David Jones v. Rodney Cummings

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1898
DAVID JONES,
Plaintiff-Appellant,
v.
RODNEY CUMMINGS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-2684-SEB-MPB — Sarah Evans Barker, Judge.
____________________
ARGUED NOVEMBER 2, 2020 — DECIDED MAY 26, 2021
____________________
Before SYKES, Chief Judge, and EASTERBROOK and WOOD,
Circuit Judges.
WOOD, Circuit Judge. David Jones spent over ten years in
prison before this court granted his petition for a writ of ha-
beas corpus under 28 U.S.C. § 2254, on the ground that he was
deprived of his Sixth Amendment right to effective assistance
of counsel. See Jones v. Zatecky, 917 F.3d 578 (7th Cir. 2019)
(Jones III). After the writ issued and Jones was freed, he filed
an action under 42 U.S.C. § 1983 against the Madison County,
2 No. 20-1898
Indiana, prosecutors who had handled his case. He alleged
that deputy prosecutors Steve Koester and Daniel Kopp, in
their individual capacities, maliciously prosecuted him in vi-
olation of his due process rights when they filed an untimely
amendment to his charges and secured a conviction, which
resulted in his unlawful imprisonment. See Ind. Code § 35-34-
1-5 (1982). He also alleged that Madison County Prosecutor
Rodney Cummings (an elected official), adopted and fol-
lowed an official policy of flouting state-law limitations on
amendments to charges. He requested $50 million in general
damages for his confinement, compensatory damages for past
and future physical and emotional injuries, and attorneys’
fees.
The district court dismissed the action. It found that Cum-
mings was a state official, and so the suit against him was in
substance one against the state itself. Such an action falls out-
side the scope of section 1983, however, because the state is
not a “person” that can be sued under that statute. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58 (1989). Jones’s suit
against Koester and Kopp foundered on the absolute immun-
ity prosecutors enjoy when they are acting as advocates. See,
e.g., Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976).
We do not doubt that Jones was injured by his ten years of
wrongful imprisonment. That does not mean, however, that
he has a remedy against any particular actor. In this instance,
longstanding principles governing the scope of section 1983
and prosecutorial immunity block him at the threshold. The
district court correctly applied this law, and so we affirm.
No. 20-1898 3
I
At the time Jones’s case was pending, Indiana law allowed
prosecutors to make substantive amendments to a defend-
ant’s charging information up to thirty days before an “omni-
bus date.” Ind. Code § 35-34-1-5 (1982). This rule was neither
obscure nor arcane to attorneys in Indiana. In Haak v. State,
695 N.E.2d 944 (Ind. 1998), after differentiating amendments
of “immaterial defect” and “form” from amendments of “sub-
stance,” the Indiana Supreme Court held “amendments … of
substance” made after the omnibus date “impermissible.” 695
N.E.2d at 951.
Jones originally was charged with battery, intimidation,
and being a habitual offender. Nine days after the omnibus
date passed, deputy prosecutors Koester and Kopp moved to
add a charge of criminal confinement. Jones’s attorney did not
object. The trial court granted the prosecutor’s motion with-
out a hearing, and Jones’s trial began eight months later. The
court later granted two more motions to amend the charges.
A jury convicted Jones of all charges, including the un-
timely criminal confinement charge. His sentence reveals how
significant that amendment was: he received twenty years’
imprisonment on the confinement charge alone (enhanced by
another 25 years for being a habitual offender) and shorter,
concurrent terms of eight years for the original battery charge
and three years for the intimidation charge. The court later
reduced the battery charge to six months. See Jones III, 917
F.3d at 580.
After exhausting his state-court appeals, Jones filed a
pro se habeas corpus petition in federal court under 28 U.S.C.
§ 2254. He argued that his attorney’s failure to object to the
4 No. 20-1898
untimely confinement charge constituted ineffective assis-
tance of counsel in violation of the Sixth Amendment. Jones III
at 581. The district court denied the petition, but following our
decision in Shaw v. Wilson, 721 F.3d 908 (7th Cir. 2013), we re-
versed, holding that “[a] Sixth Amendment claim of ineffec-
tive assistance of counsel can be predicated on an attorney’s
failure to raise a state-law issue in a state-court proceeding.”
Id.; see McNary v. Lemke, 708 F.3d 905, 920 (7th Cir. 2013).
Indiana released Jones in May 2019. One month later he
brought the present section 1983 action. Jones argued that
Prosecutor Cummings had adopted an official policy deliber-
ately to ignore Ind. Code § 35-34-1-5 (1982) and the Haak de-
cision. By defying state law, Jones asserted, the prosecutor
could bring untimely amendments and deprive criminal de-
fendants of their rights. The complaint asserted that this pol-
icy resulted in Jones’s incarceration and the extreme emo-
tional distress and other physical and mental injuries he ex-
perienced in prison and will continue to experience in the fu-
ture. Citing to a 2019 article in a local newspaper, Jones ar-
gued that deputy prosecutors Koester and Kopp committed
abuse of process and maliciously prosecuted him when they
“investigated and added” the new charge “for the sole pur-
pose to increase his prison time by decades[.]”
The defendants moved to dismiss the action. Cummings
argued that, as a county prosecutor sued in his official capac-
ity, he is a state official of Indiana. In that capacity, he con-
tended, he is not a “person” for purposes of section 1983. Re-
lying on Imbler, 424 U.S. 409, Koester and Kopp argued that
their act of filing an amended charge sits comfortably within
the scope of their prosecutorial duties and entitled them to
absolute prosecutorial immunity. The district court agreed.
No. 20-1898 5
On appeal, Jones argues that Cummings was functioning
as a county official, not a state official, and thus could be
reached under section 1983. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690 (1978). The deputies, Jones argues, should
receive only a qualified immunity because their conduct was
“rogue.” Jones also asks this court to create a new rule under
which prosecutors are entitled only to qualified immunity if
their conduct is “unlawful,” even if it is prosecutorial in na-
ture.
II
We review de novo a district court’s decision to grant a
12(b)(6) motion to dismiss a complaint for failure to state a
claim. We may affirm the decision on any ground supported
by the record. Divane v. Northwestern University, 953 F.3d 980,
987 (7th Cir. 2020).
A. Cummings
Section 1983 imposes liability on “[e]very person who, un-
der color of any … State [law]” violates the federal rights of
another. 42 U.S.C. § 1983. The meaning of the word “person”
in this passage tracks the same principles that underlie state
sovereign immunity under the Eleventh Amendment. Will,
491 U.S. at 66–67. The Eleventh Amendment prohibits suits
against state officials in their official capacities because “a suit
against a state official in his or her official capacity is not a suit
against the official but rather a suit against the official’s office.
As such, it is no different from a suit against the State itself.”
Id. at 71 (citations omitted). The Court in Will held that the
Congress that passed section 1983 “had no intention to dis-
turb the States’ Eleventh Amendment immunity,” and so it
construed the statute to exclude the states from the class of
6 No. 20-1898
those who could be sued under its terms. As applied to Jones’s
case, that means that we must decide whether Cummings,
acting in his official capacity, acts as an arm of the state and is
thus outside the scope of the statute, or if he is a local official
who can be reached.
In determining whether a person is a state official, courts
look to the state laws creating the official’s position, as well as
the state laws governing the official’s actions, state-court de-
cisions, and the financial interdependence between the official
and the state. Regents of Univ. of California v. Doe, 519 U.S. 425,
429 (1997); Garcia v. City of Chicago, 24 F.3d 966, 969 (7th Cir.
1994) (“Whether a particular official is the legal equivalent of
the State itself is a question of that State’s law.”). Applying
these cases, we find Cummings to be a state official of Indiana.
Under the Indiana Constitution, prosecutors, like Indiana
circuit court judges, are constitutional judicial officers. See
Ind. Const. art. 7, § 16; State ex rel. Stanton v. Murray, 108
N.E.2d 251, 256 (Ind. 1952). “[C]arved out of the office of the
attorney general as it existed at common law[,]” Indiana’s
prosecutors are elected within their respective judicial circuits
and removable only by way of impeachment at the Indiana
Supreme Court upon convictions of corruption or other high
crimes. State ex rel. Neeriemer v. Daviess Circuit Court, 142
N.E.2d 626, 629 (Ind. 1957); Ind. Const. art 7, §§ 13, 16; Ind.
Code § 5-8-1-19. They hold the authority to prosecute crimes
committed against the state, and they bring charges on behalf
of the state, not individual counties. Ind. Code § 33-39-1-5(a);
Ind. Code § 35-34-1-1(a). Indiana also pays each prosecutor
and the chief deputies’ base salary, in addition to providing a
retirement fund. Ind. Code §§ 33-39-6-2(a)-(g), 33-39-6-5(d);
Ind. Code § 33-39-7-1. Finally, Indiana must “pay the
No. 20-1898 7
expenses incurred by a prosecuting attorney from a threat-
ened, pending, or completed action or proceeding that arises
from making, performing, or failing to make or perform a de-
cision, a duty, an obligation, a privilege, or a responsibility of
the prosecuting attorney’s office[]”, Ind. Code § 33-39-9-4, in
addition to paying attorneys’ fees if the state attorney general
does not represent the official but authorizes the official to
employ private counsel. Ind. Code § 33-39-9-2(1). Taken to-
gether, Indiana’s laws and statutes indicate that Cummings is
a state official.
Our sister courts routinely have held that prosecutors and
district attorneys in states with comparable laws are state of-
ficials. See Cady v. Arenac Cnty., 574 F.3d 334, 342–44 (6th Cir.
2009) (Eleventh Amendment barred suit against Michigan
county prosecutor); Nivens v. Gilchrist, 444 F.3d 237, 249 (4th
Cir. 2006) (North Carolina district attorney was a state official
because he prosecuted criminal actions on the state’s behalf
and judgment against him would affect the state’s treasury);
Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997) (district attor-
neys were state officials because they were “advocates for the
state, prosecuting violations of Texas criminal law”); Owens v.
Fulton Cnty., 877 F.2d 947, 952 (11th Cir. 1989) (a district attor-
ney was a state official because “the prosecution of state of-
fenses” is “a state-created power”).
Likewise, this court and the District Court for the Southern
District of Indiana have held that Indiana’s county prosecu-
tors are state officials when they are prosecuting criminal
cases. Our description in one of our non-precedential orders
puts it well:
The office of prosecutor is a creation of the Indiana
Constitution, see Ind. Const. art. 7, § 16, and state
8 No. 20-1898
statutes govern the prosecutor’s duties and powers.
For example, a prosecutor in Indiana is responsible for
prosecuting virtually all criminal prosecutions on be-
half of the state. Ind. Code. § 33-14-1-4 (1996). More
specifically, the state determines the prosecutor’s sal-
ary and provides legal representation to a prosecutor
sued in a civil action arising out of the prosecutor’s per-
formance of official duties, as well as indemnification
against any resulting judgments. Ind. Code. §§ 33-14-
7-1, 33-2.1-9-1, 33-14-11-1 (1996).
Srivastava v. Newman, 12 F. App’x 369, 371 (7th Cir. 2001).
Jones’s arguments to the contrary are unavailing. Recog-
nizing this, he asks this court to hold that “unlawful rogue
actions of a prosecutor are not ‘a decision, a duty, an obliga-
tion, a privilege, or a responsibility of the prosecuting attor-
ney’s office[]’” and thus his suit against Cummings would not
be captured by Ind. Code § 33-39-9-4 (requiring the state to
pay expenses incurred by an action against a prosecuting at-
torney). But any such exception would sweep away the rule—
immunity would mean nothing if it existed only when the
prosecutor would win on the merits. Jones has sued Cum-
mings for performing his duty to bring charges against crim-
inal defendants. He took that action as an officer of the state,
and that, under Will, is the end of it.
B. Koester and Kopp
Similarly, the district court correctly determined that dep-
uty prosecutors Koester and Kopp enjoy absolute prosecuto-
rial immunity for their conduct in filing the untimely charging
amendment. In determining whether actions taken by gov-
ernment officials enjoy absolute immunity or qualified
No. 20-1898 9
immunity, the Supreme Court applies a “functional approach
… which looks to the nature of the function performed, not
the identity of the actor who performed it.” Buckley v. Fitzsim-
mons, 509 U.S. 259, 269 (1993) (cleaned up).
Applying this approach in Imbler, the Court held prosecu-
tors absolutely immune in civil suits for damages under sec-
tion 1983 for activities “intimately associated with the judicial
phase of the criminal process.” 424 U.S. at 430. In contrast,
prosecutors acting in the role of administrator or investigator
are entitled only to qualified immunity. Burns v. Reed, 500 U.S.
259, 495–96 (1991); Buckley, 509 U.S. at 273–75.
Jones makes a valiant effort to squeeze himself under qual-
ified immunity by alleging that deputy prosecutors Koester
and Kopp “investigated and added the confinement charge
against Jones for the sole purpose to increase his prison time
by decades.” He argues that their “deliberate investigative
and administrative acts” are not entitled to absolute immun-
ity. He wisely abandons this argument on appeal, but, jump-
ing out of the frying pan and into the fire, he contends that
this court should create a new rule that applies qualified im-
munity to prosecutors engaged in core prosecutorial func-
tions if the prosecutors engaged in “unlawful rogue conduct.”
Once again, this argument is a non-starter. A prosecutor’s
“motives are irrelevant to the absolute immunity question
when the actions she is accused of taking are intimately asso-
ciated with the quasi-judicial phase of the criminal process.”
Tobey v. Chibucos, 890 F.3d 634, 649–50 (7th Cir. 2018). The only
question is whether Koester and Kopp’s conduct—filing and
amending criminal charges against a defendant—are core
prosecutorial functions. We need not belabor the point. They
are. See, e.g., Bianchi v. McQueen, 818 F.3d 309, 316–17 (7th Cir.
10 No. 20-1898
2016); Foreman v. Wadsworth, 844 F.3d 620, 622–23 (7th Cir.
2016). The district court thus properly found absolute immun-
ity.
III
Finally, for the first time on appeal all three prosecutors
argue that Jones cannot state a claim for relief under section
1983 because his claims all stem from the prosecutors’ deci-
sion to make an untimely amendment in violation of Indiana
law. This alone, they assert, does not trigger any federal claim.
Jones responds that the state-law violation resulted in the in-
fringement of his federal due-process rights. This is an argu-
ment on the merits, rather than an immunity claim, but we
will address it briefly in the interest of completeness.
Section 1983 provides a vehicle by which plaintiffs can sue
persons who abuse state power in a way that violates federal
law. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 119
(1992). An action under section 1983 “requires a showing that
the plaintiff was deprived of a right secured by the Constitu-
tion or federal law, [and] … the plaintiff bears the burden of
proof on the constitutional deprivation that underlies the
claim.” Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir. 2011)
(cleaned up). Essential to any section 1983 action is proof that
a defendant violated a plaintiff’s federal rights. The statute
“does not provide a remedy for abuses that do not violate fed-
eral law” nor does it create substantive rights. Collins, 503 U.S.
at 119; Levin v. Madigan, 692 F.3d 607, 611 (7th Cir. 2012).
Section 1983 can be (and often is) used to vindicate a per-
son’s federal due-process rights, but at the same time “a con-
stitutional suit is not a way to enforce state law through the
back door.” Wozniak v. Adesida, 932 F.3d 1008, 1011 (7th Cir.
No. 20-1898 11
2019). As a result, we must determine whether Jones has pre-
sented any allegations that plausibly describe a due-process
violation by the prosecutors. See Ledford v. Sullivan, 105 F.3d
354, 356 (7th Cir. 1997).
It is common ground by now that when defendants
Koester and Kopp filed the untimely amendment, they vio-
lated Indiana law. Jones, however, is asserting that this state-
law problem led to the deprivation of his Fourteenth Amend-
ment right to due process of law. But a failure to follow state
law does not automatically trigger a federal constitutional
due-process violation. Indeed, the state-law consequences of
the action are largely beside the point. What matters is the
content of the plaintiff’s argument. Often a state-law problem
has no federal implications at all, though in some cases there
can be overlapping violations. For example, criminal defend-
ants are entitled to advance notice of the charges they face in
order to prepare for trial. Washington v. Texas, 388 U.S. 14, 18
(1967). An untimely amendment made so close to the start of
trial that it prejudices a defendant’s ability to prepare for trial
might simultaneously violate state law and the defendant’s
federal due-process rights.
But Koester and Kopp made their untimely amendment
on October 27, 2005, about eight months before Jones’s trial
began on June 12, 2006, Jones v. State, 876 N.E.2d 389 (Ind. Ct.
App. 2007) (unpublished table decision). Jones has never al-
leged the amendment prejudiced his ability to prepare for
trial or in any other way affected the fundamental fairness of
the procedures the state used. We need not delve into the
question whether eight months was long enough to allow
Jones to prepare, though the fact that the default rule under
the Speedy Trial Act, 18 U.S.C. § 3161, calls for an indictment
12 No. 20-1898
within 30 days of arrest and trial 70 days later strongly sug-
gests that there is no generic problem with eight months. See
also United States v. Sorich, 523 F.3d 702, 715 (7th Cir. 2008);
Denton v. Duckworth, 873 F.2d 144, 149 (7th Cir. 1989). The only
claim Jones makes is that the prosecutors violated state law
and that our finding of a constitutional violation in Jones III
proves the point. But Jones has received his remedy for the
ineffectiveness of counsel, and he has not linked the underly-
ing state-law violation to any other federal constitutional
right. The district court thus could have dismissed on this
ground as well, had it reached the merits.
* * *
Although each of the defendants Jones sued had some-
thing to do with his lengthy incarceration, the district court
properly recognized that the law does not permit him to sue
any of them for redress. We therefore AFFIRM the judgment of
the district court.