guilty by a jury on this charge [possession of the
stolen vehicle having a value greater than $25,000].

43. A pre-sentence investigation was held and
ordered by the Court and the defendant L. Deenihan was
later appointed to the matter.

44. Defendant Deenihan reported the the Court

falsily that case no. 78-C-760 is a conviction. (See

Exhibits No. 5)

45. This was even when the defendant Deenihan had
also reported the Chicago Police Rap Sheet and

submitted the criminal information in it to the court

which revealed that case no. 78-c-760 is not a

conviction based upon the asterisk listed under the

case. (See Attached Exhibits No. 6) \14\

To begin with, there is some question as to whether Deenihan
really did report the one case in question as a conviction.
Deenihan's report, Ex. 1 to this opinion (FAC Ex. 5),
specifically identifies the sentencing disposition on each of
Bennett's five convictions but says only this about the 1978 rape
charge:

April 28, 1978 Received Joliet Penitentiary under

Inmate Number A81422. No further Information

available.

And that was an accurate report of what appeared on Bennett's rap
sheet, this opinion's Ex. 2 (FAC Ex. 6):

-6 Feb 78,Rokas 7, Rape

15 Feb 78, G.J. Ind#78-C760, Rape, Etc.

-Rec'd 28 Apr.78,SPen Joliet, IL.#A-81422, Rape

Despite the doubtful nature of Bennett's characterization of

what Deenihan did, however, this Court will accept arguendo the

charge of false reporting by Deenihan. But that does not help



is currently making an additional attempt to do so. But in light
of the fact that she has not yet been located, this Court has
taken a more in-depth look at the putative claim against her--and
that further review of the FAC has confirmed that Bennett's
purported constitutional claim against Deenihan is totally
unsupportable on its face, so that this action should be put to
rest in its entirety.

Bennett's FAC reveals an appalling record of recidivism on
his part: multiple convictions involving such crimes as rape,
deviate sexual assault, robbery, armed robbery, possession of a
firearm by a felon and possession of a stolen motor vehicle worth
more than $25,000. But Bennett asserts that when Deenihan was
assigned to report on Bennett's prior criminal record in
connection with the presentence investigation on that last
offense, she falsely reported as a conviction one charge (in case
number 78 C 760) on which Bennett had been found not guilty.

Here are the relevant FAC paragraphs (copied verbatim):
9. Final determination of the criminal offenses

against the plaintiff concluded by Judge Bailey, a

finding of Not Guilty of case no. 78-C-760, a finding

of Nolle Prosequi on case no. 76-4634 and a finding of

Guilty on acse no. 76-4633.

10. Judge Bailey sentenced the plaintiff to 8
years into the Illinois Department of Corrections

(hereinafter “IDOC”) for the Rape offense and 7 years
for the Robbery with sentence to run concurently.

* * *

42. On April 11, 2002, the plaitiff was found



Bennett, for no constitutional deprivation flowed from Deenihan's
actions, and only a constitutional deprivation will ground a
Section 1983 claim. After all, Deenihan's report did not of
itself deprive Bennett of liberty, and the 15-year sentence
imposed on him on the auto conviction by Judge Lawrence Fox of
the Cook County Circuit Court was of course an exercise of due
process of law.

Accordingly Bennett has pleaded himself out of court as to
sole remaining defendant Deenihan. Deenihan is therefore also

dismissed as a defendant, and that means this entire action is

Chl. DGxdhocs

Milton I. Shadur
Senior United States District Judge

now dismissed.

Date: November 24, 2003


United States District Court, Northern District of Illinois

Nayye ot i ing Judge if Oth
EB: Magistrate Judge Milton I. Shadur Stban Arhoed Fate
CASE NUMBER 03 C 5071 : DATE 11/24/2003
CASE Allen Bennett A81422 vs. Joan Pernecke, et al
TITLE
[ln the following box (a) indicate the party filing the motion, ¢ g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the n
MoTION: of the motion being presented.]
DOCKET ENTRY: a

qd) i} Filed motion of [ use listing in “Motion” box aboye.]_

(2) Q Brief in support of motion due

@) Oo Answer briefto motion due___—. Reply to answer briefdue___—-

(4) Qo Ruling/Hearing on___setfor___at_‘**

(5) Oo Status hearing[held/continued to] [set for/re-set for] on___setfor__—_ at

(6) Qo Pretrial conference[held/continued to] [set for/re-set fe on____setfor_— cat
(0) Oo Trial[set for/re-set for] on____—at

(8) o [Bench/Jury trial] [Hearing] held/continuedto_

(9) (This case is dismissed {with/without} prejudice and wi

OFRCP4(m) (CLocal Rute 41.1 0 FRCP41(a)(1} : °C FRCP41(ay2).

go) [Other docket entry] Enter Memorandum Opinion and Order. Accordingly Bennett has plea
himself out of court as to sole remaining defendant Deenihan. Deenihan is therefore also dismissex
a defendant, and that means that this entire action is now dismissed.

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

No notices required, advised in open court. = Document
No notices required. een — Number
o | Notices mailed by judge's staff. a Nov 2 95 7008

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form. j
Copy to judge/magistrate judge. *
courtroom TAGS ee ad
SN deputy’s
initials HE
J Datetiiny received a
central Clerk’s'Office



SEE CASE
FILE FOR
EXHIBITS


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

ALLEN BENNETT A81422,

Plaintiff,

i

)
)
)
) .
v. ) No. 03 C 5071
JOAN PERNECKE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Only one defendant, Investigating Probation officer L.
Deenihan (“Deenihan”), remains in this 42 U.S.C. §1983 (“Section
1983”) action brought by Allen Bennett (“Bennett”) against a host
of defendants. Here is a brief recap of the case history to this
point:

1. This Court's July 25, 2003 memorandum opinion and
order dismissed out then Chicago Police Superintendent Terry
Hillard and Cook County State's Attorney Richard Devine,
against neither of whom Bennett had advanced any
allegations. Although any claims against Chicago Police
Officers Katherine Crow (“Crow”) and S. Henricks
(“Henricks”) were clearly more than two years old (so as to
be potentially vulnerable on statute of limitations
grounds), the opinion correctly characterized that as a
potential affirmative defense, so that neither officer was
dismissed at that point.

2. Bennett then filed a First Amended Complaint



(“FAC”), dropping the two previously-dismissed defendants
but retaining officers Crow and Henricks and Assistant
State's Attorney Joan Pernecke ("“Pernecke,” who had been
named in the original Complaint) and adding two new
defendants, Deenihan and Assistant State's Attorney James
Fitzgerald (“Fitzgerald”).

3. When the City of Chicago's Corporation Counsel then
(not surprisingly) raised the statute of limitations issue
by an oral motion seeking the dismissal of Officers Crow and
Henricks, this Court granted that motion.

4. Next this Court's September 11, 2003 memorandum
opinion and order found Fitzgerald absolutely immune under
Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) and
dismissed him as well.

5. Finally, this Court's longer October 2, 2003
memorandum opinion and order reviewed the dismissal motion
that had been filed on behalf of Pernecke and, although the
motion and supporting memorandum had mistakenly relied in
part on an unsound premise of her Eleventh Amendment
absolute immunity, this Court found that Pernecke (like
Fitzgerald) was protected by the mantle of absolute
prosecutorial immunity and therefore dismissed her as well.
As for remaining defendant Deenihan, the United States

Marshals Service has made an unsuccessful effort to serve her and