Payne for Hicks v. Churchich

• Decision Date: 12 January 1999
• Docket Number: No. 97-3344,97-3344
• Citation: 161 F.3d 1030,1998 WL 774833
• Parties: Martha D. PAYNE, as mother for the minor child, Christopher M. HICKS, and for Robert Hicks and Billy Hicks, all minor children of the deceased Steven M. Hicks, by and personal representative of the Estate of Steven M. Hicks, Plaintiff-Appellant, v. Bob CHURCHICH, William Papa and County of Madison, Illinois, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1030

161 F.3d 1030

Martha D. PAYNE, as mother for the minor child, Christopher M. HICKS, and for Robert Hicks and Billy Hicks, all minor children of the deceased Steven M. Hicks, by and personal representative of the Estate of Steven M. Hicks, Plaintiff-Appellant, v. Bob CHURCHICH, William Papa and County of Madison, Illinois Defendants-Appellees.

No. 97-3344.

United States Court of Appeals Seventh Circuit.

Submitted April 16, 1998.

Decided Nov. 6, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 12, 1999.

Charles R. Douglas (submitted), Glen Carbon, IL, for Plaintiff-Appellant.

John L. Gilbert (submitted), Reed, Armstrong, Gorman, Coffey, Gilbert & Mudge, Edwardsville, IL, for Defendants-Appellees.

Before FLAUM, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Between 1:00 and 4:04 on the morning of August 3, 1991, right after Steven Hicks had been placed in custody in the holding cell of the City of Madison Police Department, he committed suicide. Martha Payne, representing the children and estate of Mr. Hicks, filed suit in state court, but the case was removed to federal court by the defendants when the plaintiffs' eighth amended complaint added a claim pursuant to 42 U.S.C. § 1983. The district court dismissed the plaintiffs' complaint on the grounds of res judicata and absolute immunity under the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"). For the reasons discussed in the opinion that follows, we affirm in part the judgment of the district court, albeit on different grounds, and reverse and remand in part.

I BACKGROUND

A. Facts

Shortly after midnight on August 3, 1991, Deputy Sheriff William Papa, Jr. ("Deputy Papa") of the Madison County Sheriff's Department was dispatched to the Two Brothers Motel in Cottage Hills, Illinois, to investigate a person sleeping under the motel owner's vehicle. Deputy Papa awakened the man, Steven Hicks, and moved him out from under the car. ¹ Mr. Hicks was highly intoxicated (the complaint states that his blood alcohol content was in excess of 237 milligrams per liter) but awake; he was able to stand without assistance and could tell the Deputy his name and date of birth. Deputy Papa discovered through a computer search that Mr. Hicks was wanted on a warrant, issued by the City of Madison, for failure to appear and for disorderly conduct. Deputy Papa then placed Mr. Hicks under arrest pursuant to the warrant and transported him to the City of Madison Police Department. Mr. Hicks cursed freely and called Deputy Papa names. At approximately 1:00 a.m., the Deputy transferred custody of Mr. Hicks to the City of Madison Police Department, which had issued the warrant, and resumed his normal patrol. At the police department, Mr. Hicks was locked in the holding cell. Sometime between the hours of 1:00 a.m. and 4:04 a.m., while in the custody of the City of Madison Police Department, Mr. Hicks died by suffocation after hanging himself with a blanket in the holding cell of the jail.

B. Procedural History

The children and estate of Steven Hicks brought state wrongful death and survival actions on November 12, 1991, in the Madison County Circuit Court. The original suit was brought against the City of Madison, the City's Board of Fire and Police Commissioners and Dennis Mize, the jailor and dispatcher for the City Police Department. It was not until the filing of the fourth amended complaint on July 31, 1992, that the present The plaintiffs continued to file amended complaints in the local circuit court against the County defendants. On January 11, 1996, that state court entered summary judgment on the plaintiffs' seventh amended complaint. It granted judgment in favor of Deputy Papa on the ground that the Deputy Sheriff's conduct did not rise to the level of willful and wanton conduct required for liability under the Tort Immunity Act. ² The state court also entered summary judgment in favor of the County. It held that, pursuant to the Tort Immunity Act, ³ "[s]ince Deputy Papa is not liable, neither can be the County." State R.18 at 3. Concerning Sheriff Bob Churchich, the court offered several reasons for its entry of summary judgment in his favor. First, it noted, it had dismissed the plaintiffs' complaint against Sheriff Churchich in 1993 on the ground that the allegations of Deputy Papa's willful and wanton conduct did not impose liability on the Sheriff. It further ruled that summary judgment for the Sheriff was proper under the ruling of the Supreme Court of Illinois in Moy v. County of Cook, 159 Ill.2d 519, 203 Ill.Dec. 776, 640 N.E.2d 926 (1994), which held that a sheriff is an elected county officer and not an employee of the county government. However, the court reserved ruling as to Counts V and VI, which alleged willful and wanton conduct by the Sheriff, pending the completion of his deposition.

defendants--the County of Madison and the County's Sheriff, Bob Churchich, and Deputy Sheriff, William Papa--were added to the complaint. On December 21, 1992, the state court approved a settlement of $110,000.00 between the plaintiffs and the City defendants and dismissed them with prejudice.

On April 23, 1996, the state circuit court granted the plaintiffs leave to file an eighth amended complaint. ⁴ The complaint included a federal claim, an allegation of the violation of constitutional rights under 42 U.S.C. § 1983. On May 2, 1996, the defendants removed the case to federal district court; on May 28, 1996, they filed a motion to dismiss. When the plaintiffs filed their ninth amended complaint that same day, the defendants moved to dismiss that complaint as well. The plaintiffs' later motion for leave to file a tenth amended complaint was denied.

On March 27, 1997, ruling on the plaintiffs' ninth amended complaint, the district court granted the defendants' motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). It dismissed the plaintiffs' claims against Deputy Papa by concluding that the state court's grant of summary judgment to Deputy Papa should be given res judicata or preclusive effect. ⁵ The district

                court then determined that the County of Madison and County Sheriff Churchich were protected by the Tort Immunity Act's absolute immunity provision. 6  It dismissed the plaintiffs' claim with prejudice.  On August 11, 1997, the court denied the plaintiffs' Rule 59(e) motion to amend the judgment.  This appeal followed
                

II DISCUSSION

A.

This case arrived in federal court with the removal of the eighth amended complaint. The district court granted the plaintiffs leave to file a ninth amended complaint (to clean up the state court complaint, they told the court) but denied their motion for leave to file a tenth amended complaint. We review the district court's refusal to accept the tenth amended complaint for an abuse of discretion. See Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 547-48 (7th Cir.1998) (finding no abuse of discretion in the court's refusal to accept a second amended complaint); General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir.1997) (finding no abuse of discretion in denial of fifth amendment to complaint).

Federal Rule of Civil Procedure 15(a) permits a party to amend its pleading once as a matter of course; after that amendment, a party must request leave of court to file an amended pleading. See Crim, 147 F.3d at 547-48. The rule states that "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Supreme Court has stated that leave to amend need not be given if there is an apparent reason not to do so, such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

The district court did not abuse its discretion in deciding not to allow further amendment of the complaint. The magistrate judge noted the plaintiffs' casual acknowledgment of their seriously flawed previous complaints and suggested that they had been dilatory in prosecuting their case. He also noted that the plaintiffs had acknowledged flaws and deficiencies in their ninth amended complaint; in the proposed tenth amended complaint, according to the defendants, the plaintiffs voluntarily had removed the allegations based on agency, cleaned up mistakes and typographical errors and added new theories of recovery. The magistrate judge believed that the adding of new claims and a new theory would prejudice the defendants. He concluded: "The plaintiffs are ... keeping the defendants on a litigation treadmill." R.33 at 3. The district court expressed full agreement with the magistrate judge's assessment. It determined that the plaintiffs had had an adequate opportunity, by filing ten complaints, to "get it right," and concluded that, "after all, ten bites at the apple are enough." R.39 at 1.

There is an ample basis for the district court's conclusion that the plaintiffs have been dilatory in prosecuting their case. At the same time that the defendants removed the eighth amended complaint and filed a motion to dismiss it, the plaintiffs filed their ninth amended complaint. The defendants responded with a motion to dismiss that complaint. Five months later, the plaintiffs attempted to amend the complaint again. The plaintiffs admit that their "attorney may have been too meticulous, by submitting unnecessary remakes," but they then complain that they had been "made to suffer from defendants' specious allegations of burdensomeness." Plaintiffs' Reply Br. at 7. The plaintiffs have admitted, in essence, their "repeated failure to cure deficiencies by amendments previously allowed." Foman, 371 U.S. at 182, 83 S.Ct. 227; see General...