Griffin, Inez v. State of Wisconsin

NONPRECEDENTIAL DISPOSITION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 26, 2007*
Decided October 5, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 07-1653
GABRIEL GRIFFIN and INEZ Appeal from the United States
GRIFFIN, District Court for the Eastern District
Plaintiffs-Appellants, of Wisconsin
v.
No. 06-C-203
STATE OF WISCONSIN, et al.,
Defendants-Appellees. Rudolph T. Randa,
Chief Judge.
ORDER
Inez Griffin and seven other residents of the City of Milwaukee, Wisconsin,
filed a rather wide-ranging lawsuit claiming that state, county, and city officials
violated their civil rights. The district court dismissed the action after concluding
that none of the defendants had been served properly. Griffin and one other
plaintiff filed a notice of appeal, but she alone filed a brief and thus is the only
*
After an examination of 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
Fed. R. App. P. 34(a)(2).
No. 07-1653 Page 2
appellant before us. See Navin v. Park Ridge Sch. Dist. 64, 270 F.3d 1147, 1149
(7th Cir. 2001) (holding that pro se litigants may not proceed on behalf of another);
Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830-31 (7th Cir. 1986). We affirm the
judgment.
Griffin, who also goes by the name Isis Ariel Magdalah, was arrested in
August 2004 at a public library in Milwaukee. Criminal charges were filed, but
Griffin has not disclosed the nature or status of those charges. In the civil
complaint, which was filed in February 2006, Griffin names as defendants a city
police officer, an assistant city attorney, two assistant district attorneys, two
Milwaukee County circuit judges, and a circuit-court commissioner. These
defendants were personally involved in Griffin’s criminal matter, but Griffin also
names as defendants the State of Wisconsin and its governor and former attorney
general, as well as the Milwaukee County Circuit Court, the City of Milwaukee, and
the city’s mayor and police chief. The remaining defendants are implicated only in
claims brought by other plaintiffs and are not relevant to this appeal.
None of the appellees answered the complaint. The chief of police and the
individual officer successfully opposed the plaintiffs’ motion for a default judgment
on the basis of defective service of process. The State of Wisconsin and its officials
moved to dismiss on various grounds, principally immunity. That motion was
joined by the assistant district attorneys, the judges, the court commissioner, and
the Milwaukee County Circuit Court. The City of Milwaukee, its mayor, and the
assistant city attorney also contested service of process and moved to dismiss on
that ground. The district court granted that motion in January 2007 and, at the
same time, ordered that by February 12 the plaintiffs either establish that they had
served the complaint and summons on the remaining defendants or articulate good
cause for any lapse in service. Failure to do so, the court warned, would result in
dismissal of any unserved defendant. Instead of complying with this directive, the
plaintiffs informed the court that their affidavits of service already on file with the
clerk constituted sufficient proof of timely service of process. The district court
rejected that contention and on February 15, 2007, dismissed the complaint as
against the remaining defendants.
On appeal Griffin first contends that the district court erred in finding that
the three affidavits submitted by the plaintiffs’ process servers do not constitute
proof of timely service of process. We review a dismissal for insufficiency of service
of process for abuse of discretion. See Coleman v. Milwaukee Bd. of Sch. Dirs., 290
F.3d 932, 934 (7th Cir. 2002); Tuke v. United States, 76 F.3d 155, 157 (7th Cir.
1996). Griffin correctly notes that an affidavit is the proper form for proof of
service, see Fed. R. Civ. P. 4(l), but a review of the record demonstrates that the
plaintiffs’ affidavits attest only to service of the complaint—not the summons.
Federal Rule of Civil Procedure 4 requires that a plaintiff serve a summons and a
No. 07-1653 Page 3
complaint upon each defendant and provide proof of doing so to the court. See Fed.
R. Civ. P. 4(c)(1), (l). As the district court explained in its January 2007 order, the
plaintiffs had provided proof of serving the defendants with a copy of the complaint
but not proof of serving them with a summons. Because the affidavits the plaintiffs
relied upon are inadequate, and because the district court identified the problem
and gave the plaintiffs time to cure it, we cannot agree with Griffin that the court
“refused to consider the record reflecting the [p]rocess [s]ervers’ affidavits as it
related to service.” We find no error in the district court’s review of the record in
determining whether service of process was sufficient. See Troxell v. Fedders of N.
America, Inc., 160 F.3d 381, 382-83 (7th Cir. 1998) (holding that a district court did
not abuse its discretion by refusing to extend the time for service of process where
no good cause was shown).
Griffin also argues that the district court improperly denied the plaintiffs’
request for a hearing on the sufficiency of service of process. We note that the
district court complied with the notice provision of Rule 4(m) by informing the
plaintiffs of its intention to dismiss the action absent proof of service of process or
good cause. Rule 4, though, does not contemplate a mandatory hearing. See Fed. R.
Civ. P. 4. Nor does Griffin cite any authority that would compel a district court to
conduct a hearing. While a hearing may be appropriate where litigants have filed
inconsistent affidavits regarding service of process, see, e.g., Robinson Eng’g Co.
Ltd. Pension Plan and Trust v. George, 223 F.3d 445, 447-49, 453 (7th Cir. 2000),
there is no requirement that a district court grant a plaintiff’s request for a hearing
on sufficiency of service of process under these circumstances. At the heart of
Griffin’s argument is the notion that the plaintiffs somehow were denied an
adequate opportunity to persuade the district court that service of process was
sufficient. Yet the district court gave the plaintiffs nearly four weeks to furnish
additional proof of service of process or to articulate good cause for their failure to
effect service. No hearing was required.
Finally, Griffin argues that at least some of the defendants waived any
objection to the defective service of process by omitting that contention from their
pre-answer motions to dismiss. A defendant must raise the defense of insufficiency
of service of process in his or her first pre-answer motion under Federal Rule of
Civil Procedure 12(b) or, if no motion is made, in his or her responsive pleading.
See Fed. R. Civ. P. 12(h)(1); 5C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1391 (3d ed. 2004). Otherwise the defendant waives the
defense and thus consents to the personal jurisdiction of the court, unless the
defendant was unaware that the defense was available at the time. See Fed. R. Civ.
P. 12(h)(1); 5C Wright & Miller, Federal Practice and Procedure § 1391. Once the
defendant has waived objections based on insufficiency of process, the district court
cannot dismiss the suit for lack of personal jurisdiction. O'Brien v. R.J. O'Brien &
Assocs., Inc., 998 F.2d 1394, 1399 (7th Cir. 1993).
No. 07-1653 Page 4
The City of Milwaukee, its mayor, and the assistant city attorney objected to
the insufficiency of service of process in their pre-answer motion to dismiss, so we
cannot agree with Griffin that these defendants waived their objections to the
plaintiffs’ deficient service of process. See Fed. R. Civ. P. 12(h)(1). And when it
became clear to the district court that the chief of police and the individual police
officer had not been served properly, the court was correct to dismiss the complaint
sua sponte as to those defendants because they had not filed a pre-answer motion or
a responsive pleading and thus had not waived the defense. See Fed. R. Civ. P.
4(m), 12(h)(1). But Griffin is correct that the State of Wisconsin, the governor, the
former attorney general, the Milwaukee County Circuit Court, the assistant district
attorneys, the judges, and the court commissioner all waived their objections by
failing to include insufficiency of service of process as one of the grounds in their
pre-answer motions to dismiss. See Fed. R. Civ. P. 12(h)(1); 5C Wright & Miller,
Federal Practice and Procedure § 1391. Accordingly, their dismissal under Rule 4
was error.
That error, however, does not warrant a remand. We may affirm a judgment
on any ground supported by the record, see Omosegbon v. Wells, 335 F.3d 668, 677
(7th Cir. 2003); Payne v. Churchich, 161 F.3d 1030, 1038 (7th Cir. 1998), and in this
case the dismissal of Griffin’s damages claims against the remaining defendants
(we do not read the complaint to request any specific injunctive relief on Griffin’s
behalf) can be sustained on other bases.
Griffin’s claims against the State of Wisconsin and the Milwaukee County
Circuit Court (an arm of the state, see Wis. Stat. 753 (2005-06)) must fail because a
state is not a “person” that can be sued under 42 U.S.C. § 1983. See Will v.
Michigan Dept. of State Police, 491 U.S. 58, 64 (1989); Kelly v. Mun. Cts. of Marion
County, Indiana, 97 F.3d 902, 907-08 (7th Cir. 1996); Kaimowitz v. Bd. of Trs. of
Univ. of Illinois, 951 F.2d 765, 767 (7th Cir. 1991). Griffin’s claims against the
governor and the former attorney general of Wisconsin are barred as well because
those defendants had no personal involvement and cannot be liable under a theory
of respondeat superior. See Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002).
And Griffin’s claims against the judges, the court commissioner, and the assistant
district attorneys involve judicial or prosecutorial actions, so those defendants are
absolutely immune from suit. See Wis. Stat. § 757.68 (authorizing appointment of
court commissioners); Wis. SCR 75.02 (authorizing court commissioners to “perform
limited judicial and quasi-judicial functions under the direction and authority of the
chief judge and the judges of the circuit”); Stump v. Sparkman, 435 U.S. 349, 356-57
(1978); Imbler v. Pachtman, 424 U.S. 409, 428-32 (1976); Pierson v. Ray, 386 U.S.
547, 554-56 (1967); Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir. 1999) (holding
that quasi-judicial officers who “perform duties functionally comparable to those of
a judicial officer” are immune from liability).
AFFIRMED.