Plaintiff contends that defendants engaged in a course of vindictive prosecution to prevent
him from revealing their wrongful conduct in connection with the Wainwright criminal investigation

and to appease West Suburban Bank, a significant supporter of the State Republican Party.

The Legal Standards
In ruling on defendants’ motions, the Court accepts as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff's favor, Forseth v. Village
of Sussex, 199 F.3d 363, 368 & n.6 (7th Cir. 2000) (stating standard for Rule 12(b)(6) motion);

United Transp. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1210 (7" Cir. 1996) (stating standard

for Rule 12(b)(1) motion without evidentiary submissions). No claim will be dismissed unless “it
is clear that no relief could be granted under any set of facts (hat could be proved consistent with the

allegations.” [lishon v, King & Spalding, 467 U.S. 69, 73 (1984),

In Count | of his amended complaint, plaintiff alleges that defendants Birkett, Thompson,
Reidy, Sinson and Culliton violated his constitutional rights by taking actions to prevent him from
“testifying against them in federal court by secking a grand jury indictment for perjury against
[plaintiff], prosecuting (plaintiff), and seeking [plaintiff's] incarceration . . . whereby [plaintiff's]
testimony against them would be impeached as a resull of the perjury conviction they sought.” (Am.
Compl. $53.) He also alleges that defendants conspired “to present knowingly false in formation to

a grand jury that Plaintiff had been convicted of possession of marijuana, that Plaintiff used

marijuana; that Plaintiff stole monies from his father’s business . . . and that Plaintiff was a drug



Id. at 486-87. Moreover, the Court directed district courts confronted with a state prisoner’s section
1983 damage suit to dismiss it if “judgment in favor of the plaintiff would necessarily imply the
invalidity of [a] conviction or sentence” that had not been invalidated. Id. at 487.

Though Heck was decided in the context of imprisonment after a trial, itis equally applicable

to probation revocation. See Crow v. Penry, 102 F.3d 1086 (10" Cir. 1996) (applying Heck to

probation revocation proceeding); Antonelli v. Foster, 104 F.3d 899, 901 (7" Cir. 1997) (stating that
Heck applies to any suit “premised . . . on the invalidity of confinement pursuant to some legal
process, whether a warrant, indictment, information, summons, parole revocation, conviction or
other judgment”). Plaintiff claims that defendant Millet convinced the stale court to revoke his
probation through the use of false testimony. If plaintiff prevailed on that claim, the state court’s
finding that he had violated the terms of his probation would necessarily be invalidated. ‘Therefore,

unless the probation violation finding has been invalidated, the claim is barred by Heck.

Plaintiff does not allege that the probation violation finding was reversed on appeal or
otherwise vacated. Rather, he argues that the finding is de facto invalid because the probation
resulted from a criminal proceeding that was void, The perjury proceeding was void, plaintiff says,
because it was based on testimony taken in the West Suburban Bank case afier Judge Lucas had
improperly denied plaintiff's motion to substitute judges. (Am. Compl. 27); see Inge AUN., 755
NE.2d 155, 159 (II. App. Ct. 2001) (stating that an improperly denied motion for substitution of
judges renders void “any later action taken by the trial judge”), Because Judge Lucas had no
authority to elicit the allegedly perjurious testimony, plaintiff argues, the perjury conviction and the

probation violation finding that flowed from it are invalid.



proper, however, if the underlying state proceedings are ongoing. Middlesex County Ethics Comm,
v. Garden State Bar_Ass’n, 457 U.S. 423, 432 (1982). Though defendants do not argue that
plaintiff's criminal case is ongoing (his conviction was alfirmed more than a year ago, see People
v,_Baltzer, 762 N.E.2d 1174 (III. App. Ct. 2002)), they say that the probation revocation action
remains pending because “there is [still] a possibility of appeal.” (Defs.’ Mot. Dismiss Am. Compl.
119.)

The record does not support that contention. Plaintiffs probation was revoked and he was
resentenced to three years imprisonment on November 8, 2002. (Defs.’ Mot. Dismiss Am. Compl.,
Ex. 2, Crim. Sentence Form.') To preserve his right to appeal the probation violation finding or the
resentencing, plaintiff had to file a notice of appeal or motion to reconsider the sentence within thirty
days after that date. See ILL, Sup. CT. R. 605(a). Apparently, plaintiff did not do so, as defendants
say nothing about the subject in their rely brief, which was filed affer the expiration of the thirty-day
period. In short, defendants have given us no basis for concluding that plaintifl”s probation

revocation proceeding is ongoing. Thus, Younger abstention is not appropriate in this case.

Merits
If the claims in Counts I and II are premised on plaintifi’s right to testify in the Wainwright
suit, they cannot survive. Lven if the Constitution guarantees third-party witnesses the right to testify

in civil matters, an issue we do not decide, plaintiff has not alleged that defendants deprived him of

‘The Court can take judicial notice of records from other court proceedings “without
converting a 12(b)(6) motion into a motion for summary judgment.” Henson v, CSC Credit Servs.,
29 F.3d 280, 284 (7" Cir. 1994).



dealer.” (Id. 54.) In Count JI, plaintiff alleges that defendant Birkett took those actions solely to
please West Suburban Bank, a substantial contributor to the Llinois Republican Party. (Id. {{ 60-
64.) In Count IIL, plaintiff alleges that defendant Millet violated his rights by “presenting knowingly
false information at a court hearing to revoke [plaintiff s] bond.” (1d. 167.) Plaintiff asserts these

claims against all defendants in both their official and individual capacities.

Subject Matter Jurisdiction

“The Eleventh Amendment prohibits federal courts from deciding suits brought by private
litigants against states or their agencics, and that prohibition extends to state officials acting in their
official capacitics.” Garcia v. City of Chicago, 24 I'.3d 966, 969 (7" Cir. 1994), In Illinois, State’s
Attorneys and probation officers are considered state officials. Id. (State’s Attorneys); Villalobos v.
Kinn, No. 00 C 50388, at *4 (N.D. Ll. Aug. 21, 2001) (probation officers). ‘Vhus, all of the official
capacity claims plaintiff asserls in his amended complaint must be dismissed for lack of subject

matter jurisdiction.

Abstention

Defendants argue that the Court should abstain from cxercising jurisdiction over the
individual capacity claims under the Younger doctrine. Sec generally Younger v. Harris, 401 U.S.
37 (1971). Though Younger instructs federal courts to abstain from exercising jurisdiction over
cases seeking to enjoin certain state proceedings, in this circuit such abstention is also appropriate
in damage cases, if the case “would have a substantially disruptive effect upon ongoing state criminal

proceedings.” Simpsonv. Rowan, 73 F.3d 134, 137.6 (7° Cir. 1995). Younger abstention is only



Hamilton v. Daley, 777 F.2d 1202, 1213 (7 Cir, 1985) (holding that prosecutors ure absolutely
immune for initiating probation revocation proceeding), Such immunity apphes cven if the
prosecutor “initiates charges maliciously, unreasonably, without probable cause, or even on the basis
of false testimony or evidence.” Farmer City State Bank, 808 F.2d at 1238. ‘Thus, even if'defendants
had no basis for secking to indict plaintiff, secking to revoke his probation or refusing to seck
restitution from the man who burglarized his home, they are absolutely immune from lability for
those actions, Accordingly, any claims in Counts | and I] that are based on that alleged conduct must
be dismissed.

Also time-barred are any claims premised on the allegedly illegal wiretap. PlaintilTalleges
that defendants Culliton and Thompson obtained permission for the tap in September 1999 and
secured his perjury conviction on October 6, 1999. (d. ff] 32, 36.) Itis reasonable to infer from
those allegations that plaintisl learned about the wiretap on or before the day he was convicted.
Because plaintiff filed this aclion more than lwo years later, any Fourth Amendment claims for
illegal wiretapping must be dismissed.

That leaves the claim plaintiff asserts in Count III against Probation Officer Millet for
presenting false testimony at plainti{i’s probation revocation hearing. Millet says that Heck v.
Humphrey, 512 U.S. 477 (1994) bars this claim, In Heck, the Supreme Court held:

[T]o 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 § 1983 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 determinations, or called into question by a
federal court’s issuance of a writ of habeas corpus.


Ae Minuie Onder Bem (0697)

i

United States District Court, Northern District of Illinois

ume of Assigned Judge “ i :

nee Magltrae dee Paul E. Plunkett “Than Aslgned Judge

CASE NUMBER 02 C4718 DATE 2/18/2003
CASE James D. Baltzer vs. Joseph Birkett, et al
TITLE

[ln the following box (a) indicate the party filing the motion, e.u., plaintiff, defendant, 3rd purty plaintiff, and (b) state briefly the nature

of the motion being presented.]

a)

MOTION:

DOCKET ENTRY:

q) Oo Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

ge a Answer bricf to motion duc____. Reply to answer brief duc.

(4) oO Ruling/Hearingon set for_ at

6) Oo Status hearingfheld/continued to] [set for/re-set for]on___setfor___—_at

6) Oo Pretrial conference|held/continued to] [set for/re-set for]on set for__— at

(7) o Trial{set for/re-set for]on at

(8) oO [Bench/Jury trial] [Hearing] held/continued toatl

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
Orrcp4(m) O Local Rule 41.1 COFRCP41(a(1) OO FRCP41(a)(2).

(10) | [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Defendants’ Rule

12(b)(1) motion is granted and all of the claims asserted against them in their official capacities are
dismissed without prejudice for lack of subject matter jurisdiction, Defendants’ Rule 12(b)(6) motion is
also granted and all of the claims asserted against them in their individual capacities are dismissed with
prejudice. Defendants’ Rule 12(f) motion to strike is dismissed as moot. This is a final and appealable

order.

|| [For further detail see order attached to the original minute order.]

,

No nolices required, advised in open court.

No nolives required. ;
umber of notices

Document:
Number.

Nolices mailed by judge's staff. FEB 1 g 2003

daly docket

Notified counsel by telephone.

Docketing to mail notices,

Lap pany,
Mail AO 450 fort de Loge
Copy ta judge/magiatrate judge,
at 1
courtraom .
eK deputy’s :
initials ns

Dutestime received in
central Clerk's Office mailing deputy initials



For the reasons set forth above, defendants’ Rule 12(b)(1) motion is granted and all of the
claims asserted against them in their official capacities are dismissed without prejudice for lack of
subject matter jurisdiction, Defendants’ Rule 12(b)(6) motion is also granted and all of the claims
asserted against them in their individual capacities are dismissed with prejudice. Defendants’ Rule
12(f) motion to strike is dismissed as moot. This is a final and appealable order.

ENTER:

“RED —

UNITED STATES DISTRICT JUDGE

patmp: Z -/7 o3

-11-



‘The Court disagrees. The perjury conviction was invalidated within the meaning of Heck
only if it was “reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determinations, or called into question by a federal court’s issuance
of a writ of habeas corpus.” 512 U.S. at 486-87, Plaintiff has not alleged that his conviction has
been invalidated in any of those ways. Moreover, it is clear that he cannot make such an allegation.
Plaintif(’s conviction and sentence were affirmed on direct appeal on January 22, 2002, and the
appellate court denied his petition for rehearing on February 14, 2002, See People v, Baltzer, 762
N.E.2d 1174 (Ill. App. Ct. 2002). He had a maximum of thirty-five days thereafter to scck leave to
appeal to the Tllinois Supreme Court, see ILL. Sup. Cr. R. 31 5(b), 612(b), but did not. Thus, there
is no possibility that his conviction will be reversed by the state courts. There is also no hope of
habeas corpus relief, as Judge Lucas’ failure to grant a state-law motion for substitution does not
provide any basis for granting the writ. See Dellinger v. Bowen, 301 F.3d 738, 764 (7" Cir. 2002)
(“Federal habeas relief is... unavailable to remedy errors of state law.”). Because plaintiff cannot
allege that his conviction, and by extension his probation violation finding, was invalidated in any

of the ways contemplated by Heck, his Count ITT claim must also be dismissed.

-10-



it. Neither a pending indictment nor incarceration would have precluded plaintiff from testifying in
Wainwright's civil rights suit, See 28 U.S.C. § 2241(c)(5) (authorizing writs of habeas corpus ad
testificandum). Thus, Wainwright's lawyers could have secured plaintiffs testimony, had they
wished to do so, regardless of defendants’ alleged actions.

Any claim based solely on malicious prosecution is also doomed. As our court of appeals
said in Newsome v. McCabe, 256 F.3d 747 (7" Cir. 2001), prosecution without probable cause
violates due process if it deprives the plaintiff of “an adequate opportunity to defend himself in [a]
criminal prosecution,” but is actionable under section 1983 only if state post-deprivation remedics
arc inadequate. Id. at 750-51; see Penn y. Harris, 296 F.3d 573, 576 (7" Cir. 2002) (quoting
Newsome for the proposition that “there is no constitutional right not to be prosecuted without
probable cause.”) (internal quotation marks and citation omitted). Because Illinois provides adequate
post-deprivation remedies, Newsome, 256 1'.3d at 751, plaintiff cannot pursuc a malicious
prosecution claim under section 1983.

Moreover, to the extent plaintiff's claims are based on any State’s Attorney's alleged
procurement of a baseless indictment, they are both untimely and barred by the doctrine of
prosecutorial immunity. The statute of limitations for section 1983 claims filed in Illinois is two

years. Kalimata v. Ilingis Dep’t of Corr., 879 F.2d 276, 277 (7th Cir. 1989). Plaintiff alleges that

the grand jury indicted him on January 23, 1999, more than two years before he filed this suit. (Am.
Compl. 25.) Moreover, even if the claims were timely, the prosecutor defendants would still be
immune from liability. “[P]rosceutor[s| enjoy] | absolute immunity from civil suit under § 1983 for
damages ‘in initiating a prosecution and presenting the State’s case.” Henry v. Farmer City State

Bank, 808 !'.2d 1228, 1238 (7" Cir. 1986) (quoting Imbler v, Pachtman, 424 U.S. 409, 431 (1976);


having given perjured teslimony when he responded to the citation to discover asscts in the West
Suburban Rank case, (Id. 4) 25, 28.)

In September 1999, defendants Culliton and Thompson obtained permission to tap plaintiff s
phone. (Id. 4 32.) Defendants told the judge that the tap would further their investigation of
plaintiff’s criminal conduct when, in fact, plaintiff says, they wanted to gather information to help
Thompson defend against Wainwright’s suit. (Id.)

In October 1999, Counts | and 2 of the indictment against plaintiff were dismissed. (Id. {
36.) After a bench trial on the remaining three counts, plaintiff was acquitted of Count 3 and
convicted of Counts 4 and 5. (1d.)

ln November 1999, plaintiff's home was burglarized, resulting in more than $20,000.00 in
damage. (Id. 933-34.) Defendant Sinson prosecuted the suspect, but failed to scek restitution. (Id.
34.)

In January 2002, plaintifi’s petjury conviction and sentence were affirmed by the Illinois
Appellate Court. People v. Baltzer, 762 N.E.2d 1174 (I. App. Ct. 2002).

In May 2002, defendant Millct filed a petition to revoke plaintiff’s probation for failing to
abide by ils conditions though he had no evidence that plaintiff had actually violated the terms of his
probation. (Id. § 45.)

On September 10, 2002, Thompson filed a baseless petition to revoke plaintili’s bond. (Id.
4§| 46-47, 49-50) The petition was granted and plaintiff is now being held at DuPage County Jail.

(id. $48.)


On November 15, 1996, plaintiff contacted defendant Thompson and told him that
Wainwright had left records in the building that would be useful in DuPage County's pending
criminal prosecution of Wainwright. (Id. {1 5, 19.) Thompson obtained a search warrant and
plaintiff told him he would leave the records on the curb. (Id. 4 20.)

At some point in 1997, Wainwright filed a civil rights suit against plaintiff and various
DuPage County officials, including Thompson, alleging that they had illegally searched the building
when they came to serve the eviction summons on Wainwright. (Id, {{f 13, 18.)

At the same time, plaintit was being sued by West Suburban Bank over a loan it had made
to plaintilf. (Id. § 26.) Judgment was entered against plaintiff in that case and he was ordered to
appear on a citation to discover assets, (Id. [27.) When he appeared on the citation, plaintiff filed
a motion to substitute judge as of right. (Id.) The presiding judge, Judge lucas, denied the motion.
(ld.)

On February 20, 1997, Thompson began a criminal investigation of plaintiff, based on his
testimony in the West Suburban Bank case. (Id. 9] 23, 25-26, 28.)

Sometime in 1998, plainti(f was served with a notice to appear at a deposition in connection
with Wainwright’s civil suit. (Id. 424.) Afier receiving it, plaintiff told defendant Culliton that,
during his deposition, he would say defendant ‘Thompson had encouraged him to obtain evidence
against Wainwright illegally, (1d.)

On January 23, 1999, before plaintilf had been deposed in Wainwright's suit, Thompson
obtained a five-count grand jury indictment against plaintifl, allegedly through the usc of false
evidence, (Id. {4 25, 54.) In the first two counts, plaintiff was charged with providing materially

false information to the Secretary of State. (Id. 25.) The last three counts charged plaintiff with


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

EASTERN DIVISION
=
b.
BY 9 2003
JAMES D. BALTZER, ) FEB Y 9 2008
)
Plaintiff, )
)
v. ) No. 02 C 4718
) Paul E. Plunkett, Senior Judge
JOSEPH BIRKETT, et al., )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
James D. Baltver has sued defendants DuPage County State’s Atlomey Joseph Birkett,
Assistant State’s Attorneys Neal ‘hompson, Mike Reidy and Scott Sinson, former Assistant State’s
Attorney Ellen Champagne Culliton and Probation Officer Andy Millet pursuant to 42 U.S.C. §
(“section”) 1983 for their alleged violations of his constitutional rights. Defendants have filed
motions to dismiss pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(1) and 12(b)(6) and,

in the alternative, a Rule 12(f) motion to strike, For the reasons set forth below, the Rule 12(b)(1)

and 12(b)(6) motions are granted and the Rule 12(f) motion is denied as moot.

Facts

In October 1994, plaintiff leased the lower level of a property in Lombard, Illinois to Garrett
Wainwright. (Am. Compl. ff 5-11.) Sometime thereafter a dispute arose between plaintiff and
Wainwright regarding the use of the building. (Id, 4) 12.) On October 23, 1996, plainuff filed an

eviction action against Wainwright. (Id. § 13.)