Bertha v. Kane County State's Attorney's Office et al
Filing
82
MEMORANDUM Opinion and Order: For the reasons stated herein, the Judicial Defendants' and the State's Attorney Defendants' Motions to Dismiss are granted on the basis of judicial and prosecutorial immunity, respectively. Kane County Defendants' Motion to Dismiss is granted in part and denied in part. Bertha's claims related to his arrest and subsequent detention are dismissed with prejudice based on the statute of limitations. His claims related to the state cr iminal proceedings pending against him are stayed under Younger. His unreasonable-search claim may proceed against the individual Defendants, but the Monell claim is dismissed without prejudice. Finally, Bertha's segregation claim is dismissed without prejudice. Signed by the Honorable Harry D. Leinenweber on 8/27/2018: Mailed notice (maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID BERTHA,
Plaintiff,
v.
KANE COUNTY, JUDGE MICHAEL
SULLIVAN, JUDGE JUDITH
BRAWKA, JUDGE RITA GARMEN,
JUDGE JOHN BARSANTI, DONALD
KRAMER, SCOTT FLOWERS,
GREGORY FLOWERS, JOHN
GRIMES, CHAD CALHOUN, JOHN
PEARSON, PERPARIM OSMANI,
JODY GLEASON, GORDON
SHEEHAN, SALVATORE
LOPICCOLO, JOSEPH McMAHON,
PATRICK GENGLER, JUDGE
ELIZABETH FLOOD, and PATRICK
PEREZ,
Case No. 16 C 4982
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court are three separate Motions to Dismiss: the
Judicial Defendants’ Motion to Dismiss (ECF No. 61), the State’s
Attorney Defendants’ Motion to Dismiss (ECF No. 66), and the Kane
County Defendants’ Motion to Dismiss (ECF No. 68). For the reasons
stated herein, the Judicial Defendants’ and the State’s Attorney
Defendants’ Motions to Dismiss are granted.
The Kane County
Defendants’ Motion to Dismiss (ECF No. 68) is granted in part and
denied in part as explained below.
I.
BACKGROUND
David Bertha (“Bertha”), a former lawyer, was arrested twice
for trespassing at the Kane County jail after he had been banned
from the property. (See 2d Am. Compl. ¶¶ V-XIV, Dkt. No. 54; Mem.
to Am. Compl. at 1-5, Dkt. No. 57.)
The arrests led to charges
against Bertha for criminal trespassing. Id.
Based on events that
occurred during the subsequent criminal proceedings, Bertha was
also charged with four counts of direct criminal contempt. Id.
Bertha alleges all charges are without basis. Id. While criminal
state proceedings were pending, Bertha filed this federal suit
against an array of state court judges, prosecutors, and law
enforcement
officials
who
participated
in
his
criminal
court
proceedings, alleging violations of his constitutional rights
under 28 U.S.C. § 1983. Id.
This Court dismissed Bertha’s Complaint with prejudice but
did not consider his recently-filed Amended Complaint before doing
so.
The Seventh Circuit vacated the dismissal and remanded for
further proceedings, directing this Court to consider Bertha’s
Amended Complaint (Dkt. No. 31) and Memorandum of Law (Dkt. No.
32).
After remand, Bertha filed a Second Amended Complaint (Dkt.
No. 54) along with a Memorandum of Law (Dkt. No. 57).
The Court
will consider this latest Complaint as the operative Complaint.
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The Second Amended Complaint drops some Defendants and adds
others.
The Complaint drops claims against Robert Beaderstadt,
Robert Wilbrandt, Alexandra Tsang, Corey Hunger, Donald Smith,
Charlie Conklinin, Scott McKanna, Andrew Schwab, Thomas Durham,
Brandon Gentry, William Gatske, and Jack Pearson.
against those parties are hereby dismissed.
The claims
Bertha also adds
several new Defendants, namely: Kane County, John Pearson, Jody
Gleason, Patrick Gengler, and Patrick Perez.
Chad
Calhoun,
Donald
Kramer,
Judge
The claims against
Elizabeth
Flood,
Gordon
Sheehan, Gregory Flowers, Judge John Barsanti, John Grimes, Joseph
McMahon, Judge Judith Brawka, Judge Michael Sullivan, Patrick
Perez, Perparim Osmani, Judge Rita Garman, Salvatore Lopiccolo,
and Scott Flowers remain.
For simplicity’s sake, the Court refers to the Defendants in
three
groups:
Defendants,
the
and
Judicial
the
Kane
Defendants,
County
the
State’s
Attorney
The
Judicial
Defendants.
Defendants include current or retired state judges: Judge Michael
Sullivan, Judge Judith Brawka, Judge Rita Garman, Judge John
Barsanti,
and
Judge
Elizabeth
Flood.
The
State’s
Attorney
Defendants include three current Assistant State’s Attorneys: Jody
Gleason, Salvatore LoPiccolo, and Joseph McMahon.
And the Kane
County Defendants include Kane County itself and current and former
employees of the Kane County Sheriff’s Office: Donald Kramer, Scott
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Flowers, Gregory Flowers, John Grimes, Chad Calhoun, John Pearson,
Perparim Osmani, Gordon Sheehan, Patrick Gengler, and Patrick
Perez.
Before the Court are Defendants’ three Motions to Dismiss.
The Court will consider each in turn.
I.
A.
DISCUSSION
Standard of Review
To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint “must state a claim that is
plausible on its face.”
Adams v. City of Indianapolis, 742 F.3d
720, 728 (7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
When considering motions to dismiss under
Rule 12(b)(6), a district court accepts as true all well-pleaded
factual allegations and draws reasonable inferences therefrom in
favor of the non-moving party.
See, e.g., Jakupovic v. Curran,
850 F.3d 898, 902 (7th Cir. 2017).
B.
Judicial Defendants’ Motion to Dismiss
Bertha sued multiple judges that oversaw or participated in
his various criminal cases in state court.
These claims, however,
are barred by judicial immunity. Judicial immunity “shields judges
from civil liability for their judicial actions.” Brokaw v. Mercer
Cty., 235 F.3d 1000, 1015 (7th Cir. 2000) (citation omitted). “The
principle
of
judicial
immunity
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recognizes
that
‘although
unfairness and injustice to a litigant may result on occasion, it
is a general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising
the authority vested in him, shall be free to act upon his own
convictions, without apprehension of personal consequences to
himself.’” Id. (quoting Mireles v. Waco, 502 U.S. 9, 10 (1991)).
Judicial immunity will still apply “even if the action was in
error, was done maliciously, was in excess of his authority, and
even if his exercise of authority is flawed by the commission of
grave procedural errors.” Id. at 1015 (citing Stump v. Sparkman,
435 U.S. 349, 359 (1978)).
“Judicial immunity extends to acts
performed by the judge in the judge’s judicial capacity.”
Dawson
v. Newman, 419 F.3d 656, 661 (7th Cir. 2005) (internal quotation
marks and citation omitted).
All of Bertha’s claims concerning the Judicial Defendants’
alleged actions fail for the same reason: These are all acts or
omissions undertaken by the judges in their judicial capacities as
part of their duties related to Bertha’s criminal cases.
Specifically,
Bertha
claims
the
Judicial
Defendants
See id.
acted
unconstitutionally by: “entering a conviction on the charge of
direct criminal contempt” (2d Am. Compl. ¶¶ IX), “proceeding with
a retrial after vacating his contempt conviction” (id. ¶ X),
entering orders to have ex parte communications filed with the
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clerk’s office (Mem. to 2d Am. Compl.), transferring a case to
another judge (id.), and issuing an arrest warrant (id.).
such
actions
were
performed
within
the
Defendants’
All
judicial
capacities and so Bertha’s claims against them are barred by
judicial immunity.
The one other allegation worth noting is the allegation that
“Retired-Chief Judge Brawka and Judge Flood denied [Bertha] due
process rights by suppressing and concealing evidence” (2d Am.
Compl. ¶ VIII).
As best this Court can tell, this allegation
refers to Judge Flood’s submission of an affidavit in response to
Bertha’s petition for substitution of judge for cause pursuant to
735 ILCS 5/2-1001(a)(3)(iii).
Illinois law allows the originally-
assigned judge to file an affidavit in response to a petition for
substitution of judge for cause. See 735 ILCS 5/2-1001(a)(3)(iii).
The judge who hears the petition may consider the original judge’s
affidavit.
Judge
Flood
followed
this
procedure
petition to substitute Judge Flood for cause.
on
Bertha’s
Bertha argues that
Judge Flood is not immune from suit for filing an affidavit that,
in his words, obstructed justice.
However, this too narrowly
construes the scope of judicial immunity.
The filing of the
affidavit pursuant to 735 ILCS 5/2-1001(a)(3)(iii) can only be
performed by a judge and Section 1001(a)(3)(iii) specifically
allows the judge named in a petition––here, Judge Flood––to file
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such an affidavit.
Judge Flood did so in accordance with the
statute and in her capacity as a judge.
Thus, this action is also
protected by judicial immunity.
Accordingly, the claims against the Judicial Defendants are
dismissed with prejudice.
C.
State’s Attorney Defendants’ Motion to Dismiss
Bertha alleges that the State’s Attorney Defendants denied
Bertha due process “by bringing . . . the charge of direct criminal
contempt” (2d Am. Compl. ¶ IX) and “by proceeding with a retrial
after vacating his contempt conviction” in violation of his double
jeopardy rights (id. ¶ X).
At least some of Bertha’s claims are barred by the statute of
limitations. The statute of limitations for a Fourteenth Amendment
due process claim in Illinois is two years.
Cunliffe v. Wright,
51 F. Supp. 3d 721, 732 (N.D. Ill. 2014); see also Ashafa v. City
of Chicago, 146 F.3d 459, 461 (7th Cir. 1998) (“[T]he appropriate
statute of limitations for § 1983 cases filed in Illinois is two
years as set forth in 735 ILCS § 5/13–202”).
Bertha filed his
original Complaint on May 5, 2016, and so any claims related to
conduct occurring prior to May 5, 2014 are barred, including his
allegations related to hearings occurring in April 2014.
To the extent that Bertha’s claims are not time-barred, they
are barred by absolute prosecutorial immunity.
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“Prosecutors are
absolutely immune from suits for monetary damages under § 1983 for
conduct that is ‘intimately associated with the judicial phase of
the criminal process.’”
Smith v. Power, 346 F.3d 740, 742 (7th
Cir. 2003) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
“A prosecutor is shielded by absolute immunity when he acts ‘as an
advocate for the State’ but not when his acts are investigative
and
unrelated
to
the
preparation
and
initiation
of
judicial
proceedings.” Id. (citing Buckley v. Fitzsimmons, 509 U.S. 259,
273 (1993)).
To determine whether an official is entitled to
immunity, courts look at the “nature of the function performed.”
Forrester v. White, 484 U.S. 219, 227 (1988) (“[I]mmunity is
justified and defined by the functions it protects and serves, not
by the persons to whom it attaches.”).
Bertha alleges that ASA LoPiccolo and other Assistant State’s
Attorneys wrongfully prosecuted him on four counts of contempt
while acting in an investigatory capacity.
In support, Bertha
cites to a narrative supplement from the Kane County Sheriff’s
Office.
supplement
capacity.
But
the
ASAs’
do
not
show
actions
the
ASAs
mentioned
acting
in
in
an
the
narrative
investigatory
Rather, it shows that non-ASA detectives conducted the
relevant investigation; the ASAs merely provided those detectives
with information concerning possible leads.
The narrative thus
contradicts, rather than supports, Bertha’s allegations.
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Outside
of the narrative, Bertha points to no facts that show the ASAs
acted
in
an
investigatory
constitutional
allegations
actions as prosecutors.
capacity.
against
the
Simply
ASAs
put,
relate
Bertha’s
to
their
For example, he alleges that the ASAs
prosecuted him in retaliation for the ex parte letters he sent.
Regardless of the improper motivation alleged, the core of his
claim is that the prosecutors wrongfully prosecuted him. See Smith
v. Power, 346 F.3d 740, 742 (7th Cir. 2003) (“[A]bsolute immunity
shields prosecutors even if they act maliciously, unreasonably,
without probable cause, or even on the basis of false testimony or
evidence.” (internal quotation marks and citation omitted)). This
claim runs right into the shield of prosecutorial immunity. The
same shield bars Bertha’s allegations that Kane County prosecutors
violated his double jeopardy rights by proceeding with a retrial
after his contempt conviction was vacated. (2d Am. Compl. ¶ X.)
Taking a case to trial––a core aspect of a prosecutor’s duties––
falls directly within the scope of prosecutorial immunity.
Accordingly,
the
claims
against
the
State’s
Attorney
Defendants are dismissed with prejudice.
D.
Kane County Defendants’ Motion to Dismiss
As discussed above, the two-year statute of limitations bars
a portion of Bertha’s claims.
See Ashafa, 146 F.3d at 461 (“[T]he
appropriate statute of limitations for § 1983 cases filed in
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Illinois is two years as set forth in 735 ILCS § 5/13-202”).
Again, any claims related to conduct prior to May 5, 2014 are
barred.
Bertha alleges that he was “banned . . . from the Kane
County jail without due process” (2d Am. Compl. ¶ V), that “Kane
County law-enforcement officials . . . twice arrest[ed] [him] for
trespassing without probable cause” (id. ¶ VI), and that “Kane
County
law-enforcement
officials . . .
fail[ed]
to
bring
him
before a judge to find probable cause for his arrest and set bail”
(id. ¶ VII).
Bertha was banned from the jail on October 20, 2013
and arrested for criminal trespass on October 26, 2013 and a second
time five days later, on October 31, 2013. (Mem. to 2d Am. Compl.
2-3.)
Since these events occurred well over two years before his
federal suit was filed on May 5, 2016, these claims are untimely
and thus dismissed with prejudice.
Before
reaching
the
merits
on
the
rest
of
Kane
County
Defendants’ 12(b)(6) arguments, the Court must first consider
whether it should abstain under Younger v. Harris, 401 U.S. 37
(1971).
Although Defendants did not argue Younger abstention, the
Court may raise the issue sua sponte.
See Capra v. Cook Cnty. Bd.
of Review, 733 F.3d 705, 713 n. 5 (7th Cir. 2013). Younger
abstention “generally requires federal courts to abstain from
taking
involve
jurisdiction
or
call
over
into
federal
question
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constitutional
ongoing
state
claims
that
proceedings.”
FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 595 (7th Cir. 2007)
(citing Younger, 401 U.S. at 43-44).
principles of comity.
The rule is based on
See Samuels v. Mackell, 401 U.S. 66 (1971).
“Younger abstention ensures that individuals or entities who have
violated state laws cannot seek refuge from enforcement of those
laws behind the equitable powers of the federal courts: ‘If a
person is believed to have violated a state law, the state has
instituted a criminal disciplinary or other enforcement proceeding
against him, and he has a federal defense, he cannot scurry to
federal court and plead that defense as a basis for enjoining the
state proceeding.’”
Forty One News, Inc. v. Cty. of Lake, 491
F.3d 662, 665 (7th Cir. 2007) (quoting Nader v. Keith, 385 F.3d
729, 732 (7th Cir. 2004) (alterations omitted)).
“Minimal respect
for the state processes, of course, precludes any presumption that
the
state
courts
will
not
safeguard
federal
constitutional
rights.” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 431 (1982).
Younger abstention traditionally barred
claims for injunctive relief but has been extended to bar damages
actions as well.
Simpson v. Rowan, 73 F.3d 134, 137-38 (7th Cir.
1995).
Bertha’s remaining claims against Kane County law enforcement
are as follows: Bertha alleges that Kane County law enforcement
“threatened, physically assaulted, and removed him from the Kane
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County courthouse without cause during trials” (2d Am. Compl.
¶ XI), “subjected him to an unreasonable strip search while he was
serving his sentence for contempt” (id. ¶ XII), “plac[ed] him in
segregated
housing
during
that
sentence
without
cause”
(id.
¶ XIII), and a Kane County sheriff’s deputy “breach[ed] privileged
attorney
client
communication”
(id.
¶ XIV).
Bertha’s
claims
related to his removal from the courthouse and the breach of
privilege fall within the scope of Younger abstention.
Bertha’s
criminal cases remain pending in the Circuit Court of Kane County,
see 14 CC 20; 13 CM 4533; 13 CM 4615, and were initiated before
this federal suit.
These claims are closely related to the state
court criminal proceedings––the events having occurred during the
proceedings––and
are
thus
barred
by
Younger
given
potential for federal-state friction is obvious.”
that
“the
Simpson, 73
F.3d at 138. The federal courts should not be policing ongoing
state
court
proceedings.
Certainly,
Bertha’s
constitutional
claims require a forum, but Younger teaches that the proper forum
lies within the state proceeding.
Younger
abstention
applies
and
will
This Court concludes that
decline
to
exercise
its
jurisdiction on the above-described claims.
However, although the Court will not involve itself with
ongoing criminal state proceedings, the Court notes that Bertha’s
damages claims cannot be vindicated there.
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Federal courts facing
such claim stay, rather than dismiss, them.
See Simpson, 73 F.3d
at 138-39; Ewell v. Toney, 853 F.3d 911, 916 (7th Cir. 2017).
Since Bertha seeks monetary relief in his claims against the Kane
County Defendants, those claims must be stayed until the state
criminal proceedings have been fully resolved.
See Ewell, 853
F.3d at 916; Gakuba v. O’Brien, 711 F.3d 751, 753 (7th Cir. 2013).
The Court is unsure of the current status of the state court
criminal proceedings. The parties are directed to notify the Court
when the pending state actions are concluded.
Until then, the
claims against the Kane County Defendants not barred by the statute
of limitations are stayed, outside of the two claims described
below.
That leaves two claims remaining.
Bertha alleges that law
enforcement officials “subject[ed] him to an unreasonable strip
search while he was serving his sentence for contempt” (2d Am.
Compl. ¶ XII) and “plac[ed] him in segregated housing during that
sentence without cause” (id. ¶ XIII).
These two claims are
discrete from the state court criminal proceedings and are thus
not barred by Younger abstention.
A
detainee
may
state
a
constitutional
subjected to an unreasonable search.
claim
if
he
was
See Bertha v. Sullivan, 719
F. App’x 516, 520 (7th Cir. 2017) (noting that a “strip search may
support Eighth Amendment claim if ‘conducted in a harassing manner
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intended to humiliate and inflict psychological pain’” (quoting
Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003))). Thus,
Bertha’s allegations related to being unreasonably search while
serving his sentence for contempt may proceed against Scott Flowers
and Perparim Osmani.
However, his Monell claim based on the same
conduct is dismissed without prejudice for failing to allege facts
that demonstrate a widespread practice in Kane County.
See
Martinez v. Sgt. Hain, No. 16-CV-2237, 2016 WL 7212501, at *5 (N.D.
Ill. Dec. 13, 2016).
A citation to one previous case against Kane
County is insufficient.
Turning to the last claim: Bertha’s claim related to his
placement in segregated housing faces another roadblock.
failed
to
specify
the
individual
Defendant
deprivation of his constitutional rights.
that
Bertha
caused
the
A constitutional claim
must specify the individual who caused the deprivation: “Section
1983 creates a cause of action based on personal liability and
predicated upon fault; thus, liability does not attach unless the
individual defendant caused or participated in a constitutional
deprivation.”
Cir. 1994).
Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th
The claim is dismissed without prejudice for failing
to state a claim.
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III.
CONCLUSION
In conclusion, for the reasons stated herein, the Judicial
Defendants’
and
the
State’s
Attorney
Defendants’
Motions
to
Dismiss are granted on the basis of judicial and prosecutorial
immunity, respectively.
Kane County Defendants’ Motion to Dismiss
is granted in part and denied in part.
Bertha’s claims related to
his arrest and subsequent detention are dismissed with prejudice
based on the statute of limitations.
His claims related to the
state criminal proceedings pending against him are stayed under
Younger.
His unreasonable-search claim may proceed against the
individual Defendants, but the Monell claim is dismissed without
prejudice.
Finally,
Bertha’s
segregation
claim
is
dismissed
without prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
8/27/2018
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