Eisenberg v. Sternberg

• Decision Date: 25 August 1986
• Docket Number: No. 86-C-8-C.,86-C-8-C.
• Citation: 641 F. Supp. 620
• Parties: Donald S. EISENBERG, Plaintiff, v. Gerald C. STERNBERG, John B. McCarthy, and Elsa P. Greene, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

641 F. Supp. 620

Donald S. EISENBERG, Plaintiff, v. Gerald C. STERNBERG, John B. McCarthy, and Elsa P. Greene, Defendants.

No. 86-C-8-C.

United States District Court, W.D. Wisconsin.

August 13, 1986.

As Amended August 25, 1986.

COPYRIGHT MATERIAL OMITTED

Donald S. Eisenberg, Middleton, Wis., pro se.

Daniel S. Farwell, Asst. Atty. Gen., Madison, Wis., for defendants.

ORDER

CRABB, Chief Judge.

This is an action for damages brought pursuant to 42 U.S.C. §§ 1983, 1985(3), and 1986. Jurisdiction is alleged under 28 U.S.C. § 1343(3). Plaintiff asserts that the defendants conspired, in concert with various "non-defendant co-conspirators" (including six Wisconsin supreme court justices and a United States Attorney), to deprive him of his constitutional rights by instigating disciplinary proceedings that resulted in the suspension of his law license. He further asserts that defendants caused the denial of his subsequent petitions for readmission to the practice of law. Plaintiff alleges that defendants deprived him of his constitutional rights to free speech, due process, and equal protection, by opposing his representation of unpopular causes and unpopular clients. The case is now before this court on defendants' motions to dismiss the action with prejudice, and with sanctions, including attorney's fees and costs pursuant to Rule II, Federal Rules of Civil Procedure.

Defendants contend that they are absolutely immune from damage suits arising from their roles in the disciplinary proceedings. They characterize plaintiff's suit as a disguised collateral challenge to the factual and legal determinations reached during the state disciplinary proceedings.

Taking the allegations of the complaint as true, and for the sole purpose of deciding these motions, I find the following facts.

FACTS

Plaintiff was admitted to the practice of law in Wisconsin in 1956. During the past twenty years, up to and including March 31, 1984, plaintiff's practice was devoted principally to the criminal law. In the performance of his profession, plaintiff often represented unpopular causes and clients. Plaintiff has been known for his controversial and flamboyant style, and his vigorous defense on behalf of his clients.

At all times relevant to this action, defendant Gerald C. Sternberg acted under color of state law in his position as Professional Responsibility Administrator of the Board of Attorneys' Professional Responsibility.

At all relevant times, defendants John B. McCarthy and Elsa P. Greene were employees of the Board acting under color of state law.

At all relevant times, Nathan Heffernan, Roland Day, William Callow, Donald Steinmetz, Louis Ceci, and William Bablitch were justices of the Wisconsin Supreme Court.¹

At all relevant times, John R. Byrnes was the United States Attorney for the Western District of Wisconsin.

From 1977 until December 5, 1985, the defendants, the above-named justices, John Byrnes, and others, agreed and conspired to associate and combine for the purposes of suspending plaintiff's license to practice law, and to deprive plaintiff of the opportunity for readmission to the practice of law. It was agreed that charges would be brought against plaintiff in retaliation for exercising his First Amendment guarantee of free speech. In furtherance of that purpose, defendants committed illegal acts, harassed and arranged to harass plaintiff, harmed plaintiff economically, and attempted to impede or defeat the course of justice in the state of Wisconsin.

John Byrnes aided and abetted the conspiracy in persuading defendants Sternberg and Greene to instigate charges against plaintiff.

Prior to April 1, 1984, in furtherance of the conspiracy, defendant McCarthy solicited others to bring charges of unprofessional conduct against plaintiff.

During the investigative stages of the disciplinary proceedings against plaintiff, defendants operated without rules and advised plaintiff he had no rights during the investigation. Defendants denied plaintiff's request to appear before the board before charges were brought against him. After the investigation, the board filed a complaint and the matter was assigned to a referee appointed by the Wisconsin supreme court for a hearing. The referee recommended that plaintiff be reprimanded.

Prior to April 1, 1984, in furtherance of the conspiracy, defendants induced the above-named Wisconsin supreme court justices to ignore the referee's recommendations and to suspend plaintiff from the practice of law for six months.

Prior to September 23, 1985, defendants recommended that plaintiff not be reinstated to the practice of law, despite recommendations of reinstatement by the District 9 Professional Responsibility Committee.

OPINION

I.

Defendants argue that plaintiff's suit is a disguised collateral attack on the state court judgment, and that this court lacks jurisdiction to entertain it. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). It is true that orders of a state court relating to the admission, discipline, or disbarment of members of its bar may be reviewed only by the United States Supreme Court. MacKay v. Nesbett, 412 F.2d 846 (9th Cir.1969). However, plaintiff's action states claims for relief under § 1983 and does not seek review of the state court judgment. It is a personal action for damages against the defendants alleging among other things a conspiracy to deprive plaintiff of his civil rights. Accordingly, jurisdiction is proper under 28 U.S.C. § 1343(3).

II.

Plaintiff has alleged deprivations of his civil rights, in violation of 42 U.S.C. §§ 1983, 1985(3), and 1986. With respect to §§ 1985(3) and 1986, it is clear that plaintiff has failed to state a justiciable claim.

To recover under § 1985(3), a plaintiff must establish the existence of "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). This requisite discriminatory animus has been found in discrimination against classes based on race, ethnic origin, sex, religion, or political loyalty. See Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir.1976); Murphy v. Mount Carmel High School, 543 F.2d 1189, 1192 n. 1 (7th Cir.1976).

Plaintiff has made no allegations relating to race or class. He alleges only that defendants conspired to violate his rights "for exercising his right to Freedom of Speech." This allegation fails to state a claim under § 1985(3).

Section 1986 is derivative of § 1985; it merely provides a remedy for misprision of a violation of § 1985. Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 203 (7th Cir.1985); Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir.1980). It follows that because plaintiff has failed to state a § 1985 claim, he has no claim under § 1986.

Plaintiff's § 1983 claim is a more difficult matter. Defendants contend that with regard to his conspiracy claim, plaintiff has failed to allege facts with sufficient particularity to properly support a claim of conspiracy. I agree that to plead a conspiracy, plaintiff must do more than allege in a conclusory fashion that a conspiracy exists. Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982); Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir. 1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1058, 59 L.Ed.2d 97 (1979). However, even if plaintiff has failed to allege facts sufficient to support a conspiracy claim, his allegations that he was singled out for selective prosecution based on his representation of unpopular causes and clients may state a constitutional claim. To sustain this claim plaintiff would have to show at a minimum: that he had been singled out for prosecution "because of" his unpopular representations; that other lawyers suspected of similar disciplinary code violations had not been subjected to disciplinary proceedings; and that his discriminatory selection was based on an impermissible consideration, such as the exercise of his constitutional rights. See United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir.1985); Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 1532, 84 L.Ed.2d 547 (1985).

However, it is unnecessary to determine whether plaintiff's complaint makes the requisite showing because defendants are absolutely immune from a suit for money damages.

Immunity

The sound operation of the judicial process requires that those most closely associated with the judicial system be afforded some immunity from monetary damages in civil actions. Simons v. Bellinger, 643 F.2d 774, 777 (D.C.Cir.1980). Immunity may be absolute, affording protection regardless of motive, or qualified, providing immunity only for acts done reasonably and in good faith. Judges and other officials functionally comparable to judges have long enjoyed absolute immunity from liability for damages. Butz v. Economou, 438 U.S. 478, 496, 98 S.Ct. 2894, 2905, 57 L.Ed.2d 895 (1978); Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). Prosecutors have been regarded as "quasi-judicial" officers entitled to the same absolute immunity as judges when their activities are intimately associated with the judicial phase of the criminal process. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995 47 L.Ed.2d 128 (1976). Witnesses and jurors have also been held to be integral parts of the judicial process entitled to absolute immunity. Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). On the other hand, executive officials are normally entitled only to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982).

Plaintiff argues that the last word on immunity is found in Cleavinger v. Saxner, ___ U.S. ___, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). In that case, qualified immunity was applied to members of a federal...