Rickey Coleman v. Earl Dunlap ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2669
R ICKEY C OLEMAN,
Plaintiff-Appellee,
v.
E ARL D UNLAP, Transitional Administrator of the
Cook County Juvenile Temporary Detention Center,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 2388—James F. Holderman, Chief Judge.
A RGUED M ARCH 26, 2012—D ECIDED A UGUST 22, 2012
Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. Rickey Coleman was fired
from the Cook County Juvenile Temporary Detention
Center in 2007. Coleman was told that his position
had been eliminated because of budget cuts; he
contends that his politics were the real cause for his
discharge and a later decision not to rehire him. Most
2 No. 11-2669
adverse actions based on a public employee’s speech
violate the first amendment, and no one contends that
Coleman’s job is in the category for which politics is
a legitimate consideration. See Elrod v. Burns, 427 U.S.
347 (1976); Branti v. Finkel, 445 U.S. 507 (1980); Rutan
v. Republican Party of Illinois, 497 U.S. 62 (1990).
Coleman seeks damages under 42 U.S.C. §1983 against
a number of people, including Earl Dunlap, the Transi-
tional Administrator of the Center. He also invokes the
Shakman consent decrees, which allow parties aggrieved by
certain kinds of patronage in Cook County to seek redress
through civil contempt proceedings. See, e.g., O’Sullivan
v. Chicago, 396 F.3d 843 (7th Cir. 2005); Shanahan v.
Chicago, 82 F.3d 776 (7th Cir. 1996).
Dunlap filed a motion to dismiss, asserting among
other things that absolute immunity shields him from
Coleman’s claims. The district judge dismissed the
claim under §1983, ruling that Dunlap is a federal rather
than a state actor, but declined to dismiss the Shakman
claim. The court held that Dunlap is not protected by
absolute immunity. 2011 U.S. Dist. L EXIS 66543 (N.D. Ill.
June 22, 2011). Dunlap filed this interlocutory appeal on
the immunity question; the rest of the judge’s rulings
are not before us. We have jurisdiction under 28 U.S.C.
§1291. See Mitchell v. Forsyth, 472 U.S. 511 (1985).
In 2002 the Juvenile Detention Center and a group of
inmates settled a case that we call the “2002 Litigation.”
The district court retained jurisdiction over implementa-
tion of the settlement—which the parties to both the
2002 Litigation and this case treat as a consent de-
No. 11-2669 3
cree—and in 2007 appointed Dunlap as the Transitional
Administrator of the Center. Although the 2002 Litiga-
tion concerned prison conditions, the 2007 order gave
Dunlap plenary authority to “oversee, supervise, and
direct all management, administrative, financial, contrac-
tual, personnel, security, housing, custodial, purchasing,
maintenance, technology, health services, mental health
services, food and laundry service, recreational, educa-
tional, and programmatic functions relating to the op-
eration of the [Center] consistent with the au-
thority vested in the position of Superintendent of
the [Center]”. Doe v. Cook County, No. 99 C 3945 (N.D. Ill.
Aug. 14, 2007). The order also stated that Dunlap
would be immune from suit for any action he took as
Administrator. It originally provided for “absolute im-
munity from liability”; on Dunlap’s motion the
language was amended to read: “[Dunlap] and his
staff shall have the status of officers and agents of
this Court and as such shall be vested with the same
immunities as vest with this Court.”
In response to Coleman’s suit, Dunlap asserted that
the language in the 2007 order provided him with
absolute immunity and that he also is entitled to “quasi-
judicial immunity” because he had exercised authority
granted to him by a court. The district judge rejected
both lines of argument, holding that Dunlap’s decisions
were administrative rather than judicial (or “quasi”
judicial). 2011 U.S. Dist. L EXIS 66543 at *9–23. Even
if Dunlap could have relied on the broader pre-amend-
ment immunity language, he would have fared no better;
judges do not have the authority to grant immunity for
4 No. 11-2669
unlawful acts. See Tower v. Glover, 467 U.S. 914, 922–23
(1984).
The doctrine of absolute immunity protects the
integrity of the judicial process by ensuring that timorous
judges can act on their best view of the merits, rather
than trying to limit harassment by disappointed litigants.
See Forrester v. White, 484 U.S. 219, 225 (1988). Immunity
also allows all judges to conserve (for the benefit of
other litigants) time that otherwise would be spent
dealing with those harassing suits. Parties who,
although not judges, engage in adjudication (such as
private arbitrators or administrative tribunals) or execute
the orders of judges (such as police officers executing
a bench warrant, or a party executing a judicially-
ordered sale) also enjoy absolute immunity. See
Snyder v. Nolen, 380 F.3d 279, 286–87 (7th Cir. 2004).
Dunlap believes that, had the district judge in the
2002 Litigation maintained direct control of the Center
and approved Coleman’s firing, the judge would
have been entitled to immunity. Dunlap argues that
he should be entitled to absolute immunity as well
because he was acting in the judge’s stead.
In support of his position Dunlap invokes cases
where federal judges “[found] it necessary to administer
a business, or a school district, or an entire prison
system to effectively remedy a wrong.” Holloway v.
Walker, 765 F.2d 517, 525 (5th Cir. 1985) (a judge who
took control of an oil business is absolutely immune).
Dunlap asserts that no one has questioned the im-
munity of judges when exercising managerial authority
No. 11-2669 5
and that this case is the same (except for the fact that
Dunlap is not a judge).
Unfortunately for Dunlap, one body has questioned
this line of cases: the Supreme Court of the United
States. In Forrester a judge fired a probation officer. The
officer sued, alleging that the judge had engaged in sex
discrimination; the judge responded by asserting
absolute immunity. The Court held that judges have
immunity only for the decisions they make as ad-
judicators, not the decisions they make as admin-
istrators; firing someone is an administrative act, so the
judge was not protected by absolute immunity. 484 U.S.
at 229–30.
Forrester involved a judge’s administration of his
court, rather than a judge’s administration of some
other institution. Dunlap contends that Forrester does
not apply to administrative acts taken “in connection
with a case”. But Forrester is not as narrow as Dunlap
contends; we must “draw the line between truly
judicial acts, for which immunity is appropriate, and
acts that simply happen to have been done by judges”.
Id. at 227. Dunlap concedes that none of his duties is
judicial in nature and that employment decisions are
not “adjudication”. What’s more, the question whether
a complaining party had “dealt with the judge [or his
agent] in his judicial capacity” was important even
before Forrester. See Stump v. Sparkman, 435 U.S. 349, 362
(1978). Dunlap concedes that the decisions about
which Coleman complains were not made by anyone
acting in a judicial capacity. This means that he is not
entitled to absolute immunity.
6 No. 11-2669
Suppose the judge had maintained control of the
2002 Litigation rather than appointing Dunlap as a sub-
stitute warden. The judge would not have issued
an order firing Coleman. The 2002 Litigation concerned
conditions encountered by prisoners, not who filled
which position in the prison’s bureaucracy. Dunlap
therefore cannot say that he was just doing something
that the judge might have done. It is conceivable that
a judge could have determined that employees’ qualifica-
tions affect inmates’ conditions of confinement and
issued an order that employees must meet some require-
ment such as having a college degree, completing a
certain level of training, or achieving a certain score on
a test. Had Dunlap proceeded to fire any employees
who failed to meet a requirement in such an order,
he would be entitled to immunity unless a reasonable
person would have recognized that the order was in-
valid. See Malley v. Briggs, 475 U.S. 335, 345–46 (1986). Thus
if a judge had set a political test for employment as
a prison guard or clerk, an administrator implementing
that order would be liable, because the Supreme Court
held more than a generation ago that no public official
can use politics to hire and fire workers for such posi-
tions, and a district judge’s order to the contrary would
be transparently invalid. Coleman’s complaint alleges
that Dunlap held his politics against him; since Dunlap
could not have done that even with judicial permission,
he cannot be entitled to immunity when he made
the decision on his own.
Dunlap relies on Ashbrook v. Hoffman, 617 F.2d 474 (7th
Cir. 1980). In Ashbrook the district judge ordered a
No. 11-2669 7
partition sale and appointed commissioners to conduct
it. The plaintiffs sued the commissioners, alleging that
they had mismanaged the sale, to plaintiffs’ financial
detriment. We held that the commissioners’ acts in con-
nection with the sale received absolute immunity
because those acts were “intimately related to the
judicial process”. Id. at 476, 477 & n.4. Dunlap argues
that his actions as Administrator likewise were
“intimately related to the judicial process”. There is
doubtless a relation, though whether it is an “intimate”
one is debatable. But the idea that any claim based on
an act “intimately related to the judicial process” is
barred by absolute immunity did not survive Forrester.
See Antoine v. Byers & Anderson, Inc., 508 U.S. 429,
435 (1993).
After Forrester some of the commissioners’ actions in
Ashbrook may have been protected by the rule in Malley:
the commissioners were, after all, ordered to conduct
the sale. But only the ends of the order—not the
means used to execute the order—are protected by
an order to sell (unless the order directs the commis-
sioners to use specific means). See Richman v. Sheahan,
270 F.3d 430, 437 (7th Cir. 2001) (holding that im-
munity is available only to the extent necessary to
protect compliance with a judicial order, and that an
order not specifying the means of implementation does
not protect a person who uses means that violate
some other rule of law).
Dunlap falls on the wrong side of the Richman line. It
is true that the appointment order granted Dunlap the
8 No. 11-2669
power to “establish personnel policies; to create, abolish,
or transfer positions; and to hire, terminate, promote,
transfer, and evaluate management and staff of the
[Center].” The order did not, however, direct Dunlap to
adopt any particular personnel plan, and it certainly
did not direct Dunlap to make any specific employ-
ment decisions or use political criteria. So any em-
ployment decision was, at best, a means to the court-
ordered end of improving inmates’ welfare.
Any doubt on this point is stilled by one of Dunlap’s
defenses on the merits. He argued in the district court
that he had no role in the decision to fire Coleman
(which occurred before his appointment) and that he
did not act “knowingly or with deliberate or reckless
disregard concerning Coleman’s inability to be rehired
at the [Center]” but simply ratified decisions by his
subordinates. If Dunlap was not personally involved
with the employment decisions, or was a cat’s paw of
someone else who held a political grudge, cf. Staub v.
Proctor Hospital, 131 S. Ct. 1186 (2011), that would be a
substantive problem with Coleman’s claim against
Dunlap—for there is no vicarious liability for a subordi-
nate’s acts, see Ashcroft v. Iqbal, 556 U.S. 662, 676–77
(2009)—but it also means that Dunlap was not just
carrying out judicial orders.
Dunlap asserts that receivers are protected by absolute
immunity as long as they act within the scope of the
order creating the receivership, and he maintains that
he is entitled to the same protection because the Juvenile
Detention Center is essentially under receivership. See,
No. 11-2669 9
e.g., Property Management & Investments, Inc. v. Lewis,
752 F.2d 599 (11th Cir. 1985). All but one of the cases he
relies on for this proposition—New Alaska Development
Corp. v. Guetschow, 869 F.2d 1298 (9th Cir. 1989)—predate
Forrester. New Alaska Development arguably adopted
Dunlap’s reading of Forrester, see 869 F.2d at 1303 n.6,
though the ninth circuit has limited New Alaska to situa-
tions in which an owner contests the very appointment
of a receiver. See Medical Development International v.
California Department of Corrections, 585 F.3d 1211, 1222
(9th Cir. 2009). Some cases after Forrester have stated that
receivers are protected by absolute immunity without
dealing with the distinction between adjudication and
administration. One such case, Davis v. Bayless, 70 F.3d 367
(5th Cir. 1995), did not cite Forrester. See also In re
Cedar Funding, Inc., 419 B.R. 807, 823 (9th Cir. BAP 2009);
Roland v. Phillips, 19 F.3d 552, 555 (11th Cir. 1994); Teton
Millwork Sales v. Schlossberg, 311 Fed. App’x 145, 150 (10th
Cir. 2009). Forrester tells us that Dunlap’s administra-
tive acts are not protected by absolute immunity
even though Dunlap was acting within the scope of his
authority. Accord, Medical Development International,
585 F.3d at 1119–22.
Unqualified language to the effect that receivers are
immune from liability was not accurate even before
Forrester. Bankruptcy trustees, for example, can be held
personally liable for willful breaches of fiduciary duty.
See, e.g., In re Chicago Pacific Corp., 773 F.2d 909, 915
(7th Cir. 1985). If a trustee were entitled to absolute
immunity for his administrative acts, a debtor-in-posses-
sion would be too. See 11 U.S.C. §1107(a). But the
10 No. 11-2669
managers of a private company in Chapter 11 would
not be immune from claims under the Americans with
Disabilities Act, Title VII, or any other provision of law.
Nor would the administrators of a municipality that has
filed for reorganization under Chapter 9 be immune
from claims under §1983 if they engaged in patronage
hiring. Dunlap is not entitled to greater protection.
There may be many problems with Coleman’s com-
plaint against Dunlap, but absolute immunity is not one
of them. The district court’s decision is
AFFIRMED .
8-22-12