No. 04, C 3664 Page 4

the grand jury, plaintiff writes: “The fictionalized police report was given to a Grand Jury
for that jury to return an indictment against the Plaintiff.” That sentence does not specifically
mention that an indictment was actually issued, but it also fails to indicate that the grand jury
returned a “no bill.” Still, we assume that the grand jury indicted plaintiff because the case
against him continued. Historically, the grand jury has had “the dual function of determining
if there is probable cause to believe that a crime has been committed and of protecting citizens
against unfounded criminal prosecutions .” United States v. Gardner, 860 F.2d 1391, 1395 (7"
Cir. 1988); Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972). Also, under Illinois law the grand
jury determines whether probable cause exists. See People v. DiVincenzo, 183 Il.2d 239, 700
N.E.2d 981, 989 233 Ill. Dec. 273 (III. 1998) (noting that “the grand jury determines whether
probable cause exists that an individual has committed a crime.”); Phillips v. Graham, 86 IIl.2d
274, 472, N.E.2d 550, 554, 56 Ill. Dec. 355; 725 ILCS 5/112-4 (2004).

Even though all signs indicate that the grand jury returned an indictment, we do not
find that probable cause existed. Plaintiff alleges that the “fictionalized police report” was
presented to the grand jury. That allegation would preclude us from using the indictment as
evidence of probable cause. In Cervantes v. Jones, 188 F.3d 805, 811 n.7 (7" Cir. 1999) the
court noted, “A grand jury indictment is usually prima facie evidence of probable cause, But
in construing the facts in the light most favorable to [plaintiff], his allegation that the
indictment was the product of [defendant’s] perjury precludes us from considering the
indictment in our probable cause analysis. A contrary rule could allow an indictment
procured by lies to protect a witness from liability for his perjury.” After discounting the
indictment, we cannot say that there is probable cause here. There may have been additional
evidence before the grand jury that would have supported a finding of probable cause, but

that factual inquiry will have to wait.


No. 04,C 3664 Page 3

Reading plaintiff's complaint liberally, he asserts that the defendants searched him and
his vehicle without probable cause, arrested him, and then fabricated a police report that
depicted an entirely different scenario in which police had probable cause to arrest him. The
central issue is whether there was probable cause. If probable cause exists, then it would bar
plaintiff's suit. The existence of probable cause “precludes a § 1983 suit for false arrest
{because] a person arrested with probable cause cannot cry false arrest.” Juriss v. McGowan,
957 F.2d 345, 349 n.1 (7" Cir. 1992). See also Sheik-Abdi v. McClellan, 37 F.3d 1240, 1247 (7"
Cir. 1994) (probable cause for an arrest precludes § 1983 liability for unlawful arrest). Thus,
probable cause to arrest would require dismissal under § 1915(e)(2)(B)(ii). Further, probable
cause would also immunize defendants, which would require dismissal under §
1915(e)(2)(B)(iii). A police officer is immune from suit if he could have reasonably believed
that probable cause existed for an arrest, even if he was mistaken in his belief. Wollin v.
Gondert, 192 F.3d 616, 622-23 (7" Cir. 1999), Immunity shields a police officer from damages
if he had probable cause or could have reasonably, but mistakenly, believed that probable
cause existed. Humphrey y. Staszak, 148 F.3d 719, 725 (7" Cir 1998). See also Sheik-Abdi v.
McClellan, 37 F.3d 1240, 1247 (7" Cir. 1994) (probable cause for an arrest precludes § 1983
liability for unlawful arrest). However, at this juncture we cannot say that the police had
probable cause.

Determining whether probable cause to arrest existed requires us to ask if “at the time
of the arrest, the facts and circumstances within the officer’s knowledge were sufficient for the
officer to form a reasonable belief to suspect criminal activity.” Smith v. Lamz, 321 F.3d 680,
684-85 (7"" Cir, 2003). That is obviously a fact-sensitive inquiry, which is inappropriate at this
stage. But probable cause may still be established.

A grand jury indictment usually indicates the existence of probable cause. Regarding


No. 04 C3664 Page 5

Plaintiff's allegations of a falsified police report may also defeat an immunity defense.
Police officers would not be immune for falsified police reports since “no absolute testimonial
immunity attaches to the actions of the officers outside of trial.” Ienco v. City of Chicago, 286
F.3d 994 (7" Cir. 2002). Further, the decisions of the grand jury to indict, or the prosecutor
to proceed to trial, will not immunize “a police officer who deliberately supplied misleading
information that influenced the decision.” Jones y. City of Chicago, 856 F.2d 985, 994 (7 Cir.
1988).

The lack of probable cause also means that plaintiff’s § 1983 conspiracy charge should

not be dismissed. Section 1983 does not provide a cause of action for conspiracy per se. Lesser

y. Braniff Airways, Inc., 518 F.2d 538, 540 (7 Cir, 1975). For plaintiff to state a § 1983
conspiracy cause of action he must allege both an agreement and a deprivation of his

constitutional rights. Vukadinovich y. Zentz, 995 F.2d 750, 756 (7" Cir. 1993). See also Lesser,

518 F.2d at 540 (“the gist of the [§ 1983] cause of action is the deprivation and not the
conspiracy”). Plaintiff claims that the defendants “banded together to intentionally deprive”
him of his Fourth Amendment rights. Plaintiff has thus stated both an agreement anda
deprivation of constitutional rights.
CONCLUSION
Plaintiff's petition to proceed in forma pauperis, is granted. His motion for

appointment of counsel is continued, pending further developments in this case.

dries ®. Mocam

S\ JAMES B. MORAN
Semior Judge, U. S, District Court

Os. {2 ,2004.



x inute Order Horm (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge James B. Moran than Assigned Judge
CASE NUMBER 04 C 3664 DATE 10/12/2004
CASE RICHARD MONTALVO vs. J. JUREK, 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.}
MEMORANDUM OPINION AND ORDER

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) Q Brief in support of motion due

(3) o Answer brief to motion due. . Reply to answer brief due

(4) ia Ruling/Hearing on set for at

(5) oO Status hearing[held/continued to] [set for/re-set for] on setfor at.

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on setfor at _.

(7) Qo Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CIFRCP4(m) Local Rule 41.1 COFRCP41(a)(1) [ FRCP41(a)(2).

(ao) of (Other docket entry] | Enter Memorandum Opinion And Order. Plaintiff's petition to proceed in
forma pauperis, is granted. Plaintiff's motion for appointment of counsel is continued, pending further
developments in this case.

al) {For further detail see order attached to the original minute order.] ott

No notices required, advised in open court. im |i
No notices required, number of notices
Notices mailed by judge’s staff. Pees oad
Notified counsel by telephone. date docketed

v Docketing to mail notices,

Mail AO 450 form.
Copy to judge/magistrate judge.
2 lp Dp tanger
courtroom vest id @F LOO 4og2
LG deputy's
initials os
Date/time received in 13's
central Clerk’s Office ‘walling deputy initials



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

EASTERN DIVISION
RICHARD MONTALVO, )
Plaintiff, }
vs. } No. 04 C 3664
J. JUREK, Star #7051, }
B. MEDENICA, Star #13522, et al., )
Defendants, ;

MEMORANDUM OPINION AND ORDER

Plaintiff Richard Montalvo filed a pro se complaint against six Chicago police officers
(defendants) claiming civil rights violations under 42 U.S.C. § 1983. Along with his complaint,
plaintiff filed a petition to proceed in forma pauperis and a motion for appointment of counsel.
For the following reasons we grant plaintiffs motion to proceed in forma pauperis and defer
on his motion for appointment of counsel.

Pursuant to 28 U.S.C. § 1915(a) we may authorize plaintiff to proceed in forma pauperis
if he demonstrates an inability to pay the required costs and fees. In his financial affidavit
plaintiff states that he is a single father and has been unemployed since December 2003. He
receives $400 in rent payments from his mother and $650 in “veterans compensation.” With
respect to the veterans compensation, plaintiff mentions that he is waiting “for the rest” of it
and is appealing the withholding of the money. Plaintiff also states that he has $20 in his
checking account. He owns a vehicle (a 1991 truck), but it is inoperable, and he states he does
not have the money to fix it. His mother owns the house in which he lives, but he does not
know the value of that building. In light of these representations, plaintiff has shown his
financial need and an inability to pay court costs, O

Our inquiry does not end with that finding of indigence. As part of the initial review



No. 04 C 3664 Page 2

of a petition to proceed in forma pauperis, we analyze the claims and dismiss the complaint if
we determine that the action is frivolous or malicious, it fails to state a claim upon which relief
may be granted, or seeks damages from a defendant who is immune from such relief. 28
U.S.C, § 1915(e)(2)(B)(i)-(iii); Alston v Debruyn, 13 F.3d 1036, 1039 (7" Cir. 1994). In
reviewing the petition we apply the standard used in a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) and take petitioner’s allegations as true. Zimmerman v.

Tribble, 226 F.3d 568, 571 (7" Cir. 2000). We dismiss a claim only if it appears beyond a doubt

that there exist no facts to support the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Complaints by pro se parties are held to less stringent standards than pleadings drafted by
attorneys. Alvarado y, Itscher, 267 F.3d 648, 651 (7" Cir. 2001).

We take the following facts from plaintiffs complaint. Plaintiff claims that on May 31,
2002, defendants surrounded him with guns drawn as he was walking to his car, which was
parked in a gas station parking lot. After being detained, plaintiff alleges that the defendants
searched his person and his car, and then arrested him. Plaintiff says that he never consented
to any search and claims that defendants lacked probable cause for the detention and the
subsequent search. He states that a police report indicates that he nearly hit a police vehicle
with his car and then fled on foot through the gas station. Plaintiff contends the defendants
fabricated the facts in the report. That police report was presented to a grand jury. Plaintiff
then states that he prevailed on a motion to suppress (but he does not state what it was that he
successfully suppressed).

Plaintiff has two claims against the defendants. First, he claims that the defendants
violated his Fourth Amendment right to be free of unreasonable searches and seizures.
Second, he brings a conspiracy claim under 42 U.S.C. § 1983 that alleges the defendants

conspired to deprive him of his Fourth Amendment rights.