Anthony Foreman v. Brian Wadsworth , 844 F.3d 620 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3096
ANTHONY S. FOREMAN,
Plaintiff-Appellant,
and
LAWRENCE C. REDMOND,
Respondent-Appellant,
v.
BRIAN WADSWORTH, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 12 C 50419 — Frederick J. Kapala, Judge.
____________________
ARGUED JULY 6, 2016 — DECIDED DECEMBER 20, 2016
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Anthony Foreman, who used to
own a restaurant in Rockford, Illinois, brought this suit under
42 U.S.C. § 1983 and Illinois tort law. He alleged that a state
2 No. 15-3096
prosecutor and four Rockford police officers conspired to
push him out of business by bringing false criminal charges
against him. Foreman argued—contrary to settled Supreme
Court precedent, see Imbler v. Pachtman, 424 U.S. 409, 427
(1976)—that the state prosecutor should not be entitled to ab-
solute immunity for his actions in an official prosecutorial
role, including bringing charges against Foreman. The district
court rejected this contention and then publicly censured
Foreman’s lawyer for making it without offering a non-frivo-
lous argument in favor of overturning Imbler. See Fed. R. Civ.
P. 11(c). The court then granted summary judgment for the
police officers. We affirm the judgment and the order of cen-
sure.
I. Factual and Procedural Background
In his complaint Foreman alleged that two Rockford po-
lice officers came to his restaurant after receiving a call from
the man living in an upstairs apartment (unlawfully, accord-
ing to Foreman). The occupant had accused Foreman of cut-
ting off his electricity. By Foreman’s account, the officers tried
to interview him about this complaint but were “loud and
boisterous,” so he refused to answer their questions. The of-
ficers responded by arresting him, he alleged. Prosecutor
Matthew Leisten later filed an information falsely charging
Foreman with obstructing a police officer, see 720 ILCS 5/31-
1(a), but the charge was dismissed eventually.
Foreman later sought leave to amend his complaint to add
claims against another prosecutor. He told the district court
that he had learned through discovery that a different prose-
cutor had pursued the criminal case after Leisten had first
filed it. The district court denied leave to amend, reasoning
that the proposed claims against the second prosecutor would
No. 15-3096 3
be frivolous because the prosecutor would have absolute im-
munity in her individual capacity, and the Eleventh Amend-
ment would bar any claims against her in her official capacity.
The court also ordered Foreman to show cause why the claims
against prosecutor Leisten should not be dismissed for the
same reasons. Additionally, because in a previous case Fore-
man’s lawyer, Lawrence Redmond, had raised similar claims
against prosecutors that were dismissed because of absolute
immunity, the court ordered Redmond to show cause why he
should not be sanctioned under Federal Rule of Civil Proce-
dure 11(c).
Shortly after the district court issued its order to show
cause, prosecutor Leisten moved for judgment on the plead-
ings, arguing that in his personal capacity he was absolutely
immune from suit concerning his decision to charge Foreman.
Leisten also asserted that the Eleventh Amendment bars dam-
ages claims against him in his official capacity. In response,
Foreman conceded that under current law Leisten would be
absolutely immune from a claim for damages in his individ-
ual capacity. Foreman asserted, though, that he was seeking
to change that law. He also contended that the Eleventh
Amendment would not preclude injunctive relief against
Leisten in his official capacity, but he did not say what injunc-
tive relief he wanted or could obtain against the prosecutor.
The district court granted Leisten’s motion for judgment
on the pleadings, noting that Foreman had not offered a basis
for challenging the existing law of prosecutorial immunity. In
addition, the court reasoned that a claim against Leisten in his
official capacity would not fall under the exception to the
Eleventh Amendment for injunctive relief because Foreman’s
4 No. 15-3096
complaint did not sufficiently allege an ongoing constitu-
tional violation, as opposed to a claim for damages to remedy
a past injury.
After the claims against prosecutor Leisten were dis-
missed, a magistrate judge issued a report recommending
that attorney Redmond be publicly censured under Rule 11(c)
for advancing frivolous claims without offering any argu-
ment or authority that would support a change in existing
law. The magistrate judge concluded that a censure would be
an appropriate punishment and deterrent, especially in light
of Redmond’s previous censure by the Supreme Court of Illi-
nois in a post-conviction capital appeal.
Redmond objected to the magistrate judge’s recommenda-
tion, asserting that he had intended to challenge Supreme
Court precedent on prosecutorial immunity on appeal. He
acknowledged that he had unsuccessfully presented this ar-
gument for a change in existing law in a previous case in the
same district court, but he said that the other case had settled
before he had the opportunity to appeal the dismissal of the
claims. He also explained that he had not yet presented his
argument for overturning Imbler in this case, as he had done
in the prior case, because “there was no point.” The same dis-
trict judge had already rejected his argument in the earlier
case: “There was no reason to believe that raising it in the in-
stant case would yield a different result.” Redmond attached
to his written objection a portion of the brief that he filed in
the earlier case explaining his argument for overturning Im-
bler. No lower federal court can overrule a Supreme Court
precedent, of course, which is Redmond’s goal with Imbler.
Nevertheless, a party who wants to ask the Supreme Court to
No. 15-3096 5
overrule one of its precedents must raise the issue in lower
courts to set it up clearly for Supreme Court review.
The district judge adopted the magistrate judge’s recom-
mendation and issued an order censuring attorney Redmond
for violating Rule 11(b)(2). Redmond, the court said, did not
argue for a change in the law until after he was faced with a
recommendation of censure, and the court was “not per-
suaded by counsel’s last-minute effort to salvage the unsup-
ported claims.”
First, although Redmond’s argument had been rejected in
an earlier case, the court said, that “does not excuse counsel
from raising it anew in another, unrelated case, if necessary to
comply with his obligations under Rule 11(b)(2).” Redmond
could not just wait to make his argument on appeal, the court
said, because any argument not made in the district court is
waived on appeal. Second, the court said, Redmond’s argu-
ment for changing the existing law on absolute immunity for
prosecutors would fail anyway because it was “based on the
faulty premise that the Imbler decision is based solely on a re-
view of historical immunities,” rather than on other policy
considerations. The court noted that the Supreme Court had
recently rejected Foreman’s understanding of historical im-
munities, which was the foundation of his argument for over-
ruling Imbler. See Rehberg v. Paulk, 566 U.S. —, —, 132 S. Ct.
1497, 1504 (2012) (“[W]hen the issue of prosecutorial immun-
ity under § 1983 reached this Court in Imbler, the Court did
not simply apply the scope of immunity recognized by com-
mon-law courts as of 1871 but instead placed substantial reli-
ance on post–1871 cases extending broad immunity to public
prosecutors sued for common-law torts.”).
6 No. 15-3096
The district judge also agreed with the magistrate judge’s
alternative rationale, that sanctions were justified based on
Foreman’s official-capacity claims against Leisten’s office—
which were barred by the Eleventh Amendment—because
Redmond did nothing to show that the claims were “war-
ranted by existing law or by a nonfrivolous argument for ex-
tending, modifying, or reversing existing law.” Fed. R. Civ. P.
11(b)(2).
With only his claims against the four Rockford police of-
ficers remaining, Foreman moved to compel and extend the
time for discovery because, he said, attorneys for the city had
not responded to several of his discovery requests. The mag-
istrate judge granted his request in part, but only as to the
depositions of two police-officer defendants. The judge de-
nied his motion to compel the deposition of the mayor and
other city officials, as well as answers to the interrogatories he
had sent to the City of Rockford, and then denied both of
Foreman’s motions to reconsider.
The police officers moved for summary judgment on the
remaining claims of false arrest, see 42 U.S.C. § 1983, civil con-
spiracy, and state-law false arrest and false imprisonment.
The district court granted the motion, concluding that the of-
ficers had probable cause to arrest Foreman.
II. Appeal of the Summary Judgment
Foreman’s primary argument on appeal is that prosecutor
Leisten should not be protected by absolute immunity for his
decision to charge Foreman with obstructing a police officer
despite knowing, Foreman alleges, that he did not have prob-
able cause to do so. The Supreme Court held in Imbler that
state prosecutors enjoy absolute immunity from suits under
No. 15-3096 7
§ 1983 for activities that are “intimately associated with the
judicial phase of the criminal process.” 424 U.S. at 430; see id.
at 427. Filing a criminal charge is at the core of the activities
protected by prosecutorial immunity. See Kalina v. Fletcher,
522 U.S. 118, 129 (1997); Olson v. Champaign County, 784 F.3d
1093, 1102 (7th Cir. 2015). Prosecutors do not enjoy absolute
immunity when giving legal advice to police officers during
an investigation, see Burns v. Reed, 500 U.S. 478, 496 (1991),
nor when they swear to a factual affidavit submitted with an
information for the purpose of obtaining an arrest warrant,
Kalina, 522 U.S. at 120–21, 130–31. Foreman did not allege in
his complaint, however, that Leisten had engaged in such ac-
tivities. Nor does Foreman argue that Imbler is somehow dis-
tinguishable or has been superseded by later legislation. Ra-
ther, Foreman argues that Imbler was wrongly decided and
that prosecutors should be entitled only to qualified immun-
ity. Because Imbler remains controlling law, the district court
correctly concluded that Leisten is absolutely immune from
Foreman’s damages claims against him. If Imbler is to be over-
ruled, only the Supreme Court itself can overrule it. E.g.,
Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533,
535 (1983); Hutto v. Davis, 454 U.S. 370, 375 (1982). 1
Foreman also challenges the dismissal at summary judg-
ment of the four Rockford police officers before “discovery
1 Foreman does not challenge on appeal the district court’s dismissal
under the Eleventh Amendment of his claims against Leisten in his official
capacity and against the Winnebago County State’s Attorney’s Office. This
ruling was correct. The claims also fail for another reason. A state official
in his or her official capacity is not deemed a “person” under § 1983. Will
v. Michigan Dep’t of State Police, 491 U.S. 58 (1989); Mercado v. Dart, 604 F.3d
360, 361–62 (7th Cir. 2010); Garcia v. City of Chicago, 24 F.3d 966, 969
(7th Cir. 1994) (under Illinois law, state’s attorney is state official).
8 No. 15-3096
was complete.” He argues that the City of Rockford deliber-
ately delayed complying with his discovery requests for over
a year in a strategic attempt to undermine his case. Although
he asks us to reverse the district court’s grant of summary
judgment, he does not directly challenge the merits of that de-
cision. Rather, he challenges the magistrate judge’s denial of
his request to extend the time for discovery. But Foreman did
not ask the district court to review the magistrate judge’s dis-
covery ruling and thus waived his right to attack it on appeal.
See Fed. R. Civ. P. 72(a) (requiring parties to file objections
with district court to magistrate judge’s non-dispositive pre-
trial rulings); Flint v. City of Belvidere, 791 F.3d 764, 769
(7th Cir. 2015). If Foreman believed after the defendants
moved for summary judgment that he needed further discov-
ery to respond, he could and should have moved under Fed-
eral Rule of Civil Procedure 56(d), explaining why he could
not present facts essential to his opposition. See Herzog v.
Graphic Packaging Int’l, Inc., 742 F.3d 802, 807 (7th Cir. 2014);
Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir. 2006);
see also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir.
2010) (applying rule to pro se litigant); Walker v. Bowersox, 526
F.3d 1186, 1188 (8th Cir. 2008) (same). He did not do so.
III. Appeal of the Censure Order
In addition to Foreman’s arguments on appeal, attorney
Redmond contests the district court’s decision to censure him
publicly for suing in the teeth of the controlling Supreme
Court precedent on prosecutorial immunity. We first pause to
address our jurisdiction to review the order of censure since
Redmond was not named as a party in the notice of appeal.
See Fed. R. App. P. 3(c) (requiring notice of appeal to “specify
the party or parties taking the appeal by naming each one in
No. 15-3096 9
the caption or body of the notice”); Gonzalez v. Thaler, 565 U.S.
—, —, 132 S. Ct. 641, 652 (2012) (explaining that Rule 3(c) is
jurisdictional).
The Supreme Court held in 1988 that omitting a party’s
name from a notice of appeal “constitutes failure of that party
to appeal.” Torres v. Oakland Scavenger Co., 487 U.S. 313, 314
(1988). Following Torres, we held that we lacked jurisdiction
to review an attorney’s challenge to an order of sanctions
where the attorney was not named in the notice of appeal.
See Allison v. Ticor Title Ins. Co., 907 F.2d 645, 653 (7th Cir.
1990); FTC v. Amy Travel Serv., Inc., 894 F.2d 879, 881 (7th Cir.
1989).
After Torres, though, Rule 3(c) was amended to add: “An
appeal must not be dismissed for … failure to name a party
whose intent to appeal is otherwise clear from the notice.”
Fed. R. App. P. 3(c)(4); see Becker v. Montgomery, 532 U.S. 757,
767 (2001) (explaining that amendment was intended to re-
duce litigation spawned by Torres). After the amendment,
“imperfections in noticing an appeal should not be fatal
where no genuine doubt exists about who is appealing, from
what judgment, to which appellate court.” Becker, 532 U.S. at
767.
While attorney Redmond is not named as a party in either
the caption or the body of the notice of appeal, the notice said
that the appeal would address “the order recommending cen-
sure of plaintiff’s counsel entered on October 15, 2014,” and
“the order accepting the recommendation of censure of plain-
tiff’s counsel entered on November 20, 2014.” Redmond is the
only party with an interest in those orders. He could face ad-
verse professional consequences as a result of the censure.
See Martinez v. City of Chicago, 823 F.3d 1050 (7th Cir. 2016).
10 No. 15-3096
Redmond’s failure to name himself in the notice of appeal is
harmless because his “intent to appeal is otherwise clear from
the notice.” Fed. R. App. P. 3(c)(4); see 1756 W. Lake St. LLC v.
American Chartered Bank, 787 F.3d 383, 385 (7th Cir. 2015).
On the merits of Redmond’s challenge to the order of cen-
sure, Federal Rule of Civil Procedure 11(b)(2) permits an at-
torney to assert claims precluded by existing law if the attor-
ney identifies “a nonfrivolous argument for extending, mod-
ifying, or reversing existing law.” See Nisenbaum v. Milwaukee
County, 333 F.3d 804, 809 (7th Cir. 2003) (“[C]ourts do not pe-
nalize litigants who try to distinguish adverse precedents, ar-
gue for the modification of existing law, or preserve positions
for presentation to the Supreme Court.”); Szabo Food Serv., Inc.
v. Canteen Corp., 823 F.2d 1073, 1081 (7th Cir. 1987) (“[A] party
is free to ask for reconsideration [of a Supreme Court deci-
sion] even when the court is unlikely to respond favorably.”).
But if the attorney fails to provide a non-frivolous argument
for changing the law, the district court may order the attorney
to show cause why he or she should not be sanctioned. Fed.
R. Civ. P. 11(c); see Nisenbaum, 333 F.3d at 809 (“Burying one’s
head in the sand, in the hope that a judge will disregard an
adverse decision by the Supreme Court, is a paradigm of friv-
olous litigation.”).
In this case the district court, after reviewing only
Foreman’s complaint and prosecutor Leisten’s answer, or-
dered attorney Redmond to show cause why he should not be
sanctioned under Rule 11(c). That order to show cause was
premature. Redmond had a duty of candor to the court, in-
cluding a duty to disclose controlling legal precedent adverse
to his position, see Model Rules of Prof’l Conduct r. 3.3(a)(2)
(Am. Bar. Ass’n 2016), but he was not required to anticipate
No. 15-3096 11
and respond to affirmative defenses within the complaint it-
self. Indeed, as counsel for Leisten candidly acknowledged at
oral argument, it was not clear from the face of the complaint
whether absolute immunity would even apply to the claims
against Leisten. 2
While premature, the district court’s order put Redmond
on notice of the need to offer an argument for overturning Im-
bler. See Fed. R. Civ. P. 11(b)(2). The problem was that Red-
mond did not respond to the order to show cause. When Leis-
ten later moved for judgment on the pleadings on the ground
of absolute immunity, Redmond asserted only that he
planned to challenge Imbler on appeal; he did not provide a
substantive argument for doing so.
Only after the magistrate judge recommended a public
censure did Redmond first offer an argument for overturning
Imbler, by attaching to his written objection a portion of his
brief from the earlier case. Attaching the brief may be enough
to put the opposing party and the court on notice of the sub-
stance of his argument, at least for purposes of sanctions is-
sues. Even so, the district court did not abuse its discretion in
concluding that counsel’s argument came too late. See United
States v. Rogers Cartage, Co., 794 F.3d 854, 862 (7th Cir. 2015).
Redmond explained that he did not identify the argument
2 For example, Leisten would be entitled to only qualified immunity
if Foreman had alleged that the prosecutor colluded with the police offic-
ers during the investigation to fabricate false charges against him.
See Burns, 500 U.S. at 496. Alternatively, Leisten might have been entitled
to only qualified immunity if he swore to an affidavit in support of the
Information that he filed against Foreman. Kalina, 522 U.S. at 121–22, 129–
31 (prosecutor who submitted affidavit in support of arrest warrant acted
as complaining witness rather than lawyer and was entitled to only qual-
ified, not absolute, immunity).
12 No. 15-3096
earlier because he thought “there was no point.” But even if
he believed it would be futile, Redmond was still required to
present a non-frivolous argument for changing the law to the
district court rather than raising it for the first time on appeal.
See Fed. R. Civ. P. 11(b)(2); Hess v. Bresney, 784 F.3d 1154, 1161
(7th Cir. 2015) (“It is well settled that arguments not devel-
oped before the district court are deemed waived on ap-
peal.”).
Rule 11 sanctions are left to the sound discretion of the dis-
trict court. While we might not have taken the same action in
the first instance, the district court’s order of censure was not
based on any legal error and was not an abuse of discretion.
Accordingly, both the judgment of the district court in fa-
vor of the defendants and the court’s order of censure are
AFFIRMED.