Richards, Terence B. v. County of Lake , 263 F. App'x 493 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 February 6, 2008*
Decided February 6, 2008
By the Court:
No. 07-2289
TERENCE B. RICHARDS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 07 C 1732
DANIEL KLEINHUBERT and
COUNTY OF LAKE, ILLINOIS, Suzanne B. Conlon,
Defendants-Appellees. Judge.
ORDER
Terence Richards lost thousands of dollars to an acquaintance, Donald
Harrington. Richards complained to law enforcement, and Harrington was arrested
and charged in Lake County, Illinois, with felony theft. Harrington negotiated a
plea agreement with Assistant State’s Attorney Daniel Kleinhubert, which allowed
him to plead guilty to the lesser charge of misdemeanor theft and avoid paying any
restitution to Richards. Angered by this, Richards sent numerous threatening
emails to Kleinhubert and others involved in the events leading to the prosecution
of Harrington. Richards was then himself arrested by federal authorities. He
pleaded guilty to two counts of transmitting threatening communications in
*
Because of the procedural posture of this case (it was dismissed on
preliminary screening prior to service), the defendants are not participating in this
appeal. Thus, the appeal is submitted on the briefs and the record. See FED. R.
APP. P. 34(a)(2).
No. 07-2289 Page 2
interstate commerce, see 18 U.S.C. § 875(c), and is currently serving a thirty-month
sentence.
Richards then sued Kleinhubert and the county under 42 U.S.C. § 1983. He
essentially claims that Kleinhubert erroneously believed he was stalking
Harrington and, as a consequence, violated his Fourteenth Amendment rights by
refusing to consult him during the prosecution of Harrington. See Rights of Crime
Victims and Witnesses Act, 725 ILCS 120/4 (establishing that victims of violent
crime in Illinois have right under Illinois statute to communicate with state
prosecutor). Richards also makes the patently frivolous claim that Kleinhubert
infringed his First Amendment right to free exercise of religion by breaking one of
the Ten Commandments, “Thou Shall Not Stand False Witness.” Richards alleges
that these events occurred between October 2002 and January 22, 2004.
The district court dismissed the case pursuant to 28 U.S.C. § 1915A(b)(1),
counting it as a strike. See id. § 1915(g). First, the district court concluded that
Richards’s suit is time-barred. Richards tendered his complaint on March 28, 2007,
past the two-year statute of limitations for § 1983 claims arising in Illinois. See 735
ILCS 5/13-202; Williams v. Lampe, 399 F.3d 867, 869-70 (7th Cir. 2005). And even
if the complaint was timely, the court continued, it fails to state a claim because
prosecutors acting within the scope of their duties in initiating and pursuing
criminal charges are absolutely immune from civil damages under § 1983. See
Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Levy v. Pappas, No. 06-3182, 2007
U.S. App. LEXIS 29536, at *22-23 (7th Cir. Dec. 21, 2007). Moreover, the court
explained, Richards does not assert any claim against Lake County that is premised
on a theory of liability other than respondeat superior, so neither could he recover
from the county because there is no vicarious liability under § 1983. See Pacelli v.
DeVito, 972 F.2d 871, 878 (7th Cir. 1992).
On appeal Richards first contends that the two-year statute of limitations
should not bar his complaint. Richards says that he never knew about the Illinois
crime victims’ statute during the Harrington prosecution, and thus was unaware at
the time that Kleinhubert was violating his statutory rights. See 725 ILCS 120/1-
120/9. According to Richards, his cause of action did not accrue until he learned
about the statute’s provisions.
Richards’s argument is meritless. Although a federal complaint “need not
anticipate or overcome affirmative defenses such as the statute of limitations,”
dismissal on that basis is appropriate when the plaintiff effectively pleads himself
out of court by alleging facts that are sufficient to establish the defense. Hollander
v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006); see also FED. R. CIV. P. 8. It is
apparent from Richards’s complaint and from his brief in this court that the events
he complains of occurred well outside the statute of limitations. A § 1983 claim
No. 07-2289 Page 3
accrues on “the date that the plaintiff knew or should have known that his
constitutional rights had been violated.” Savory v. Lyons, 469 F.3d 667, 672 (7th
Cir. 2006). Richards obviously knew during the limitations period that Kleinhubert
had refused to communicate with him during the Harrington case; that Richards
may not have understood the legal significance of that refusal is not sufficient to
prove that his claim accrued later than the date of his injury. See Sides v. City of
Champaign, 496 F.3d 820, 826 (7th Cir. 2007).
In light of the above, we need not address Richards’s remaining contentions.
The judgment of the district court is AFFIRMED. We further note that this appeal
counts as an additional strike against Richards, and that he now has incurred more
than three strikes. See 28 U.S.C. § 1915(g); George v. Smith, 507 F.3d 605, 608 (7th
Cir. 2007); In re: Richards, No. 07-3158 (7th Cir. Sept. 21, 2007); Richards v. United
States, No. 07 C 50062 (N.D. Ill. July 31, 2007); Richards v. Flynn, No. 07 C 1528
(N.D. Ill. July 17, 2007). Should Richards attempt to file any further civil litigation
in any federal court without prepaying all required fees, or meeting the
imminent-danger standard of § 1915(g), we will enter an order under Support Sys.
Int’l, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995), precluding him from filing further
civil suits whether or not he pays in advance.