In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4057

Felicia Anderson, as Special Administrator
of the Estate of Wayne Anderson, Deceased,

Plaintiff-Appellant,

v.

Kevin Simon,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CV 1587--James B. Moran, Judge.

Argued May 17, 2000--Decided June 21, 2000



  Before Bauer, Coffey and Kanne, Circuit Judges.

  Kanne, Circuit Judge. Wayne Anderson was a
heroin addict with prior convictions for
residential burglary. In March 1997, he burgled
a neighbor’s apartment and sold the stolen goods
to a pawn shop to get money and buy heroin. The
neighbor reported the burglary, and the police
quickly located the stolen goods. On March 12,
1997, the police confronted Wayne Anderson with
the stolen goods, and he immediately confessed to
the burglary.

  Anderson was arrested at 3:40 p.m. and taken to
the 25th District Police Station in Chicago,
where he was held in police lockup pending
charging. Later that afternoon, his neighbor
filed a criminal complaint, and the police
decided to hold Anderson overnight. During the
night, Anderson began to experience heroin
withdrawal symptoms. He became depressed and told
the officers on duty that he wanted to kill
himself. Shortly after midnight, the police watch
commander assigned Detective Holec the case.
Holec was responsible for working with Assistant
State’s Attorney Kevin Simon from the Felony
Review Unit of the Cook County State’s Attorney’s
office to determine whether Anderson would be
charged with felony burglary.

  Simon refused to approve felony charges against
Anderson until a lineup could be held. Holec
reported Simon’s decision to Assistant Deputy
Superintendent Anthony Ivanjack, his superior,
and Ivanjack spoke to Simon about the matter at
3:00 a.m. Simon again refused to authorize felony
charges against Anderson, and Ivanjack declined
to transfer Anderson to a hospital prior to
charging. Simon allegedly suggested to Ivanjack
that the police set up a lineup and ordered
Anderson detained until this lineup was held. For
this reason, Anderson was held overnight and for
much of the next day. The lineup was held at
about 5:00 p.m. the next afternoon, and Anderson
returned from the lineup at about 7:00 p.m. At
7:20 p.m., Anderson was found dead in his cell,
hanging from a noose.

  Felicia Anderson, Wayne Anderson’s widow, filed
suit against Ivanjack, the City of Chicago and
the officers who monitored Wayne Anderson,
claiming that the failure to transfer Wayne
Anderson constituted a violation of his Fourth
Amendment rights, pursuant to 42 U.S.C. sec.
1983. The City, the officers and Ivanjack
eventually settled with Felicia Anderson.
Unsatisfied with this resolution, in March 1999,
Felicia Anderson filed a sec. 1983 action against
Simon in his personal capacity. Felicia Anderson
stated in her complaint:

5. After [Wayne Anderson] had confessed and
after a criminal complaint had been signed,
defendant Simon, acting under color of his
authority as an Assistant State’s Attorney,
caused [Wayne Anderson] to be held in custody at
a police station so that additional evidence
could be gathered against him.

* * *

7. As the direct and proximate result of the
above referred actions of [Simon], [Wayne
Anderson] was deprived of rights secured by the
Fourth and Fourteenth Amendment to the
Constitution of the United States.

On July 14, 1999, Simon moved to dismiss the
complaint, claiming that it was too vague, failed
to state a claim and failed to allege the
requisite causal relationship between Simon’s
role and Anderson’s death. Simon also claimed
that he was entitled to absolute prosecutorial
immunity. In her answer to Simon’s motion to
dismiss, Felicia Anderson expanded the factual
basis for her complaint, contending that Simon
was empowered to order the police to hold Wayne
Anderson until further evidence could be gathered
and his decision to hold Wayne Anderson violated
Wayne Anderson’s Fourth Amendment rights, which
led to the wrongful failure to prevent his
suicide in violation of his Fourteenth Amendment
right to due process.
  However, on November 1, 1999, the district
court granted Simon’s motion to dismiss for three
reasons. First, the court held that Simon was
entitled to absolute immunity as a prosecutor.
Second, the court held that the failure of
jailors to prevent a known suicide risk was a
superseding cause that absolved Simon. Finally,
because Anderson had not been held for forty-
eight hours and Felicia Anderson had not pleaded
sufficient complicating circumstances, the court
held that she had failed to plead a violation of
Wayne Anderson’s constitutional rights, as
required under sec. 1983.

  On appeal, Felicia Anderson argues that the
district court erred in dismissing her sec. 1983
complaint for three reasons: (1) Simon was not
entitled to prosecutorial immunity because his
refusal to charge was not a prosecutorial
decision; (2) the court misapplied the forty-
eight-hour rule because Wayne Anderson was
detained without being charged only to allow
police to gather additional evidence against him;
and (3) the possibility of a superseding cause
for Wayne Anderson’s suicide, in this case jailor
negligence, did not deprive Felicia Anderson of
the right to seek damages for Simon’s role in the
detention. Because we find that Simon’s decision
not to approve charges against Wayne Anderson was
entitled to absolute prosecutorial immunity, we
do not decide whether the forty-eight-hour rule
was applied correctly or whether jailor
negligence constituted a superseding cause to his
death. We review de novo the district court’s
grant of a 12(b)(6) motion, accepting the
well-pleaded allegations in the complaint as true
and drawing all reasonable inferences in the
plaintiff’s favor. See Marshall-Mosby v.
Corporate Receivables, Inc., 205 F.3d 323, 326
(7th Cir. 2000).

  To survive a motion to dismiss a sec. 1983
action, a plaintiff must allege facts which show
that the defendant, acting under color of state
law, intentionally and unlawfully deprived the
plaintiff of a constitutional right. See Patrick
v. Jasper County, 901 F.2d 561, 565 (7th Cir.
1990). Federal notice pleading requires only that
the plaintiff "set out in her complaint a short
and plain statement of the claim that will
provide the defendant with fair notice of the
claim." Scott v. City of Chicago, 195 F.3d 950,
951 (7th Cir. 1999). In ruling on a 12(b)(6)
motion, a district court may take judicial notice
of matters of public record without converting
the 12(b)(6) motion into a motion for summary
judgment. See Henson v. CSC Credit Servs., 29
F.3d 280, 284 (7th Cir. 1994).

 To free the judicial process from the
harassment and intimidation associated with
frivolous litigation, the Supreme Court has held
that "in initiating a prosecution and in
presenting the State’s case, the prosecutor is
immune from a civil suit for damages." Imbler v.
Pachtman, 424 U.S. 409, 431 (1976). However, the
degree of immunity prosecutors are afforded
depends on their activity in a particular case.
If a prosecutor’s function is judicial or quasi-
judicial, he is entitled to absolute immunity
from suit, but if the function was administrative
or investigatory, he is only entitled to
qualified immunity. See, e.g., Spiegel v.
Rabinovitz, 121 F.3d 251, 257-58 (7th Cir. 1997).
In Spiegel, we held that an assistant state’s
attorney’s determination whether charges should
be brought is a quasi-judicial decision, entitled
to absolute immunity. Id. In that case, the
assistant state’s attorney was faced with cross-
complaints of battery from opposing parties. He
filed a report to his superiors which advocated
charging one party with battery but not the
other. The charged party brought a sec. 1983
malicious prosecution suit, claiming that since
the assistant state’s attorney acted in an
investigatory role, he should not be entitled to
absolute immunity for advocating that the party
be charged. We disagreed, holding that "absolute
immunity must extend to the [prosecutor’s]
professional evaluation of evidence assembled by
the police and appropriate preparation for its
presentation at trial or before a grand jury
after a decision to seek an indictment has been
made." Id. at 257 (internal quotation and
citation omitted).

  In Spiegel, we distinguished Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993), in which
the Supreme Court found a prosecutor who traveled
to the crime scene to determine if evidence taken
from the crime scene was sufficiently reliable to
constitute probable cause was not acting as an
advocate, but as an investigator. Spiegel, 121
F.3d at 257. In Buckley, the Supreme Court made
clear that the determinative question in
considering whether a prosecutor-defendant is
entitled to absolute immunity is whether the
prosecutor was acting as an advocate in
performing the tasks for which he is sued.
Buckley, 509 U.S. at 274. The Supreme Court noted
that the role of advocate normally begins on
arrest because "[a] prosecutor neither is, nor
should consider himself to be, an advocate before
he has probable cause to have anyone arrested."
Id. Nonetheless, probable cause to arrest does
not immunize a prosecutor for all activities
performed following arrest, if these activities
are investigative in nature. See id. at 274 n.5.

 Felicia Anderson’s complaint against Simon
states that Simon "caused [Wayne Anderson] to be
held in custody at a police station so that
additional evidence could be gathered against
him." In her response to Simon’s motion to
dismiss, Felicia Anderson clarified that Simon
caused her husband to be held by (1) his refusal
to charge Wayne Anderson, despite overwhelming
evidence that he committed the crime for which he
was arrested, and (2) his order that the police
hold him without being charged until a lineup
could be held.

  Simon’s refusal to charge Wayne Anderson given
the evidence at his disposal is a prosecutorial
decision. In Spiegel, we determined that a
state’s attorney’s decision regarding which of
two cross-complaints should be prosecuted merited
absolute immunity, Spiegel, 121 F.3d at 257, and
a prosecutor’s decision not to file charges
immediately is entitled to the same degree of
protection. Like the assistant state’s attorney
in Spiegel, Simon reviewed and weighed the
evidence, and he determined that additional
evidence was necessary to support a felony
burglary charge. Such calculations are a
necessary part of a prosecutor’s role of advocate
in preparing for its presentation at trial or
before a grand jury, and Felicia Anderson
proposes no reason that the decision to forestall
charging merits less protection than the decision
to charge. According to Felicia Anderson’s
allegations, Simon anticipated bringing charges
against Wayne Anderson and was already acting in
his role as an advocate when he made the decision
to await the results of a lineup before
proceeding with felony charging. Under these
circumstances, we do not believe that Simon
played an investigatory role in Anderson’s
detention, and on this basis, we believe that his
decision not to charge is entitled to absolute
immunity.

  Felicia Anderson also contends that Simon caused
Wayne Anderson to be held by ordering the police
to keep him in custody until a lineup could be
held. She claims that Simon’s order that the
police hold a lineup was an investigatory action,
likening it to the legal advice given by
prosecutors in Burns v. Reed, 500 U.S. 478, 493
(1991), not a prosecutorial action, so it is not
entitled to the same degree of protection as his
refusal to charge Wayne Anderson. Because we rule
on a grant of a motion to dismiss, we accept as
fact that Simon ordered police to hold Wayne
Anderson overnight and suggested that police
should hold a lineup to generate additional
evidence. To survive a motion to dismiss,
however, Felicia Anderson must plead facts that
if true, would constitute a sec. 1983 violation.
See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Even under this generous interpretation of
Felicia Anderson’s complaint, she fails to meet
this threshold.

  Although Felicia Anderson alleges that Simon
ordered the police to hold Wayne Anderson until
they conducted a lineup and suggested that the
police hold a lineup to create more evidence
against Wayne Anderson, Felicia Anderson does not
allege that the police were under any duty to
follow a state’s attorney’s orders or
suggestions. The police, not the state’s
attorney’s office, decide whether to detain an
individual following arrest but prior to formal
charging, see, e.g., Kyle v. Patterson, 957
F.Supp. 1031, 1034 (N.D. Ill. 1997), and the
police are not obligated to adhere to the
suggestions of the state’s attorney’s office, a
separate and distinct organization with no
command authority over the Chicago Police
Department. For this reason, Felicia Anderson’s
allegations, by themselves, that Simon ordered
the police to hold him and ordered the police to
hold a lineup fail to state a sec. 1983
violation. Felicia Anderson additionally must
allege reasons that Simon’s statements caused
police to hold Wayne Anderson in an unreasonable
fashion. Felicia Anderson fails to meet this
hurdle, as she nowhere sets forth in her
complaint how Simon’s orders forced police to
detain Anderson.

  If the police chose to hold Wayne Anderson
until the state’s attorney was satisfied that
charges should be filed, that was a matter left
to the discretion of the police. Inaction by the
police does not constitute an action by Simon
that caused Wayne Anderson to be held. Because
Felicia Anderson has failed to state a claim on
which relief can be granted, we find no error in
the district court’s grant of Simon’s motion to
dismiss.

  Because Simon’s decision not to approve charges
against Wayne Anderson is a prosecutorial
decision rather than an investigative one, we
find that he was entitled to absolute immunity
from prosecution under sec. 1983 for this
decision. For these reasons, we Affirm the district
court’s grant of Simon’s motion to dismiss.
