Crow are (1) her June 2000 arrest of Bennett (Complaint 410) and
(2) her May 2001 testimony during the criminal proceeding against
Bennett (Complaint 411 and Ex. 2), while Officer Henricks was
allegedly involved only in the June 2000 arrest (Complaint 410) .
That would almost certainly seem to doom any claim against the
two officers on limitations grounds, but it is always of course
possible that a defendant might waive a statute of limitations
defense. Accordingly this Court will not now dismiss them from
this action sua sponte, but will instead transmit a copy of this
opinion to the City of Chicago's Corporation Counsel's Office for
their attention.’

That leaves for consideration only Pernecke, whom Bennett
charges with the authorship of a document (Complaint Ex. 7)
headed “Official Statement of Facts” in Case No. 00 CR 15816 that
describes Bennett's criminal background and labels him as an

extremely dangerous man.‘ In addition to the claimed deliberate

3 If the officers intend to assert rather than to waive the
obviously available statute of limitations defense, the
Corporation Counsel might well consider doing so without awaiting
service of process on the officers.

‘ Bennett's own Complaint allegations reveal a long-term
and appalling criminal record, including convictions for brutal
conduct, but he claims that the Ex. 7 “Official Statement”
included some false information that exaggerated his criminal
background. Even if that were so, there is obviously some
question whether any incremental tarring of Bennett's record and
character might qualify for de minimis non curat lex
treatment--something that in turn could bear on whether he has
asserted a violation of his constitutional rights (a subject
addressed briefly later in the text). But those matters are

4


Bennett is in custody, Pernecke's counsel will be expected
to make necessary arrangements for his availability by
telephone to participate in that hearing.
It remains to be seen whether this action may give rise to a
“strike” for purposes of 28 U.S.C. 1915(g), or whether 28 U.S.C.
§1915A(b) may call for any further dismissal of Bennett's claims,
or even whether the circumstances are such as to call for

consideration of any further sanctions against Bennett.

Chan DG .ncotswe

Milton I. Shadur
Senior United States District Judge

Date: July 25, 2003



amount in the account exceeds $10 until the full $150 filing fee
is paid. Both the initial payment and all future payments shall
be sent to the Clerk, United States District Court, 219 South
Dearborn Street, Chicago, Illinois 60604, attention: Fiscal
Department, and shall clearly identify Bennett's name and the

03 C 5071 case number assigned to this action. To implement
these requirements, the Clerk shall send a copy of this order to
the Big Muddy trust fund officer.

To turn to the substance of Bennett's claims, his Complaint
contains no allegations whatever of any conduct that is
ascribable to either Superintendent Hillard or State's Attorney
Devine. Accordingly leave is not granted to proceed against
them, and they are dismissed as defendants.

Next, it is noteworthy that if Bennett were to be given the
benefit of the earliest possible date of July 1, 2003 for the
present action (that is the date when the Big Muddy official
supervising Bennett's trust fund signed the accompanying
certificate), the two year statute of limitations applicable to
Section 1983 claims would foreclose any pre-July 1, 2001 conduct
as the predicate for any claimed deprivation of constitutional

rights.? In this instance the only actions ascribed to Officer

2 Some later date in July 2003 might be more logical,
because Bennett's papers were not received in the Clerk's Office
until July 22, but as the further text reflects that would make
no difference.



Ste

falsity of some of the things said there, Bennett charges
prosecutor Pernecke with having submitted a deliberately altered
rap sheet during pretrial proceedings stemming from the June 2000
arrest (Complaint 9915-16 and 19-21).

Because Bennett's allegations must be credited for present
purposes, it will suffice for now to identify some questions that
need answering:

1. Ex. 7 is undated, so it is unclear whether it was
written by Pernecke and then submitted to anyone within or
without the two-year limitation period that controls for
Section 1983 purposes.

2. It is also unclear for what purpose and under what
circumstances Ex. 7 was prepared and used, so it cannot be
ascertained from the Complaint alone whether any violation
of Bennett's constitutional rights (which would be needed to
make his claim viable under Section 1983) was involved.
Those uncertainties and others prevent any initial
conclusion as to whether or not Pernecke is insulated
against Section 1983 liability by the absolute prosecutorial
immunity defined in the principal caselaw authorities
(Imbler_v. Pachtman, 424 U.S. 409 (1976), Burns v. Reed, 500
U.S. 478 (1991), Buckley v. Fitzsimmons, 509 U.S. 259 (1993)
and Kalina v. Fletcher, 522 U.S. 118 (1997)) or their

obviously not ripe for consideration at this threshold stage.

5



Mingic Onder Formpif97)

United States District Court, Northern District of Illinois

Name of Assigned Jud| i Sitting Judge if Oth
vor Magistrate Judge Milton 1. Shadur ‘than Assigned Judge
CASE NUMBER 03 C 5071 DATE 7/25/2003
CASE Allen Bennett vs. Supt. Terry Hillard, et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
qd) i) Filed motion of [ use listing in “Motion” box above.]
Q) a Brief in support of motion due
@) o Answer brief to motion due . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) Qo Trial[set for/re-set for] on at
(8) im} [Bench/Jury trial} [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) C) Local Rule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).
do) Mf [Other docket entry] Enter Memorandum Opinion and Order. Bennett is granted leave to proceed
without full prepayment of the filing fee and is assessed an initial partial filing fee of $1.65. Bennett is
denied leave to proceed against Superintendent Hillard and State’s Attorney Devine, who are dismissed
as defendants. Process is ordered to be served on Assistant State’s Attorney Pernecke and an initial status
hearing is set for 8:45 a.m. September 10, 2003. The Clerk is directed to issue summons as to defendant
Pernecke and forward to the United States Marshal for service.
dil) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required.
o | Notices mailed by judge's staff. ah
Notified counsel by telephone. 0h wh
Docketing to mail notices. ue
Mail AO 450 form. Tete i 09 rowisia’s'f
Copy to judge/magistrate judge. a4 4\4 NOI <I at
ourto0 To yg See ee
« | sor e213
inka Davinceanda
Sentral Clerk's Office



wa

progeny--or even if not, whether qualified immunity applies.
This listing is not intended to be exhaustive, but it suffices to
dictate the need for service of process on Pernecke so that the
future course of this lawsuit may be ascertained.
Conclusion
This will summarize the orders appropriately called for by
the foregoing discussion:

1. Bennett is granted leave to proceed without the
full prepayment of the $150 filing fee, but he is obligated
to pay that entire fee in installments in accordance with
the statutory requirements described earlier.

2. Bennett is denied leave to proceed against
Superintendent Hillard and State's Attorney Devine, who are
dismissed as defendants.

3. Because Bennett's claims against police officers
Crow and Henricks are clearly barred by limitations, but it
is of course conceivable (though highly unlikely) that a
limitations defense might be waived, process is not ordered
to be served on them. Instead the Corporation Counsel's
Office is being apprised of this action, and their response
on behalf of the officers will be awaited by this Court.

4. Process is ordered to be served on Assistant
State's Attorney Pernecke, and an initial status hearing

will be held at 8:45 a.m. September 10, 2003. Because



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALLEN BENNETT, )
Plaintiff,
v. } No. 03 C 5071 Uy
SUPT. TERRY HILLARD, et al., }
Defendants.
MEMORANDUM OPINION AND ORDER
Allen Bennett (“Bennett”) has tendered a self-prepared
Complaint’ that targets Chicago Police Superintendent Terry
Hillard, Chicago Police Officers Katherine Crow and S. Henricks,
Cook County State's Attorney Richard Devine and Assistant State's
Attorney Joan Pernecke (“Pernecke”) and asks for the modest sums
of $5 million in compensatory damages and $10 million in punitive
damages (as well as seeking some injunctive relief and requesting
attorney's fees). This memorandum opinion and order is entered
to speak to a number of the issues posed by Bennett's effort.
To begin with, because his lawsuit does not implicate prison
conditions, Bennett is not confronted with any obligation to
exhaust administrative remedies as provided in 42 U.S.C.

§1997e(a). Thus the first issue to be addressed here relates to

+ Bennett's submission is “self-prepared” in the sense that
he has used the form of 42 U.S.C. §1983 (“Section 1983”)
complaint provided by this District Court's Clerk's Office for
prisoner plaintiffs by filling in the blanks in the form, adding
typewritten “factual allegations” and attaching various exhibits
that are referred to in those allegations.



Bennett's simultaneously-filed Application To Proceed Without
Prepayment of Fees (“Application”), which he has properly
accompanied by a printout reflecting transactions in his inmate
trust fund at Big Muddy River Correctional Center (“Big Muddy”),
where he is now serving time.

That printout lists, as the only deposits to the account
during the six-month period before Bennett tendered this lawsuit,
some small payroll amounts, with the monthly average of those
deposits during that time frame being just $8.23. In accordance
with 28 U.S.C. §1915(b) (1), the Application is granted only to
the extent that no full prepayment of the $150 filing fee is
required--instead the initial partial payment that must be made
is $1.65, with future installments toward the $150 total required
to be made in accordance with that statute. Accordingly Bennett
is assessed such an initial partial filing fee of $1.65, and the
Big Muddy trust fund officer is ordered to collect that partial
filing fee from Bennett's trust fund account there and to pay it
directly to the Clerk of Court ("Clerk").

After such payment, the trust fund officer at Big Muddy or
any other correctional facility where Bennett is confined is
authorized to collect monthly payments from his trust fund
account in an amount equal to 20% of the preceding month's income
credited to the account. Monthly payments collected from the

trust fund account shall be forwarded to the Clerk each time the