Chet Smith v. Cook County, Illinois

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2023*
Decided July 25, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-2969
CHET SMITH,
Plaintiff-Appellant,
v.
COOK COUNTY, ILLINOIS,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 22-cv-1678
Martha M. Pacold,
Judge.
O R D E R
In 2018, a grand jury in the Circuit Court of Cook County, Illinois, indicted Chet
Smith for attempted first-degree homicide, and he was remanded to the Cook County
Jail for pretrial detention. Smith later sued, alleging that the prosecution violated his
* The appellees were not served with process and are not participating in this
appeal. We have agreed to decide the case without oral argument because the
appellant’s brief and the record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-2969 Page 2
due-process rights under the Fourteenth Amendment. The district court screened the
complaint under 28 U.S.C. § 1915A and, after allowing Smith to amend his complaint,
dismissed the case. Because the amended complaint failed to state a claim, we affirm.
We accept the facts Smith alleges as true, drawing reasonable inferences in his
favor. Schillinger v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020). In 2018, after a shooting,
Smith was arrested and indicted for attempted first-degree murder. Only the grand jury
foreman, not the other grand jurors, signed the indictment.
In March 2022, Smith—apparently still in jail awaiting trial—sued the County.
He alleged that there was no probable cause to arrest him in 2018; that the State’s
Attorney had conspired with a Chicago police detective to maliciously prosecute him
and was withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963); and that his indictment was invalid because the entire grand jury had not signed
it. The district court screened the complaint, 28 U.S.C. § 1915A, and dismissed it after
concluding that the only possible theory of relief against the County was a claim under
Monell v. Department of Social Services., 436 U.S. 658 (1978), for failure to train prosecutors
to obtain valid indictments. But, the court concluded, the absence of all grand jurors’
signatures does not violate the federal Constitution. The court allowed Smith to amend,
but because the amended complaint “differed little” from the first, the court dismissed
it with prejudice.
On appeal, Smith focuses on the supposed invalidity of his indictment and does
not develop arguments about the dismissal of his other claims. He relies on Gaither v.
United States, 413 F.2d 1061 (D.C. Cir. 1969), to argue that Cook County deprived him of
due process because each member of the grand jury did not sign his indictment. He
further asserts that Cook County has an unlawful practice of submitting indictments
only to the foreman, and not to the whole grand jury. We review de novo a decision to
dismiss a case at screening for failure to state a claim. Schillinger, 954 F.3d at 994.
Smith’s amended complaint failed to state a claim based on the form of his
indictment. First, Illinois law requires only the foreman to sign grand-jury indictments,
so to prevail, Smith would have to establish that the Illinois rule violates the federal
constitution. 725 ILCS 5/112-4(d). But federal law does not require every grand juror’s
signature even on federal indictments. F ED. R. C RIM . P. 6(c) (“The foreperson . . . will
sign all indictments.”). Second, even the absence of required signatures would not make
the indictment constitutionally deficient. In United States v. Irorere, we addressed a
challenge to the sufficiency of a federal indictment that lacked the signatures of the

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No. 22-2969 Page 3
grand jury foreperson and the prosecutor, both required by the Federal Rules. 228 F.3d
816, 830 (7th Cir. 2000); F ED. R. C RIM . P. 6(c), 7(c)(1). We concluded that the missing
signatures were “mere technical deficiencies,” not fatal defects. See id. at 831; see also
People v. Benitez, 661 N.E.2d 344, 348 (Ill. 1996).
More fundamentally, the Fifth Amendment’s grand jury requirement does not
even apply to the states—they can use whatever charging mechanism they choose, so
long as it provides due process. Peters v. Kiff, 407 U.S. 493, 496 (1972). And all the
Fourteenth Amendment requires is that a defendant received adequate notice of the
specific charge against him and a fair opportunity to defend himself. See Ashburn v.
Korte, 761 F.3d 741, 758 (7th Cir. 2014) (citing Bae v. Peters, 950 F.2d 469, 478 (7th Cir.
1991)). Because Smith does not allege that he lacked adequate notice of the charges, he
cannot establish a constitutional violation based on the form of the indictment.
Gaither, which is not binding on us, does not suggest otherwise. There, only the
grand jury foreman had seen the indictment, while the other grand jurors had reviewed
a “presentment” devoid of the facts underlying the charge. 413 F.2d at 1065. The D.C.
Circuit concluded that this procedure was “erroneous.” Id. at 1070. But this does not
help Smith: the court went on to conclude that there was no constitutional violation
because Gaither had identified no prejudice. Id. at 1075.
Finally, Smith’s contention that Cook County prosecutors unlawfully submit
indictments only to the grand jury foreman is unavailing. As noted above, neither
Illinois law nor the federal Constitution requires every grand juror to sign. And Smith
pleads no facts—apart from the absence of those unnecessary signatures—to support
his allegation that full grand juries do not vote on indictments in Cook County. Because
only the foreman’s signature is required, it would not be reasonable to infer from the
lack of other signatures that other jurors did not vote on the indictment, and so Smith
does not state a claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Finally, for clarity of the record, we note that district court stated that the
dismissal of Smith’s case for failure to state a claim would be a strike under 28 U.S.C.
§ 1915(g), and he incurs another one for this appeal, see id.
AFFIRMED

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