Tommy Smith, Jr. v. Moises Gomez

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1102
T OMMY S MITH, JR.,
Plaintiff-Appellant,
v.
M OISES G OMEZ, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-CV-114—Rudolph T. Randa, Chief Judge.
S UBMITTED JUNE 18, 2008 Œ —D ECIDED D ECEMBER 15, 2008
Before C OFFEY, R IPPLE, and SYKES, Circuit Judges.
C OFFEY, Circuit Judge. Tommy Smith, a Wisconsin
prisoner, sued a number of law enforcement officers
Œ
After examining the briefs and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submitted
on the briefs and the record. See F ED . R. A PP . P. 34(a)(2).
2 No. 08-1102
including officers of the Milwaukee Police Department
(MPD) and employees of the Wisconsin Division of Com-
munity Corrections (DCC) and the Wisconsin Division of
Hearings and Appeals (DHA), as well as the governmental
entities themselves, arguing under 42 U.S.C. §§ 1983,
1985(3), and 1986 that the defendants conspired to deprive
him of his constitutional rights to “freedom, liberty, full
due process, and equal protection” after he was arrested
for being a felon in possession of a firearm and for at-
tempted armed robbery. As a result of the arrest, his parole
was revoked. The trial court resolved all claims in favor of
the governmental authority on various grounds, including
their absolute immunity as well as their qualified immu-
nity. Smith appeals, essentially repeating the same claims
he made in the trial court. We affirm.
The events leading to Smith’s complaint began on
February 13, 1999, when Milwaukee police detectives
found a handgun while investigating an unsuccessful
armed robbery. Some four days later on February 17, 1999,
they were able to trace the gun back to Smith’s cousin,
(Sharon Lewis), using its serial number. Detective Moises
Gomez and another detective, defendant Michael Grogan,
questioned Lewis about the gun. Initially she told the
officers during questioning that she owned the gun and
that it had been stolen. According to her testimony she
claims that the officers advised her that if she was truthful
and cooperative they would not arrest her. In response,
Lewis stated to the officers that on February 8 she had
ordered a gun for Smith, because he could not purchase
one as a convicted felon. Lewis told the police that on
February 10, she and Smith went to pick up the gun, she
No. 08-1102 3
had purchased it and turned it over to him. He later
reimbursed her for the weapon. Smith told Lewis to hide
the gun above a ceiling tile in her bedroom. On February
12, Smith retrieved the gun from Lewis’s home. Two days
later, “Mike G,” who, like, Smith, was a member of the
“Gangster Disciples gang,” told Lewis that the gun had
been lost during an attempted car robbery. Based on these
facts, Gomez determined that Smith should be arrested for
attempted armed robbery and possessing a firearm while
in the status of a convicted felon. Smith was arrested
without incident and charged with attempted armed
robbery as well as being a felon in possession of a firearm
on February 24 and sentenced to a concurrent term of one
year and nine months’ imprisonment. This sentence
occurred as a direct result of his parole violation and was
related to his 1992 conviction for armed robbery. While in
prison, he filed a petition for a writ of habeas corpus
concerning the circumstances of his arrest and subsequent
parole revocation, and released from confinement before a
decision was rendered.
The substance of Smith’s lawsuit centers around his
contention that he was arrested without probable cause
and that there was a conspiracy against him to deprive him
of his civil rights. Smith claimed that Gomez obviously did
not believe Lewis was telling the truth when she said it
was her gun since Gomez gave her a warning about
truthfulness. Smith argues that his arrest, which was
prompted by the story Lewis told the police, was false.
According to Smith, Officers Gomez, Grogan, and a third
police detective, Jon Sell, conspired with his parole agent,
defendant Dawn Davenport of the DCC, to deprive Smith
4 No. 08-1102
of his constitutional rights when they placed a parole hold
on him. Davenport put a parole hold on Smith after
receiving authorization from her supervisor, defendant
Irving Suesskind. Subsequently, defendant Andrew
Riedmaier, an Administrative Law Judge, held a hearing
and ordered the revocation of Smith’s parole for possessing
a firearm as a felon, and defendant William Lundstrom,
Assistant Administrator of the DHA, sustained the revoca-
tion.
At the initial screening, the trial court dismissed Smith’s
complaint without prejudice. See 28 U.S.C. § 1915A. The
court reasoned that because Smith’s claims are all based on
his allegation that the defendants conspired to arrest him
and revoke his parole, any determination in Smith’s favor
would necessarily imply the invalidity of the parole
revocation and confinement. Such claims are barred by
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), according to
the court. Heck holds that a § 1983 plaintiff seeking dam-
ages for an allegedly unconstitutional conviction, imprison-
ment, or other such harm must initially establish that the
conviction has been reversed, expunged, declared invalid,
or called into question by the issuance of a federal writ of
habeas corpus. The court concluded that since Smith had
not successfully challenged and invalidated his parole
revocation, Heck precluded any relief for him under § 1983
or other federal civil rights statutes.
Smith next filed a motion for relief from the screening
order. See F ED. R. C IV. P. 60(b). And Smith argued that his
complaint should not be Heck-barred because his petition
for a writ of habeas corpus was rendered moot at the time
No. 08-1102 5
of his release from prison. In April 2005 the trial court
agreed that Smith’s § 1983 claims were not barred by Heck
and permitted Smith to amend his complaint. However,
the court dismissed Smith’s claims under § 1985(3) and
§ 1986 and also dismissed as defendants the MPD, the
DCC, and the DHA. See Edelman v. Jordan, 415 U.S. 651, 663
(1974). Smith thereafter filed an amended complaint
against the following remaining defendants: Gomez,
Grogan, Sell, Davenport, Suesskind, Riedmaier, and
Lundstrom. The defendants were sued in their individual
capacities. See Wynn v. Southward, 251 F.3d 588, 593 (7th
Cir. 2001); Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000);
Hill v. Shelander, 924 F.2d 1370, 1372-73 (7th Cir. 1991).
In September 2006, after the pleadings were filed, the
trial court granted a motion to dismiss filed by Davenport,
Riedmaier, Lundstrom, and Suesskind, concluding that the
first three defendants were entitled to immunity and that
the only potential theory of liability for Suesskind would
be respondeat superior, which is not permitted under
§ 1983. See Pacelli v. DeVito, 972 F.2d 871, 878 (7th Cir. 1992).
The court also granted summary judgment to Gomez,
concluding that he was protected by qualified immunity
because a reasonable police officer would have believed
there was probable cause to arrest Smith. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
The only remaining defendants, therefore, were Sell and
Grogan. In May 2007 the trial court granted Sell’s motion
for summary judgment. Sell asserted that he was not
personally involved in the alleged constitutional violations
and submitted an affidavit to this effect. The trial court
6 No. 08-1102
determined that Smith had failed to submit any admissible
evidence to contradict Sell’s sworn assertions and con-
cluded that he had not been involved in the events sur-
rounding Smith’s arrest and parole revocation. And
finally, in December 2007, the trial court granted Grogan’s
motion for summary judgment and dismissed the case.
Grogan stated in an affidavit that he was not personally
involved in the alleged constitutional violations and that
he was entitled to qualified immunity. The court noted that
there was a disputed issue of material fact with respect to
whether Grogan was involved in Smith’s arrest. However,
the court also reasoned that since Smith’s arrest was
supported by probable cause no liability could attach. The
court also concluded that Grogan was not personally
involved in the decision to revoke Smith’s parole.
On appeal, Smith raises a host of arguments, disputing
nearly every ruling made by the trial court throughout this
protracted litigation. Most of his assertions are grounded
in his belief that the named defendants participated in a
conspiracy against him to deprive him of his civil rights.
We note at the outset that conspiracy is not an independent
basis of liability in § 1983 actions. See Cefalu v. Vill. of Elk
Grove, 211 F.3d 416, 423 (7th Cir. 2000). Moreover, many of
Smith’s claims on appeal are patently frivolous, consisting
of baseless accusations of unlawful conduct and fabrication
of evidence by the defendants. We conclude that the trial
court’s reasoning on all of the various appealed issues,
discussed at length below, are proper, and we commend
the court for its thorough treatment of Smith’s many
contentions.
No. 08-1102 7
First Smith challenges several of the rulings the trial
court made in its April 2005 order. Smith argues that the
court should not have dismissed the claims he made under
§ 1985(3) and § 1986 and should not have dismissed the
MPD, DCC, and DHA as defendants. He argues that his
status as a parolee was sufficient to meet the “otherwise
class-based” requirement of § 1985(3). Smith admits that
the MPD, DCC, and DHA are not sueable entities; however
he contends that the court should have accepted his
designating them as defendants as a “John Doe” identifica-
tion of the city of Milwaukee and State of Wisconsin. He
therefore contends that the city and state are responsible
for the inadequate supervision of their employees, which
permitted them to conspire against him.
The trial court’s reasoning on these questions is incontro-
vertible, however. Section 1985(3) prohibits a conspiracy to
deprive another of equal protection under the law such as
are alleged in Smith’s complaint, but the conspiracy must
be motivated by racial, or other class-based discriminatory
animus. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971);
Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002). Smith has
failed to sufficiently allege such animus because status as
a parolee is not considered a “suspect class” for equal-
protection purposes. And because Smith has failed to state
a § 1985 claim, his § 1986 claim fails as well. See Hicks v.
Resolution Trust Corp., 970 F.2d 378, 382 (7th Cir. 1992).
Smith asks that we remand this case to allow him to name
the city of Milwaukee and the state of Wisconsin as
defendants. However, the trial court previously permitted
Smith to amend his complaint—after informing him that
the MPD, DCC, and DHA would not be liable—and nor
8 No. 08-1102
did he add the city or the state as parties at that time. As a
result, any claim against them has been waived. In any
event, such a remand would be futile: the state of Wiscon-
sin is also not a proper defendant for a § 1983 action
because it has Eleventh Amendment immunity, see Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 66-67 (1989), and the
only theory of liability for the state and the city would be
respondeat superior which, as noted above, is not permissi-
ble in an action brought under § 1983.
Smith next challenges the trial court’s dismissal of
various defendants in its September 2006 order. In that
order, the court determined that Gomez and Lundstrom
were entitled to qualified immunity, that Davenport and
Riedmaier were entitled to absolute immunity, and that
there could be no liability for Suesskind under a
respondeat superior theory. Smith’s basic contention to
refute dismissal is that no reasonable officer could believe
there was probable cause for his arrest. And because there
was no basis for arrest, there was no lawful reason, accord-
ing to Smith, for his parole to be revoked.
Again, the trial court was correct in its evaluation of
Smith’s claims against these defendants. Quali-
fied-immunity claims are resolved by answering the two
questions set out in Saucier v. Katz, 533 U.S. 194, 201 (2001);
see also Purtell v. Mason, 527 F.3d 615, 621 (7th Cir. 2008).
First, the court “must consider . . . this threshold question:
Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct
violated a constitutional right?” Saucier, 533 U.S. at 201; see
also Jones v. Wilhelm, 425 F.3d 455, 460 (7th Cir. 2005). If the
No. 08-1102 9
answer to this question is “yes,” then “the next, sequential
step is to ask whether the right was clearly established” at
the time of the alleged violation. Saucier, 533 U.S. at 201.
The only question we need resolve, then, is whether
Smith’s right to freedom from unlawful search and seizure
was violated.
Upon review the undisputed evidence clearly establishes
that Smith’s rights were not violated. “Police ordinarily
have probable cause if, at the time of the arrest, the ‘facts
and circumstances within the officer’s knowledge . . . are
sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to
commit an offense.’ ” Wagner v. Washington County, 493
F.3d 833, 836 (7th Cir. 2007) (quoting Michigan v. DeFillippo,
443 U.S. 31, 37 (1979)). The parties agree with the following:
the gun the police recovered matched the serial number of
the gun owned by Lewis; Lewis is Smith’s cousin; Lewis
said that Smith paid for the gun; Lewis told police that
Smith took the gun from Lewis’s home on February 12,
1999; and Mike G told Lewis that the gun had been lost
during an attempted armed robbery. This evidence is
sufficient to establish probable cause for Smith’s arrest.
And it is well-established that when police officers have
probable cause, they may effect an arrest without a sup-
porting warrant. See Shipman v. Hamilton, 520 F.3d 775, 778
(7th Cir. 2008).
The trial court also properly determined that Davenport
and Riedmaier were entitled to absolute immunity. Daven-
port was a parole agent employed by the DCC, and
10 No. 08-1102
Riedmaier was an ALJ employed by the DHA. Addition-
ally, the absolute immunity enjoyed by judges for judicial
actions taken in accordance with their jurisdictional
authority extends to other officials, including ALJs, when
they perform functions that are “closely associated with the
judicial process.” See Cleavinger v. Saxner, 474 U.S. 193, 200
(1985); Forrester v. White, 484 U.S. 219, 225 (1988); see also
Dawson v. Newman, 419 F.3d 656, 662 (7th Cir. 2005).
“Parole board members are absolutely immune from suit
for their decisions to grant, deny, or revoke parole.” Wilson
v. Kelkhoff, 86 F.3d 1438, 1444 (7th Cir. 1996) (internal
quotation marks and citation omitted). And when officials
engage in activities that are “inexorably connected with the
execution of parole revocation procedures and are analo-
gous to judicial action” they are also entitled to absolute
immunity. Walrath v. United States, 35 F.3d 277, 282 (7th Cir.
1994) (internal quotation marks and citation omitted). The
challenged acts of Davenport and Riedmaier were un-
doubtedly well within the ambit of their absolute immu-
nity. Suesskind, as Davenport’s supervisor at the DCC,
authorized Davenport to place a parole hold on Smith.
Smith’s sole complaint about Suesskind was that he
thereby participated in the “conspiracy” against him to
deprive him of his civil rights. The same theory of absolute
immunity that applies to Davenport thus protects
Suesskind from liability as well.
The requirements for absolute immunity have similarly
been met with respect to Lundstrom. Lundstrom was an
assistant administrator with the DHA. According to the
record, Lundstrom had the same quasi-judicial responsibil-
ities as Riedmaier, though it is not clear whether he was
No. 08-1102 11
also an ALJ. Lundstrom reviewed Riedmaier’s findings,
found that Lewis’s statements were credible because they
went against her penal interests, and also found that her
statements demonstrated by a preponderance of the
evidence that Smith possessed a firearm in violation of his
parole. Therefore, his role was “functionally comparable”
to that of a judge’s. See Cleavinger, 474 U.S. at 200.
Smith next argues that the trial court should not have
dismissed Sell as a defendant in its May 2007 order.
According to Smith, Sell personally instructed Davenport
to put a parole hold on Smith, thus he allegedly partici-
pated in the conspiracy.
The trial court correctly granted Sell’s motion to dismiss
the claim against him. Sell submitted an affidavit to
support his assertion that his only role in the events was to
contact Davenport and inform her that Smith was the
subject of a criminal investigation. Smith has produced no
admissible evidence to establish that Sell had any further
personal involvement in the parole revocation. And, once
again, § 1983 does not create a claim based on collective or
vicarious responsibility. See Pacelli, 972 F.2d at 875; Sheik-
Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994).
In a related issue, Smith also challenges the court’s
“suppression” of his Exhibit A1. That exhibit consisted of
a memo from Grogan to Sell, which states that “if [Sell] can
get [Smith’s] agent to put a hold on him, please notify the
bureau.” According to Smith, because Davenport submit-
ted the document into evidence at Smith’s revocation
hearing, it should be admissible.
12 No. 08-1102
In its May 2007 order, the trial court ruled that this
document was inadmissible because it was not properly
authenticated. FED. R. C IV. P. 56(e); Article II Gun Shop, Inc.
v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006). But even if the
document were admissible it would not defeat summary
judgment for Sell. Davenport testified that a parole hold is
issued when a parolee violates the terms of parole, not
upon the request of police. Davenport also testified that her
decision to revoke Smith’s parole “was not driven by the
police,” and that “the police didn’t make that decision for
us.” The memo in question, therefore, proves nothing
against Sell.
Finally, Smith takes issue with the trial court’s grant of
summary judgment to Grogan in December 2007. We
disagree and hold that the court properly granted Grogan’s
motion for summary judgment. Putting aside the disputed
issue of whether Grogan had any personal involvement in
Smith’s arrest, Grogan, as a fellow police officer, is immune
from liability for the same reason as Gomez: Smith’s arrest
was supported by probable cause.
A FFIRMED.
12-15-08