JOAN B. GOTTSCHALL, United States District Judge.
Plaintiff Kirsten Steeves brought suit under 42 U.S.C. § 1983 against sheriff's investigator Stephen McGrath, alleging false arrest and malicious prosecution for McGrath's role in Steeves' 1998 arrest and prosecution for theft and forgery. McGrath has moved to dismiss the suit based on his entitlement to absolute immunity, and alternatively has moved to dismiss the false arrest claim based on Steeves' failure to allege that McGrath physically arrested her. For the following reasons, the motion to dismiss is denied.
Background
The court, as it must, accepts as true the facts alleged in Steeves' complaint. Flynn v. Kornwolf 83 F.3d 924, 925 (7th Cir.), cert. denied, 519 U.S. 930 (1996). Steeves is a divorce attorney in Will County, Illinois. She represented Beverly Knickrehm in her divorce from Leland Knickrehm. Among the matters resolved in the divorce was the payment of $6,144.00 in student loans owed by one of their children. In April 1997, each of the Knickrehms prepared a check in the amount of $3,072.88 payable to the Illinois Student Loan Program and provided the checks to Steeves' office to be forwarded to the Illinois Student Loan office. Steeves' office instead mailed the checks to the Sallie Mae student loan program in Kansas. At that time, Steeves was in the process of repaying a loan through Sallie Mae in an account maintained in her name and social security number. The Knickrehms' checks were not made payable to the Sallie Mae Agency, nor did they bear Steeves' account number or any other endorsement. An employee of Sallie Mae wrote Steeves' social security number on the checks, deposited them for payment, and credited the payments to Steeves' account.
Despite the fact that Leland Knickrehm received a canceled check from his April 1997 payment, he continued to receive "payment due" notices regarding the student loan. He filed a complaint with the Will County State's Attorney's Office, and the matter was forwarded to the Office of the Illinois Attorney General. McGrath was assigned to investigate the matter on behalf of the Will County Sheriff's Department, and on September 24, 1998, he was appointed as investigator for the Will County Grand Jury. McGrath acted as chief investigator, obtained a search warrant, interviewed witnesses, and testified before the Will County Grand Jury.
On March 11, 1998, McGrath told the grand jury that Steeves had placed her social security number on the Knickrehms' checks. At the time of his testimony, McGrath allegedly knew that a forensic examination had failed to identify the social security number written on the Knickrehms' checks as having been written by Steeves. Steeves also alleges that McGrath falsely testified that a "payment slip" and "deposit slip" were sent from Steeves' account to Sallie Mae with the Knickrehms' checks.
Also on March 11 — following McGrath's testimony — the Will County Grand Jury voted to indict Steeves for theft and forgery. Pursuant to this indictment, an arrest warrant was issued, and Steeves was arrested, handcuffed, photographed, and compelled to post bail. Subsequent newspaper articles stated that Steeves had been indicted because she wrote her social security number on the Knickrehms' checks and used the funds to pay her own student loans. Several of Steeves' clients fired her, and prospective clients declined to engage her services. A criminal prosecution for theft and forgery ensued. On July 15, 1998, the prosecutor moved to terminate the proceedings by a nolle prosequi, and the case was dismissed.
Steeves has filed suit against McGrath under 42 U.S.C. § 1983, bringing claims for false arrest and malicious prosecution. McGrath has moved to dismiss both claims, arguing that he is entitled to absolute immunity because Steeves' claims are based on his grand jury testimony. McGrath also moves to dismiss the false arrest claim based on Steeves' failure to allege that he physically arrested her.
Analysis
When considering a motion to dismiss, the court must examine the sufficiency of the complaint, not the merits of the lawsuit. Triad Assoc., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). The court must draw all inferences and resolve all ambiguities in the plaintiff's favor and assume that all well-pleaded facts are true. Dimmig v. Wahl, 983 F.2d 86, 87 (7th Cir. 1993). A motion to dismiss will be granted only if the court finds that the plaintiff can prove no set of facts to support her allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
McGrath Absolute Immunity Defense
To prevent the harassment of witnesses and to promote unrestrained testimony in criminal cases, the Supreme Court has held that witnesses are absolutely immune from suits under 42 U.S.C. § 1983 for providing false testimony at trials. Briscoe v. LaHue, 460 U.S. 325, 334 (1983). For the same reasons, this immunity has been extended to witnesses who commit perjury in grand jury proceedings. Kincaid v. Eberle, 712 F.2d 1023, 1024 (7th Cir.) (per curiam), cert. denied, 464 U.S. 1018 (1983).
One exception to this "wall of immunity" for trial and pretrial testimony is for a "complaining witness." Cervantes v. Jones, 188 F.3d 805, 809 (7th Cir. 1999). As complaining witnesses were not absolutely immune at common law, they are not absolutely immune from suits under § 1983. See Malley v. Briggs, 475 U.S. 335, 340 (1986). A witness' status as a complaining witness is a question of fact; therefore, it is necessary to assess the role of that witness in the judicial proceeding. Cervantes, 188 F.3d at 810 n. 5 ( citing Anthony v. Baker, 955 F.2d 1395, 1399 (10th Cir. 1992)).
A complaining witness is one "who actively instigated or encouraged the prosecution of the plaintiff." Id. at 810 (internal quotation marks omitted). The fact that a police officer's actions lead to subsequent involvement by prosecutors does not negate the officer's status as a complaining witness. "If police officers have been instrumental in the plaintiff's continued confinement or prosecution, they cannot escape liability by pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute him." Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988).
Because a witness' status as a complaining witness is a question of fact, the court must determine whether Steeves' allegations, if true, are sufficient for McGrath to fall within the definition. According to Steeves, McGrath acted as the chief investigator, obtained a search warrant, interviewed witnesses, and testified before the Will County Grand Jury. Because McGrath actively instigated and encouraged the prosecution of Steeves, he qualifies as a complaining witness and, barring a subsequent evidentiary showing by McGrath to the contrary, is not entitled to absolute immunity.
Steeves' False Arrest Claim
McGrath alleges that Steeves' false arrest claim should be dismissed because her complaint fails to allege that McGrath physically arrested her. McGrath argues that "without an allegation that Defendant McGrath executed the arrest warrant," Steeves cannot state a claim for false arrest. (Mtn. to Dismiss at 5 (citing Juriss v. McGowan, 957 F.2d 345, 348 (7th Cir. 1992))) In response. Steeves has submitted two forms showing that McGrath was, in fact, the arresting officer. Because these forms are perfectly consistent with the allegations in Steeves' complaint, the court may consider them in deciding whether Steeves has set forth a valid claim. See Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992) (holding that "[a] plaintiff need not put all of the essential facts in the complaint," but may add them by affidavit or brief in response to a 12(b)(6) motion). Because Steeves' submissions, taken together, give rise to a cognizable claim for false arrest, McGrath's motion to dismiss Count I is denied.
Steeves' Malicious Prosecution Claim
In his reply brief, McGrath argues that Steeves' malicious prosecution claim should be dismissed for failing to allege post-arrest misconduct by McGrath. Regardless of the propriety of raising a new ground for dismissal on reply, the court finds that Steeves has set forth a valid claim for malicious prosecution under 42 U.S.C. § 1983.
To state a claim under § 1983 for malicious prosecution, the plaintiff must allege that: (1) he satisfies the requirements of a state law claim for malicious prosecution; (2) the malicious prosecution was committed by state actors; and (3) he was deprived of liberty. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996). To state a claim under Illinois law for malicious prosecution, a plaintiff must allege that: (1) he was subjected to judicial proceedings; (2) for which there was no probable cause; (3) the defendants instituted or continued the proceedings maliciously; (4) the proceedings were terminated in favor of the plaintiff; and (5) there was an injury. Id.
The existence of probable cause for the prosecution is a complete defense to a malicious prosecution claim under both Illinois and federal law. Cervantes, 188 F.3d at 810-11. The presumption underlying Steeves' complaint is that, absent McGrath's allegedly false testimony, the grand jury lacked facts upon which a reasonable person would conclude that Steeves had committed forgery and theft. A grand jury indictment is usually prima facie evidence of probable cause. Bontkowski v. United States, 28 F.3d 36, 37 (7th Cir. 1994).
However, in construing the facts in the light most favorable to Steeves, her allegation that the indictment was the product of McGrath's perjury precludes the court from considering the indictment in the probable cause analysis. See Cervantes, 188 F.3d at 811 n. 7. A contrary rule could allow an indictment procured by falsehoods to protect a witness from liability for his perjury. See Jones, 856 F.2d at 994 ("[A] prosecutor's decision to charge, a grand jury's decision to indict, a prosecutor's decision not to drop charges but to proceed to trial — none of these decisions will shield a police officer who deliberately supplied misleading information that influenced the decision.").
In most malicious prosecution cases filed against police officers, there is an intervening event — such as the prosecutor's decision to indict — that breaks the chain of causation linking the police to the wrongful prosecution. See Reed, 77 F.3d at 1053 ("[T]he chain of causation is broken by an indictment, absent an allegation of pressure or influence exerted by the police officers, or knowing misstatements made by the officers to the prosecutor."). In these instances, claimants must allege some police wrongdoing after the arrest that influences the prosecutor's decision to bring the case to trial. Id. Examples of post-arrest wrongdoing include giving false testimony or withholding exculpatory evidence. See id. (dismissing malicious prosecution claim where "[t]here is no allegation that the detectives covered up exculpatory evidence or testified untruthfully"); Womack v. Aguirre, No. 97 C 6020, 1998 WL 249228 at *2 (RD. Ill. May 11, 1998) (allowing malicious prosecution claim where officers allegedly prepared false police reports and made false statements to prosecutors).
In this case, Steeves alleges no post-arrest wrongdoing by McGrath. However, there is no post-arrest wrongdoing only because the grand jury's indictment of Steeves occurred before she was arrested. Given McGrath's alleged perjury before the grand jury, he played a key role in that indictment. There is no indication of a post-arrest event that would break the causal link between McGrath's misconduct and the wrongful prosecution. Accordingly, the court finds this to be the rare case where the plaintiff has stated a malicious prosecution claim against a police officer without alleging post-arrest misconduct. McGrath's motion to dismiss Count II is denied.
CONCLUSION
For the foregoing reasons, McGrath's motion to dismiss is denied.