Lowe v. Letsinger

• Decision Date: 29 August 1985
• Docket Number: No. 84-2144,84-2144
• Citation: 772 F.2d 308
• Parties: Thad D. LOWE, Plaintiff-Appellant, v. James E. LETSINGER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 308

772 F.2d 308

Thad D. LOWE, Plaintiff-Appellant, v. James E. LETSINGER, et al., Defendants-Appellees.

No. 84-2144.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1985.

Decided Aug. 29, 1985.

Carlton Lowe, University Park, Ill., for plaintiff-appellant.

Mark A. Psimos, Asst. Lake Co. Atty., Crown Point, Ind., for defendants-appellees.

Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and GARZA, Senior Circuit Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff-appellant, Thad Lowe, appeals from a district court order granting the three defendants--a state court judge, court clerk, and attorney general--absolute immunity and dismissing Lowe's civil rights action against them. The complaint contains two counts. Count I charges Judge Letsinger with violating Lowe's constitutional rights by failing for four years to decide Lowe's state post-conviction relief petition. Count II charges that after Judge Letsinger finally issued an order granting Lowe a new trial, the judge, the court clerk (Lukawski) and the state attorney general (Pearson) acted separately and in concert to conceal the judge's order from Lowe for about three weeks in retaliation against him for his petitioning the federal court for a writ of habeas corpus. In addition to compensatory and punitive damages Lowe seeks attorneys' fees incurred in bringing the prior federal habeas corpus action.

I.

Lowe was convicted of criminal conduct in August, 1970 in an Indiana court. ¹ In June, 1977, the Superior Court of Lake County, Indiana, Judge Letsinger presiding, held a post-conviction relief hearing. Several years passed without the issuance of a ruling on the post-conviction relief petition despite Lowe's repeated requests for Judge Letsinger to rule. Finally, in December, 1980, three and a half years later and Judge Letsinger still not having ruled, Lowe filed a petition for a writ of habeas corpus in federal district court. On January 15, 1981 the federal court entered an order granting the State of Indiana thirty days to show cause why the requested writ should not issue. On April 1, 1981, following the grant of an enlargement of time in which to show cause, the State of Indiana, by its Attorney General, defendant in this case, Linley E. Pearson, informed the district court that "a ruling will be entered soon" on the pending state post-conviction relief petition. Thereupon, the district court dismissed Lowe's habeas petition for failure to exhaust state remedies. Lowe appealed to this court.

On July 14, 1981, while the appeal of the district court's habeas corpus dismissal was pending in this court, Judge Letsinger issued an order vacating Lowe's conviction and granting a new trial. The order was entered in the records of the Lake County Superior Court on July 15, 1981. The following day, July 16, the Indiana Attorney General inaccurately represented to this court, in a response filed to the federal habeas appeal, that "there is a post-conviction proceeding currently pending in the state court in Lake County, Indiana." Lowe asserts that Pearson made this inaccurate representation despite previously assuring this court that he would receive notice if and when an order was entered in the state proceeding and that he would in turn notify this court. Lowe also asserts that he (Lowe) did not learn of the release order until August 5, 1981 (twenty-one days after the entry of the order), when a clerk from the Seventh Circuit called his counsel. Lowe was released on August 10, 1981 and the state has chosen not to retry him.

On November 9, 1981 the Seventh Circuit issued an opinion holding that in view of the state court action granting a new trial the habeas petition was moot. The court went on in dictum, however, to state that the district court's dismissal of Lowe's habeas corpus petition was "clearly erroneous"; the four-year dormancy of plaintiff's state petition, despite Lowe's attempts to secure a ruling thereon, required the district court to conduct a hearing to determine whether the delay was justifiable. Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir.1981).

Lowe filed a complaint against the judge, the court clerk, and the attorney general on April 25, 1983 seeking redress for alleged violations of his constitutional rights stemming from the delay in ruling on his state post-conviction petition and from the alleged concealment of the entry of judgment. The complaint also sought attorneys' fees incurred in bringing the federal habeas corpus petition. The district court dismissed the complaint holding all three defendants immune from the allegations under the doctrines of judicial or quasi-judicial immunity and denied the request for attorneys' fees. In reviewing the district court's dismissal for failure to state a claim we accept plaintiff's allegations in the complaint as true. Bodie v. Connecticut, 401 U.S. 371, 373, 91 S.Ct. 780, 783, 28 L.Ed.2d 113 (1971).

II.

Lowe grounds his action in sections 1981, 1983, and 1985, Title 42 of the United States Code. ² On its face the complaint is deficient under section 1981 and subsections (2) and (3) of section 1985 because it does not allege facts sufficient to support a claim that the defendants were motivated in their actions by racial or some other type of invidious, class-based discrimination. See General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 390-91, 102 S.Ct. 3141, 3149-50, 73 L.Ed.2d 835 (1982) (section 1981); Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982) (section 1985(3)); Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 344-47 (5th Cir.1981) (section 1985(2) & (3)). The only allegation in the amended complaint that advances a theory of class-based discrimination is the allegation that Lowe is black; standing alone this allegation is insufficient to ground either a section 1981 or a section 1985 claim. See Martinez v. Hazelton Research Animals, Inc., 430 F.Supp. 186, 188 (D.C.Md.1977) (section 1981 action). To the extent the complaint alleges a motive for defendants' alleged misdeeds it is retaliation for Lowe's filing the habeas corpus petition, not discrimination.

The complaint also fails to state a claim under subsection (1) of 1985 because it does not allege facts that support a conspiracy to prevent a public official from discharging his official duties. See 42 U.S.C. Sec. 1985(1). The allegation is of a conspiracy to deny a private individual his constitutional rights.

III.

We now consider the sufficiency of the complaint under section 1983 which forbids any person from acting under color of state law to deprive any other person of his constitutional rights. 42 U.S.C. Sec. 1983.

Courts in this country and England have embraced the doctrine of judicial immunity for centuries. Stump v. Sparkman, 435 U.S. 349, 355, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1872). The doctrine is designed to give a judge the freedom to act upon his convictions, without fear of personal consequences. Pierson, 386 U.S. at 554, 87 S.Ct. at 1217; Stump, 435 U.S. at 355, 98 S.Ct. at 1104 (quoting Bradley v. Fisher, 80 U.S. at 347). And the doctrine applies even when the judge is accused of acting maliciously and corruptly. Pierson, 386 U.S. at 554, 87 S.Ct. at 1217. Should a judge err through inadvertance or otherwise, a party's remedy is through appellate processes. Id. Congress has the constitutional authority to abolish the immunity defense to any cause of action it creates, but it chose not to do so when it passed section 1 of the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, under which Lowe sues. Id. at 554-55, 87 S.Ct. at 1217-18.

Although solidly grounded in our jurisprudence, judicial immunity is not without limits. The doctrine applies to damage claims, but not to suits seeking prospective relief, Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 1974-78, 80 L.Ed.2d 565 (1984); to judicial acts, but not to ministerial or administrative acts, Stump, 435 U.S. at 360, 98 S.Ct. at 1106, Ex Parte Virginia, 10 Otto 339, 100 U.S. 339, 348, 25 L.Ed. 676 (1879), Lopez v. Vanderwater, 620 F.2d 1229, 1233-34 (7th Cir.), cert. dismissed, 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980); and only to acts taken over subject matter which lies within a judge's jurisdiction, Stump, 435 U.S. at 356, 98 S.Ct. at 1104, Lopez, 620 F.2d at 1233. Lowe seeks damages. We are therefore left to determine whether Judge Letsinger's alleged violative acts were jurisdictional and judicial.

Lowe's first claim against Judge Letsinger concerns Letsinger's four-year delay in ruling on Lowe's state post-conviction relief petition despite requests from Lowe that he rule sooner. Lowe does not dispute that Judge Letsinger had jurisdiction over the post-conviction relief petition. ³ The issue is whether his delay in issuing the decision was a "judicial act." Courts have considered the following factors in determining whether an act is judicial: (1) whether the act or decision involves the exercise of discretion or judgment, or is rather a ministerial act which might as well have been committed to a private person as to a judge, Ex Parte Virginia, 100 U.S. at 348; (2) whether the act is normally performed by a judge, Stump, 435 U.S. at 362, 98 S.Ct. at 1107; and (3) the expectations of the parties, i.e., whether the parties dealt with the judge as judge, id.

All three factors point to the judicial character of Judge Letsinger's decision not to issue a decision in the case for four years. Deciding when to issue a decision is part and parcel of a judge's docket management function over which he has broad and virtually unfettered discretion. A judge must weigh a multitude of factors in deciding when to decide a case. The relative importance of the case among other pending cases, the prospects that another court will soon issue...