Smith v. LaFollette

• Decision Date: 15 March 1994
• Docket Number: No. 93-2639,93-2639
• Citation: 23 F.3d 410
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. David J. SMITH, Plaintiff-Appellant, v. Bronson LAFOLLETTE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 410

23 F.3d 410

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

David J. SMITH, Plaintiff-Appellant, v. Bronson LAFOLLETTE, et al., Defendants-Appellees.

No. 93-2639.

United States Court of Appeals, Seventh Circuit.

Submitted March 15, 1994. ^*

Decided April 20, 1994.

Before CUDAHY, EASTERBROOK and MANION, Circuit Judges.

ORDER

This civil rights action arose out of the criminal prosecution of David J. Smith, a former Wisconsin attorney who was charged and convicted in Oneida County Circuit Court of the felonies of theft by fraud and false swearing. The complaint alleged that the defendants conspired to deprive Smith of his civil rights by initiating criminal proceedings against him to protect the financial interests of a bank and its customers. The district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6), and Smith appealed.

We agree with the district court that Smith's Sec. 1983 claims accrued no later than the date of his conviction, Cline v. Brusett, 661 F.2d 108, 110 (9th Cir.1981), and not when the consequences of that conviction (loss of his professional license and imprisonment) were felt, ² see, e.g., Kelly v. City of Chicago, 4 F.3d 509, 512 (7th Cir.1993) (Sec. 1983 action based on revocation of liquor license; the date of the alleged constitutional violation is the date of accrual, not the date on which the consequences of that violation become painful); cf. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (statute of limitations for Sec. 1981 and Title VII claim accrued when the tenure decision was made and communicated, not when the plaintiff was eventually fired), so Wisconsin's six-year statute of limitations period barred relief against Attorney General Bronson LaFollette and his employee, Walter Gayan, Assistant Attorney Generals Matthew Frank and Jeffrey Gabrysiak, and M & I Bank, ³ see Gray v. Lacke, 885 F.2d 399, 407-09 (7th Cir.1989) (Sec. 1983 claims arising in Wisconsin are governed by six-year personal rights statute rather than three-year statute covering "injuries to the person"), cert. denied, 494 U.S. 1029 (1990); Farrell v. McDonough, 966 F.2d 279, 282 (7th Cir.1992) (reaffirming Gray ), cert. denied, 113 S.Ct. 1059 (1993); the state public defender did not act under color of state law, Polk County v. Dodson, 454 U.S. 312, 325 (1981); attorney Schroeder and the law firm of Herrling, Myse, Swain & Dyer, Ltd. remained private actors, ⁴ see, e.g., French v. Corrigan, 432 F.2d 1211, 1214-15 (7th Cir.1970) (lawyers in private practice do not act under color of state law for purposes of 42 U.S.C. Sec. 1983), cert. denied, 401 U.S. 915 (1971); and the $3,000 sanction against Smith was imposed under Fed.R.Civ.P. 11, not 42 U.S.C. Sec. 1988, so Kay v. Ehrler, 499 U.S. 432 (1991), is irrelevant.

Accordingly, we affirm the dismissal of Smith's complaint for the reasons stated by the district court in the attached Opinions and Orders. ⁵ Acting pursuant to 28 U.S.C. Sec. 2106, we modify the judgment to reflect that the dismissal of the state legal malpractice claim against Herrling, Myse, Swain & Dyer, Ltd. is without prejudice. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-27 (1966).

AFFIRMED AS MODIFIED.

ATTACHMENT

In the United States District Court

for the Western District of Wisconsin

David J. Smith, Plaintiff,

v.

Bronson, Lafollette, Matthew J. Frank, Jeffrey M. Gabrysiak,

Walter C. Gayan, James W. Karch, Herrling, Myse, Swain &

Dyer, Ltd., William Schroeder, State Public Defender and M &

I Bank, ¹ Defendants.

March 19, 1993

OPINION AND ORDER

92-C-0654-C

CRABB, Chief Judge.

This is a civil action for monetary relief brought pursuant to 28 U.S.C. Secs. 1983 and 1988. Plaintiff contends that defendants violated his Fifth, Sixth, Ninth and Fourteenth Amendment rights when they engaged in wrongful conduct immediately prior to and during his criminal trial. Before the court are three separate motions to dismiss brought by (1) defendants LaFollette, Frank, Gabrysiak, Gayan and the state public defender; (2) defendant Schroeder; and (3) defendant Herrling, Myse, Swain & Dyer, Ltd.

I conclude that the motion to dismiss by defendants LaFollette, Frank, Gabrysiak and Gayan must be granted because plaintiff's claims against defendants are barred by the statute of limitations. The motion to dismiss by the state public defender will be granted because the state public defender is absolutely immune from suit in his individual capacity and immune from suit in his official capacity under the Eleventh Amendment. Finally, the motions to dismiss by defendants Schroeder and Herrling, Myse, Swain & Dyer, Ltd. will be granted because plaintiff has failed to show that these defendants were acting under color of state law or were involved in a conspiracy with state actors. ²

In considering a motion to dismiss, the court must accept as true all well-pleaded factual allegations in the complaint, drawing all reasonable inferences in favor of the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 72 (1984); Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir.1990). The court may dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) only if " 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Although all reasonable inferences are to be drawn in favor of the plaintiff, the complaint must set forth factual allegations sufficient to establish the elements that are crucial to recovery under plaintiff's claim. Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir.1984). Legal conclusions without factual support are not sufficient. Benson v. Cady, 761 F.2d 335, 338 (7th Cir.1985).

In deciding the motion to dismiss, I must take as true all of the well-pleaded allegations of the complaint. For that purpose only, I accept as true the following allegations of fact made by plaintiff in his complaint.

ALLEGATIONS OF FACT

Plaintiff David J. Smith is a resident of Winnebago County, Wisconsin. At all times relevant to this complaint, defendant Bronson LaFollette was the elected Attorney General of the State of Wisconsin and was acting in his individual and official capacity. Defendants Matthew J. Frank and Jeffrey Gabrysiak were Assistant Attorneys General of the State of Wisconsin and were acting in their individual and official capacities. Defendant Walter C. Gayan was an employee of the Department of Justice and was acting also in his individual and official capacity. Defendant LaFollette failed to properly supervise, train and discipline defendants Matthew J. Frank, Jeffrey Gabrysiak, and Walter Gayan.

Defendant James W. Karch was an acting Circuit Judge for Oneida County and was acting in his individual and official capacity. Defendant State of Wisconsin Public Defender is organized pursuant to Wis.Stat. Ch. 977 for the purpose of providing legal counsel for indigent criminal defendants. Defendant Herrling, Myse, Swain, & Dyer, Ltd., is a law firm engaged in the practice of law in the State of Wisconsin. Defendant William Schroeder is an attorney engaged in the practice of law in the State of Wisconsin. Defendant M & I Bank is a state bank with an office and place of business in Eagle River, Wisconsin, and during the time relevant to this complaint was doing business as Eagle River State Bank.

On or about December 13, 1983, in response to a request by Wisconsin Senate Majority Leader Timothy Cullen, defendant LaFollette assigned defendant Frank to investigate and to bring criminal charges against plaintiff in Oneida County. Cullen's contact with defendant LaFollette was made at the request of William Rodd, President of the Eagle River State Bank, now doing business as M & I Bank. William Rodd made use of his political connections through Cullen for the purpose of protecting the financial interests of the bank and its customers.

On August 20, 1984, defendant Gayan signed a criminal complaint alleging that plaintiff had committed three felonies in Oneida County. Defendant Gayan knew or with reasonable inquiry should have known that he was an actor in an illegal and unlawful activity designed to protect the financial interests of defendant M & I Bank.

Defendant Schroeder acted as one of the attorneys for the heirs of the Estate of Carl O. Marty in civil litigation in which plaintiff was a defendant. Defendant Schroeder was intimately associated with defendant Gayan and became an integral part of the investigation that resulted in the unlawful proceedings against plaintiff.

On August 20, 1984, defendants Frank and Gabrysiak acted without authority but under color of state law in approving a criminal complaint for filing and, on August 21, 1984, causing it to be filed in Oneida County Circuit Court. On August 20, 1984, John Hogan was the District Attorney for Oneida County. No lawful proceeding before any court had invested defendants Frank and Gabrysiak with any prosecutorial authority. Defendants LaFollette, Frank, Gabrysiak and Gayan were acting under color of state law but outside the scope of their authority in that the office of the Attorney General is without authority to commence criminal actions in the circuit courts in the absence of a request from the governor or the legislature. In response to plaintiff's challenge to the lack of prosecutorial authority, defendants engaged in a deliberate campaign of lies, deception and coverage to make it appear to the trial judge, defendant Karch, that they were acting in accordance with law.

At numerous times during the proceedings against plaintiff, defendant Karch stated that he was concerned about the lack of jurisdiction...