Scruggs v. Moellering, 88-1685

• Citation: 870 F.2d 376
• Decision Date: 30 June 1989
• Docket Number: No. 88-1685,88-1685
• Parties: Aaron B. SCRUGGS, Plaintiff-Appellant, v. Alfred W. MOELLERING, Gregory Antalis, and Geraldine C. Behr, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 376

870 F.2d 376

Aaron B. SCRUGGS, Plaintiff-Appellant, v. Alfred W. MOELLERING, Gregory Antalis, and Geraldine C.

Behr, Defendants-Appellees.

No. 88-1685.

United States Court of Appeals,

Seventh Circuit.

Submitted Jan. 19, 1989.

Decided March 1, 1989.

Rehearing Denied June 30, 1989.

Aaron B. Scruggs, Pendleton, Ind., pro se.

G. William Fishering, III, Beers, Mallers, Backs Salin & Larmore, Ft. Wayne, Ind., David R. Treeter, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before POSNER, FLAUM and MANION, Circuit Judges.

POSNER, Circuit Judge.

An inmate of an Indiana state prison appeals from the dismissal of his civil rights suit against the trial judge, court reporter, and prosecutor. See Fed.R.Civ.P. 12(b)(6); 42 U.S.C. Sec. 1983. The defendants are alleged to have falsified the transcript of Scruggs's criminal trial in order to prevent him from prosecuting a successful appeal of his conviction to the Indiana Supreme Court. Compensatory and punitive damages are sought, as well as an order directing the defendants to furnish Scruggs with an accurate transcript so that he can pursue post-conviction remedies.

The district court dismissed the claim for damages against the judge and the court reporter on grounds of absolute judicial immunity. So far, so good. A judge has absolute immunity from damages liability for acts performed in his judicial capacity, Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), and the preparation of the record for appeal is such an act. It is not a matter simply of gathering all the documentary and nondocumentary materials that have been filed in the case and shipping them to the appellate court. Determining the composition of the appellate record entails a number of decisions that require skill and judgment. Cf. Fed.R.App.P. 10. Even the preparation of an accurate transcript by the court reporter is not a mechanical process, given the difficulty of accurately transcribing what often are rapid-fire oral testimony and colloquy. Auxiliary judicial personnel who perform functions at once integral to the judicial process and nonmechanical are entitled to absolute immunity from damages liability for acts performed in the discharge of those functions, just as judges are. See Eades v. Sterlinske, 810 F.2d 723, 726 (7th Cir.1987), and cases cited there. Although these cases precede Forrester, where the Supreme Court distinguished judicial from merely administrative functions, their principle has been reaffirmed since. See Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir.1987), which held that a court clerk could not be sued for refusing to accept an amended filing and otherwise (it was alleged) abusing his authority. The danger that disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge directly, will vent their wrath on clerks, court reporters, and other judicial adjuncts--alleging as here a conspiracy between the adjunct and the judge--warrants this extension of the doctrine. We need not consider the doctrine's outer bounds.

The prosecutor would have been entitled to absolute immunity, too, see Imbler v. Pachtman, 424 U.S. 409, 427-28, 96 S.Ct. 984, 993-94, 47 L.Ed.2d 128 (1976), had he not waived it by failing to assert it in the district court. The court dismissed the complaint against him anyway, because the complaint failed to allege a connection between the alleged falsification of the transcript--the conduct of which Scruggs complains--and the prosecutor. The prosecutor conducted the trial against Scruggs, but so far as appears had nothing to do with preparing the transcript. So this dismissal was proper too.

A more difficult question involves the rejection of Scruggs's request for an order that the state judge and the court reporter prepare an honest transcript for Scruggs to use in post-conviction proceedings. The dismissal cannot be upheld on the district court's ground--absolute immunity. There is no judicial immunity from a claim for injunctive relief. It is true that Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), which so holds, speaks repeatedly of "prospective injunctive relief" as what is excepted from the scope of the immunity. See, e.g., id. at 541, 104 S.Ct. at 1981 (emphasis added). If this was intended as a qualification, it is puzzling. All injunctive relief is prospective. An injunction tells someone to do (or not to do) something, and since time runs in only one direction in our universe this means to do something in the future, not the past. The Court may have been alluding to the difference, which is important in federal suits against state officials, between an order to pay future benefits and an order to pay past-due benefits, the latter but not the former being subject to the bar of the Eleventh Amendment against suing states without their consent. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). That is not a difference pertinent to issues of judicial immunity.

Mullis v. United States Bankruptcy Court, supra, 828 F.2d at 1391-94, carves an exception to Pulliam--of doubtful merit, it seems to us, but in any event inapplicable to this case--for cases where the defendant is a federal judge rather than a state one. Since the exception is based on the proposition that the plaintiff's remedy at law for an abuse of federal judicial power is always adequate, we...