Mendenhall v. Goldsmith, 93-2715

• Citation: 59 F.3d 685
• Decision Date: 21 April 1995
• Docket Number: No. 93-2715,93-2715
• Parties: Burke H. MENDENHALL and Plaza-Hill Realty Corporation, Plaintiffs-Appellants, v. Steven GOLDSMITH, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 685

59 F.3d 685

Burke H. MENDENHALL and Plaza-Hill Realty Corporation, Plaintiffs-Appellants, v. Steven GOLDSMITH, et al., Defendants-Appellees.

No. 93-2715.

United States Court of Appeals, Seventh Circuit.

Submitted April 21, 1995. ^*

Decided July 7, 1995.

David J. Ryan, Steckler, Perry & Ryan, Indianapolis, IN (submitted), for Burke H. Mendenhall and Plaza-Hill Realty Corp.

Burke H. Mendenhall, Carmel, IN, pro se.

Steven E. Schrumpf, Office of Corp. Counsel City Counsel Legal Div., Diane Marger Moore, Office of Atty. Gen., Indianapolis, IN, for Steven Goldsmith.

Steven E. Schrumpf, Dale R. Simmons, Office of Corp. Counsel, City Counsel Legal Div., Linley E. Pearson, Atty. Gen., Indianapolis, IN, for City of Indianapolis, Indiana.

Dale R. Simmons, Office of Corp. Counsel, City Counsel Legal Div., Linley E. Pearson, Atty. Gen., Indianapolis, IN, for Marion County, Indiana.

Before POSNER, Chief Judge, and FAIRCHILD and KANNE, Circuit Judges.

FAIRCHILD, Circuit Judge.

Burke H. Mendenhall appeals from the dismissal of his civil rights action brought under 42 U.S.C. Sec. 1983 against Steven Goldsmith, former Prosecuting Attorney for the Nineteenth Judicial Circuit of the State of Indiana; the City of Indianapolis, Indiana; and, Marion County, Indiana. ¹ Count One of the complaint alleged that Mendenhall's constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments were violated when Goldsmith instituted seizure and civil forfeiture proceedings under Indiana law, resulting in the padlocking of Mendenhall's building that housed an adult bookstore. Count Two alleged a pendent claim of inverse condemnation against the City and County. The district court held that Goldsmith was immune from civil liability, and that no Sec. 1983 cause of action was stated against the City or the County. ² The pendent claim was dismissed without prejudice. We affirm.

I. FACTUAL BACKGROUND

Burke H. Mendenhall owned a commercial building located at 4266 ³ West 38th Street in Indianapolis, Indiana. ⁴ On June 1, 1983, a portion of the building was leased to Burton Gorelick, d/b/a Plaza Entertainment Center, for a five-year, renewable term. Gorelick obtained possession on June 11, and was set to open an adult bookstore on the premises when, on August 1, prosecutor Stephen Goldsmith filed in the Circuit Court of Marion County, Indiana, a civil complaint for injunctive relief against 4447 Corporation and other corporate and individual defendants, including Mendenhall. ⁵ The complaint in Goldsmith v. 4447 Corporation, et al., alleged that the defendants had conducted an enterprise through a pattern of racketeering activity through the distribution of obscene books and films at three adult bookstores in violation of Indiana's Racketeer Influenced and Corrupt Organizations Act (RICO), Ind.Code Secs. 35-45-6-1, et seq. The complaint was brought pursuant to Indiana's Civil Remedies for Racketeering Activity (CRRA) statute, Ind.Code Secs. 34-4-30.5-1, et seq., and sought forfeiture of all real and personal property "used in the course of, intended for use in the course of, derived from, or realized through" the defendants' racketeering activity. Ind.Code Sec. 34-4-30.5-3(a). Goldsmith also filed a separate petition for seizure of the property subject to forfeiture. Ind.Code Sec. 34-4-30.5-3(b). The seizure petition was supported by a probable cause affidavit executed by a detective of the Indianapolis Police Department describing the books and films available for sale at two of the bookstores that he believed to be obscene. The affidavit stated that another detective described a third bookstore yet to open on Mendenhall's property, and that this bookstore was also part of the defendants' racketeering activity. After hearing testimony in support of the petition, the trial judge entered an ex parte order finding that there was probable cause to believe that the two existing adult bookstores violated Indiana law, and directing the Indianapolis Police Department to "lock, seal and secure" the bookstore on Mendenhall's property in advance of its opening, as authorized by Indiana Code Sec. 34-4-30.5-4.

On August 3, 1983, at Goldsmith's direction and pursuant to the seizure order, Indianapolis police officers locked Mendenhall's building and denied him access to it. The defendants next moved to dismiss the complaint and to vacate the seizure order on the ground that the RICO and CRRA statutes violated their First and Fourteenth Amendment rights. The trial court denied the motions but certified its ruling for an interlocutory appeal to the Indiana Court of Appeals. Mendenhall was not a party to the appeal in 4447 Corporation v. Goldsmith, which was consolidated with that in Fort Wayne Books, Inc. v. Indiana, a case arising in the Circuit Court of Allen County, Indiana, and raising the same constitutional issue.

On June 12, 1985, the Indiana Court of Appeals ruled that the RICO/CRRA statutory scheme violated the First Amendment in that its injunctive remedies operated as a prior restraint in its application to the predicate offense of obscenity. 4447 Corp. v. Goldsmith, 479 N.E.2d 578 (Ind.Ct.App.1985). Mendenhall regained possession of his building.

On March 2, 1987, the Indiana Supreme Court granted a motion to transfer and vacate, upholding the constitutionality of the RICO and CRRA statutes and the pre-trial seizure of the bookstores' contents. 4447 Corp. v. Goldsmith, 504 N.E.2d 559 (Ind.1987). Following this ruling, on August 1, 1987, Goldsmith directed the police to again seize and padlock Mendenhall's building pursuant to the original seizure order. Certiorari was granted by the U.S. Supreme Court in Fort Wayne Books, Inc. v. Indiana, as well as State v. Sappenfield, 505 N.E.2d 504 (Ind.Ct.App.1987), with which it was consolidated. Fort Wayne Books, Inc. v. Indiana, 485 U.S. 933, 108 S.Ct. 1106, 99 L.Ed.2d 268 (1988). 4447 Corporation did not apply for certiorari and took no part in the Supreme Court proceedings. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 52 n. 3, 109 S.Ct. 916, 921 n. 3, 103 L.Ed.2d 34 (1989).

On February 21, 1989, the U.S. Supreme Court decided that Indiana's RICO/CRRA statutory scheme was not unconstitutional for its use of obscenity as a predicate offense, but that the pre-trial seizure of expressive material contained in the bookstores was unconstitutional as a prior restraint on expression in violation of the First Amendment. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989).

In April, 1989, Mendenhall reached a settlement agreement in the state court litigation. The prosecution agreed to dismiss the CRRA action still pending against Mendenhall in exchange for his promise not to use his property for an "adult use." Control of the building was returned to Mendenhall.

The instant federal action, which was filed by Mendenhall in July, 1985, was stayed pending the outcome of the litigation in the Indiana courts and U.S. Supreme Court. Once the U.S. Supreme Court announced its decision, the stay was lifted, and subsequently the case was dismissed pursuant to Fed.R.Civ.P. 12(b)(6).

II. DISCUSSION

A. Appellate Jurisdiction

As an initial matter, we must inquire into our jurisdiction to consider this appeal. The original judgment of the district court entered on March 5, 1993, stated that "the plaintiffs take nothing by their complaint." The judgment made no separate mention of Count Two, the pendent claim against the City and the County. Within ten days, on March 14, 1993, Mendenhall filed a motion under Fed.R.Civ.P. 59(e) seeking to amend the judgment by stating that the pendent claim was dismissed without prejudice. The district court entered an amended judgment on June 15, 1993, granting the motion and dismissing Count Two without prejudice. Mendenhall filed a notice of appeal on July 13, 1993, which was within thirty days of the amended judgment but not the original one.

Our rule is that any post-judgment substantive motion that is made within ten days of the judgment is deemed a Rule 59(e) motion. Herzog Contracting Corp. v. McGowen Corp., 976 F.2d 1062, 1065 (7th Cir.1992). The rule was designed to diminish disputes over appealability arising from the fact that a Rule 59(e) motion postponed the time for filing an appeal from the judgment sought to be altered or amended while a motion under Rule 60 did not. Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993); see Fed.R.App.P. 4(a)(4) (1991) (amended 1993). ⁶ The district court's judgment in this case was clearly on the merits, and Mendenhall's motion may be properly considered as a Rule 59(e) motion, despite the appellees' characterization of the motion as one to correct a mere clerical error, because the motion sought a substantive change in the original judgment. Maxus Energy Corp. and Subsidiaries v. United States, 31 F.3d 1135, 1139-41 (Fed.Cir.1994); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1131-32 (11th Cir.1994); see Bank of California, N.A. v. Arthur Andersen & Co., 709 F.2d 1174, 1176-77 (7th Cir.1983). Having been served within ten days of the amended judgment, the motion postponed the appeals period. Because Mendenhall filed his appeal within thirty days of the amended judgment, we have jurisdiction to review the original judgment as well as the change.

B. Prosecutorial Immunity

Prosecutors may be entitled to either absolute or qualified immunity from civil liability under 42 U.S.C. Sec. 1983 for actions undertaken pursuant to their official duties. Absolute immunity covers prosecutorial functions such as the initiation and the pursuit of a criminal prosecution, the presentation of the state's case at trial, and other conduct that is "intimately associated" with the judicial process. Buckley v. Fitzsimmons, --- U.S. ----, ---- - ----, 113 S.Ct. 2606, 2613-14, 125 L.Ed.2d 209 (1993); Imbler v. Pachtman, 424 U.S. 409, 430, 431 n. 33, 96 S.Ct. 984, 996 n. 33, 47...