Sides, Brian K. v. City of Champaign ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1039 & 06-1590
BRIAN SIDES,
Plaintiff-Appellant,
v.
CITY OF CHAMPAIGN, A Municipal Corporation,
FREDERICK STAVINS, City Attorney,
RHONDA OLDS, City Attorney,
RANDALL CUNNINGHAM, Champaign Police Officer,
JOSEPH KETCHEM, Champaign Police Officer, and
COLBY OLESON, Champaign Police Officer,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 03 C 2118—Harold A. Baker, Judge.
____________
ARGUED DECEMBER 4, 2006—DECIDED AUGUST 8, 2007
____________
Before EASTERBROOK, Chief Judge, and CUDAHY and
SYKES, Circuit Judges.
CUDAHY, Circuit Judge. Brian Sides was detained by
City of Champaign police officers, then cited and prose-
cuted for violating a city ordinance against public inde-
cency. He was convicted and fined. He then filed the
present action in federal court against the city, several city
police officers and two city attorneys under 42 U.S.C.
2 Nos. 06-1039 & 06-1590
§ 1983, alleging that the detention and prosecution
violated numerous provisions of the United States Con-
stitution. The district court granted summary judgment
to the defendants on all counts. Sides now appeals,
alleging substantive and procedural errors in the district
court’s judgment. We affirm.
I. Background
Because Brian Sides appeals from a grant of summary
judgment against him, we will construe the evidence and
draw all reasonable inferences in his favor. Brummett v.
Sinclair Broad. Group, Inc., 414 F.3d 686, 692 (7th Cir.
2005). On July 10, 2001, Anson Huckleby was working
as a loss-supervisor at a Target store in Champaign,
Illinois. At about 1:00 in the afternoon, while he was
watching the real-time video feeds from the store’s exterior
surveillance cameras, he saw Sides and Christina Manuel
in a car. Sides was masturbating in front of Manuel.
Huckleby, believing that the two were having sex,1 re-
corded the act with the surveillance camera and called
the police twice, first to report public sex and then to
report that the car had moved across the street to a
parking lot next to a Borders Books and Café.
The police showed up, among them plainclothes Officer
Dale Radwin (not named in Sides’s complaint) and Officers
Randall Cunningham, Joseph Ketchem and Colby Oleson.
Cunningham ordered Sides out of the car and, along with
the other officers, questioned him. Sides refused to
answer any questions on grounds of Fifth Amendment
privilege. Manuel remained in the car. Oleson questioned
1
Apparently, Sides’s defense to the criminal public indecency
charges was that he was “gratifying himself before [his] partner”
rather than having sex with her. (Sides Dep. 13.)
Nos. 06-1039 & 06-1590 3
her through the passenger window; she responded to
questions and seemed remorseful.
The detention lasted for about an hour, and for Sides
was a physically (as well as socially) unpleasant experi-
ence. Officer Cunningham ordered Sides to leave the car
and stand with his legs and buttocks against its right
front fender. It was a hot day, over ninety degrees Fahren-
heit, and being in the middle of a black asphalt parking
lot did not make things any cooler. Worse, Sides had not
cut the engine and Manuel left it running in order to air
condition the car, heating the car hood even more. The
police officers took turns going into their cars to cool off,
but, although Sides complained that he was dizzy and
dehydrated, and that his buttocks were sore from stand-
ing against the hot, vibrating car, the officers did not
give him permission to move.
The officers cited Sides, but not Manuel, for violating
Champaign’s public indecency ordinance, which prohibits
anyone over sixteen years of age from performing acts of
sexual intercourse, sexual penetration or “lewd exposure
of the body” in public. Champaign Mun. Code § 23-111.
The notice to appear listed a minimum fine amount of
$175, which the city later claimed was imposed by the
city municipal code. Id. § 1-21(b) & Table I. After investi-
gation, Sides discovered that the minimum fine had not
been listed in the appropriate section of the code published
at the time he committed the offense; he argued to the
state trial court that no such minimum fine applied to
him. The court agreed, dismissing the city’s complaint
without prejudice to refiling without the purported mini-
mum fine. The city filed a new complaint as amended. City
of Champaign v. Sides, 810 N.E.2d 287, 292, 294 (Ill. App.
Ct. 2004). Sides was convicted and fined $500 under a jury
instruction that permitted the jury to impose a fine from
$1 to $750. See Champaign Mun. Code § 1-21(c).
4 Nos. 06-1039 & 06-1590
While the state appeal of his criminal conviction was
pending, Sides filed the present action in federal court,
claiming that the various defendants committed four
constitutional wrongs. First, Sides claims that Frederick
Stavins and Rhonda Olds, the Champaign City Attorneys
who prosecuted him for public indecency, violated the
Ex Post Facto Clause of the United States Constitution by
conspiring to have him sentenced under a non-existent
minimum fine provision. Second, he claims that the
police officers cited him and not Manuel for public inde-
cency because he is a man and she is a woman, in viola-
tion of the Equal Protection Clause. Third, he claims that
the officers were deliberately indifferent to his serious
medical needs when they made him stand against his
running car in the middle of a hot parking lot. Fourth, he
claims that Officer Radwin (not named as a defendant
in the complaint) committed an unreasonable search of
his wallet.
The defendants filed a motion for summary judgment, as
did Sides. The district court granted summary judgment to
the defendants on all counts. Sides also sought to amend
his complaint to name Officer Radwin as a defendant.
(Sides had originally brought his search claim against
the Target employee, Huckleby, having confused the
identity of Radwin and Huckleby.) The district court
denied Sides’s motion to amend.
II. Discussion
Sides now appeals the district court’s grant of summary
judgment to the defendants, and in so doing attacks
several procedural decisions leading up to that judgment.
Nos. 06-1039 & 06-1590 5
A. Jurisdiction
But first, Sides’s conviction poses a jurisdictional
problem we must address. The federal statute allowing
collateral review of state convictions, 28 U.S.C. § 2254,
applies only to persons “in custody,” and Sides was sen-
tenced to pay a fine but not to imprisonment or any other
form of custody. He therefore is not entitled to review
under § 2254. Some passages in his complaint and brief
suggest a belief that 42 U.S.C. § 1983 allows any form of
review not authorized by § 2254, but the Supreme Court
has never suggested that the “custody” requirement of
§ 2254 may be evaded so easily.
Without the aid of § 2254, any effort to obtain review of
a conviction—review that would imply a declaration of
innocence, or even a return of the $500 fine—runs head-
long into the Rooker-Feldman doctrine, which establishes
that, except to the extent authorized by § 2254, only the
Supreme Court of the United States may set aside a
judgment entered by a state court. We are not authorized
to afford relief “where a party in effect seeks to take an
appeal of an unfavorable state-court decision to a lower
federal court.” Lance v. Dennis, 126 S. Ct. 1198, 1202
(2006). See also, e.g., Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005).
We granted the parties permission to file supplemental
memoranda discussing the effect on this case of the
Rooker-Feldman doctrine. Sides disclaimed any request to
review the conviction. (Supp. Br. of Pl.-Appellant at 5-6.)
This means that any equal-protection challenge to the
conviction (as opposed to the initiation of the prosecution)
has been abandoned. We also interpret this disclaimer to
foreswear any demand for damages equal to the value of
the fine, because such an award would amount to re-
view of the criminal conviction.
6 Nos. 06-1039 & 06-1590
Sides does want damages on account of the initial
notice’s statement that the minimum fine was $175, but
this does not call into question the conviction or the fine
imposed by the state court. After all, Sides prevailed in
state court on his argument that the fine had no lower
bound. Exxon Mobil holds that a litigant who prevails
in state litigation is not jurisdictionally barred from pursu-
ing federal litigation—though principles of issue preclu-
sion or claim preclusion, applied under 28 U.S.C. § 1738,
may limit the extent to which federal relief may differ
from the relief provided by the state judiciary. 544 U.S.
at 293. Preclusion is an affirmative defense, however,
which the defendants have not invoked on appeal.
Arguments concerning events that precede the
conviction—arguments that would be equally strong (or
weak) if Sides had been acquitted—likewise are outside
the scope of the Rooker-Feldman doctrine. All of the events
that took place in connection with his arrest are in that
category, cf. Wallace v. Kato, 127 S. Ct. 1091 (2007), as is
the state actors’ decision to press charges against Sides
and require him to bear the expense and inconvenience
of trial. We therefore address Sides’s claims on their
merits.
B. Procedural Rulings
Before addressing the district court’s grant of summary
judgment, we address Sides’s claims of erroneous proce-
dural decisions that might have caused that judgment, and
in particular his contention that the district court erred
in denying his motion to amend his complaint in order to
name Officer Dale Radwin as a defendant. We review a
district court’s denial of a motion to amend a complaint
for abuse of discretion. Crestview Vill. Apartments v. U.S.
Dep’t Hous. & Urban Dev., 383 F.3d 552, 557 (7th Cir.
2004). Rule 15(a) of the Federal Rules of Civil Procedure
Nos. 06-1039 & 06-1590 7
allows a party to amend its pleadings once “as a matter of
course.” Fed. R. Civ. Proc. 15(a). Subsequent amend-
ments may be made “only by leave of court or by written
consent of the adverse party.” Id. Courts are to use their
discretion under Rule 15(a) to liberally grant permission to
amend pleadings so long as there is not undue prejudice to
the opposing party or undue delay, bad faith or dilatory
motive on the part of the movant. Foman v. Davis, 371
U.S. 178, 182 (1962); Campania Mgmt. Co. v. Rooks, Pitts
& Poust, 290 F.3d 843, 848-49 (7th Cir. 2004).
Sides initially thought Dale Radwin was Anson
Huckleby, the loss-prevention supervisor at Target. He
filed a separately numbered action against Huckleby and
included a claim against the officers in this case for
allowing a private individual to search him. Sides discov-
ered Radwin’s true identity on December 14, 2004, and,
after first failing to attach his amended complaint to
his motion, managed to finally file an amended complaint
on June 1, 2005, the deadline that the court’s case manage-
ment order set for amending the pleadings. But while the
amended complaint included allegations concerning
Radwin, it did not name him as a defendant; Sides thought
at the time that he did not have a good claim against
Radwin due to the statute of limitations. On July 12, 2005,
nearly seven months after learning of Radwin’s involve-
ment in the case, Sides changed his mind (apparently
concluding that he might be entitled to equitable tolling of
the statute of limitations based on the defendants’ alleged
concealment of Radwin’s identity) and sought to file a
second amended complaint naming Radwin as a defendant.
We cannot conclude that the district court abused its
discretion in denying the motion to amend; the record
supports a finding of both undue delay and prejudice to
Radwin if the amendment were allowed. Sides was on
notice of his possible claim against Radwin and his
possible equitable tolling argument by December 14, 2004,
8 Nos. 06-1039 & 06-1590
when he discovered that he had allegedly been misled
about Radwin’s identity, and for no reason other than a
failure to investigate the possible legal basis of his claim
delayed any attempt to bring that claim for seven months.
At that point, discovery was set to close in only twenty
days, on August 1, 2005, leaving Radwin with little time to
prepare a defense that up to that point, given Sides’s
decision not to name him as a defendant, he believed he
would not have to make. The court’s case management
order incorporated judgments about the amount of time
in which the parties should have been able to discover
and research their claims, and we have been offered no
reason to overturn these judgments. See, e.g., Conner v. Ill.
Dep’t of Natural Res., 413 F.3d 675, 679 (7th Cir. 2005).
Accordingly, we are unable to say that the district court
abused its discretion in refusing to permit Sides to file
a second amended complaint.
Sides also alleges several evidentiary errors—the
striking of a pair of affidavits (his own and that of a
purported expert on municipal legislation) and the denial
of several motions in relation to the alleged sex video—
but, as will be seen, all of the purported errors are com-
pletely harmless. For purposes of review we will assume
the contents of the stricken affidavits and Sides’s con-
tentions about the videotape to be true.2
C. Summary Judgment
We therefore finally turn to the district court’s grant of
summary judgment, which we review de novo. Deere & Co.
v. Ohio Gear, 462 F.3d 701, 705 (7th Cir. 2006). Summary
2
Sides alleges in connection with these orders that the district
court was biased against him. He fails to show anything like bias
necessitating reversal.
Nos. 06-1039 & 06-1590 9
judgment is appropriate when the record “show[s] that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). “A genuine issue of material fact
arises only if sufficient evidence favoring the nonmoving
party exists to permit a jury to return a verdict for that
party.” Brummett v. Sinclair Broad. Group, Inc., 414 F.3d
686, 692 (7th Cir. 2005).
1. “Ex Post Facto” Claim
We begin our analysis with Sides’s “Ex Post Facto”
claim, though this is an improper name for it. The Ex Post
Facto Clause prohibits punishment pursuant to a law with
retroactive application, but Sides claims that the $175
minimum fine provision for public indecency was never
passed by the Champaign city council at all.3 More to the
point, Sides was not even sentenced pursuant to the
suspect provision. The trial court required the city to file
a new complaint without the minimum fine and the jury
was instructed that if it convicted it could sentence Sides
to a fine anywhere between $1 and $750, in accordance
with the general fine provision of the municipal code.
Champaign Mun. Code § 1-21(c).
As far as we can tell, Sides’s claim is that the city, by
originally claiming that the minimum fine for public
indecency was $175, prevented Sides from settling his
3
Although the defendants have not argued this issue, we note
that the record contains a 1997 ordinance authorizing a mini-
mum fine (R. 112); in his deposition, defendant Stavins sug-
gested that the fine might have been left out of certain later
fine tables by accident (Stavins Dep. at 52). We need not con-
sider this evidence to decide the case.
10 Nos. 06-1039 & 06-1590
criminal dispute by paying the city $1. However, the
Champaign Municipal Code gave him no right to such a
settlement. There is a code provision allowing any per-
son charged with an offense listed on “Table I,” a list of
minimum fines, to settle her case by paying the minimum
fine. Id. § 1-24(a). But Sides’s argument is precisely that
public indecency was never listed on Table I by the city
council—that there was no minimum fine for public
indecency—and there is no statutory settlement procedure
for offenses that are not listed on the table. Assuming
counterfactually that the municipal code permitted Sides
to settle the charges against him by paying a fine, the code
specifies that the “City Attorney may, in his or her discre-
tion, elect to reject any such minimum fine as settle-
ment . . . prior to the date the notice to appear and com-
plaint . . . is filed with the Circuit Court.” Id. § 1-24(c).
Sides’s hypothetical settlement right would therefore
exist only at the prosecutors’ discretion, and interests
the government can deny at will are not protected by the
Due Process Clause. See, e.g., Brown v. City of Michigan
City, Ind., 462 F.3d 720, 729 (7th Cir. 2006). We cannot
see how Sides alleges that he has been deprived of any
constitutional right.
Even assuming, for the sake of argument, that Sides’s
allegations made out a claim under § 1983, it would still
fail due to a combination of absolute prosecutorial immu-
nity and lack of proof. According to Sides, Stavins and Olds
deliberately made an incorrect legal argument to the state
trial court, but they were absolutely immune for their
conduct at the trial. Smith v. Power, 346 F.3d 740, 742
(7th Cir. 2003). This immunity would not extend to
an improper and misleading alteration to the city’s pub-
lished municipal code, see id., but Sides has not presented
evidence to show that Stavins and Olds conspired to do
such a thing. Stavins testified that he supervised the
city legal department, but a supervisor is not liable for the
Nos. 06-1039 & 06-1590 11
acts of her subordinates under § 1983 unless she was
aware of and approved her employees’ conduct. Chavez v.
Cady, 207 F.3d 901, 906 (7th Cir. 2000). There is no
evidence that Stavins and Olds themselves faked the code
or knew about someone else at the legal department doing
it. Indeed, in his deposition Sides offered nothing but
conjecture as to what had gone on inside the city legal
department and admitted that he and his sources were
basically “outsiders looking in.” (Sides Dep. at 43.) Sum-
mary judgment on this count was appropriate.
2. Equal Protection
Next, Sides argues that the district court improperly
granted the defendants summary judgment on his claim
that the decision to cite him and not Manuel for public
indecency violated the Equal Protection Clause. To estab-
lish a prima facie case of discriminatory prosecution on
the basis of sex, Sides must show that the police failed
to bring charges against female lawbreakers who were
similarly situated to him in all relevant respects. Anderson
v. Cornejo, 355 F.3d 1021, 1024 (7th Cir. 2004). Sides
claims that Manuel was so situated, but Officer
Cunningham explained that the reason the police cited
Sides and not Manuel was that Sides did not cooperate
with the officers, never giving Cunningham a “straight
answer” as to what went on behind the Target
(Cunningham Dep. at 23), while Manuel was “cooperative”
with Oleson, “letting him know exactly what took place
and being remorseful” (id. at 40). Sides claims that
rewarding Manuel for cooperating with the police violates
the Fifth Amendment, but his argument is not supported
by citation to precedent and the criminal justice system
routinely rewards cooperation with leniency in many
contexts, to pick one obvious example, the advisory
Sentencing Guidelines’ adjustment for acceptance of
12 Nos. 06-1039 & 06-1590
responsibility. Similar leniency exercised through prosecu-
torial discretion should present no trouble.
3. Unreasonable Inattention to Medical Needs
Third, Sides claims that the officers were deliberately
indifferent to his serious medical needs during his deten-
tion in the parking lot. All of the briefs use the “deliberate
indifference” approach from jurisprudence under the
Eighth Amendment, see Farmer v. Brennan, 511 U.S. 825,
828 (1994), but that provision does not apply until a
suspect has been convicted. The governing standard at the
time of arrest is the Fourth Amendment’s ban on unrea-
sonable seizures. See Graham v. Connor, 490 U.S. 386,
394-95 (1989). Between arrest and conviction the Due
Process Clause of the Fifth Amendment supplies the
standard. See Bell v. Wolfish, 441 U.S. 520, 535-37 (1979)
(holding that the right inquiry between arrest and con-
viction is whether the detainee is subject to “punishment”).
Although Chapman v. Keltner, 241 F.3d 842, 845 (7th
Cir. 2001), asks whether the officers’ conduct at the time
of arrest evinced “deliberate indifference to a serious
injury or medical need,” the parties to Chapman did not
join issue on the proper standard or discuss the bearing of
Graham and Bell on contentions of this kind. A decision
that employs a mutual (and mutually mistaken) assump-
tion of the parties without subjecting it to independent
analysis does not constitute a holding on the subject.
Chapman should not be understood as extending the
domain of Eighth Amendment analysis beyond the
bounds set by Graham and Bell.
Sides contends that, while he was standing against his
car at the officers’ instruction, his buttocks became sore
and he became dizzy and dehydrated. This may have been
unpleasant, but the officers’ conduct cannot be called
Nos. 06-1039 & 06-1590 13
“unreasonable.” The Fourth Amendment’s standard is
objective, and no jury could conclude that the information
known to the police at the time would have led reason-
able officers to move Sides elsewhere while the investiga-
tion continued. He has not offered proof that his appear-
ance portended heat stroke or implied a need for medical
attention, nor does he contend that the officers delayed
unduly once their on-the-scene investigation had been
concluded. All the record shows is that Sides became
uncomfortable, and the Constitution does not require
arrests to be conducted in comfort. He did not ask that the
police take him to the station-house or write a citation
immediately; he insisted that they not charge him at all.
Having rejected the option of swift action, he is poorly
situated to complain about the need to stand still while
the officers decided how to proceed.
4. Radwin’s Search
Finally, Sides argues that the district court erred in
granting summary judgment to the defendants on his
claim that plainclothes Officer Dale Radwin improperly
searched his wallet and made baseless accusations
against him. Sides has an obvious problem here: he did not
name Radwin in his complaint, and the district court did
not abuse its discretion in refusing to permit him to name
him in a second amended complaint. Although Sides
argued below that the other officers should be held liable
for failing to stop Radwin, he has not made (or provided
any support for) such an argument here.
III. Conclusion
For the foregoing reasons, we affirm the judgment of
the district court.
14 Nos. 06-1039 & 06-1590
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-07