David Bertha v. Ron Hain

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 17, 2019*
Decided September 18, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18-3286
DAVID A. BERTHA, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 1:16-cv-04982
RON HAIN**, et al., Harry D. Leinenweber,
Defendants-Appellees. Judge.
ORDER
David Bertha, a former attorney, appeals the dismissal of his civil-rights suit
against several judges, prosecutors, and law enforcement officers in connection with his
prosecutions for trespass and contempt in Kane County, Illinois. See 28 U.S.C. § 1983.
After dismissing or staying all but one of his claims, the district court later dismissed
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P 34(a)(2)(C).
** We have substituted the current Sheriff of Kane County for his predecessors,
sued in their official capacities. FED. R. CIV. P. 25(d).
No. 18-3286 Page 2
the case for failure to prosecute. See FED. R. CIV. P. 41(b). We affirm. Many of the
defendants enjoy absolute immunity from suits for damages, and to the extent Bertha
stated any claims, the district court appropriately abstained from hearing them and
permissibly dismissed the case after Bertha missed two hearings.
Bertha was arrested twice in October 2013 when he tried to enter the jail at the
Kane County Adult Justice Center after he had been banned from the building for
disruptive behavior. (He had claimed to be an attorney but could not produce current
credentials and became belligerent when challenged.) The State charged him with
criminal trespass in separate cases. During the proceedings he submitted motions and
sent letters, some ex parte, to the presiding judges, then-Chief Judge Judith Brawka of
the Sixteenth Judicial Circuit Court, the Kane County State’s Attorney’s Office, and his
public defenders, crudely berating and threatening the prosecutors and judges. Chief
Judge Brawka reviewed the letters and ordered them to be entered into the record in
Bertha’s cases. In the orders, Judge Brawka described her review of the letters as
“administrative.” Assistant State’s Attorneys for Kane County then charged Bertha with
criminal contempt for the filings and missives.
Questions about Bertha’s competence complicated the criminal proceedings. He
was convicted and served an eight-month sentence for criminal contempt, but a judge
vacated that conviction and ordered a series of fitness examinations and a new trial. As
for the trespass cases, one went to trial and resulted in a guilty verdict, but both the
sentencing in that case and further proceedings in the second case were delayed when
Bertha was found unfit to stand trial—a finding that since has been reversed.
While all three criminal cases were pending, Bertha filed this case in federal
court. The district court dismissed the complaint, but we remanded the case to allow
Bertha to amend his pleadings “once as a matter of course,” see FED. R. CIV. P.
15(a)(1)(B), and for the district court to consider the amended complaint. Bertha
v. Sullivan, 719 F. App’x 516, 518 (7th Cir. 2017).
The amended complaint, as clarified by its exhibits and a memorandum,
see Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013), alleges: (1) sheriff’s deputies
banned Bertha from the county jail without due process; (2) deputies twice arrested him
without probable cause for trespassing; (3) Chief Judge Brawka denied him due process
by entering the menacing letters into the records in his trespass cases; (4) the judges and
prosecutors denied him due process and violated his right to free speech by bringing
charges and entering a conviction for contempt and then retrying him after the
No. 18-3286 Page 3
conviction was vacated;1 (5) during his trials, sheriff’s deputies assaulted him and
removed him from the courthouse without cause; (6) deputies unreasonably
strip-searched him while he served his sentence for contempt; (7) deputies inflicted
cruel and unusual punishment by placing him in segregation during that sentence; and
(8) deputies denied him due process by providing (and therefore viewing), in response
to a public-records request that Bertha filed, privileged communications between him
and his public defenders about trial strategy.
The defendants moved to dismiss the amended complaint, and in August 2018
the district court largely granted their motions. It first concluded that absolute judicial
immunity barred Bertha’s claims against the judges. The claims against the state’s
attorneys, the court said, were untimely and prohibited by prosecutorial immunity.
Also untimely, the court ruled, were Bertha’s claims that sheriff’s deputies banned him
from the jail without due process and arrested him without probable cause. The court
next dismissed the claims against the two Sheriffs of Kane County in their official
capacities (the events had transpired over two Sheriffs’ terms) on the ground that
Bertha failed to allege that their deputies acted unconstitutionally pursuant to an actual
or de facto policy of the Sheriff’s Office. See Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658 (1978).
The district court allowed Bertha to proceed on his claim against the individual
deputies who allegedly strip-searched him. As for Bertha’s claims that deputies
assaulted him and removed him from the courtroom without cause and violated his
privileged communications, the district court abstained from exercising jurisdiction,
see Younger v. Harris, 401 U.S. 37 (1971), and stayed these damages claims until
resolution of the criminal proceedings. Bertha missed a status hearing and later filed a
motion for recruitment of counsel, but he then missed another status hearing despite
the court’s warning that doing so again would result in dismissal. The district court in
September 2018 therefore dismissed the case for failure to prosecute.
We begin with the judge-defendants’ contention that this appeal is limited to
review of the September order dismissing the case for failure to prosecute. Citing two
1 The alleged due process and First Amendment violations included: Judge John
Barsanti issued an arrest warrant for contempt; Judge Elizabeth Flood submitted an
affidavit about Bertha’s motion to substitute another judge for her in the contempt case;
different chief judges appointed out-of-circuit judges to preside over Bertha’s cases; and
the prosecutors asked the police to investigate him for disorderly conduct.
No. 18-3286 Page 4
nonprecedential cases from other circuits, they argue that Bertha waived his challenges
to the August order dismissing the bulk of the complaint. They contend that, because
Bertha does not argue about the dismissal for want of prosecution in his opening brief,
the interlocutory order in August did not merge into the final judgment. See Montez
v. Chase Home Fin., LLC, 710 F. App’x 328, 328 (9th Cir. 2018); Afuwajomo v. De Guzman,
478 F. App’x 67, 68 (5th Cir. 2012). But we see no reason here to depart from the usual
rule that all interlocutory decisions merge into the final judgment. See Walton v. Bayer
Corp., 643 F.3d 994, 997–98 (7th Cir. 2011). We would not apply the rule if it would
encourage bad-faith tactics. See Sere v. Bd. of Trustees of Univ. of Ill., 852 F.2d 285, 288
(7th Cir. 1988). But nothing suggests that Bertha deliberately missed hearings so that he
could obtain a final judgment2 and more quickly appeal the August order—the record
suggests that he planned to pursue his remaining claims. Therefore, we proceed with a
full review. See Walton, 643 F.3d at 997–98.
Bertha first challenges the application of absolute immunity to the claim against
Kane County prosecutors for charging him with criminal contempt. He asserts that the
prosecutors had first directed the police to investigate his letters—conduct that he
argues is “investigative … rather than that of [an] advocate.” See Kalina v. Fletcher,
522 U.S. 118, 125 (1997) (quoting Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976)). True,
prosecutors do not have absolute immunity for every action, as immunity attaches to
the function rather than to the office, Kalina, 522 U.S. at 127, but Bertha’s claim is not
directed at “investigative” acts. He claims that the prosecution of the contempt charges
violated his rights under the First and Fourteenth Amendments. Those charges did not
depend on the police’s investigation of disorderly conduct or involve other alleged
misconduct by prosecutors. See, e.g., id. at 126 (explaining that absolute immunity does
not protect falsifying evidence). Here, “in initiating a prosecution and in presenting the
State's case,” the prosecutors are “immune from a civil suit for damages under § 1983.”
Imbler, 424 U.S. at 430; Tobey v. Chibucos, 890 F.3d 634, 649–50 (7th Cir. 2018).
The district court also correctly ruled that the circuit court judges are entitled to
absolute immunity. Judges have immunity for judicial acts even if they act erroneously,
maliciously, or in excess of their authority; they can be liable only when acting in the
2 The district court never entered a judgment under Federal Rule of Civil
Procedure 58 after the September 26, 2018, dismissal for want of prosecution, which
disposed of the whole case. The judgment therefore became final 150 days after that
date (February 23, 2019) under Rule 58(c)(2)(B). The notice of appeal that Bertha had
filed prematurely on October 23, 2018, is deemed filed then, too. FED. R. APP. P. 4(a)(2).
No. 18-3286 Page 5
“clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). Bertha
contends that immunity does not protect Judge Barsanti because he issued an arrest
warrant for “direct” contempt without jurisdiction. In Illinois, “direct” contempt is
contemptuous conduct that occurs in the presence of the judge or disrupts judicial
proceedings. See In re Marriage of Betts, 558 N.E.2d 404, 418 (Ill. App. Ct. 1990). Here, the
judges presiding over Bertha’s cases did not charge him—the prosecutors sought a
warrant from another judge based on his crude filings and letters. But Bertha concedes
that a judge other than the one who witnessed the offense may preside over direct
contempt charges when there is probable cause to prosecute. See Kaeding v. Collins,
668 N.E.2d 572, 578 (Ill. App. Ct. 1996). Probable cause existed because the filing of
disrespectful, disruptive, or deceitful documents in court is direct contempt. See In re
Marriage of Betts, 558 N.E.2d at 416, 418. Therefore, Judge Barsanti is absolutely immune
for his role in signing the arrest warrant.
Bertha’s challenge to Chief Judge Brawka’s absolute immunity likewise fails.
Bertha argues that the judge deprived him of a fair trial by entering his letters into the
records in his trespass cases after her “administrative” review. See Forrester v. White,
484 U.S. 219, 228 (1988) (holding that judges are not absolutely immune for
administrative acts). But whether immunity applies depends not on labels but on the
function served; an act warrants judicial immunity when it involves resolving disputes
between parties before the court. Id. at 224, 227. And when it is pertinent to a dispute,
“[a] judge can be expected to circulate an ex parte communication to all relevant
parties.” Kowalski v. Boliker, 893 F.3d 987, 999 (7th Cir. 2018). Bertha’s letters were
relevant to his fitness for trial in the trespass cases, so making them available to the
presiding judges, the prosecutors, and his public defenders qualified as a judicial act. Id.
Judicial immunity also shields Judge Flood (the first judge to find Bertha guilty
of trespass) for submitting an affidavit about Bertha’s motion for substitution of judge.
Illinois permits a judge who is the subject of a substitution motion to “submit an
affidavit if the judge wishes.” 725 ILCS 5/114-5(d). Submitting the affidavit facilitated a
ruling on the substitution motion and was tied to Judge Flood’s adjudicatory role. It
was therefore a judicial act for which she is absolutely immune.
Bertha has waived any claims against the chief judges related to their assignment
of out-of-circuit judges to preside over his criminal cases. In the district court he
theorized that these acts violated his due process rights and the First Amendment, but
now he argues instead that he pleaded a class-of-one equal protection claim against the
chief judges. When litigants change theories after losing in the district court, new
No. 18-3286 Page 6
arguments raised for the first time on appeal are waived. O’Gorman v. City of Chicago,
777 F.3d 885, 890 (7th Cir. 2015). Bertha said nothing about equal protection until now,
so this argument is waived.
We turn next to the claims against Kane County and the elected Sheriffs in their
official capacities, which are based on sheriff’s deputies’ alleged violations of Bertha’s
constitutional rights when they banned him from the jail and arrested him for trespass.
Bertha now frames these exclusively as Monell claims, asserting that Kane County and
the Sheriffs had an unconstitutional policy of unfair and arbitrary treatment of visitors
to the jail. The claims against the Sheriffs in their official capacities are really against the
Kane County Sheriff’s Office. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Thomas v. Cook Cty.
Sheriff’s Dep’t, 604 F.3d 293, 305 n.4 (7th Cir. 2010) (citation omitted). The County is not
responsible for policies set by the Sheriff’s Office and carried out by its deputies because
in Illinois a sheriff is an independently elected county officer, not an employee of the
county that he or she serves, and the deputies are employees of the Sheriff’s Office.
See Carver v. Sheriff of La Salle Cty., 787 N.E.2d 127, 136–38 (Ill. 2003). The County,
therefore, cannot be liable under Monell for the acts of sheriff’s deputies. (Nonetheless,
the County remains a proper defendant because state law requires it to pay a judgment
entered against a sheriff in his official capacity. Carver v. Sheriff of LaSalle Cty., 324 F.3d
947, 948 (7th Cir. 2003).)
The district court dismissed most of the claims against the Sheriffs as untimely.
Bertha argues that that the limitations period should have been tolled based on his
alleged period of incompetency. But he waived this argument by raising it for the first
time on appeal. O’Gorman, 777 F.3d at 890. Therefore, the claim that deputies banned
him from the jail without due process per a policy of the Sheriff’s Office is untimely
because the events occurred in 2013, and he did not sue until 2016, by which time the
two-year statute of limitations for § 1983 actions in Illinois had passed. See id. at 889.
Further, Bertha failed to state a Monell claim against the Sheriff’s Office for
allegedly maintaining a policy of arresting him for trespass without probable cause in
violation of the Fourth Amendment. He argues that it was sufficient to allege that the
Sheriff’s Office had an express policy of arresting him when he tried to visit the jail but
allowing “the rest of the public” to enter. Even if such particularized action could be
considered a “policy,” the Sheriffs “cannot be liable under Monell when there is no
underlying constitutional violation.” See Sallenger v. City of Springfield, 630 F.3d 499, 504
(7th Cir. 2010). And Bertha’s allegations show that the sheriff’s deputies had probable
cause to arrest him. In Illinois, criminal trespass is trespass plus knowledge that the
No. 18-3286 Page 7
owner of the property has not authorized the trespass. 720 ILCS 5/21–3(a). Bertha was
informed that he was not allowed at the jail and failed to challenge this decision
through proper channels. He admittedly went to the jail anyway; the deputies therefore
had probable cause to arrest him and did not violate the Fourth Amendment.
See Squires-Cannon v. White, 864 F.3d 515, 517 (7th Cir. 2017); see also District of Columbia
v. Wesby, 138 S. Ct. 577, 585–86 (2018). Bertha also contends that he stated a timely claim
under the Fourteenth Amendment for “malicious prosecution,” but no such claim based
on the Due Process Clause exists. Manuel v. City of Joliet, 137 S. Ct. 911, 919 (2017).
Bertha next says that the district court should not have stayed his claims related
to his removal from the courtroom during the contempt trial and his privileged
communications with his public defenders because his criminal cases had already
concluded. Younger instructs that federal district courts should abstain from exercising
jurisdiction over constitutional claims that may interfere with ongoing state
proceedings. Tobey, 890 F.3d at 651. Removing a defendant from the courtroom and
breaching his privileged communications may implicate the fairness of the trial,
see Illinois v. Allen, 397 U.S. 337, 345–347 (1970) (discussing defendant’s right to be
present at trial); United States v. Leonard-Allen, 739 F.3d 948, 952–53 (7th Cir. 2013)
(examining scope of attorney-client privilege), so claims based on such events could
interfere with the state cases. Bertha does not argue that the district court should have
allowed these claims while the criminal cases were ongoing. And he had been
instructed, but failed, to notify the district court when the criminal cases concluded.
Bertha cannot now complain that the court erred by staying the claims when he failed to
keep the court updated.
Finally, Bertha argues that he must be permitted to proceed on his claim that he
was subjected to an unreasonable strip search. But he does not challenge the dismissal
of this claim for failure to prosecute (except in his reply brief, which is too late,
see Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018)). He needed to grapple with that
ruling before addressing the merits of the claim. Bertha’s failure to contest the issue on
appeal results in waiver. See United States v. Crisp, 820 F.3d 910, 912 (7th Cir. 2016). Even
if the issue is merely forfeited, as Bertha contends, he fails to justify a departure from
the rule against reviewing forfeited issues for plain error in civil cases. See S.E.C.
v. Yang, 795 F.3d 674, 679–80 (7th Cir. 2015).
We have considered Bertha’s other contentions, but none has merit.
AFFIRMED