James Tibor v. Kane County, Illinoi , 485 F. App'x 840 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 November 29, 2012*
Decided December 6, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11-3260 Appeal from the United
States District Court for the
JAMES M. TIBOR, Northern District of Illinois,
Plaintiff-Appellant, Eastern Division.
v.
No. 11 C 5326
KANE COUNTY, ILLINOIS, Blanche M. Manning, Judge.
Defendant-Appellee.
Order
James Tibor has been attempting to litigate child-custody and child-support issues in
a state court of Illinois. The state court insisted that he appear in person or through
counsel to contest certain matters. Tibor is in prison and cannot appear in person, and
he contends that he cannot afford counsel. At Tibor’s request, the Supreme Court of Illi-
nois directed the trial court to hold a telephonic hearing on one matter; the court com-
plied. Instead of asking the Supreme Court (or the state’s appellate court) to order the
trial court to hold a telephonic hearing on the other contested matter, Tibor filed this
federal suit under 42 U.S.C. §1983, naming as defendants his ex-wife, her lawyer, and
* Appellee was not served with process and has not participated in this appeal. After examining ap-
pellant’s brief and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P.
34(a); Cir. R. 34(f).
No. 11-3260 Page 2
Kane County. The district court dismissed the first two defendants on the ground that
they have not acted under color of state law. Then it held that the allegations against the
County fail to state a claim on which relief may be granted.
Tibor’s notice of appeal names only the County. This means that his appeal is lim-
ited to his claims against that entity. See Torres v. Oakland Scavenger Co., 487 U.S. 312(1988). (Fed. R. App. P. 3 was amended after Torres to allow “et al.” in a notice of appeal
to preserve a claim against all adverse parties, but Tibor’s notice does not use “et al.” or
otherwise evince a desire to proceed against the individual defendants.) And his argu-
ments against the County fall short, for a fundamental reason: the County and the Cir-
cuit Court are different. Tibor has not sued the entity whose conduct aggrieves him.
Kane County is a body of local government. By contrast, the Circuit Courts of Illi-
nois are units of state government, created by Article VI of the Illinois Constitution. See
also 705 ILCS 35/1; Drury v. McLean County, 89 Ill. 2d 417, 420 (1982); Kane County v.
Carlson, 140 Ill. App. 3d 814, 818–19 (1986). The 16th Judicial Circuit, in which Tibor’s
domestic-relations litigation is pending, comprises three counties: DeKalb, Kane, and
Kendall. The Circuit Court is not part of any county, and none of these three counties
has any control over pending litigation. If Tibor wants federal relief against the state ju-
dicial system, he must sue the 16th Judicial Circuit and serve it with process. See Lynk v.
LaPorte Superior Court No. 2, 789 F.2d 554 (7th Cir. 1986).
Such a suit would encounter several obstacles, starting with the fact that the Circuit
Court, as a unit of state government, is not a “person” for the purpose of §1983. See Will
v. Michigan Department of State Police, 491 U.S. 58 (1989). It may therefore be essential to
use the approach of Ex parte Young, 209 U.S. 123 (1908), to seek prospective relief against
one of the judges. A request for a federal injunction to control pending state litigation
encounters the Anti-Injunction Act, 28 U.S.C. §2283. Although suits under §1983 are not
strictly governed by §2283, see Mitchum v. Foster, 407 U.S. 225 (1972), they may proceed
only to the extent allowed by the principles of Younger v. Harris, 401 U.S. 37 (1971), and
its successors. Younger requires parties to pending state cases to present their conten-
tions, even constitutional ones, to the state judiciary, both trial and appellate. Tibor did
present one of his contentions to the Supreme Court of Illinois, which afforded him re-
lief. His other contention likewise should be presented to that court, or a state interme-
diate appellate court. We have no reason to doubt that the state judiciary will provide
Tibor with any relief to which the federal Constitution entitles him.
The judgment of the district court is affirmed.