Redwood v. Dobson

• Decision Date: 07 February 2007
• Docket Number: No. 06-1165.,No. 05-4324.,05-4324.,06-1165.
• Parties: Erik REDWOOD and Jude Redwood, Plaintiffs-Appellants, Cross-Appellees, v. Elizabeth DOBSON and Harvey Cato Welch, Defendants-Appellees, and Marvin Ira Gerstein, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

476 F.3d 462

Erik REDWOOD and Jude Redwood, Plaintiffs-Appellants, Cross-Appellees, v. Elizabeth DOBSON and Harvey Cato Welch, Defendants-Appellees, and Marvin Ira Gerstein, Defendant-Appellee, Cross-Appellant.

No. 05-4324.

No. 06-1165.

United States Court of Appeals, Seventh Circuit.

Argued January 8, 2007.

Decided February 7, 2007.

Judith M. Redwood (argued), Redwood Law Office, St. Joseph, IL, Charles L. Danner, Peoria, IL, for Plaintiff-Appellee.

Jude Redwood, pro se.

James C. Kearns, Keith B. Hill (argued), Heyl, Royster, Voelker & Allen, Urbana, IL, Roger B. Webber (argued), Beckett & Webber, Urbana, IL, David N. Rumley, Urbana, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and ROVNER and WOOD, Circuit Judges.

EASTERBROOK, Chief Judge.

This is a grudge match. Harvey Cato Welch represented Erik Redwood in a criminal prosecution for battery. Redwood was convicted and maintains that Welch is at fault. Redwood wants Welch to sign an affidavit confessing that he supplied ineffective assistance; he believes that with such an affidavit he could have his criminal record expunged. Welch, who believes that his legal work met professional standards, has refused to fall on his sword for Redwood's benefit. Redwood has retaliated by insulting Welch in public, calling him, among other things, a "shoe-shine boy." Redwood is white and Welch black; Welch believes that this phrase, when spoken to an adult, is a racial slur.

During October 1998 a scuffle occurred after Redwood again called Welch a "shoe-shine boy." Redwood filed a battery suit in state court; Welch filed a defamation counterclaim and asked the State's Attorney to prosecute Redwood for inciting a breach of the peace. Erik Redwood was represented in that litigation by attorney Jude Redwood, his wife, who also is a plaintiff in the federal suit. Elizabeth Dobson, an Assistant State's Attorney, decided that Erik Redwood had committed a hate crime by using a demeaning term that led to a physical confrontation. Officer Troy Phillips of the Urbana Police Department presented the evidence to the grand jury, which returned an indictment. Attorney Marvin Gerstein, representing Welch in the civil litigation, later wrote to Jude Redwood suggesting that, if the litigation could be resolved amicably, he would try to persuade Dobson to dismiss the criminal charge. The Redwoods rejected that offer. The civil case went to trial; while the jury was deliberating, the parties reached a settlement. Meanwhile the criminal prosecution had been dismissed on the ground that the state's hate-crime law does not apply to speech that does not threaten immediate physical injury. See People v. Redwood, 335 Ill.App.3d 189, 269 Ill.Dec. 288, 780 N.E.2d 760 (4th Dist.2002).

While the prosecutor's appeal in the criminal prosecution was pending, the Redwoods filed this federal action against Dobson, Welch, Gerstein, Phillips, and the City of Urbana. The complaint, signed by Jude Redwood as counsel (she is also a plaintiff, alleging loss of consortium) accuses the five defendants of violating the first amendment by discriminating against Erik Redwood's religion (which, he maintains, leads him to "teach truth and righteousness to all persons, including defendant Harvey Welch", a curious euphemism for personal insults) and of conspiracy to maintain a malicious prosecution. These acts are alleged to violate 42 U.S.C. § 1983 and § 1985, though the Redwoods have never tried to explain why a state may not apply a rule that is neutral with respect to the speaker's religion. See Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); cf. Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). The complaint also presents several claims under state law.

Urbana settled the litigation for nuisance value. After extended discovery, the district court granted summary judgment for the four other defendants. Phillips prevailed as a result of the absolute immunity that applies to witnesses in criminal proceedings. See Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). The Redwoods have abandoned their claims against him but appeal with respect to the remaining three defendants. The Redwoods also appeal from the denial of their motion for sanctions in discovery, Gerstein has filed a cross-appeal to protest the district court's denial of his motion for attorneys' fees, and both sides ask us to award sanctions for what they call frivolous arguments in this court.

Dobson, Welch, and Gerstein are right to label most of the Redwoods' appellate arguments as frivolous. "Malicious prosecution" is not a constitutional tort independent of complaints about wrongful arrest and detention, and Erik Redwood was never placed in custody. See Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Newsome v. McCabe, 256 F.3d 747 (7th Cir.2001). Dobson's decision to commence a criminal prosecution is covered by absolute immunity. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Although the plaintiffs insist that Dobson is being sued for administrative rather than prosecutorial duties, the only "administrative" act about which they complain is her decision to put Phillips before the grand jury as a summary witness, rather than to call Welch. That's precisely the kind of prosecutorial decision that immunity protects. Unlike activity of the sort at issue in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)—such as a prosecutor's personal conduct of an interrogation, or a pre-litigation search or seizure—the choice of witnesses to present is part of the prosecutorial function and cannot independently violate anyone's rights (as a search or seizure might do).

As the complainant in the criminal prosecution, Welch lacks absolute immunity, see Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997), but he's not a state actor and so can't be liable under § 1983 in the first place. That is why the Redwoods invoke 42 U.S.C. § 1985(3), which covers conspiracies between public and private actors. But where's the conspiracy? Plaintiffs treat all contact between prosecutors and complaining witnesses as "conspiracy." The minimum ingredient of a conspiracy, however, is an agreement to commit some future unlawful act in pursuit of a joint objective. See United States v. Lechuga, 994 F.2d 346 (7th Cir.1993) (en banc). The record in this case would not permit reasonable jurors to conclude that Welch and Dobson had a joint objective, let alone that they agreed to pursue it through unlawful acts. Welch complained to the prosecutor, seeking an end to what he deemed racist harassment; Dobson acted as she conceived the public interest to require. Dobson had no reason to do any favors for Welch and received nothing (except this lawsuit) in return for her official actions. No prosecutor handles a case in an isolation tank. Discussions with victims, witnesses, and police are common. If these ordinary acts amount to "conspiracy" to violate the Constitution, then immunities will be worthless and both witnesses and prosecutors would be induced to remain passive rather than enforce the criminal law vigorously.

Then there is Gerstein, whose only role was to represent Welch in the tort litigation, and neither § 1983 nor § 1985(3) applies to that private activity. The Redwoods believe that Gerstein acted unethically by offering to contact Dobson and ask her to dismiss the criminal charge as part of a settlement. Whether or not that step was appropriate as a matter of legal ethics in Illinois, it does not violate any rule of federal law—for so far as § 1983 and the Constitution are concerned, criminal charges may be dismissed in order to facilitate civil settlement. See Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987). Calling the offer "extortion," as the plaintiffs do, does not make it so, as Newton demonstrates. See also Dye v. Wargo, 253 F.3d 296 (7th Cir.2001). If Gerstein acted wrongfully in suggesting a global resolution, the Redwoods' remedy lay in the state court handling the civil litigation (to which they never complained), or the Attorney Registration and Disciplinary Commission of Illinois (to which they did), rather than in a federal lawsuit.

The only reason why the Redwoods' appeal is not wholly frivolous is that the district court dismissed the state-law claims on the merits rather than relinquishing supplemental jurisdiction. A court that resolves all federal claims before trial normally should dismiss supplemental claims without prejudice. 28 U.S.C. § 1367(c)(3). That both sides have allowed animosity to get the better of legal judgment, however, implies the wisdom of bringing the contretemps to a conclusion in a single forum. The state-law claims were not complex. On appeal, the Redwoods treat them as replays of the federal claims, and their principal argument is that a jury could find a conspiracy among the defendants. As we have rejected that argument with respect to the federal theories, it fails for state-law theories as well.

A profusion of motions and cross-motions for sanctions—and the conduct underlying some of these motions—demonstrates the extent to which counsel have allowed personal distaste to displace dispassionate legal analysis. Most depositions are taken without judicial supervision. Witnesses often want to avoid giving answers, and questioning may probe sensitive or emotionally fraught subjects, so unless counsel maintain professional detachment decorum can break down. That happened here; the results were ugly.

Gerstein's deposition was taken by Charles L. Danner on behalf of both Redwoods, though Jude Redwood attended and sometimes acted as counsel in addition to her role as a plaintiff. Gerstein's counsel was Roger Webber, though Gerstein himself peppered the transcript with legal arguments. The deposition began...