Opinion
No. 03 C 5071
September 11, 2003
MEMORANDUM OPINION AND ORDER
Pro se litigant Allen Bennett ("Bennett") has now substituted a First Amended Complaint ("FAC") for his originally-filed Complaint that this Court addressed in its July 25, 2003 memorandum opinion and order ("Opinion"). Because Opinion at 3 pointed out that Bennett had set out no allegations at all that would support a claim against then Chicago Police Superintendent Terry Hillard or Cook County State's Attorney Richard Devine, he has dropped them as defendants in the FAC. But in their place Bennett has added two new defendants: Assistant State's Attorney James Fitzgerald ("Fitzgerald") and L. Deenihan ("Deenihan"), apparently someone involved in the probation process. This memorandum opinion and order is issued sua sponte to refine the FAC further.
To begin with, Bennett had understandably retained Chicago Police Officers Katerine Crow and S. Henricks as defendants because Opinion at 3-4, while pointing out that any potential 42 U.S.C. § 1983 ("Section 1983") claim against either of them was clearly outside of the two-year statute of limitations, recognized that there was still a possibility (however remote) that they might not raise the issue of untimeliness (an affirmative defense under Fed.R.Civ.P. 8(c)). But because the City of Chicago's Corporation Counsel has indeed (and not surprisingly) raised the limitations issue by oral motion, this Court has previously dismissed those two defendants from the action.
As to newly named defendant Fitzgerald, this Court had already set a September 10 status hearing in this matter, with counsel for remaining defendant Joan Pernecke having arranged (at this Court's request) to have Bennett participate by telephone from his place of confinement at Big Muddy River Correctional Center. During that hearing this Court advised Bennett that it would proceed to give immediate consideration to whether attorney Fitzgerald was entitled to absolute prosecutorial immunity.
In that respect, FAC ¶ 52 identifies Fitzgerald's only involvement vis-a-vis Bennett as having filed an objection to Bennett's pro se motion for an I-bond in the Illinois Appellate Court, and Bennett also confirmed that during the course of the September 10 status hearing. Under those circumstances, the seminal decision in Imbler v. Pachtman. 424 U.S. 409, 430-31 (1976) teaches that such prosecutorial activity — plainly performed by Fitzgerald in the role of advocate — is absolutely immune. That has been reconfirmed time and again sinceImbler (see, e.g., Burns v. Reed, 500 U.S. 478 (1991)).
Accordingly Fitzgerald is also dismissed as a defendant, and it is unnecessary for process to issue against him. As for newly added defendant Deenihan (as well as ongoing defendant Pernecke), it will remain to be seen whether either or both of them is or are amenable to suit in this Section 1983 action.