IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

David Bourke, )

)

Plaintiff, )

) No. 03 CV 7749

-vs- )

) (Judge Zagel)

Village of Downers Grove, Illinois, )

et al., )

)

)

Defendants. )

PLAINTIFF’S MOTION FOR LEAVE TO

FILE AN AMENDMENT TO THE COMPLAINT

ADDING ADDITIONAL DEFENDANTS

Plaintiff, by counsel, requests that the Court grant him leave to file an

amendment to the complaint (in the form annexed to this motion), to assert a

claim for injunctive relief against the Director of the Illinois Department of

Corrections and the Director of the Illinois State Police.

Grounds for this motion are as follows:

1. This lawsuit arises out of plaintiff’s criminal conviction which was

subsequently reversed outright.

2. Plaintiff asserts a Section 1983 claim against various police officers from

the Village of Downers Grove and a supplemental state law attorney

malpractice claim against the lawyers who represented him at trial.

3. One element of damages which plaintiff seeks in this case involves

continuing harm to his ability to find gainful employment.

Case 1:03-cv-07749 Document 26 Filed 01/09/08 Page 1 of 6
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4. Plaintiff has sought to mitigate these damages by obtaining an order from

the state court expunging the records of his arrest.

5. Notwithstanding the expungement order and the outright reversal, the Illinois Department of Corrections and the Illinois State Police continue to

maintain in their official records the fact that plaintiff was convicted of

***. The Department of Corrections makes this information available on

its freely accessible website; the Illinois State Police will provide this

information in response to a request for plaintiff’s criminal history.

6. Plaintiff has been unable to find full time employment and mitigate his

damages because of the above referred disclosures.

WHEREFORE plaintiff requests that the Court grant him leave to file the

annexed amendment to the complaint to add a claim for injunctive relief against

the Director of the Illinois Department of Corrections and the Director of the

Illinois State Police. Plaintiff also requests that the Court retroactively authorize

the electronic filing of this motion and the amendment to the complaint in

redacted form. (Copies of the redacted pleadings are attached to the copy of

this motion filed in chambers.)

Respectfully submitted,

/s/ Kenneth N. Flaxman

________________________

KENNETH N. FLAXMAN, #00339

ARDC No. 830399

200 South Michigan Avenue

Suite 1240

Chicago, Illinois 60604-2430

(312) 427-3200 (phone)

(312) 427-3930 (fax)

knf@kenlaw.com

attorney for plaintiff

Case 1:03-cv-07749 Document 26 Filed 01/09/08 Page 2 of 6
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

David Bourke, )

)

Plaintiff, )

) No. 03 CV 7749

-vs- )

) (Judge Zagel)

Village of Downers Grove, Illinois, )

et al., )

)

)

Defendants. )

AMENDMENT TO COMPLAINT

Plaintiff, by counsel, alleges as follows:

1. This is a civil action arising under 42 U.S.C §1983. The jurisdiction of

this Court is conferred by 28 U.S.C. §1343.

2. Plaintiff David Bourke is a resident of the Northern District of Illinois.

3. Defendants are the Director of the Illinois Department of Corrections and

the Director of the Illinois State Police.

4. On July 3, 2003, an order was entered in the Circuit Court of the 18th

Judicial Circuit directing the expungement of records pertaining to

plaintiff’s arrest on April 16, 2001.

5. A copy of that order was duly served on the Downers Grove Police

Department (the arresting agency), and the Illinois State Police.

6. Following receipt of the expungement order, the Downers Grove Police

Department expunged all records of plaintiff’s arrest.

Case 1:03-cv-07749 Document 26 Filed 01/09/08 Page 3 of 6
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7. The Downers Grove Police Department notified the FBI of the expungement order and requested that the FBI expunge the arrest for its records.

8. Plaintiff is informed and believes that the FBI complied with the expungement order.

9. A copy of the expungement order was also furnished to the Illinois Attorney General and the Illinois State Police.

10. In response to the expungement order, the Illinois State Police erased the

fact of plaintiff’s arrest from its records, but continues to maintain as a

part of plaintiff’s criminal history that plaintiff was confined in the Illinois

Department of Corrections following his conviction for *** and imposition of a * year sentence.

11. The Illinois State Police will provide the above stated information in

response to an inquiry about plaintiff’s criminal history.

12. The Illinois Department of Corrections maintains on its publicly accessible

website the information that plaintiff was convicted of ***, has a custody

date of April 12, 1998, was sentenced to * years of imprisonment, and

that his sentence has been discharged.

13. The Illinois Department of Corrections and the Illinois State Police provide the information set out above pursuant to an official policy or practice, rather than as the result of a random and unauthorized act.

14. Plaintiff has been and continues to be deprived of rights secured by the

Fourteenth Amendment to the Constitution of the United States as a result

of the policies or practices of the Illinois State Police and the Illinois

Department of Corrections to disclose the information referred to in

Case 1:03-cv-07749 Document 26 Filed 01/09/08 Page 4 of 6
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paragraph 10 above. These disclosures have, inter alia, made it impossible for plaintiff to obtain employment or appropriate housing.

WHEREFORE plaintiff requests that the Court grant appropriate equitable

relief to require defendants Director of the Illinois Department of Corrections

and Director of the Illinois State Police to expunge from the records of their

respective agencies any information which conveys the impression that plaintiff

has been convicted of ***.

/s/ Kenneth N. Flaxman

________________________

KENNETH N. FLAXMAN, #00339

ARDC No. 830399

200 South Michigan Avenue

Suite 1240

Chicago, Illinois 60604-2430

(312) 427-3200 (phone)

(312) 427-3930 (fax)

knf@kenlaw.com

attorney for plaintiff

Case 1:03-cv-07749 Document 26 Filed 01/09/08 Page 5 of 6
CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of January, 2008, I electronically filed

the foregoing with the Clerk of the Court using the CM/ECF system which will

send notification of such filing to the following: James L. DeAno, Esq., Deano

& Scarry LLC, 2100 Manchester Rd., Ste A-101, Wheaton, IL 60187-4579, and

James Guarisco, Esq., Neal, Gerber & Eisenberg, LLP, 2 N LaSalle St, Chicago,

IL 60602, and I hereby certify that I have mailed by United States Postal

Service the document to the following non CM/ECF participants: none.

/s/ Kenneth N. Flaxman

______________________

Kenneth N. Flaxman

ARDC Number 08830399

200 S Michigan Ave, Ste 1240

Chicago, IL 60604-2430

(312) 427-3200 (phone)

(312) 427-3930 (fax)

knf@kenlaw.com (email)

Case 1:03-cv-07749 Document 26 Filed 01/09/08 Page 6 of 6