David Snyder v. J. King, et al

Filing

Filed opinion of the court by Judge Kanne. AFFIRMED. Diane P. Wood, Chief Judge, concurring; William J. Bauer, Circuit Judge and Michael S. Kanne, Circuit Judge. [6558560-1] [6558560] [13-1899]--[Edited 03/11/2014 by AD to correct attachment.]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 13-1899
DAVID R. SNYDER,
Plaintiff-Appellant,
v.
J. BRADLEY KING, TRENT DECKARD,
LINDA SILCOTT, AND PAM BRUNETTE,
Defendants-Appellees.

Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10-cv-01019 — William T. Lawrence, Judge.

ARGUED SEPTEMBER 30, 2013 — DECIDED MARCH 11, 2014

Before WOOD, Chief Judge, and BAUER and KANNE, Circuit
Judges.
KANNE, Circuit Judge. This case is about small town politics,
a bare-knuckle brawl, and the right to vote. But the appeal
before us is limited to drier subjects: sovereign immunity, and

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the pleading requirements for a civil rights action against a
municipality. The district judge dismissed the state-affiliated
defendants on immunity grounds, and found that the plaintiff
failed to state a claim against the county-affiliated defendants.
He then went on to consider whether injunctive or declaratory
relief might be available to the plaintiff, but that was
unnecessary. His initial findings were correct, and they dispose
of the case entirely. We affirm the dismissal.
I. BACKGROUND
In 2003, David Snyder was elected to the Roseland Town
Council, which serves a small incorporated community located
at the north end of South Bend, Indiana, near the IndianaMichigan line. It is fair to describe Snyder’s tenure on the
Roseland Town Council as controversial. See, e.g., Welcome to
Snyderville (Notre Dame Student Film Festival 2007), available
at http://www.youtube.com/watch?v=Xzyny_bThHs
(published Feb. 28, 2013). At a council meeting on January 11,
2007, Snyder was involved in a fistfight with fellow council
member Ted Penn. He was arrested and charged with battery,
as defined at Ind. Code § 35-42-2-1, and with felony
intimidation, as defined at Ind. Code § 35-45-2-1(a)(2).
On July 31, 2008, a jury convicted Snyder of battery as a
Class A misdemeanor, but acquitted him of the felony
intimidation charge. The court handed down a one-year
sentence, with six months suspended and six months to be
executed on home detention. In February 2009, the court
determined that Snyder had violated the terms of his probation
and found that a period of incarceration was warranted.

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Snyder served the remainder of his sentence at the St. Joseph
County Jail. He was released in May 2009.
On March 4, 2009, while Snyder was still incarcerated,
defendants Linda Silcott and Pam Brunette, then members of
the St. Joseph County Voter Registration Board, sent him a
letter announcing that his voter registration had been cancelled
pursuant to Ind. Code § 3-7-46. Section 3-7-46-2 provides that
“[a] person imprisoned following conviction of a crime is
disfranchised during the person’s imprisonment,” and Section
3-7-46-1 directs that “a county voter registration office shall
remove from the official list of registered voters the name of a
voter who is disfranchised under this chapter due to a criminal
conviction.” Indiana law did (and does) permit Snyder to reregister to vote at any time following his release from jail, and
Snyder knew he could exercise that right. See Ind. Code § 3-713-5. Nonetheless, Snyder refused to re-register. He went to the
polls to vote in a special election in November 2009, and, to
nobody’s surprise, he was turned away.
This lawsuit followed. Invoking 42 U.S.C. § 1983 as the
basis for his action, Snyder sued J. Bradley King and Trent
Deckard (“State Defendants”) in their official capacities as CoDirectors of the Indiana Election Division, and he sued Linda
Silcott and Pam Brunette (“County Defendants”) in their
official capacities as members of the St. Joseph County Voter
Registration Board. He alleged that his temporary
disenfranchisement violated the National Voter Registration
Act of 1993, 42 U.S.C. § 1973gg; the Help America Vote Act of
2002, 42 U.S.C. § 15301; the Civil Rights Act of 1964, 42 U.S.C.
§ 1971; the First and Fourteenth Amendments to the United
States Constitution; and Article 2, Section 8, of the Indiana

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Constitution. Notably, he did not include any allegations that
his injury was caused by a municipal-level custom or policy
promulgated by the County Defendants.
At the request of the parties, the district court certified the
Indiana constitutional question to the Indiana Supreme Court.
Snyder’s argument was that Article 2, Section 8, only
authorizes the General Assembly to disenfranchise those
convicted of “infamous crimes,” and, since his was not an
“infamous crime,” he could not be stripped of his voting rights.
The Indiana Supreme Court agreed that Snyder’s
disenfranchisement was not authorized under the particular
provision at issue, but held that the Indiana Constitution
separately authorized the assembly to temporarily
disenfranchise any incarcerated convict: “the Indiana General
Assembly has authority under its general police power to
disenfranchise persons incarcerated upon conviction of a
crime, so long as the disenfranchisement lasts only for the
duration of incarceration.” Snyder v. King, 958 N.E.2d 764, 78586 (Ind. 2011).
After the Indiana Supreme Court issued its ruling, the
parties cross-moved for summary judgment on the remaining
claims in the district court. Before ruling on the motions,
however, the district court, acting sua sponte, ordered the
parties to file additional briefing addressing the continued
justiciability of the controversy. The issues were fully briefed,
and both parties took the position—albeit for different
reasons—that the case was not moot and could continue.
Regardless, the district court dismissed the case. Snyder v. King,
No. 1:10–cv–01019, 2013 WL 1296791 (S.D. Ind. March 28,
2013).

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As a threshold matter, the district court held that the State
Defendants were not a proper party to the suit on sovereign
immunity grounds. Neither party takes issue with that
conclusion. Next, the district court held that the suit against the
County Defendants also failed, because a county “cannot be
held liable under Section 1983 for acts that it did under the
command of state or federal law.” Id. at *2 (quoting Bethesda
Lutheran Homes and Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th
Cir. 1998)). That rule is based on the statutory elements of a 42
U.S.C. § 1983 claim against a municipal entity, as discussed by
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and its
progeny.
Despite the Monell dismissal, the district court went on to
separately consider Snyder’s claim for injunctive and
declaratory relief against the County Defendants. The district
court found those claims insufficient to preserve a live
controversy for two reasons. First, the specific language of the
complaint sought an injunction “preventing” the defendants
from removing Snyder from the voter rolls. Since Snyder had
already been removed, the district court held that it had no
power to redress his injury through the relief requested: “one
cannot ‘prevent’ something that has already occurred.” Id. at
*3. Second, to the extent that Snyder’s claim for injunctive relief
might be construed more broadly as a demand for reinstatement
to the voter rolls, the district court found that no controversy
existed because Snyder was free to re-register at any time if he
would simply choose to do so. Id. at *4.
On appeal, the parties continue to agree that the case is not
moot, and jointly ask us to reverse the dismissal by the district
court. Their reasons differ in some respects. Snyder believes

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that a live controversy exists because nominal damages are
available against the County Defendants and because his
requests for declaratory and injunctive relief—namely,
reinstatement to the voter rolls under his previous
registration—are still pending. The defendants disagree as to
the availability of money damages of any kind, but agree that
Snyder may still seek equitable relief from the County
Defendants.
We are not at all bound to find that a dispute is justiciable
simply because both parties believe that it is, and this is an
instance where we must exercise our prerogative to hold
otherwise. Snyder has affirmatively waived any challenge to
the dismissal of the State Defendants, and he has failed to state
a Monell claim against the County Defendants. As a result, he
simply has no lawsuit left; mootness is not the issue. Despite
some confusion along the way, the district court reached the
right result, and we affirm its dismissal of the case.
II. ANALYSIS
The district court ultimately dismissed the case because it
believed that the case was moot. But the district court arrived
at the mootness question only after reaching several
preliminary conclusions. First, the district court found that the
State Defendants were not proper parties to the suit. Next, the
district court threw out the claim against the County
Defendants on Monell grounds, essentially finding that Snyder
failed to state a claim. Finally, the district court found that the
remaining claim for injunctive relief against the County
Defendants was moot, and dismissed the case entirely.

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We review each of the district court’s conclusions de novo.
See, e.g., Lavalais v. Village of Melrose Park, __ F.3d __, 2013 WL
5753781 at *2 (7th Cir. Oct. 24, 2013) (“We review de novo a Rule
12(b)(6) dismissal for failure to state a claim.”); Wisconsin v.
Ho-Chunk Nation, 512 F.3d 921, 929 (7th Cir. 2008) (we review
a grant or denial of sovereign immunity de novo); Home Builders
Ass’n of Greater Chi. v. U.S. Army Corps of Eng’rs, 335 F.3d 607,
614 (7th Cir. 2003) (we review questions of justiciability de novo,
looking beyond the pleadings if necessary). Our review shows
that the district court’s last step—the mootness analysis—was
unnecessary. The lawsuit is properly dismissed on immunity
and Monell grounds alone. We therefore affirm the dismissal of
the case without reaching the mootness question.
A. The State Defendants
We first review the dismissal of the State Defendants. The
specific grounds for the district court’s dismissal of the State
Defendants are not discussed in its order, but it is clear that
they were dismissed. Snyder knew dismissal was a possibility;
the district court’s order demanding additional briefing by the
parties highlighted its concerns about the viability of the State
Defendants as parties to this suit. But Snyder’s briefing did not
respond to those concerns at all, nor has Snyder attacked the
district court’s dismissal of the suit against the State
Defendants on appeal. Accordingly, any argument on the
subject is waived. Luellen v. City of East Chicago, 350 F.3d 604,
612 nn.4–5 (7th Cir. 2003) (arguments not raised on appeal are
waived); Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001)
(“We have long held that ‘[i]ssues that a claimant fails to raise
before the district court are waived on appeal.’”) (quoting
Ehrhart v. Sec’y of Health and Human Servs., 969 F.2d 534, 537 n.

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4 (7th Cir. 1992)). Moreover, Snyder has affirmatively conceded
that he cannot obtain any meaningful relief against the State
Defendants. The district court’s dismissal of the State
Defendants must therefore be affirmed.
B. The County Defendants
The second question is whether Snyder can obtain any
relief from the County Defendants. He believes that he can,
both in terms of nominal damages for a proven constitutional
violation and in terms of injunctive and declaratory relief. The
defendants disagree as to nominal damages, but agree as to the
availability of injunctive or declaratory relief. In fact, neither is
available.
1. Nominal Damages
Snyder first argues that his case is not moot because he may
obtain nominal damages from the County Defendants in the
event that a federal constitutional violation is shown. Snyder’s
argument is based on the general rule that a plaintiff who
successfully proves a constitutional violation is entitled to at
least a nominal award. See, e.g., Calhoun v. DeTella, 319 F.3d 936,
941–42 (7th Cir. 2003). But that argument misses the point.
Under well-established precedent, a plaintiff cannot state a
Section 1983 claim against a municipal entity, or against a
municipal officer in his or her official capacity, unless certain
requirements are met. If Snyder has not stated an actionable
claim against the County Defendants, then he cannot possibly
be entitled to any damages against the County Defendants,
regardless of whether a successful plaintiff might be entitled to
nominal damages in some other hypothetical context.

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Snyder Has Not Stated a Section 1983 Claim.

Snyder sued the County Defendants in their official
capacities under 42 U.S.C. § 1983, which is essentially another
way of suing the county-affiliated entity they represent. This
means that Snyder can only proceed against the County
Defendants to the extent that he would be able to proceed
against the county—or, more specifically, against the St. Joseph
County Voter Registration Board—itself. Monell, 436 U.S. at 690
n.55. Accordingly, we apply the rules governing municipal
liability to determine whether Snyder has stated a claim
against the County Defendants. In doing so, we note that a
district court’s sua sponte dismissal on Monell grounds, while
unusual, is not legally impermissible so long as the district
court gives the parties an opportunity to respond. Pourghoraishi
v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006). The district
court did so in this case.
Section 1983 only permits an individual to sue a “person”
who deprives that individual of his or her federally-guaranteed
rights under color of state law. Local governing bodies—and
the officers thereof, acting in their official capacities—do
generally qualify as “persons” under the statute. Monell, 436
U.S. at 690–95 (establishing the foundational rule). But that is
not true when a local governing body acts solely as an
extension of the State, because State governments and State
officials are not “persons” within the ambit of Section 1983. See,
e.g., Kaimowitz v. Bd. of Trs. of Univ. of Ill., 951 F.2d 765, 767 (7th
Cir. 1991) (citing Will v. Michigan Dep’t of State Police, 491 U.S.
58, 64 (1989)). As a result, whether or not a plaintiff has stated
a Section 1983 claim against a municipal entity typically hinges
on the extent to which that municipal entity was

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independently responsible for the allegedly unconstitutional
act.
In answering that question, courts have focused on whether
“there is a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.” City of
Canton v. Harris, 489 U.S. 378, 385 (1989); Leahy v. Bd. of Trs., 912
F.2d 917, 922 (7th Cir. 1990) (“Proximate causation between the
municipality’s policy or custom and the plaintiff’s injury must
be present.”) (quoting Strauss v. City of Chicago, 760 F.2d 765,
767 (7th Cir. 1985)). To say that any such direct causal link
exists when the only local government “policy” at issue is
general compliance with the dictates of state law is a bridge too
far; under those circumstances, the state law is the proximate
cause of the plaintiff’s injury. See Surplus Store and Exchange,
Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir. 1991));
Whitesel v. Sengenberger, 222 F.3d 861, 872 (10th Cir. 2000)
(county cannot be liable for “merely implementing” a policy
created at the state level); Familias Unidas v. Briscoe, 619 F.2d
391, 404 (5th Cir. 1980) (municipal entity cannot be held liable
for simply enforcing state law because the municipal policy in
that instance “may more fairly be characterized as the
effectuation of the policy of the State … embodied in that
statute, for which the citizens of a particular county should not
bear singular responsibility.”). This is the rule to which the
district court was referring when it invoked Bethesda: a county
“cannot be held liable under Section 1983 for acts that it did
under the command of state or federal law.” 154 F.3d at 718.
The operative complaint in this case is devoid of any
remotely specific allegation that a county-level policy or
custom caused Snyder’s harm. That alone is grounds for

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dismissal. See, e.g., Pam v. City of Michigan City, No. 3:12-CV265, 2012 WL 4060970 at *3 (N.D. Ind. Sept. 7, 2012) (collecting
cases from district courts within our circuit). For one reason or
another, both the parties and the court expanded their
discussion to include matters outside of the pleadings, rather
than grapple with the obvious defect in the complaint itself.
But even when those outside matters are taken into account
Snyder has failed to state an actionable claim.
Snyder argues that his injury was directly caused by the
County Defendants because they made a “conscious policy
choice [to remove him from the voter rolls] from among
existing alternatives, a choice which violated the constitution.”
(Appellant’s Br. at 18.) There are three basic steps to his
argument. First, Snyder claims that the Indiana Code defines
the word “crime,” as used in Section 3-7-46-2 and elsewhere,
in such a way that it is ambiguous, meaning either “felony,”
“misdemeanor,” or both. Second, Snyder argues that the
County Defendants, in removing him from the voter rolls,
themselves resolved the “crime” ambiguity in the voterdisenfranchisement provisions in question to include both
felonies and misdemeanors. Third, Snyder argues that, in
doing so, the board took an action that was merely
“authorized,” not “compelled,” by state law, and that this case
therefore falls outside the scope of Bethesda and related
authorities. Putting it all together, Snyder sees an independent
policy decision by the County Defendants to remove him from
the voter rolls, one made possible—but not dictated—by
statute.
If each step of Snyder’s argument was correct, it would
indeed lead to the conclusion he desires. See, e.g., Vives v. City

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of New York, 524 F.3d 346, 351 (2d Cir. 2008) (collecting
authorities which, to varying degrees, found “that a
municipality engages in policy making when it determines to
enforce a state law that authorizes it to perform certain actions
but does not mandate that it do so.”); Cooper v. Dillon, 403 F.3d
1208 (11th Cir. 2005). The problem is that none of them are
correct.
The first step in Snyder’s argument is his assertion that the
use of the word “crime” in the statute is ambiguous, because
the word “crime” in the Indiana Code can refer to a felony, a
misdemeanor, or both. Snyder is mostly right about the
meaning of the word. For our purposes, “‘crime’ means a
felony or a misdemeanor.” Ind. Code § 35-31.5-2-75(a)
(emphasis added).1 But nothing about that makes the relevant
code provision ambiguous. Replacing the phrase “a crime”
with the phrase “a felony or a misdemeanor” in the text
illustrates our point. Section 3-7-46-2 would read, “[a] person
imprisoned following conviction of [a felony or a
misdemeanor] is disfranchised during the person’s
imprisonment.” No rule of usage in the English language
supports construing that sentence to create a “reader’s choice”
scenario, in which local boards choose which crimes it covers
and which it does not. That sentence means that a person
convicted of either a felony or a misdemeanor is temporarily
1

This is consistent with what any layperson would understand the word
“crime” to mean. There are few words in the legal lexicon with a more
widely understood plain meaning than “crime,” defined generally as “[a]n
act that the law makes punishable; the breach of a legal duty treated as the
subject-matter of a criminal proceeding.” Black’s Law Dictionary
(9th ed. 2009).

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disenfranchised. There is no ambiguity to the statute, and that
alone invalidates Snyder’s argument. Contrary to his
assertions, the statutory directive does not leave the reader
with any room to choose how broadly to define the word
“crime.”
The second step in Snyder’s argument is his assertion that
the County Defendants themselves decided to broadly
interpret the word “crime” in the statute. That assertion is
independently faulty. Even if there was room to interpret the
statute—and there is not—the County Defendants would never
be the ones doing the interpretation. The mechanism by which
disenfranchisement of incarcerated persons occurs is laid out
in the code. Under the scheme, on a quarterly basis, a county
sheriff must provide the county voter registration board with
a list of every individual who “(1) is a resident of Indiana; (2)
has been convicted of a crime; and (3) has been placed in a
county correctional facility during the previous quarter.” Ind.
Code § 3-7-46-6. When the county voter registration board
receives such notice, it “shall … remove the name of the person
from the voter registration records[.]” Ind. Code § 3-7-46-7.5
(emphasis added). In other words, there is no opportunity for
the County Defendants—as members of the voter registration
board—to decide what constitutes “a crime” under Section 3-746-2. The county sheriff, if anyone, decides who qualifies for
the disenfranchisement list; all the voter registration board
does is delete the names the sheriff provides. The role of the
local voter registration boards is therefore purely reactionary.
It is easy to see, given the flaws in the first two steps in
Snyder’s argument, why the third step and his conclusion are
also wide of the mark. Snyder hopes to paint this case as one

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in which the County Defendants made an independent choice
from among various alternatives authorized by state law, but
that characterization is based on an inaccurate understanding
of the Indiana system. The statute in question does not merely
authorize removal from the voter rolls for incarcerated
convicts. The statutory language is compulsory.2 And to the
extent that any discretion is permitted, it is exercised by actors
other than the County Defendants. Snyder knows that; the
“Factual Allegations” section of his own Amended Complaint
places interpretive responsibility squarely on the shoulders of
State-level actors, and not on the County Defendants.
For all of these reasons, this situation does not support a
finding of Monell liability. When state law unequivocally
instructs a municipal entity to produce binary outcome X if
condition Y occurs, we cannot say that the municipal entity’s
“decision” to follow that directive involves the exercise of any
meaningful independent discretion, let alone final policymaking authority.3 It is the statutory directive, not the follow2

In addition to the provisions concerning how removal is carried out, see
the general directive at Ind. Code § 3-7-46-1: “a county voter registration
office shall remove from the official list of registered voters the name of a
voter who is disfranchised … due to a criminal conviction.”(emphasis
added).

3

We say that the code sections instruct county registration boards to
produce a certain “binary outcome” under the circumstances prescribed
because a person either is, or is not, removed from the voter rolls. There is
no in-between, and there are no constitutionally or statutorily meaningful
variables that govern the manner in which the act of removal from the voter
rolls is accomplished. We highlight this reality to distinguish the instant
(continued...)

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through, which causes the harm of which the plaintiff
complains.
Finally, we note that it makes no difference that the County
Defendants exercise broad independent discretion with respect
to other matters of election law and procedure; the question is
whether the plaintiff has identified the decisionmaker
“responsible for establishing final policy with respect to the
subject matter in question.” Pembaur v. Cincinnati, 475 U.S. 469,
483 (1986). The subject matter in question is the removal of
incarcerated convicts from the voter rolls, and the only
“policy” the County Defendants established with respect to
that issue was to follow the mandatory mechanism laid out by
statute. Whether one views their role as merely implementing
the statutory directive, or as carrying out the removal of those
identified as statutorily appropriate by the local sheriff, the

3

(...continued)
case from those in which state law instructs a municipal official to take a
certain action, but leaves room for abundant discretion in determining the
manner in which such an action should be carried out. For example, in
Mercado v. Dart, 604 F.3d 360, 365 (7th Cir. 2010), we explained that even if
the Illinois code provision authorizing county sheriffs to perform a strip
search of all inmates entering a county jail is read to make a strip search
mandatory, it still leaves room for the sheriffs to set local policy with
respect to the level of intrusiveness involved and the manner in which the
search is conducted. Id. 365. A given sheriff’s independent decisions, with
respect to those secondary questions, could easily be the difference between
an unconstitutionally intrusive search and one which was not. Id. But the
instant case is clearly different. The alleged constitutional violation is the
removal from voter rolls—the very thing mandated by statute—and there
is no more to it than that. It is not as if removal by white-out might be
constitutionally suspect, while removal by delete key clearly is not.

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local voter registration boards simply do not make an
independent policy judgment. “The mere authority to
implement pre-existing rules is not the authority to set policy,”
Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004), and neither
is it enough to sustain a suit under Section 1983.
b.

Nominal Damages Are Not Available.

The next question is whether Snyder may still obtain
nominal damages from the County Defendants despite the fact
that he has not stated a claim against them under Section 1983.
It is clear that he cannot. No plaintiff can recover any kind of
damages against a defendant without first obtaining a
judgment against that defendant, and a prerequisite to a
judgment is a lawsuit. Snyder does not have a lawsuit against
the County Defendants, because he failed to state a claim.
2. Injunctive and Declaratory Relief
Both the parties and the district court spoke about the
possibility of injunctive and declaratory relief against the
County Defendants as though it were an issue totally distinct
from whether Snyder adequately stated a Monell claim against
those defendants. That was incorrect. The Supreme Court has
squarely held that Monell’s “policy or custom” requirement
applies in Section 1983 cases irrespective of whether the relief
sought is monetary or prospective. Los Angeles Cnty., Cal. v.
Humphries, 131 S. Ct. 447, 453–54 (2010). Snyder cannot obtain
injunctive or declaratory relief against the County Defendants
for the same reason he cannot obtain nominal damages: he has
not adequately pleaded a suit against them. It is therefore
unnecessary to consider whether any claim for injunctive relief
is moot.

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III. CONCLUSION

We acknowledge that the right to vote is fundamental, and
we do not take any case alleging its infringement lightly. But
it is incumbent on a litigant to identify a proper defendant for
his suit and to properly plead an action against that defendant.
Snyder has not done so. Because Snyder has waived any
challenge to the dismissal of the State Defendants, and because
he has failed to state a claim against the County defendants, we
AFFIRM the district court’s dismissal of his suit.

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WOOD,  Chief  Judge,  concurring  in  the  judgment.  I  agree 
with my colleagues that David Snyder’s suit against the Co‐
Directors of the Indiana Election Division (the State Defend‐
ants) and the named members of the St. Joseph County Voter 
Registration Board (the County) must be rejected as a matter 
of  law.  My  path  to  that  conclusion  is,  however,  somewhat 
different  from  theirs.  I  agree  with  them  that  Snyder’s  suit 
against the State Defendants was properly dismissed on sov‐
ereign immunity grounds. Indeed, as they point out, ante at 
5,  that  conclusion  appears  to  be  unchallenged  on  appeal. 
With  respect  to  the  County  (and  the  named  defendants  in 
their  official  capacity,  which  amounts  to  the  same  thing),  I 
would stop with the majority’s observation at the bottom of 
page 10 that “[t]he operative complaint in this case is devoid 
of any remotely specific allegation that a county‐wide policy 
or custom caused Snyder’s harm.” In other words, the reason 
Snyder fails is not because a claim was impossible under the 
state  and  county  laws  governing  voter  registration;  it  is  be‐
cause Snyder failed to plead the correct causes of action. 
Monell v. Dep’t of Soc. Servs. held that municipalities and 
counties  qualify  as  “persons”  for  liability  under  42  U.S.C.  § 
1983, 436 U.S. 658, 663 (1978); states do not, according to Will 
v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989). Entities do 
not  lose  their  status  as  “persons”  because  of  rulings  on  the 
merits. It is thus important to recognize, as I believe the ma‐
jority  does,  ante  at  5,  that  even  though  a  county  “cannot  be 
held  liable  under  section  1983  for  acts  that  it  did  under  the 
command  of  state  or  federal  law,”  Bethesda  Lutheran  Homes 
and Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998), that 
is not because the county somehow loses its status as a “per‐

Case: 13-1899

No. 13‐1899 

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Filed: 03/11/2014

Pages: 20

19 

son” in such a situation. It is because there is no county poli‐
cy that is driving the county to act in a certain way. The latter 
is a point on the merits, not a point about which kinds of en‐
tities fall within the scope of the statute.  
Having recognized that the County is subject to suit un‐
der § 1983, the majority turns to the details of Snyder’s com‐
plaint.  It  rejects  the  idea  that  Snyder  could  have  been  com‐
plaining  about  the  way  in  which  county  officials  were  im‐
plementing Indiana’s statutory scheme for temporary disen‐
franchisement of convicted criminals. But as I read his com‐
plaint, that is exactly what he is doing: he believes that state 
law  leaves  enough  discretion  with  the  local  authorities  to 
permit  a  valid  claim  against  the  County  under  Monell. 
Snyder  argues  that  state  law  merely  gives  county  officials 
the  authority  to  cancel  the  voter  registration  of  someone  in 
his position (a convicted misdemeanant), and that it does not 
compel them to take this step. All that Ind. Code 3‐7‐46‐1 says 
is that counties must remove voters who are disenfranchised 
because of a “criminal conviction.” The statute does not con‐
strain  them  further,  and  so,  Snyder  argues,  a  county  could 
decide that a threshold of seriousness must be passed before 
something  as  drastic  as  the  loss  of  the  right  to  vote  takes 
place.  The  usual  such  threshold  would  be  the  line  between 
misdemeanors and felonies. See Compl. ¶¶ 9, 10, for places 
in  which  Snyder  explains  that  this  is  where  he  finds  the 
County’s  discretion.  Paragraph  10,  in  fact,  alleges  that  the 
State Defendants “advised” all county officials that all crim‐
inals—felons  and  misdemeanants  alike—should  be  disen‐
franchised, not that they ordered this result.  

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20 

Document: 31

Filed: 03/11/2014

Pages: 20

No. 13‐1899 

Essentially,  Snyder  is  making  a  legal  point  about  the  In‐
diana  statute.  Our  review  of  the  law  is  de  novo,  and  it  lies 
comfortably within the authority of the district court to dis‐
miss a complaint for failure to state a claim upon which re‐
lief  can  be  granted.  With  the  contribution  of  the  Supreme 
Court of Indiana in this very case, Snyder v. King, 958 N.E.2d 
764  (Ind.  2011),  they  conclude  that  the  governing  Indiana 
statutes  operate  to  require  the  temporary  disenfranchise‐
ment  of  any  person  incarcerated  after  any  criminal  convic‐
tion.  Under  that  understanding  of  Indiana  law,  Snyder’s 
complaint  was  properly  dismissed  under  Federal  Rule  of 
Civil Procedure 12(b)(6). It was not moot, however. I believe 
that  my  colleagues  also  find  no  mootness,  since  they  con‐
clude  at  the  end  that  Snyder  “has  failed  to  state  a  claim 
against the County defendants,” ante at 17. (If it were moot, 
then the dismissal would have to be under Rule 12(b)(1), for 
lack of subject‐matter jurisdiction.)  
I am not thoroughly convinced that Indiana law restricts 
the County so strictly that there is no room left for a genuine 
county‐level policy in this area  that can be evaluated under 
Monell.  Nor  is  it  crystal‐clear  to  me  that  any  attempt  to  re‐
plead this case would be doomed. But the district court has 
substantial discretion on the latter point, and Snyder’s com‐
plaint does not do a good job of explaining exactly what dis‐
cretion  he  thinks  the  County  retains.  For  these  reasons,  I 
concur in the judgment.