164 F.3d 345 (7th Cir. 1998), 97-1902, Levenstein v. Salafsky

Docket Nº:97-1902.
Citation:164 F.3d 345
Party Name:Joseph H. LEVENSTEIN, Plaintiff-Appellee, v. Bernard SALAFSKY, Patricia A. Gill, and David C. Broski, in their individual capacities, Defendants-Appellants.
Case Date:December 16, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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164 F.3d 345 (7th Cir. 1998)

Joseph H. LEVENSTEIN, Plaintiff-Appellee,


Bernard SALAFSKY, Patricia A. Gill, and David C. Broski, in

their individual capacities, Defendants-Appellants.

No. 97-1902.

United States Court of Appeals, Seventh Circuit

December 16, 1998

Argued Dec. 12, 1997.

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Richard R. Winter, Sarah E. Pace (argued), McBride, Baker & Coles, Chicago, IL, for Plaintiff-Appellee.

D. Scott Watson, Keck, Mahin & Cate, Chicago, IL, Carla J. Rozycki (argued), Jenner & Block, Chicago, IL, for Defendants-Appellants.

Before CUMMINGS, ROVNER, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Although it is often possible to resolve a public official's claim of qualified immunity as a matter of law, by taking the facts in the light most favorable to the party opposing that claim, in a small number of cases the existence of disputed facts requires further proceedings in the district court. Confronted with such a case, a district judge naturally denies the official's motion to dismiss, or motion for summary judgment, based upon qualified immunity. That action sets up an odd problem for appellate review: if a district court denies qualified immunity because the record shows disputed issues of fact, the Supreme Court has ruled that the order is not immediately appealable. Johnson v. Jones, 515 U.S. 304, 307, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). If, on the other hand, the denial of qualified immunity rests entirely on legal conclusions, then the Court not only permits an immediate appeal but actually encourages one, because of the importance of protecting the public official both from the trial process and from liability. See, e.g., Crawford-El v. Britton, 523 U.S. 574, ---- - ----, ---- n. 19, 118 S.Ct. 1584, 1592-93, 1597 n. 19, 140 L.Ed.2d 759 (1998); Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Mitchell v. Forsyth, 472 U.S. 511, 525-28, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

In the case before us, Dr. Joseph Levenstein sued three officials of the University of Illinois ("the University defendants"), claiming that they violated his constitutional rights by improperly suspending him, denying him a fair hearing, and forcing him to resign from the University because of allegations that he had committed acts of sexual harassment. The University defendants responded

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with a motion to dismiss the First Amended Complaint under Fed.R.Civ.P. 12(b)(1), (2), and (6), arguing in part that they were entitled to qualified immunity. The district court, adopting the recommendation of the magistrate judge, denied the motion in its entirety, thereby allowing the case to proceed. The defendants then appealed from the portion of the order rejecting their qualified immunity defense. Because this appeal comes to us from a motion under Rule 12(b)(6), we do not face the kind of problem that defeated appellate jurisdiction in Johnson v. Jones, supra. Unlike a motion for summary judgment, which raises in part the question whether the opposing party has demonstrated the existence of disputed facts, a motion to dismiss for failure to state a claim raises only legal issues. This is because a Rule 12(b)(6) motion requires the court to accept as true all well-pleaded facts in the complaint, drawing all reasonable inferences in favor of the opposing party. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996); see also Williams v. Alabama State Univ., 102 F.3d 1179, 1182 n. 4 (11th Cir.1997) (Johnson does not apply to motions to dismiss, which raise purely legal issues). Under Mitchell and Behrens, we have appellate jurisdiction over an interlocutory appeal from a denial of qualified immunity when no factual issues need to be resolved. See Behrens, 516 U.S. at 308, 116 S.Ct. 834; Mitchell, 472 U.S. at 526-27, 105 S.Ct. 2806. We therefore proceed to the merits of the appeal.


Before we recount the relevant facts we must clarify what is properly before us and what is not. Levenstein attached numerous documents to his complaint, which under Fed.R.Civ.P. 10(c) are considered part of his complaint. The defendants complicated matters, though, by attaching a raft of other documents to their motion to dismiss. Under Rule 12(b), when this happens the court must either convert the 12(b)(6) motion into a motion for summary judgment under Rule 56 and proceed in accordance with the latter rule, or exclude the documents attached to the motion to dismiss and continue under Rule 12. The defendants argued to the district court that their documents were somehow exempt from this rule and relevant to the motion to dismiss; Levenstein disagreed. (This spat is typical of the skirmishes these parties have had on countless issues in the case; motions for sanctions have flown back and forth with abandon. We regret that the parties did not pay more attention to the Standards of Professional Conduct within the Seventh Federal Judicial Circuit, adopted Dec. 14, 1992.) We agree with Levenstein; the defendants filed a motion to dismiss, not a motion for summary judgment. While "documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim," Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1248 (7th Cir.1994) (citations omitted) (emphasis added), this is a narrow exception aimed at cases interpreting, for example, a contract. It is not intended to grant litigants license to ignore the distinction between motions to dismiss and motions for summary judgment, and the defendants' perfunctory arguments for the centrality of these documents are unpersuasive. We, like the district court, therefore do not take these documents into account in our review of this case. This also disposes of Levenstein's motion to strike the defendants' principal and reply briefs because of their reliance on the improper materials. We deny the motion to strike as unnecessary.

The district court, noting that Levenstein wanted further discovery, chose to handle the case as a straightforward motion to dismiss, rather than converting it to a motion under Rule 56. It was within its discretion to do so. Cf. Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir.1993). First, as the defendants are plainly aware, motions for judgment based on qualified immunity should be decided as early as possible, and thus when such a motion might be granted without discovery the district court is well within its discretion to address it. Cf. Crawford-El, 523 U.S. at ----, 118 S.Ct. at 1593. In exceptional cases the defendants may take a second appeal from a district court's refusal at a later stage to dismiss the action on the

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ground of qualified immunity. Behrens, 516 U.S. at 308, 116 S.Ct. 834.

Finally, we note with perplexity that the complaint in this case seems to be covered under a protective order issued by the district court. The parties inexplicably have failed to include that order in the record on appeal, and in any event we can see no reason on the face of the appellate record why the complaint itself was so protected. Litigation is a public exercise; it consumes public resources. It follows that in all but the most extraordinary cases--perhaps those involving weighty matters of national security--complaints must be public. In any event, given that the briefs on appeal are (appropriately) publicly available documents, and the briefs recount all allegations contained in the complaint, we present the facts as alleged in the complaint.


Levenstein was born and raised in South Africa, where he practiced medicine from 1969 until 1990. He was affiliated with the University of...

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