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Foreman v. Wadsworth

United States Court of Appeals, Seventh Circuit

December 20, 2016

Anthony S. Foreman, Plaintiff-Appellant,
Brian Wadsworth, et al., Defendants-Appellees. and Lawrence C. Redmond, Respondent-Appellant,

          Argued July 6, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 12 C 50419 - Frederick J. Kapala, Judge.

          Before Posner, Sykes, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Anthony Foreman, who used to own a restaurant in Rockford, Illinois, brought this suit under 42 U.S.C. § 1983 and Illinois tort law. He alleged that a state prosecutor and four Rockford police officers conspired to push him out of business by bringing false criminal charges against him. Foreman argued-contrary to settled Supreme Court precedent, see Imbler v. Pachtman, 424 U.S. 409, 427 (1976)-that the state prosecutor should not be entitled to absolute immunity for his actions in an official prosecutorial role, including bringing charges against Foreman. The district court rejected this contention and then publicly censured Foreman's lawyer for making it without offering a non-frivolous argument in favor of overturning Imbler. See Fed.R.Civ.P. 11(c). The court then granted summary judgment for the police officers. We affirm the judgment and the order of censure.

         I. Factual and Procedural Background

         In his complaint Foreman alleged that two Rockford police officers came to his restaurant after receiving a call from the man living in an upstairs apartment (unlawfully, according to Foreman). The occupant had accused Foreman of cutting off his electricity. By Foreman's account, the officers tried to interview him about this complaint but were "loud and boisterous, " so he refused to answer their questions. The officers responded by arresting him, he alleged. Prosecutor Matthew Leisten later filed an information falsely charging Foreman with obstructing a police officer, see 720 ILCS 5/31-1(a), but the charge was dismissed eventually.

         Foreman later sought leave to amend his complaint to add claims against another prosecutor. He told the district court that he had learned through discovery that a different prosecutor had pursued the criminal case after Leisten had first filed it. The district court denied leave to amend, reasoning that the proposed claims against the second prosecutor would be frivolous because the prosecutor would have absolute immunity in her individual capacity, and the Eleventh Amendment would bar any claims against her in her official capacity. The court also ordered Foreman to show cause why the claims against prosecutor Leisten should not be dismissed for the same reasons. Additionally, because in a previous case Foreman's lawyer, Lawrence Redmond, had raised similar claims against prosecutors that were dismissed because of absolute immunity, the court ordered Redmond to show cause why he should not be sanctioned under Federal Rule of Civil Procedure 11(c).

         Shortly after the district court issued its order to show cause, prosecutor Leisten moved for judgment on the pleadings, arguing that in his personal capacity he was absolutely immune from suit concerning his decision to charge Foreman. Leisten also asserted that the Eleventh Amendment bars damages claims against him in his official capacity. In response, Foreman conceded that under current law Leisten would be absolutely immune from a claim for damages in his individual capacity. Foreman asserted, though, that he was seeking to change that law. He also contended that the Eleventh Amendment would not preclude injunctive relief against Leisten in his official capacity, but he did not say what injunctive relief he wanted or could obtain against the prosecutor.

         The district court granted Leisten's motion for judgment on the pleadings, noting that Foreman had not offered a basis for challenging the existing law of prosecutorial immunity. In addition, the court reasoned that a claim against Leisten in his official capacity would not fall under the exception to the Eleventh Amendment for injunctive relief because Foreman's complaint did not sufficiently allege an ongoing constitutional violation, as opposed to a claim for damages to remedy a past injury.

         After the claims against prosecutor Leisten were dismissed, a magistrate judge issued a report recommending that attorney Redmond be publicly censured under Rule 11(c) for advancing frivolous claims without offering any argument or authority that would support a change in existing law. The magistrate judge concluded that a censure would be an appropriate punishment and deterrent, especially in light of Redmond's previous censure by the Supreme Court of Illinois in a post-conviction capital appeal.

         Redmond objected to the magistrate judge's recommendation, asserting that he had intended to challenge Supreme Court precedent on prosecutorial immunity on appeal. He acknowledged that he had unsuccessfully presented this argument for a change in existing law in a previous case in the same district court, but he said that the other case had settled before he had the opportunity to appeal the dismissal of the claims. He also explained that he had not yet presented his argument for overturning Imbler in this case, as he had done in the prior case, because "there was no point." The same district judge had already rejected his argument in the earlier case: "There was no reason to believe that raising it in the instant case would yield a different result." Redmond attached to his written objection a portion of the brief that he filed in the earlier case explaining his argument for overturning Imbler. No lower federal court can overrule a Supreme Court precedent, of course, which is Redmond's goal with Imbler. Nevertheless, a party who wants to ask the Supreme Court to overrule one of its precedents must raise the issue in lower courts to set it up clearly for Supreme Court review.

         The district judge adopted the magistrate judge's recommendation and issued an order censuring attorney Redmond for violating Rule 11(b)(2). Redmond, the court said, did not argue for a change in the law until after he was faced with a recommendation of censure, and the court was "not persuaded by counsel's last-minute effort to salvage the unsupported claims."

         First, although Redmond's argument had been rejected in an earlier case, the court said, that "does not excuse counsel from raising it anew in another, unrelated case, if necessary to comply with his obligations under Rule 11(b)(2)." Redmond could not just wait to make his argument on appeal, the court said, because any argument not made in the district court is waived on appeal. Second, the court said, Redmond's argument for changing the existing law on absolute immunity for prosecutors would fail anyway because it was "based on the faulty premise that the Imbler decision is based solely on a review of historical immunities, " rather than on other policy considerations. The court noted that the Supreme Court had recently rejected Foreman's understanding of historical immunities, which was the foundation of his argument for overruling Imbler. See Rehberg v. Paulk, 566 U.S. ___, ___, 132 S.Ct. 1497, 1504 (2012) ("[W]hen the issue of prosecutorial immunity under ยง 1983 reached this Court ...

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