Cervantes v. Jones

Decision Date13 August 1999
Docket NumberNo. 98-3828,98-3828
Citation188 F.3d 805
Parties(7th Cir. 1999) James J. Cervantes, Plaintiff-Appellant, v. Larry Jones, Defendant-Appellee
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 1520--George M. Marovich, Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Flaum and Manion, Circuit Judges.

Manion, Circuit Judge.

Officer Larry Jones testified before an Illinois grand jury about evidence linking James Cervantes to the brutal murder of Cervantes' sometimes girlfriend, Sally Lavergne. After hearing the prosecutor's evidence, including Jones' testimony, the grand jury indicted Cervantes for first degree murder. Pending trial, Cervantes remained incarcerated for almost three years. A jury later acquitted him of the murder. Subsequently, Cervantes sued Jones under 42 U.S.C. sec. 1983 and Illinois law, alleging that Jones violated Cervantes' rights under the Fourth Amendment and Illinois law by testifying falsely before the grand jury. The district court granted summary judgment for Jones, from which Cervantes appeals. We affirm.


On July 20, 1992, a neighbor discovered the dead body of Sally Lavergne in Lavergne's apartment in South Elgin, Illinois. Lavergne's death resulted from multiple stab wounds from a butcher's knife in her chest and abdomen, although she also suffered severe skull fractures from a beating with a glass ashtray. There were no signs of forced entry, and the assailant fled without leaving any fingerprints. Cervantes became a suspect early in the investigation, as he was one of Lavergne's few friends. Elgin Deputy Chief of Police Larry Jones first interviewed Cervantes on July 20, and again with another officer present on July 25. Late at night on December 8, 1992, after discussing the murder with Cervantes at his apartment, Jones and two other officers took Cervantes to the police station for a polygraph examination. The examination indicated that Cervantes was untruthful when he denied killing Lavergne.

At approximately 5:00 a.m. on December 9, after the police finished questioning Cervantes, Jones drove him home. During the ride, Cervantes and Jones carried on a conversation in which Jones mentioned to Cervantes that it seemed he wanted to come clean. Cervantes' response to this statement is disputed, so we accept his version in the posture of this case. According to Cervantes, he responded: "If I confess to a crime that I did not commit, what would my defense be? I've got too much to lose." Jones tells a slightly different story, but the differences are important. Jones testified to the grand jury that Cervantes' response was: "Yes I would like to do that [confess to the crime]. But I've got too much to lose. If I admit I killed Sally, what would my defense be?" Cervantes contends that Jones also lied to the grand jury by telling it that Cervantes admitted to lying about whether he was at his mother's house on the day of the murder,1 that he has difficulty controlling his temper when he drinks, and that he had been drinking and smoking marijuana on the night of the murder.

After hearing the prosecutor's evidence, including Jones' version of events, the grand jury indicted Cervantes for Lavergne's murder. He was arrested and held in custody for almost three years while awaiting his trial for capital murder. On March 7, 1996, he was released from custody when a jury acquitted him. Cervantes sued under Illinois law and 42 U.S.C. sec. 1983, alleging that Jones violated his Fourth Amendment and Illinois common law rights by maliciously prosecuting him. Jones moved for summary judgment, arguing, among other things, that probable cause existed for the prosecution and that he enjoyed absolute immunity. The district court granted summary judgment for Jones, holding that Jones did not initiate or continue the prosecution of Cervantes, and that Jones was therefore entitled to absolute immunity. Cervantes v. Jones, 23 F. Supp. 2d 885, 890, 892 (N.D. Ill. 1998). Cervantes appeals, and we review the grant of summary judgment de novo. DiGiore v. Ryan, 172 F.3d 454, 459 (7th Cir. 1999).


Section 1983 establishes a cause of action for persons deprived of constitutional rights by government officials acting under color of state law. 42 U.S.C. sec. 1983. Where a criminal defendant is prosecuted without reasonable grounds and was unlawfully incarcerated before his trial, he may bring an action for malicious prosecution under sec. 1983, ostensibly for a violation of his Fourth Amendment rights. Smart v. Board of Trustees of the Univ. of Ill., 34 F.3d 432, 434 (7th Cir. 1994).2

To withstand summary judgment, a plaintiff alleging malicious prosecution under sec. 1983 must create a genuine issue of material fact as to each element of this constitutional tort. That is, he must provide some evidence that: (1) he has satisfied the requirements of a state law cause of action for malicious prosecution; (2) a state actor committed the malicious prosecution; and (3) he was deprived of liberty. Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998); Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996). Under Illinois law, the tort of malicious prosecution requires a showing that: (1) the plaintiff was subject to judicial proceedings; (2) for which there was no probable cause; (3) the defendant instituted or continued the proceedings maliciously; (4) the proceedings were terminated in the plaintiff's favor; and (5) there was an injury. Rybicki, 146 F.3d at 480-81; Reed, 77 F.3d at 1051.

The district court granted summary judgment based on the "instituted or continued the proceedings maliciously" element and absolute immunity, which as we shall see, involve essentially the same question. Although the text of sec. 1983 does not admit of any immunities to suits brought under this section, the Supreme Court has held that these suits are subject to the immunities available at common law, so long as they are not in conflict with the purposes of sec. 1983. Burns v. Reed, 500 U.S. 478, 484 (1991); Malley v. Briggs, 475 U.S. 335, 339-40 (1986). Accordingly, in order to protect prosecutors from vindictive lawsuits which might directly or indirectly impede their roles as public servants, prosecutors enjoy absolute immunity for activities which are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Similarly, to prevent the harassment of witnesses and to promote unrestrained testimony in criminal cases, the Supreme Court held that witnesses at trials are absolutely immune from suits under sec. 1983 for providing false testimony at trials. Briscoe v. LaHue, 460 U.S. 325, 334 (1983); see Jurgensen v. Haslinger, 692 N.E.2d 347, 349 (Ill. App. Ct. 1998) (Illinois law). For the same reasons, this immunity extends to witnesses who commit perjury in pretrial proceedings. Curtis v. Bembenek, 48 F.3d 281, 285 (7th Cir. 1995) (police officer entitled to immunity for providing perjurious testimony in probable cause and suppression hearings).3 Thus, a witness is absolutely immune from suits based on testimony given before a grand jury. Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999); Kincaid v. Eberle, 712 F.2d 1023, 1024 (7th Cir. 1983) (per curiam).

An exception to this wall of immunity for trial and pretrial testimony exists for a "complaining witness." Complaining witnesses were not absolutely immune from malicious prosecution suits at common law.4 Malley, 475 U.S. at 340; Harris v. Roderick, 126 F.3d 1189, 1199 (9th Cir. 1997). "The common law made a subtle but crucial distinction between two categories of witnesses with respect to their immunity for false testimony. Those whose role was limited to providing testimony enjoyed immunity; those who played a role in initiating a prosecution-- complaining witnesses--did not enjoy immunity." White v. Frank, 855 F.2d 956, 958-59 (2d Cir. 1988). To qualify as a complaining witness (and thereby be disqualified from absolute immunity), a witness must play a sufficient role in initiating the prosecution.5 Id. at 962. Of course, merely providing false testimony to a grand jury is not enough. Id. at 961. Rather, as we stated in Curtis, a complaining witness is one "'who actively instigated or encouraged the prosecution of the plaintiff.'" 48 F.3d at 286 (quoting Anthony, 955 F.2d at 1399 n.2); see Ireland v. Tunis, 113 F.3d 1435, 1447 (6th Cir. 1997) (no immunity for a "complaining witness who set the wheels of government in motion by instigating a legal action"); Enlow, 962 F.2d at 511 (a complaining witness is one who actively instigated, encouraged, or perpetrated the prosecution). Thus, the term "complaining witness" is something of a misnomer, as the complainant need not testify as a witness so long as he played a significant role in initiating or procuring the prosecution. Kalina v. Fletcher, 118 S. Ct. 502, 512 (1997) (Scalia, J., concurring).

As we mentioned above, the district court found that Jones was not an initiator of the prosecution, and thus Cervantes failed to establish an essential element of his Illinois and federal claim and Jones was entitled to absolute immunity. 23 F. Supp. 2d at 890. Indeed, the record showed that while Jones was the one who suggested that the Kane County State's Attorney's Office obtain blood and hair samples from Cervantes, he never exhorted prosecutors to seek an indictment of Cervantes--at least not in so many words. According to the affidavit of the State's Attorney, John Barsanti, he (Barsanti) made the decision to prosecute Cervantes. But we note that Jones was the only witness to testify before the grand jury, and during that testimony he made allegedly false statements indicating that Cervantes essentially confessed to the murder. Jones also appeared to be the lead investigator and the...

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