Scott v. Schmidt

• Decision Date: 17 September 1985
• Docket Number: No. 84-1995,84-1995
• Citation: 773 F.2d 160
• Parties: Bernard T. SCOTT, Plaintiff-Appellant, v. Charles H. SCHMIDT, Jr., Individually and as Chairman of the Illinois Racing Board; Ray H. Garrison, Thomas J. Garvey, Farrel J. Griffin, Joseph Kellman, Cecil J. Troy, and Robert G. Ward, all individually and as members of the Illinois Racing Board, State of Illinois; David E. Hooper, Individually and as Executive Secretary of the Illinois Racing Board; Jewel N. Klein, individually and as counsel for the Illinois Racing Board; Richard Garrett, individually and as State Steward for the Illinois Racing Board; and Douglas Sapper, individually and as Assistant State Steward for the Illinois Racing Board, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 160

773 F.2d 160

Bernard T. SCOTT, Plaintiff-Appellant, v. Charles H. SCHMIDT, Jr., Individually and as Chairman of the Illinois Racing Board; Ray H. Garrison, Thomas J. Garvey Farrel J. Griffin, Joseph Kellman, Cecil J. Troy, and Robert G. Ward, all individually and as members of the Illinois Racing Board, State of Illinois; David E. Hooper Individually and as Executive Secretary of the Illinois Racing Board; Jewel N. Klein, individually and as counsel for the Illinois Racing Board; Richard Garrett individually and as State Steward for the Illinois Racing Board; and Douglas Sapper, individually and as Assistant State Steward for the Illinois Racing Board, Defendants-Appellees.

No. 84-1995.

United States Court of Appeals Seventh Circuit.

Argued Feb. 25, 1985.

Decided Sept. 17, 1985.

John H. Bisbee, Macomb, Ill., for plaintiff-appellant.

Kathryn A. Spaulding, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before BAUER and WOOD, Circuit Judges, and DOYLE, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

On January 8, 1980 an attempt was made to fix the tenth harness race at Fairmount Park, Illinois. Appellant Scott, driving Flying Scooter, finished sixth. On April 9, 1980, a Madison County, Illinois grand jury indicted Scott for accepting a bribe to finish fourth or worse in the race, a Trifecta race, ¹ and for failure to report a bribe. Although Scott was eventually acquitted of the criminal charges, the Illinois Racing Board has continued to deny Scott the license required by statute to race in Illinois on grounds that he took a bribe and failed to report it. Scott brought suit in federal court against the Illinois Racing Board members, two Board stewards, one Board attorney, and the Board executive secretary. The suit charges that together and separately the defendants violated Scott's civil rights. The district court dismissed the suit on the pleadings. Scott appeals the dismissal. We affirm.

I.

In 1980 Appellant Scott was a harness horse owner, trainer, and driver, licensed by the Illinois Racing Board. On April 9, 1980 a Madison County, Illinois grand jury returned a two count indictment against Scott for accepting and failing to report a bribe not to use his best efforts in the tenth race at Fairmount Park on January 8, 1980. On May 7, 1980, following the indictment but before trial, two stewards of the Illinois Racing Board, Richard Garrett and Douglas Sapper, supended Scott's occupation license for the remainder of 1980. ²

Scott requested and received a Board hearing on May 23, 1980 to review the stewards' action. On June 6, 1980, after the hearing but before the full Board rendered a decision, the Madison County Circuit Court enjoined the enforcement of the stewards' order. Pursuant to this injunction Scott raced during 1980 and 1981 notwithstanding a June 19, 1980 Board affirmance of the stewards' order.

In August, 1981 Scott was acquitted on both criminal counts and a month later the Illinois Supreme Court reversed the circuit court's injunction order against the stewards' action. See Phillips v. Graham, 86 Ill.2d 274, 56 Ill.Dec. 355, 427 N.E.2d 550 (1981). The Board did not, however, initiate action to exclude Scott from racing during the remaining portion of the 1981 season.

In January, 1982, Scott telephoned the offices of the Illinois Racing Board regarding the procedure for applying for a 1982 license. According to the complaint, defendant David Hooper, executive secretary of the Board, told Scott that he (Hooper) and the Board thought Scott was guilty of taking the bribe notwithstanding his acquittal. Nevertheless Scott applied for a license. The stewards, defendants Garrett and Sapper, denied plaintiff's 1982 license application. Scott appealed to the Board and Board member Garrison, acting as hearing officer, presided over a de novo hearing on Scott's application. At the hearing Greg Lance, an admitted participant in the January 8 attempted fix, testified that Scott took $500 from him as a bribe to not use his best efforts in the tenth race. Lance's testimony was corroborated by a statement given by another admitted participant in the fix, Vernon Rodoni. Rodoni's corroborating statement was admitted into the record by stipulation. Scott testified on his own behalf denying the charges; Scott also called his groom Steve Szykzewski who testified that he did not know of the alleged meeting between Lance and Scott where Scott allegedly took the bribe. The transcript of the criminal proceedings was not available and not considered by the Board.

The full Board, upon review of the hearing record, found that Lance and Rodoni's testimony was credible and that Scott had accepted a $500 bribe to finish fourth or worse in the race on January 8, 1980. Accordingly, the Board denied Scott's 1982 application. A state circuit court and a state appeals court later affirmed the Board's denial. Scott did not seek review by the Illinois Supreme Court.

In 1983 Scott again applied for a license. A hearing was held, over which one of the Board members (presumably Garrison) presided. At this hearing evidence was presented on the issue of Scott's rehabilitation and fitness for a license. On review of the hearing record the full Board concluded that Scott had not shown rehabilitation and denied his application. Scott did not appeal this order.

In January, 1984 Scott again applied for a license. At the same time he filed the instant civil rights action in federal district court pursuant to 42 U.S.C. Secs. 1983 and 1985(2). The complaint alleges deprivation of various constitutional rights under the first, fifth, sixth, eighth, and fourteenth amendments. Scott seeks damages for his forty-day suspension in 1980 and for being denied a license in 1982 and 1983. ³ On June 6, 1984 the district court held that the suit was barred by the doctrines of res judicata and collateral estoppel; that the Racing Board members, stewards, and counsel were immune from suit, although Board executive secretary David Hooper was not; that Scott failed to state a claim under 42 U.S.C. Sec. 1985(2) because he did not allege the requisite class-based invidious discriminatory animus; that Scott failed to state a claim under 42 U.S.C. Sec. 1983 because he did not allege facts which establish a deprivation of due process; and that Scott's section 1983 first, fifth, sixth, and eighth amendment claims were frivolous. This appeal followed.

II.

Scott's complaint contains two claims for relief: the first claim is made pursuant to title 42, section 1983 and the second pursuant to title 42, section 1985(2). On appeal Scott concedes that his second claim is deficient under section 1985(2) because it does not allege a class-based discriminatory animus, but rather a retaliatory motive: retaliation for Scott's success in obtaining the circuit court injunction against the enforcement of the original suspension order pending the outcome of the criminal proceedings. Scott asks this court to permit him to amend his pleadings and reallege his second claim pursuant to section 1983. Generally, motions for leave to amend pleadings are not properly raised in the first instance at the appellate stage. 6 C.A. WRIGHT & A.R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL Sec. 1489, p. 449 (1971). Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure a party may amend his pleadings once as of right before a responsive pleading is served and thereafter by leave of the district court or written consent of the adverse party. Even after the district court has entered final judgment, a party may, before filing an appeal, seek leave to amend by first filing a motion to alter, set aside, or vacate the judgment pursuant to Rule 59(e) or Rule 60(b) and then requesting leave to amend pursuant to Rule 15(a). 6 C.A. WRIGHT & A.R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL Sec. 1489, pp. 445-50 (1971). Scott failed to seek leave to amend his second claim at any point prior to filing his brief in this appeal; we consider his motion for leave to amend at this appellate stage to be untimely and it is denied.

III.

The district court held that the Racing Board members, stewards, and counsel all enjoy absolute immunity from this suit because they were performing quasi-judicial acts when they participated in the proceedings wherein Scott's license was suspended and his license application was denied.

On appeal Scott concedes the general applicability of immunity to the Board members and counsel, but argues that absolute immunity should not be extended to the Board members and counsel in this case because the complaint alleges non-judicial acts, taken "in clear absence of all jurisdiction." ⁴ Relying principally on the Ninth Circuit case of Beard v. Udall, 648 F.2d 1264 (9th Cir.1981) (per curiam), Scott contends that the complaint focuses on non-judicial acts to the extent it alleges that the Racing Board members entered a prior agreement with the Board's attorney, who presented the case against Scott to the Board, to find him guilty. We do not read the complaint to make such an allegation.

Regarding the 1982 denial of Scott's license application the complaint alleges that the Board's executive secretary, David Hooper, told Scott prior to the hearing on Scott's application that the Racing Board members believed that Scott was guilty of taking and failing to report the bribe despite his acquittal of the charges in criminal court. Nowhere is there an allegation of any prior agreement between the Board members and the Board attorney.

Read liberally the complaint charges that the Board members held a prior belief or attitude toward the case. ⁵ But holding a prior opinion about a case is not a non-judicial act; indeed, it is no act at all. In Bradley v. Fisher, 80 U.S. 335, 20 L.Ed. 646 (1871) the Supreme Court stated that the applicability of judicial immunity to a judge is not "affected by the motives with which their...