are restraint of liberty, false imprisonment, loss of employment and pursuit of happiness, and other damages arising out of his restraint of liberty. For Horton to establish the basis for his damages claims, he necessarily would have to demonstrate the invalidity of his conviction and imprisonment. See Heck, 114 S. Ct. at 2369. That is, if Horton's conviction and resultant imprisonment were lawful, he would have no injury.
Moreover, the court agrees with Webb's holding that the Heck rule should apply to section 1985 claims. See Webb, U.S. Dist. LEXIS 12150, *10. The same allegations support Horton's section 1985(3) claims as support his section 1983 claims. Consequently, the court finds that although Horton has raised his claims under the guise of 42 U.S.C. §§ 1983 and 1985(3), he really is attacking the legality of his conviction and confinement. See Webb, 1994 U.S. Dist. LEXIS 12150, at *5.
Unlawful conviction or confinement does not constitute an injury until the conviction or confinement has been invalidated. Heck, 114 S. Ct. at 2372; Webb, 1994 U.S. Dist. LEXIS, at *9. In the present case, Horton's conviction and resultant confinement have not been invalidated but rather have been affirmed repeatedly. Horton appealed his initial conviction, which the appellate court affirmed. He filed a petition for post-conviction relief, which the trial court dismissed; he appealed the dismissal, and the appellate court affirmed the trial court's decision. (See Pantle's Mot. to Dismiss at 6; id. Ex. A; id. Ex. B.) The federal court dismissed Horton's first petition for a writ of habeas corpus for failure to exhaust state remedies and denied Horton's second habeas corpus petition based on his procedural default in state court. (See Pantle's Mot. to Dismiss Ex. C, at 1, 8.) Thus, though Horton has pursued every avenue of relief, no court has invalidated his conviction or confinement. Furthermore, because Horton has pursued all of his available remedies, the court finds that no court will invalidate Horton's conviction or confinement.
Therefore, because Horton's conviction and confinement have not been and will not be invalidated in a manner prescribed by Heck, Horton has no cause of action under 42 U.S.C. § 1983 or § 1985(3). Accordingly, the court dismisses with prejudice Horton's damages claims against Marovich, Pantle, Kamm, and Pucinski.
2. Damages claims against Epton -- the doctrine of judicial immunity
From Horton's complaint, it appears that Horton currently is imprisoned because of his 1984 conviction for armed robbery in the trial before Marovich. Thus, Horton's claims against Epton, who presided over Horton's 1971 murder trial, do not challenge the validity of Horton's current imprisonment. They do, however, call into question the validity of Horton's 1971 murder conviction. Thus, if the 1971 murder conviction was not "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus," then Horton's claims against Epton are "not cognizable." Heck, 114 S. Ct. at 2372.
However, neither Horton, in his complaint, nor Epton, in his submissions to the court, sets forth the procedural history of Horton's 1971 murder case. Therefore, the court cannot determine whether Horton's claims against Epton are or are not cognizable under Heck, since the court does not know whether the conviction was invalidated in a manner prescribed in Heck, 114 S. Ct. at 2372. Nonetheless, the court finds that it can decide Epton's motion to dismiss based on different reasoning.
Epton argues that Horton's cause of action against him is barred by the doctrine of judicial immunity. He contends that because he performed the acts that allegedly violated Horton's rights in the exercise of his judicial function, he cannot be sued by Horton for any injury arising out of those acts.
A judge is absolutely immune from liability in civil lawsuits for damages in connection with the performance of his or her official duties. Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S. Ct. 1099, 1104, 55 L. Ed. 2d 331 (1978). This is so even when the judge acted in error, maliciously, or in excess of his or her authority; the judge will be subject to liability only when he or she acted in the clear absence of all subject matter jurisdiction. Stump, 435 U.S. at 356-57, 98 S. Ct. at 1105. The concept of absolute judicial immunity is encompassed in civil rights actions under 42 U.S.C. §§ 1983 and 1985. See Byrne v. Kysar, 347 F.2d 734, 735 (7th Cir. 1965) (nothing in the legislative history of the civil rights statutes "abrogates or impairs the traditional common law doctrine of judicial immunity"); Mylett v. Mullican, 992 F.2d 1347, 1352 (5th Cir. 1993) (citing Byrne, 347 F.2d at 735) (42 U.S.C. §§ 1983 and 1985 embrace traditional notions of judicial immunity).
In the present case, Horton does not allege that Epton was acting in the clear absence of all subject matter jurisdiction. Rather, it is clear from Horton's complaint that Epton performed his allegedly wrongful acts in the course of his duties as a judge, while trying and sentencing Horton for his crime. Because Horton's civil lawsuit against Epton arises out of acts Epton performed while acting within the scope of his official duties, Epton is absolutely immune from the civil damages that Horton seeks.
Accordingly, the court dismisses with prejudice Horton's damages claims against Epton.
3. Injunctive relief claims against Marovich, Pantle, Kamm, Pucinski, and Epton
In addition to claiming damages in excess of $ 20 million, Horton also requests that the court enjoin the defendants from discriminatorily enforcing the law against Horton. Heck appears to speak only to section 1983 damage claims, and Horton does not ask for immediate or speedier release, which would be precluded by Preiser v. Rodriguez, 411 U.S. 475, 488-90, 93 S. Ct. 1827, 1835-37, 36 L. Ed. 2d 439 (1973) (habeas corpus is exclusive remedy of state prisoner who challenges fact or duration of confinement and seeks release). Moreover, despite its broad protection of judges from liability for monetary damages, the doctrine of judicial immunity does not apply in lawsuits seeking preventive relief. Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir.), cert. denied, 493 U.S. 956, 110 S. Ct. 371, 107 L. Ed. 2d 357 (1989). Thus, judges can be sued in an action seeking to enjoin them from pursuing a course of unlawful conduct. Id. Nonetheless, the court denies Horton's claim for injunctive relief on another ground -- that it is moot.
To be entitled to injunctive relief, a plaintiff must establish that he "has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675 (1983). "Federal courts do not, as a rule, enjoin conduct which has been discontinued with no real prospect that it will be repeated." Ragsdale v. Turnock, 841 F.2d 1358, 1366 (7th Cir. 1988).
In the present case, each defendant's allegedly unconstitutional conduct towards Horton ended when Horton's case in which the defendant was involved ended. Horton does not allege that defendants' illegal conduct towards Horton is still occurring. Nor does Horton allege that he is likely to appear again before Marovich or Epton; that Kamm or Pantle will represent him again; or that he will file another action in the Circuit Court of Cook County. See Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995) (request for injunctive relief by former jail inmate complaining of jail conditions was moot, where former inmate did not allege that he was likely to return to jail). Even if Horton had alleged that defendants' allegedly unconstitutional acts were capable of repetition, which he did not, his request for injunctive relief still would fail. See Ragsdale, 841 F.2d at 1365 (citations omitted) (plaintiff's conclusory assertions that the challenged actions were capable of repetition were not sufficient to avoid mootness).
Accordingly, because nothing remains for the court to enjoin, the court finds that Horton has no claim for injunctive relief under 42 U.S.C. §§ 1983 and 1985(3).
For the foregoing reasons, defendants George Marovich's, Saul Epton's, Barbara Kamm's, Kathleen Pantle's, Aurelia Pucinski's, and Richard Aztlan's motions to dismiss are granted with prejudice. George Marovich, Saul Epton, Barbara Kamm, Kathleen Pantle, Aurelia Pucinski, and Richard Aztlan are dismissed from this action as party defendants. On the court's own motion, plaintiff's complaint is dismissed without prejudice as to defendants William Heenan and Mel Allen. William Heenan and Mel Allen are dismissed from this action as party defendants.
Date: JAN 19 1996
JAMES H. ALESIA
United States District Judge