NONPRECEDENTIAL DISPOSITION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 January 20, 2011*
Decided January 20, 2011
By the Court:
No. 10‐2699
BERNARD TOCHOLKE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 09‐C‐1125
STATE OF WISCONSIN, Patricia J. Gorence,
Defendant‐Appellee. Magistrate Judge.
O R D E R
Bernard Tocholke appeals the dismissal of his civil‐rights complaint, in which he
alleged constitutional violations in the course of state‐court proceedings concerning the
dissolution of his marriage and the custody of his children. We affirm.
Tocholke’s complaint derides Wisconsin state judges, court commissioners, and a
court‐appointed guardian ad litem for depriving him of his life, liberty, and property
without due process. He alleges, for instance, that court personnel engaged in “malicious
prosecution” and “abuse of process” by incorrectly calculating his income for child‐support
purposes, altering transcripts of court proceedings, and wrongfully incarcerating him for
nonpayment of child support. Although Tocholke complains of judicial misconduct by
various court personnel, he named only the State of Wisconsin as a defendant. The
magistrate judge, presiding by the parties’ consent, construed Tocholke’s complaint as one
*
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 FED. R. APP. P.
34(a)(2)(C).
No. 10‐2699 Page 2
brought under
42 U.S.C. § 1983, and dismissed it on the ground that the State of Wisconsin
is not a “person” within the meaning of the statute and therefore could not be sued under
the statute.
On appeal Tocholke rehashes his displeasure with the judicial system generally, and
we strain to ascertain any argument developed enough to warrant consideration. See FED. R.
APP. P. 28(a); Anderson v. Hardman,
241 F.3d 544, 545 (7th Cir. 2001). He does assert that the
district court misconstrued his complaint as being brought under § 1983 and thereby
wrongly dismissed it for naming an improper defendant. But he provides no alternative
basis for federal jurisdiction, and the magistrate judge acted within her discretion in
construing his claims as arising under § 1983. Indeed, his request for damages from state
judicial and quasi‐judicial actors for violating his constitutional rights is a common basis for
§ 1983 suits. See, e.g., Dawson v. Newman,
419 F.3d 656, 658 (7th Cir. 2005); Capogrosso v. The
Supreme Court of New Jersey,
588 F.3d 180, 182 (3d Cir. 2009); Huminski v. Corsones,
396 F.3d
53, 58, 70 (2d Cir. 2005). The magistrate judge was also correct to dismiss Tocholke’s
complaint against the State of Wisconsin because a state is not a “person” subject to suit
under § 1983, see, e.g., Haywood v. Drown,
129 S. Ct. 2108, 2113 n.4 (2009); Will v. Mich. Dep’t
of State Police,
491 U.S. 58, 71 (1989); Ill. Dunesland Pres. Soc’y v. Illinois Dept. of Natural Res.,
584 F.3d 719, 721 (7th Cir. 2009), and Tocholke never sought to amend his complaint to
include individual court personnel or state officials as defendants, see FED. R. CIV. P. 15(a);
Abcarian v. McDonald,
617 F.3d 931, 934 (7th Cir. 2010).
AFFIRMED.
