Jones v. Cummings

• Decision Date: 26 May 2021
• Docket Number: No. 20-1898,20-1898
• Citation: 998 F.3d 782
• Parties: David JONES, Plaintiff-Appellant, v. Rodney CUMMINGS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

998 F.3d 782

David JONES, Plaintiff-Appellant,

v.Rodney CUMMINGS, et al., Defendants-Appellees.

No. 20-1898

United States Court of Appeals, Seventh Circuit.

Argued November 2, 2020

Decided May 26, 2021

James W. Avery, Attorney, Denver Injury Law LLC, Denver, CO, for Plaintiff-Appellant.

Aaron T. Craft, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.

Before Sykes, Chief Judge, and Easterbrook and Wood, Circuit Judges.

Wood, Circuit Judge.

David Jones spent over ten years in prison before this court granted his petition for a writ of habeas corpus under 28 U.S.C. § 2254, on the ground that he was deprived of his Sixth Amendment right to effective assistance of counsel. See Jones v. Zatecky , 917 F.3d 578 (7th Cir. 2019) ( Jones III ). After the writ issued and Jones was freed, he filed an action under 42 U.S.C. § 1983 against the Madison County, Indiana, prosecutors who had handled his case. He alleged that deputy prosecutors Steve Koester and Daniel Kopp, in their individual capacities, maliciously prosecuted him in violation of his due process rights when they filed an untimely amendment to his charges and secured a conviction, which resulted in his unlawful imprisonment. See Ind. Code § 35-34-1-5 (1982). He also alleged that Madison County Prosecutor Rodney Cummings (an elected official), adopted and followed an official policy of flouting state-law limitations on amendments to charges. He requested $50 million in general damages for his confinement, compensatory damages for past and future physical and emotional injuries, and attorneys’ fees.

The district court dismissed the action. It found that Cummings was a state official, and so the suit against him was in substance one against the state itself. Such an action falls outside the scope of section 1983, however, because the state is not a "person" that can be sued under that statute. See Will v. Michigan Dep't of State Police , 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Jones's suit against Koester and Kopp foundered on the absolute immunity prosecutors enjoy when they are acting as advocates. See, e.g. , Imbler v. Pachtman , 424 U.S. 409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

We do not doubt that Jones was injured by his ten years of wrongful imprisonment. That does not mean, however, that he has a remedy against any particular actor. In this instance, longstanding principles governing the scope of section 1983 and prosecutorial immunity block him at the threshold. The district court correctly applied this law, and so we affirm.

I

At the time Jones's case was pending, Indiana law allowed prosecutors to make substantive amendments to a defendant's charging information up to thirty days before an "omnibus date." Ind. Code § 35-34-1-5 (1982). This rule was neither obscure nor arcane to attorneys in Indiana. In Haak v. State , 695 N.E.2d 944 (Ind. 1998), after differentiating amendments of "immaterial defect" and "form" from amendments of "substance," the Indiana Supreme Court held "amendments ... of substance" made after the omnibus date "impermissible." 695 N.E.2d at 951.

Jones originally was charged with battery, intimidation, and being a habitual offender. Nine days after the omnibus date passed, deputy prosecutors Koester and Kopp moved to add a charge of criminal confinement. Jones's attorney did not object. The trial court granted the prosecutor's motion without a hearing, and Jones's trial began eight months later. The court later granted two more motions to amend the charges.

A jury convicted Jones of all charges, including the untimely criminal confinement charge. His sentence reveals how significant that amendment was: he received twenty years’ imprisonment on the confinement charge alone (enhanced by another 25 years for being a habitual offender) and shorter, concurrent terms of eight years for the original battery charge and three years for the intimidation charge. The court later reduced the battery charge to six months. See Jones III, 917 F.3d at 580.

After exhausting his state-court appeals, Jones filed a pro se habeas corpus petition in federal court under 28 U.S.C. § 2254. He argued that his attorney's failure to object to the untimely confinement charge constituted ineffective assistance of counsel in violation of the Sixth Amendment. Jones III at 581. The district court denied the petition, but following our decision in Shaw v. Wilson , 721 F.3d 908 (7th Cir. 2013), we reversed, holding that "[a] Sixth Amendment claim of ineffective assistance of counsel can be predicated on an attorney's failure to raise a state-law issue in a state-court proceeding." Id. ; see McNary v. Lemke , 708 F.3d 905, 920 (7th Cir. 2013).

Indiana released Jones in May 2019. One month later he brought the present section 1983 action. Jones argued that Prosecutor Cummings had adopted an official policy deliberately to ignore Ind. Code § 35-34-1-5 (1982) and the Haak decision. By defying state law, Jones asserted, the prosecutor could bring untimely amendments and deprive criminal defendants of their rights. The complaint asserted that this policy resulted in Jones's incarceration and the extreme emotional distress and other physical and mental injuries he experienced in prison and will continue to experience in the future. Citing to a 2019 article in a local newspaper, Jones argued that deputy prosecutors Koester and Kopp committed abuse of process and maliciously prosecuted him when they "investigated and added" the new charge "for the sole purpose to increase his prison time by decades[.]"

The defendants moved to dismiss the action. Cummings argued that, as a county prosecutor sued in his official capacity, he is a state official of Indiana. In that capacity, he contended, he is not a "person" for purposes of section 1983. Relying on Imbler , 424 U.S. 409, 96 S.Ct. 984, Koester and Kopp argued that their act of filing an amended charge sits comfortably within the scope of their prosecutorial duties and entitled them to absolute prosecutorial immunity. The district court agreed.

On appeal, Jones argues that Cummings was functioning as a county official, not a state official, and thus could be reached under section 1983. See Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The deputies, Jones argues, should receive only a qualified immunity because their conduct was "rogue." Jones also asks this court to create a new rule under which prosecutors are entitled only to qualified immunity if their conduct is "unlawful," even if it is prosecutorial in nature.

II

We review de novo a district court's decision to grant a 12(b)(6) motion to dismiss a complaint for failure to state a claim. We may affirm the decision on any ground supported by the record. Divane v. Northwestern University , 953 F.3d 980, 987 (7th Cir. 2020).

A. Cummings

Section 1983 imposes liability on "[e]very person who, under color of any ... State [law]" violates the federal rights of another. 42 U.S.C. § 1983. The meaning of the word "person" in this passage tracks the same principles that underlie state sovereign immunity under the Eleventh Amendment. Will , 491 U.S. at 66–67, 109 S.Ct. 2304. The Eleventh Amendment prohibits suits against state officials in their official capacities because "a suit against a state official in his or her official capacity is not a suit against the official but rather a suit against the official's office. As such, it is no different from a suit against the State itself." Id. at 71, 109 S.Ct. 2304 (citations omitted). The Court in Will held that the Congress that passed section 1983 "had no intention to disturb the States’ Eleventh Amendment immunity," and so it construed the statute to exclude the states from the class of those who could be sued under its terms. As applied to Jones's case, that means that we must decide whether Cummings, acting in his official capacity, acts as an arm of the state and is thus outside the scope of the statute, or if he is a local official who can be reached.

In determining whether a person is a state official, courts look to the state laws creating the official's position, as well as the state laws governing the official's actions, state-court decisions, and the financial interdependence between the official and the state. Regents of Univ. of California v. Doe , 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997) ; Garcia v. City of Chicago , 24 F.3d 966, 969 (7th Cir. 1994) ("Whether a particular official is the legal equivalent of the State itself is a question of that State's law."). Applying these cases, we find Cummings to be a state official of Indiana.

Under the Indiana Constitution, prosecutors, like Indiana circuit court judges, are constitutional judicial officers. See Ind. Const. art. 7, § 16 ; State ex rel. Stanton v. Murray , 231 Ind. 223, 108 N.E.2d 251, 256 (1952). "[C]arved out of the office of the attorney general as it existed at common law[,]" Indiana's prosecutors are elected within their respective judicial circuits and removable only by way of impeachment at the Indiana Supreme Court upon convictions of corruption or other high crimes. State ex rel. Neeriemer v. Daviess Circuit Court , 236 Ind. 624, 142 N.E.2d 626, 629 (1957) ; Ind. Const. art 7, §§ 13, 16 ; Ind. Code § 5-8-1-19. They hold the authority to prosecute crimes committed against the state, and they bring charges on behalf of the state, not individual counties. Ind. Code § 33-39-1-5(a) ; Ind. Code § 35-34-1-1(a). Indiana also pays each prosecutor and the chief deputies’ base salary, in addition to providing a retirement fund. Ind. Code §§ 33-39-6-2(a) - (g), 33-39-6-5(d) ; Ind. Code § 33-39-7-1. Finally, Indiana must "pay the expenses incurred by a prosecuting attorney from a threatened, pending, or completed action or proceeding that arises from making, performing, or failing to make or perform a decision, a duty, an obligation, a privilege, or a responsibility of the...