Pena v. Mattox

• Decision Date: 21 May 1996
• Docket Number: No. 95-2053,95-2053
• Citation: 84 F.3d 894
• Parties: Ruben PENA, Plaintiff-Appellant, v. Edward MATTOX, Charles Bretz, Patricia Schneider, and others unknown, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 894

84 F.3d 894

64 USLW 2759

Ruben PENA, Plaintiff-Appellant, v. Edward MATTOX, Charles Bretz, Patricia Schneider, and others unknown, Defendants-Appellees.

No. 95-2053.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 1995.

Decided May 21, 1996.

Rick Halprin, Susan Shatz, Chicago, IL, Thomas Peters (argued), Murphy, Peters & Davis, Chicago, IL, for Ruben Pena.

William W. Kurnik, Kurnik, Cipolla & Barasha, Arlington Heights, IL, John L. Martin, James L. Tuohy, James M. Urtis, Tuohy & Martin, Chicago, Il, for Edward Mattox.

James R. Schirott, Phillip A. Luetkehans (argued), Mary E. Dickson, Matthew F. Tarbox, Schirott & Luetkehans, Itasca, IL, for Charles Bretz.

Michael W. Condon (argued), Hervas, Sotos & Condon, Itasca, IL, for Patricia Schneider.

Before POSNER, Chief Judge, and LAY ^* and ROVNER, Circuit Judges.

POSNER, Chief Judge.

This appeal from the dismissal of a complaint for failure to state a claim, and from the denial of a motion for reconsideration and for leave to file an amended complaint, presents two questions. The first is whether a man who becomes a father as a result of his criminal intercourse with a minor has an interest in the child that is protected by the due process clause of the Fourteenth Amendment as a form of liberty. The second (which we shall not have to decide, however) is whether interference by state officials with the filing of a suit under state law violates the federal Constitution.

The only source of facts is the allegations of the complaint, and we therefore take those allegations as true for purposes of this appeal. The plaintiff, Ruben Pena, began dating Amanda Mattox in 1991. Ruben was 19 and Amanda 15. Both were living in Illinois, Amanda with her parents. Amanda became pregnant by Ruben the following year. When Amanda's parents discovered her pregnancy they forbade her to continue seeing Ruben, but she disobeyed their order.

The months passed. He happened to visit her on the evening of December 8, 1992. Her pregnancy was far advanced. She complained to him that she felt sick. He urged her to tell her parents about the feeling. Sometime after he left he called to find out how she was doing. He could not reach her, and no one at her home would give him any information about her. He visited several hospitals looking for her, but without success.

The next night, Amanda's father, defendant Mattox, called Ruben and asked him to meet him at a restaurant. When Ruben arrived he was arrested on the basis of a felony criminal complaint signed by Mattox. The complaint charged Ruben with the felony of sexual intercourse with a person who is at least 13 but no older than 16 and at least five years younger than the defendant. 720 ILCS 5/12-16(d). Mattox knew that Amanda was not five years younger than Ruben. The complaint had been drafted or authorized by, and the warrant for Ruben's arrest procured by, a state prosecutor named Charles Bretz, who is also a defendant, and who also knew that the charges were false. Bail was set at $30,000.

When Ruben's sister learned of his arrest she called the Mattox home. Patricia Schneider, who was at the time an Illinois state judge and who is Amanda's aunt and another defendant, answered the phone, identified herself as a judge, told the sister not to call the Mattox residence again, and added that Ruben's bail would be increased the next day. Increased it was, to $45,000. Although the complaint does not charge Schneider with any role other than to field the phone call from Ruben's sister, the fact that she told the sister that Ruben's bail would be raised the next day, and that it was raised, suggests that she may have spoken to the judge who handled Ruben's case.

Ruben could not make bail and remained in jail. Two days later, however, the charges against him were reduced to criminal sexual abuse, a misdemeanor that differs from the felony with which he had been charged originally in not requiring the defendant to be at least five years older than his sexual partner. 720 ILCS 5/12-15(c). Had he been charged with a misdemeanor in the first place, his bail could not have exceeded $1,000. Ruben pleaded guilty to this offense the same day, received a sentence of 24 months supervision, and was released. One condition of his release was that he have no contact with Amanda or any member of her immediate family until April 19, 1994. Ruben left Illinois, fearful that the defendants would "continue to exert improper influence" over the law enforcement authorities of Illinois, as his complaint puts it.

The scheme to arrest and prosecute Ruben had been activated when Amanda, seven and a half months pregnant, went into labor on December 8, 1992 (that was the "sickness" which, unbeknownst to him, she was complaining of). Her parents spirited her off to Indiana, where she gave birth. The child was immediately placed for adoption. Ruben was not informed of the adoption or even that the child had been born and Amanda removed to Indiana, a state that has an unusual law, dispensing with the requirement that the father consent to adoption, if, as in this case, the mother was under 16 when the child was conceived. Ind.Code §§ 31-3-1-6(i)(2)(B)(ii), 35-42-4-3(c); Mullis v. Kinder, 568 N.E.2d 1087 (Ind.App.1991).

This suit was brought in June of 1994, some 18 months after the birth and arrest. The principal claim is that the defendants conspired to deprive the plaintiff of his parental rights. Since Bretz certainly and Schneider arguably were acting under color of state law, the conspiracy is actionable under 42 U.S.C. § 1983 even though the third defendant, Amanda's father, was not. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970). (The remaining defendants are "persons unknown," and their role in the conspiracy is obscure.) The plaintiff seeks damages, not rights in the child which in any event these defendants have no power to give him.

Bretz claims immunity as a prosecutor (Schneider makes no claim of immunity), and rightly so with regard to everything that he did, such as the drafting or authorization of the original criminal complaint against the plaintiff, the procuring of the warrant, the request to increase Pena's bail, and the request that Pena be forbidden, as a condition of his punishment, to see Amanda. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But the complaint alleges that he was a member of a conspiracy that went beyond the criminal prosecution of the plaintiff. A prosecutor has no immunity for the acts that he does outside his role as a prosecutor, Buckley v. Fitzsimmons, 509 U.S. 259, 271-78, 113 S.Ct. 2606, 2615-18, 125 L.Ed.2d 209 (1993); and the law of conspiracy would impute to him, as a coconspirator, the acts of the other, nonprosecutor members of the conspiracy. United States v. Williams, 81 F.3d 1434, 1441 (7th Cir.1996). The acts directly connected with the criminal prosecution were not the most significant acts committed in furtherance of the conspiracy. What really defeated Ruben's effort to establish a parental right (besides Indiana law) was the fact that Amanda was taken out of the state, and the child put up for adoption, without his knowledge, and the further fact that he found himself, a stripling of 19, up against Illinois officialdom in the persons of a judge and a prosecutor.

It would not do to strip a judge or prosecutor of his immunity merely because he conspired with nonimmune persons. Dennis v. Sparks, 449 U.S. 24, 28, 30-31, 101 S.Ct. 183, 186, 187-88, 66 L.Ed.2d 185 (1980); John v. Barron, 897 F.2d 1387, 1392 (7th Cir.1990); Young v. Biggers, 938 F.2d 565, 569 (5th Cir.1991). But we are pretty sure that this principle does not extend to a case in which the conduct of the prosecutor's coconspirators includes acts wholly unrelated to the prosecutorial role. No doubt prosecutorial immunity would be worth little if it could be stripped away upon proof that the prosecutor "agreed" with his principal witness that the latter would fabricate evidence against the accused. But to take the next step and hold that it protects a prosecutor who hires a hit man to kill the accused should the latter be acquitted would carry the immunity both outside its historical scope and beyond the point at which it is necessary to protect prosecutors from being harassed by suits by the prosecuted. See Buckley v. Fitzsimmons, supra, 509 U.S. at 277, 113 S.Ct. at 2618. Buckley holds that a prosecutor lacks absolute immunity for violating the plaintiff's rights while conducting investigative work even if that work produces evidence that the prosecutor could with absolute immunity present to a grand jury. Id. at 275, 113 S.Ct. at 2617. We do not think the prosecutor's liability is less if he hires the investigator rather than conducting the investigation himself, and agrees that the investigator shall proceed without regard to the rights of the persons investigated.

From the issue of immunity we turn to the merits of the appeal. The defendants argue that when the deprivation of a constitutional right occurs through the unauthorized acts of subordinate state officials rather than through a decision made at the policy-making level of state or local government, the plaintiff must show that the state failed to provide adequate avenues of redress. This is the principle of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); see also Hudson v. Palmer, 468 U.S. 517, 531-33, 104 S.Ct. 3194, 3202-04, 82 L.Ed.2d 393 (1984). But the principle is limited to cases in which the deprivation is of a right that the due process clause secures only against the denial of procedural protection, Parratt v. Taylor, supra, 451 U.S. at 536, 101 S.Ct. at 1913; Zinermon v. Burch, 494 U.S. 113, 131-32, 110 S.Ct. 975, 986-87, 108 L.Ed.2d 100 (1990)--hence a right that can be infringed only by a denial of reasonable notice or of an opportunity for a...