Tarkowski v. Lake County

• Decision Date: 10 October 1985
• Docket Number: 85-1060,Nos. 84-2953,s. 84-2953
• Citation: 775 F.2d 173
• Parties: John TARKOWSKI, Plaintiff-Appellant, v. COUNTY OF LAKE; Dennis Ryan, as an individual and as State's Attorney of Lake County; and David Weidenfeld, as an individual and as Assistant State's Attorney of Lake County, Defendants- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 173

775 F.2d 173

3 Fed.R.Serv.3d 231

John TARKOWSKI, Plaintiff-Appellant, v. COUNTY OF LAKE; Dennis Ryan, as an individual and as State's Attorney of Lake County; and David Weidenfeld, as an individual and as Assistant State's Attorney of Lake County Defendants- Appellees.

Nos. 84-2953, 85-1060.

United States Court of Appeals Seventh Circuit.

Submitted July 25, 1985.

Decided Oct. 10, 1985.

John Tarkowski, pro se.

Gail Tuler Friedman, Asst. State's Atty., Waukegan, Ill., for defendants-appellees.

Before ESCHBACH, POSNER and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

John Tarkowski, appearing pro se, appeals from the district court's dismissal of his civil rights suit (42 U.S.C. Sec. 1983) against an Illinois county and various officials thereof, while the defendants cross-appeal from the district court's denial of their motion for an award of slightly less than $2,000 in attorney's fees incurred to defend against Tarkowski's action.

The suit grows out of a zoning dispute--which Tarkowski lost, see Bartlett v. Tarkowski, 38 Ill.App.3d 134, 347 N.E.2d 415 (1976)--over Tarkowski's use of his land for storage of vehicles. According to the defendants' motion for attorney's fees, Tarkowski after losing in state court brought eight separate federal-court actions, which were meritless, against the defendants and other state agencies and officials, to prevent the closing down of his storage operation. In an effort to staunch the flow, the defendants brought their own federal court action to enjoin Tarkowski from bringing additional federal suits against them. That action was dismissed in 1980 for lack of federal jurisdiction. Four years later Tarkowski brought the present suit, which charges that the defendants' suit had been malicious, without probable cause, and intended to retaliate against Tarkowski for exercising his federal constitutional rights. The district judge dismissed Tarkowski's suit in part because he found that the defendants had had probable cause for their suit against Tarkowski.

If public officials bring a baseless suit designed to deter an individual from enforcing his federal constitutional rights, they can perhaps be said to be depriving him of those rights, and such a deprivation, when done under color of state law, is actionable under 42 U.S.C. Sec. 1983, which creates a federal tort remedy for deprivations of federal rights under color of state law. We have softened our statement with a "perhaps" in recognition that although several decisions in this circuit, notably Hampton v. City of Chicago, 484 F.2d 602, 609 (7th Cir.1973), and Hampton v. Hanrahan, 600 F.2d 600, 630 (7th Cir.1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam), say that this kind of malicious prosecution is actionable under section 1983, their discussion of this question is summary and we have found no case that has actually found liability. Wolfel v. Bates, 707 F.2d 932, 934 (6th Cir.1983) (per curiam), provides some support for the proposition, while Havas v. Thornton, 609 F.2d 372 (9th Cir.1979), and Bretz v. Kelman, 722 F.2d 503, 506 (9th Cir.1983), look the other way, but all three cases are distinguishable from the present case.

Fortunately the issue is not important in this case; as the district judge correctly found, the present defendants' suit against Tarkowski was not baseless even though it was dismissed for lack of federal jurisdiction. The defendants had claimed in that suit that the federal courts have power to prevent the abuse of their process, and this is true, see, e.g., Green v. Warden, U.S. Penitentiary, 699 F.2d 364, 368 (7th Cir.1983); the problem is that the power can only be exercised in a case that is properly in federal court. If the defendants had been counterclaiming in one of the suits brought by Tarkowski to enforce his federal civil rights, the court could have enjoined Tarkowski from filing further suits, as a remedy on the counterclaim. But they were not counterclaiming, they were bringing an original action, and one for which the district court in which it was filed was unable to find a federal statutory basis. It has generally, and we think correctly, been assumed that there is no federal tort of malicious prosecution. See Wheeldin v. Wheeler, 373 U.S. 647, 651-52, 83 S.Ct. 1441, 1444-43, 10 L.Ed.2d 605 (1963) (dictum); Eastern Industries, Inc. v. Joseph Ciccone & Sons, Inc., 532 F.Supp. 726 (E.D.Pa.1982); but see Sweeney v. Abramovitz, 449 F.Supp. 213 (D.Conn.1978). There hardly seems a pressing need for such a tort. State tort law of malicious prosecution may reach malicious federal litigation, as we shall see; and a defendant in a malicious federal suit can always ask the judge to protect him by injunction or impose sanctions on the plaintiff or the plaintiff's counsel. See, e.g., Fed.R.Civ.P. 11; 28 U.S.C. Sec. 1927; In re TCI Ltd., 769 F.2d 441 (7th Cir.1985). Whether there is another way to skin this cat--whether the All Writs Act, 28 U.S.C. Sec. 1651, can somehow be used to support a federal injunction designed to assure that an earlier federal judgment is treated as res judicata, as was done in St. Vincent's Hospital & Medical Center v. Division of Human Rights, 553 F.Supp. 375, 378 (S.D.N.Y.1982)--may be doubted in light of cases such as V.N.A. of Greater Tift County, Inc. v. Heckler, 711 F.2d 1020, 1024 n. 5 (11th Cir.1983), but in any event that was not the basis on which the defendants proceeded in the case of which Tarkowski complains.

Nevertheless that suit was not malicious, baseless, or designed to harass or retaliate; it was brought in good faith to keep Tarkowski from harassing the defendants. At worst, the defendants simply chose the wrong forum in which to bring such a suit, and should instead have brought it in state court, alleging common law malicious prosecution, on the authority of such cases as Excel Handbag Co. v. Edison Bros. Stores, Inc., 428 So.2d 348 (Fla.App.1983); Gamble v. Webb Quarterback Club, 386 So.2d 455 (Ala.Civ.App.1980); Roy v. Landers, 467 S.W.2d 924 (Mo.1971), and White v. Towers, 37 Cal.2d 727, 235 P.2d 209 (1951)--all cases where relief was sought in a state court against malicious prosecution in a federal court. The defendants would have had a good case under common law principles; the evidence that Tarkowski's suits were baseless and intended merely to harass the defendants is found in the records of numerous judicial proceedings. See, e.g., Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204 (7th Cir.1980); United States ex rel. Tarkowski v. County of Lake, 618 F.2d 114 (7th Cir.1980).

The defendants' mistake was understandable. It may have seemed to them a peculiar move to ask a state court for a remedy against malicious prosecution in a federal court; although the state court cases cited above were cases of that sort, none was an Illinois case. The defendants may have entertained well-grounded fears that a state court would be rendered powerless by the supremacy clause of the U.S. Constitution to enjoin Tarkowski's continuing to sue them in federal court, see General Atomic Co. v. Felter, 434 U.S. 12, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977) (per curiam), while a damages remedy might be completely inadequate. So it must have seemed that they had...