Timothy Kaprelian v. John Barrett

NONPRECEDENTIAL DISPOSITION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 June 18, 2015 *
Decided June 18, 2015
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 15-1147
TIMOTHY JAY KAPRELIAN, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 14-C-546
JOHN BARRETT, William C. Griesbach,
Defendant-Appellee. Chief Judge.
ORDER
Timothy Kaprelian, a Wisconsin inmate, appeals the grant of summary judgment
in this action under 42 U.S.C. § 1983 asserting that the clerk of a state court denied him
access to the courts. He contends that the clerk failed to file his appeal of a dismissed
civil-rights suit. Because that appeal was baseless, he suffered no constitutional injury, so
we affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-1147 Page 2
Responding to a report of a possible crime in 2006, the police came to the home of
Kaprelian and his former-girlfriend, who allowed a search of the house. They found
evidence, including a videotape, that Kaprelian had sexually assaulted, battered, and
imprisoned her. During a criminal trial, Kaprelian sought to suppress the results of the
search. But a Wisconsin state court denied the motion, reasoning that the search was
justified by consent and exigent circumstances. Kaprelian then pleaded no contest to
charges of sexual assault and false imprisonment and received a 50-year sentence.
Kaprelian has twice sued under § 1983 to challenge the search of the house. The
first time, he asserted in federal court that the police violated his constitutional rights by
searching the house and seizing his videos without a search warrant. We held that, in the
earlier criminal case, “[t]he state court’s adverse ruling on Kaprelian’s motion to
suppress precludes him from relitigating the constitutionality of the seizure of his
videos.” Kaprelian v. Bowers, 460 Fed. Appx. 597, 600 (7th Cir. 2012). In the second suit,
filed in Milwaukee County Circuit Court, Kaprelian alleged that the defendants in his
first suit had submitted perjured affidavits to justify the search. After that suit was
dismissed, Kaprelian attempted to mail a notice of appeal to the court clerk, John Barrett.
Barrett says that he never received the notice. Kaprelian contends that Barrett refused to
file it.
Barrett’s alleged failure to file the notice of appeal is the basis for the current suit.
Kaprelian argues that because Barrett refused to file the appeal, he denied Kaprelian
access to the courts on his claim that perjured affidavits defeated his first suit
challenging the search. After the district court allowed Barrett time for discovery, it
granted summary judgment for Barrett, giving several reasons, including that Barrett
never received the notice of appeal. But we need focus only on its last reason: The district
court observed that the state criminal court had already upheld the legality of the search;
thus Barrett’s alleged failure to file the appeal of the second suit did not prejudice
Kaprelian because “[h]e would have lost in any event.”
On appeal, Kaprelian raises three issues, but none has merit. First he contends
that the district court erred by crediting Barrett’s assertion that he never received
Kaprelian’s notice of appeal. But even if Barrett did receive the notice of appeal,
Kaprelian cannot prevail in this case if the unfiled appeal had no arguable merit. See
Lewis v. Casey, 518 U.S. 343, 349 (1996); Devbrow v. Gallegos, 735 F.3d 584, 587 (7th Cir.
2013). And it did not. A favorable outcome in that appeal was not possible because—like
his first suit—it attacked the legality of the search, and—like the first suit—that attack
was precluded by the state criminal court’s ruling upholding the search, regardless of
No. 15-1147 Page 3
the affidavits in the first suit. What’s more, because we already ruled in the first suit that
the state court’s ruling precluded relitigation of the search’s legality, Kaprelian is
precluded from relitigating the issue of preclusion itself, again regardless of the
affidavits. Thus because there was no possible merit to the second appeal, the district
court properly granted summary judgment to Barrett. See Christopher v. Harbury, 536 U.S.
403, 414–15 (2002); In re Maxy, 674 F.3d 658, 660–61 (7th Cir. 2012).
We quickly dispose of the next two issues. Kaprelian challenges the district
court’s refusal to grant him leave to appeal in forma pauperis. But he did not renew his
motion in this court, as he could have, see FED. R. APP. P. 24(a)(5). Instead he paid the fee,
thereby forfeiting his challenge to the district court’s ruling. See Walker v. O’Brien, 216
F.3d 626, 631 (7th Cir. 2000). Kaprelian also argues that the district court should have
sanctioned Barrett’s attorney for untimely responses to his discovery requests. Kaprelian
does not explain why it was unreasonable for the judge to credit the attorney’s
explanation that a secretary misfiled the requests and no harm occurred. Thus we find
no abuse of discretion in the judge’s choice to excuse the lapse. See Collins v. Illinois, 554
F.3d 693, 696 (7th Cir. 2009).
AFFIRMED.