Alexander, Windsor v. Shan, Tanveer

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 19, 2005*
Decided December 29, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-1315 Appeal from the United States District
Court for the Northern District of
WINDSOR ALEXANDER, Illinois, Eastern Division
Plaintiff-Appellant,
No. 02 C 7059
v.
Amy J. St. Eve,
TANVEER SHAN, et al., Judge.
Defendants-Appellees.
ORDER
In this action under 42 U.S.C. § 1983, Windsor Alexander challenges the
dismissal of his case against three defendants for failure to state a claim, as well as
the grant of summary judgment for the two remaining defendants. Alexander also
contests several subsidiary rulings. We perceive no error and, accordingly, affirm
the judgment.
*
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. 05-1315 Page 2
In 1998, Alexander appeared in the Circuit Court of Cook County, Illinois, as
a litigant in a civil suit against his former employer. Judge Ellis Reid presided over
the case. During the course of a bench trial, Alexander became convinced that
Judge Reid was prejudiced against him and filed a petition for substitution of a new
judge. Alexander, who was pro se, attached to his petition four “criminal
complaints” accusing the judge of criminal conduct. He also lodged a complaint
with the Illinois Judicial Inquiry Board. Another circuit judge heard the
substitution petition and dismissed it. Judge Reid then proceeded with trial,
eventually ruling in Alexander’s favor on one of two claims and awarding him
punitive damages. After handing down his decision in open court, Judge Reid
mentioned the substitution petition. He showed Alexander a letter urging an
investigation by Cook County State’s Attorney Richard Devine, whom the judge
described as a good friend, into what Judge Reid apparently believed was criminal
conduct on Alexander’s part in submitting the petition and its attached accusations.
Afterwards Devine’s office did investigate Alexander, and on January 19,
2000, more than a year after Judge Reid’s referral, a grand jury indicted Alexander
on charges of perjury and forgery. Alexander was arrested two months later, but
his trial did not begin for more than a year, in July 2001. Alexander spent the
intervening time confined in the general population of the Cook County jail or in the
jail’s acute psychiatric unit. Alexander was admitted into the psychiatric unit by
Dr. Tanveer Shan. Assistant State’s Attorney Paul Bervid prosecuted the criminal
case, while Alexander elected to defend himself without counsel. He was acquitted
on all charges.
Alexander then filed a pro se complaint in the district court. Count One of
his second amended complaint alleged that Judge Reid, State’s Attorney Devine,
and prosecutor Bervid conspired to deprive him of his civil rights by bringing a
baseless prosecution. Count Two of that complaint alleged that Cook County and
Dr. Shan are engaged in an ongoing conspiracy to punish allegedly disruptive jail
inmates by sending them to the psychiatric unit instead of bringing misconduct
charges that would be adjudicated by a hearing board. Alexander claimed that he
was a victim of this policy and that, as a result, he was prevented from using the
jail’s law library to prepare a defense against both the criminal charges and a jail
misconduct case.
Judge Reid was the first defendant to obtain a dismissal under Federal Rule
of Civil Procedure 12(b)(6). The district court held that, taking Alexander’s
allegations to be true, Judge Reid had acted in his judicial capacity and was entitled
to absolute immunity. In any event, the court added, Alexander was not deprived of
a federally protected right and so dismissal was warranted even if Judge Reid was
not immune from the suit. Alexander moved for reconsideration as well as to
No. 05-1315 Page 3
amend his complaint, but both motions were denied. Devine and Bervid then won
dismissals under Rule 12(b)(6) after the district court held that they enjoyed
absolute prosecutorial immunity.
At that point, with all of the defendants named in Count One out of the case,
Alexander filed a motion under 28 U.S.C. § 455(a) asking the district judge to
recuse herself. He argued that dismissing his complaint as against Judge Reid,
State’s Attorney Devine, and prosecutor Bervid demonstrated partiality. The judge
denied his motion, and Alexander petitioned this court for a writ of mandamus,
which we denied.
Alexander subsequently moved again to amend his complaint, this time
proposing to add individual employees and agents of Cook County as defendants in
Count Two. The district court denied that motion. Cook County and Dr. Shan, the
last remaining defendants, then moved for summary judgment. The district court
granted that motion, reasoning that Alexander lacked evidence of a conspiracy to
send jail inmates to the psychiatric unit and that he also lacked evidence of
constitutional harm stemming from the alleged conspiracy.
We start with Alexander’s challenge to the dismissal of Judge Reid and the
two prosecutors for failure to state a claim. As for Judge Reid, his absolute
immunity extends to all judicial acts save those taken in the complete absence of
jurisdiction. See Mireles v. Waco, 502 U.S. 9, 12-13 (1991); Killinger v. Johnson, 389
F.3d 765, 770 (7th Cir. 2004). Alexander alleged that Judge Reid’s part in the
conspiracy was to submit Alexander’s substitution petition and its attachments to
State’s Attorney Devine and his assistant, Bervid. Alexander argues that this
action was outside the scope of the judge’s immunity because it is not judicial in
nature and, even if it is, was taken in the complete absence of jurisdiction.
We conclude that Judge Reid acted within his jurisdiction when he made the
criminal referral. We have found a complete lack of jurisdiction only in particularly
egregious circumstances, such as when a judge not only maliciously referred a
§ 1983 plaintiff for prosecution and caused unlawful arrest warrants to be issued,
but also read those warrants over the air at a radio station and pressured the
plaintiff’s employer to fire him. See Harris v. Harvey, 605 F.2d 330, 336 (7th Cir.
1979) (holding that actions “outside of [defendant judge’s] courtroom and not then a
part of his judicial functions” were undertaken in absence of all jurisdiction).
Alexander’s petition arose in Judge Reid’s court and was the type of motion heard in
his court. Illinois law does not divest a trial judge of all jurisdiction over a motion
for substitution for cause——the law requires only that another judge preside over
a hearing on the motion as soon as possible. See 735 Ill. Comp. Stat. 5/2-1001
(2005). At most, Judge Reid committed an error of law in revisiting the matter.
No. 05-1315 Page 4
The only real question on this issue, then, is whether the referral can be
described as a judicial action. To determine the judicial character of an action, we
examine (1) whether it is purely ministerial or instead requires the exercise of
discretion; (2) whether a judge ordinarily performs that action; and (3) the
“expectations of the parties, i.e., whether the parties dealt with the judge as judge.”
Lowe v. Letsinger, 772 F.2d 308, 312 (7th Cir. 1985); see Dawson v. Newman, 419
F.3d 656, 661 (7th Cir. 2005) (applying Lowe). Other circuits have noted that
similar acts by state judges are not ministerial and are of the sort that a judge
would normally perform. See Brookings v. Clunk, 389 F.3d 614, 622 (6th Cir. 2004)
(holding that state judge “was engaged in a judicial act in swearing out a criminal
complaint against Brookings upon learning that he had committed a crime in his
court”); Barrett v. Harrington, 130 F.3d 246, 260 (6th Cir. 1997) (holding that “a
judge instigating a criminal investigation against a disgruntled litigant who has
harassed her is a judicial act”); Martinez v. Winner, 771 F.2d 424, 435 (10th Cir.
1985) (holding that judge was both entitled and required to take steps to prevent
occurrence of crime in his courtroom). Alexander does not demonstrate how Judge
Reid’s action went beyond the expectations of the parties, and we concur with the
district court that Judge Reid’s action was judicial in nature.
As to Devine and Bervid, it is well-settled that prosecutors are entitled to
absolute immunity for actions taken “as an advocate for the State.” See Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993); Smith v. Power, 346 F.3d 740, 742 (7th Cir.
2005). A prosecutor, however, is not entitled to absolute immunity from charges
based on actions that are “investigative and unrelated to the preparation and
initiation of judicial proceedings,” Smith, 346 F.3d at 742, and Alexander argues
that his suit is based on the investigatory actions of Devine and Bervid. As an
example of those actions, his complaint cites an alleged conversation in which Judge
Reid and the two prosecutors agreed that Alexander was innocent but decided to
prosecute him anyway. The conversation, if it occurred, demonstrates at most a
desire to prosecute Alexander knowing that he was innocent, but prosecutorial
immunity applies even when a prosecutor “initiates charges maliciously,
unreasonably, without probable cause, or even on the basis of false testimony or
evidence.” Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976); Anderson v. Simon,
217 F.3d 472, 475-76 (7th Cir. 2000). Alexander offers other examples, but they
suffer the same shortcoming. And while we have not sharply defined the boundary
between prosecutorial and investigatory actions, our precedent does not support
Alexander’s characterization of the facts he does allege. See, e.g., Smith, 346 F.3d
at 741-43 (holding that prosecutor’s actions in preparing and disseminating notice
that plaintiff’s house was in violation of county building codes could not be
characterized as investigatory in absence of evidence that prosecutor personally
inspected house); Anderson, 217 F.3d at 475-76 (holding that prosecutor’s decision
to delay bringing charges so that additional evidence could be gathered was
prosecutorial, not investigative, action).
No. 05-1315 Page 5
That leaves the grant of summary judgment in favor of Cook County and Dr.
Shan. The district court reasoned that Alexander lacked evidence both of the
alleged conspiracy to send disruptive inmates to the psychiatric unit, and of any
resulting deprivation of his federally protected rights assuming that a conspiracy
exists. We concur. To prevail under § 1983, Alexander was required to establish
that the defendants deprived him of a right protected by the constitution or a
federal statute. Jones v. Wilhelm, 425 F.3d 455, 465 (7th Cir. 2005). In his second
amended complaint he alleged that the actions of Cook County and Dr. Shan
deprived him of his First Amendment right of access to the courts, his Sixth
Amendment right to counsel, and his Fourteenth Amendment right to due process.
But his evidence bears out none of these claims.
Alexander’s First and Sixth Amendment claims stem from his assertion that,
because he was confined to the psychiatric unit, he had limited access to legal
materials available to those in the general population at the jail. Consequently,
according to his affidavit testimony, he was unprepared for trial in June 2000 when
the state was ready, and had to wait until July 2001 to go to trial. Alexander
characterizes this outcome as a denial of his right of access to the courts and of his
right to counsel in the criminal case. But Alexander chose to represent himself at
trial rather than avail himself of the services of appointed counsel; his claim more
properly would be articulated as an alleged denial of his right to proceed pro se. See
Faretta v. California, 422 U.S. 806, 819-20 (1975).
Alexander was acquitted, of course, but he asserts that the denial of library
access and limited access to materials such as blank paper prevented him from
being prepared for trial in June 2000; his trial did not begin until July 2001.
Alexander was released into the general population of the jail in October 2000; the
ten-month delay between that transfer and his trial is not explained by any
evidence submitted at summary judgment. Missing a court date as a consequence
of a lack of legal materials could give rise to a cognizable claim of denial of access to
the courts. See Ortloff v. U.S., 335 F.3d 652, 656 (7th Cir. 2003). But Alexander
was a pretrial detainee, and thus in a different posture than the plaintiff in Ortloff,
who was not entitled to appointed counsel. Pretrial detainees have access to legal
assistance through their appointed counsel, and refusing counsel’s assistance does
not give rise to a right of access to legal materials. See United States v. Chapman,
954 F.2d 1352, 1362 (7th Cir. 1992). Even inmates who choose to represent
themselves under Faretta are not entitled to an alternative right of access to legal
materials. United States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000). Even if his
stay in the psychiatric unit caused him to miss a court deadline, Alexander was not
deprived of any federally protected right; at most, Cook County declined to
accommodate him once he refused the one form of legal assistance to which he was
entitled.
No. 05-1315 Page 6
As for his Fourteenth Amendment claim, Alexander alleged that his
detention in the psychiatric unit was intended to prevent him from defending
himself against misconduct charges before a jail hearing board, but Alexander
submitted an affidavit to the district court conceding that he succeeded in getting
the charge dismissed. Cook County and Dr. Shan were thus entitled to summary
judgment.
We turn finally to Alexander’s various motions. Alexander complains that he
would have presented a stronger case at summary judgment had the district court
granted his motion under Federal Rule of Civil Procedure 56(f) and given him more
time to conduct discovery before making him respond to the defendants’ motion, but
we agree with the district court that the information Alexander sought——chiefly
Dr. Shan’s employment and tax records, but also records pertaining to Cook
County’s employees and codes of conduct——was not relevant. See Grayson v.
O'Neill, 308 F.3d 808, 816-17 (7th Cir. 2002) (holding that district court does not
abuse its discretion in denying Rule 56(f) motion aimed at “fishing expedition”).
Alexander also seeks to overturn the district court’s denial of his motion to
file a third amended complaint against Judge Reid (the motion was captioned as
one under Federal Rule of Civil Procedure 60(b), but the district court liberally
construed it as a motion to amend). Alexander offered the proposed amendment
after the district court had already held that Judge Reid was entitled to absolute
immunity from the suit. The proposed amendment did not offer substantial new
arguments or allege relevant new facts, but merely rehashed the same arguments
that the court had already rejected. There was no abuse of discretion.
The district court also denied Alexander permission to amend his complaint
to add various individual employees of Cook County as defendants. The court
reasoned that the statute of limitations had expired and the proposed amendment
did not relate back to the original complaint under Federal Rule of Civil Procedure
15(c)(3). We again concur. Rule 15(c)(3) does not allow relation back simply
because, as Alexander contends is the case here, a plaintiff wanted to sue a
particular defendant but was unaware of his identity or existence. Rather, it
applies when there has been an error as to the identity of the proper party. King v.
One Unknown Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir. 2000). Alexander did
not make a mistake as to the identity of a proper defendant; he merely neglected to
sue the defendants he wanted to add or, in their place, John and Jane Does. The
district court did not err by refusing Alexander permission to amend his complaint.
Finally, Alexander made a motion in the district court under 28 U.S.C.
§ 455(a), asking the district court judge to recuse herself because of the appearance
of partiality, which the judge denied. Alexander petitioned for a writ of mandamus,
which is the only appellate review possible for a denial of a § 455(a) motions.
No. 05-1315 Page 7
O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 988 (7th Cir. 2001). Another
panel of this court denied that petition, and we cannot revisit the issue. Id.AFFIRMED.