” were true, Ziegler converted that part

of the information into his own affidavit.

Ziegler resists this conclusion and tries to distinguish Ka

‐

lina by arguing that he did not attest to the truth of the allega

‐

tions in the information because he was empowered by state

law to verify the information. Illinois law provides that “an

information shall be signed by the State’s Attorney and sworn

to by him or another.” 725 Ill. Comp. Stat. 5/111

‐ 3(b). This

statute thus distinguishes between the signing of the infor

‐

mation as a charging document, which “shall” be done by the

State’s Attorney, and swearing to the facts, which may be

done “by him or another.”

All this shows is that Illinois law tracks the distinction be

‐

tween the roles of initiating a prosecution and swearing to

facts—two roles that the Supreme Court took great care to

keep separate in Kalina

. An Illinois prosecutor who complies

with state law that “an information shall be signed by the

State’s Attorney” is using her professional judgment. See Ka

‐

lina

, 522 U.S. at 129–30 (recognizing a prosecutor is acting as

an advocate in preparing and filing an information, drafting a

witness’s affidavit, and deciding that the evidence is strong

enough to find probable cause); see also Thomas v. City of Peo

‐

ria

, 580 F.3d 633, 638–39 (7th Cir. 2009) (recognizing absolute

immunity for a prosecutor who filed for an arrest warrant). ANo. 12

‐ 3742 19

prosecutor who signs and files an information, but does not

swear to any of the facts contained in it, is protected by abso

‐

lute immunity because she is acting as an advocate of the

State.

But, as Kalina explains, a prosecutor does not act as an ad

‐

vocate when testifying to facts because her professional

“judgment could not affect the truth or falsity of the factual

statements themselves.” Kalina

, 522 U.S. at 130. Accordingly,

when a prosecutor goes beyond signing the information to

initiate the suit by swearing to the facts it contains, the attor

‐

ney is no longer absolutely immune from suit.

Ziegler briefly mentions that he seeks qualified immunity

in the alternative. We reject his argument for the same rea

‐

sons discussed above regarding Sherrick and Shaw. The facts

alleged permit the reasonable inference that Ziegler swore to

false information to obtain the warrant that led to Olson’s ar

‐

rest. It is unclear at this stage if the false information was

provided by Sherrick and Shaw, by Ziegler, or even by all

three defendants. That ambiguity does not defeat the Olsons’

plausible claims for relief against the three defendants. The

Olsons’ allegations are sufficient for the claims to proceed to

discovery, which is likely to shed light on what allegedly false

information was provided, and by whom. See Brooks

, 578 F.3d

at 581 (holding that a claim is plausible if the facts alleged

raise a reasonable expectation that discovery will yield evi

‐

dence supporting the allegations).

D. Claims Against Sheriff Walsh and Champaign County

The district court also dismissed the claims against Sheriff

Walsh and Champaign County. The court dismissed Walsh

because a supervisor is not liable under § 1983 for a subordi

‐20 No. 12

‐ 3742

nate’s violation of a person’s constitutional rights. Champaign

County was dismissed because the plaintiffs failed to state a

Monell claim. But we believe the district court misunderstood

the Olsons’ claims. The Olsons did not sue Walsh or Cham

‐ paign County for federal false arrest under § 1983.

The Olsons sued Sheriff Walsh under a theory of re

‐ spondeat superior as a supervisor liable for a subordinate’s

state law torts, in this case false arrest and malicious prosecu

‐

tion. After concluding that the Olsons’ complaint failed to

state a federal claim, the district court declined to exercise

supplemental jurisdiction under 28 U.S.C. § 1367(c) over the

state law false arrest and malicious prosecution claims. We

reverse the dismissal of the federal claims, so the state law

claims against Walsh—and Sherrick, Shaw, and Ziegler—

should be considered anew on remand.

The Olsons sued Champaign County because state law

requires the county to indemnify Sheriffs and their deputies

for damages for torts committed in the scope of their em

‐ ployment. See 745 Ill. Comp. Stat. 10/9

‐ 102. Champaign

County is a necessary party to a suit against a Sheriff under

federal law. See Carver v. Sheriff of LaSalle County

, 324 F.3d 947,

948 (7th Cir. 2003) (holding that “a county in Illinois is a nec

‐

essary party in any suit seeking damages from an inde

‐ pendently elected county officer (sheriff, assessor, clerk of

court, and so on) in an official capacity”), citing Fed. R. Civ. P.

17 & 19. The plaintiffs have sued Sheriff Walsh in his official

capacity, so we reverse the dismissal of Champaign County. It

is a necessary party to this suit as long as Sheriff Walsh re

‐

mains a party.No. 12

‐ 3742 21

The judgment of the district court is REVERSED and the

case is REMANDED for further proceedings consistent with

this opinion.