Lee Mercado v. Thomas Dart

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3092

L EE M ERCADO, et al.,

Plaintiffs-Appellees,

v.

T HOMAS J. D ART, Sheriff of Cook County, Illinois,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 552—Matthew F. Kennelly, Judge.

A RGUED A PRIL 5, 2010—D ECIDED A PRIL 28, 2010

Before E ASTERBROOK, Chief Judge, and B AUER and

W OOD , Circuit Judges.

E ASTERBROOK, Chief Judge. A class of persons detailed

at the Cook County Jail contends in this suit under

42 U.S.C. §1983 that the Sheriff of Cook County (who

runs the Jail), and his staff, have subjected them to need-

lessly humiliating strip searches (including body-cavity

searches). Plaintiffs have other contentions as well, and

the district judge has certified subclasses to pursue dif-

2 No. 09-3092

ferent claims. The current appeal, by the Sheriff (other

defendants have not joined this appeal), concerns only

searches after February 2007 of detainees when they

first arrive at the Jail.

The district judge concluded that, because the class’s

claims arise from the manner rather than the fact of these

searches, the holding of Bell v. Wolfish, 441 U.S. 520, 558–62

(1979), does not vindicate the Sheriff’s position. A jury

trial was held. At the close of the proofs, the Sheriff filed

a motion for judgment as a matter of law. Fed. R. Civ.

P. 50. He argued that Illinois requires jailers to conduct

strip searches and that, when complying with this rule, a

sheriff or other custodian is part of “the state” for the

purpose of the doctrine of state sovereign immunity

recognized in Hans v. Louisiana, 134 U.S. 1 (1890).

The parties call this “eleventh amendment immunity,”

which is triply inaccurate—first because Hans did not

interpret the eleventh amendment, whose text is limited

to diversity suits; second because the eleventh amend-

ment limits the jurisdiction of federal courts rather than

establishing an immunity, see Calderon v. Ashmus, 523 U.S.

740, 745 n.2 (1998); Ruehman v. Sheahan, 34 F.3d 525, 527

(7th Cir. 1994); and third because a state (including a

state officer sued in an official capacity) is not a “person”

for the purpose of §1983. Will v. Michigan Department of

State Police, 491 U.S. 58 (1989). That statutory rule makes

it unnecessary and inappropriate to consider what

limits the eleventh amendment would create. Lapides v.

University System of Georgia, 535 U.S. 613, 617–18 (2002); see

also Arizonans for Official English v. Arizona, 520 U.S. 43,

No. 09-3092 3

69 (1997). For reasons discussed below, however, it does

not matter whether “eleventh amendment immunity” is

a useful shorthand for the Sheriff’s position.

The district judge observed that the theory behind the

Rule 50 motion was being raised for the first time even

though the suit had been pending for three years. The

judge deemed the contention forfeited and submitted

the case to the jury, which returned a verdict in favor of

the class on liability. Because the trial had been bifurcated,

the next stage was the presentation of evidence about

damages. But, before that phase could begin, the Sheriff

filed a notice of appeal, contending that the rejection of

his theory is immediately appealable under Puerto Rico

Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506

U.S. 139 (1993).

Metcalf & Eddy applies to sovereign immunity the

approach to interlocutory appeals developed by Mitchell

v. Forsyth, 472 U.S. 511, 525–30 (1985), for situations in

which a public official asserts an absolute or qualified

immunity. We assume (without deciding) that the

Supreme Court would extend this understanding of the

collateral-order doctrine, see Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949), to an appeal by a state

official who contends that the definition of the word

“person” in §1983 means that a suit is untenable—though

that extension of Mitchell would bring the doctrine

awfully close to authorizing interlocutory review of the

merits. (Sovereign immunity does not apply because §5

of the fourteenth amendment empowers Congress to

subject states to suits for violations of that amendment.

4 No. 09-3092

See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The class

contends that the Sheriff violated the fourteenth amend-

ment, directly and via its incorporation of the fourth

amendment. So Congress could authorize a suit such

as this against a state, though Quern v. Jordan, 440 U.S. 332

(1979), holds that §1983 does not do so.) Even on the

assumption that Mitchell applies to appeals of this kind,

however, the Sheriff’s appeal must be dismissed for

want of jurisdiction.

Like any other application of the collateral-order doc-

trine, Mitchell depends on characterizing the decision

under review as “final,” because Mitchell interprets 28

U.S.C. §1291, a statute that makes finality essential to

appellate jurisdiction. Mitchell rests on the view that, as

a practical matter, an order declining to dismiss a com-

plaint, or denying a motion for summary judgment,

finally resolves the defendant’s assertion of a “right not

to be tried”—for an immunity (unlike a defense on the

merits) confers an entitlement to be free of the judicial

process as well as an entitlement to avoid an adverse

judgment. An order rejecting a claim of immunity is

final in the two senses that matter to Mitchell and its

successors: it represents the district court’s definitive

resolution, and it subjects the defendant to the judicial

process, with all of the costs that discovery and trial

produce. When a district court postpones resolution

until it has received additional submissions from the

litigants, it has not made a decision that is “final” in

Mitchell’s sense. See Khorrami v. Rolince, 539 F.3d 782,

786–87 (7th Cir. 2008). And when the defendant’s con-

tention does not invoke a “right not to be tried,” the

foundation for an interlocutory appeal is missing.

No. 09-3092 5

To date, the Supreme Court has treated only two

kinds of orders as “final” for the purpose of an

immunity appeal: denial of a motion to dismiss the com-

plaint and denial of a motion for summary judgment. See

generally Behrens v. Pelletier, 516 U.S. 299, 305–11 (1996).

These two orders often are the outcome of focused en-

gagements after full briefing; each represents the end of

a discrete stage in the litigation, during which the legal

issue has crystallized and been resolved as a matter of

law. Oral denial of a mid-trial motion under Rule 50, by

contrast, is not final by that standard. It is possible to

see how an order denying a motion for summary judg-

ment can be called “final” for some purposes even

though the judge has allowed the suit to proceed; but a

mid-trial ruling is not “final” for any purpose. It is a step

on the way to a verdict. And a mid-trial motion under

Rule 50 does not assert a “right not to be tried” or even a

“right to be free of costly discovery”; it asserts a right to

win (that’s why it is called a “motion for judgment as a

matter of law”). Discovery and trial have occurred by

the time lawyers start making Rule 50 motions. A judge’s

oral statement allowing the trial to proceed may presage

a final decision (judgment on the verdict) but is not

itself a final decision.

It is hard to imagine that the Justices have authorized

public officials to bring trials to a halt and disband the

jury while a pre-verdict appeal proceeds. As a practical

matter that would give every public official a right to a

mistrial in every §1983 suit that seemed to be going

the plaintiff’s way, because once a trial stops jurors are

likely to forget the evidence, to come across information

6 No. 09-3092

they are not supposed to read, to discuss the trial with

friends and relatives, or all three. Appellate delay would

compel the trial to start over with a new jury. Although a

district judge is entitled to certify that an appeal is frivo-

lous and proceed with the litigation, see Apostol v.

Gallion, 870 F.2d 1335 (7th Cir. 1989), the need for this

procedure (and for the court of appeals to consider

whether to stay the trial notwithstanding an Apostol

certification) would throw a monkey wrench into the

proceedings. And at a second trial the public official

could force still another mistrial, because Behrens

holds that there is no numerical limit on the number of

permissible interlocutory appeals in a single case. The

only requirement is that each order sought to be

appealed be “final” under Mitchell.

Thus both formal reasons (a mid-trial order is not “final”

and does not concern a “right not to be tried”) and practi-

cal ones (the need to prevent defendants from thwarting

the completion of ongoing trials and disrupting the

orderly management of litigation) lead us to conclude

that a district judge’s oral statement denying a mid-trial

Rule 50 motion is not appealable as a “collateral order”

under §1291.

Should bifurcated trials be treated differently? The

Sheriff did not file his appeal until the jury had returned

its verdict on liability. Perhaps one could say that the

Sheriff was asserting a “right not to be tried” on the

damages phase of the litigation. Attaching dispositive

significance to the fact that the district judge chose to

bifurcate the trial might turn what is supposed to be an

No. 09-3092 7

economizing measure (the liability phase is easier to

manage if damages evidence is postponed) into an

occasion for a prolonged interruption. But just in case

the Justices should conclude that there is a difference

between a mid-trial Rule 50 decision in a unitary trial

and a mid-trial Rule 50 decision in a bifurcated trial,

we add that this appeal must be dismissed anyway,

because it is frivolous.

The district judge thought the appeal frivolous because

the Sheriff forfeited this theory of immunity by raising

it for the first time at the end of trial. (Earlier he had

raised other theories related to sovereign immunity, but

this one was a novelty in the litigation.) The judge was

right to find a forfeiture, though this does not necessarily

render the appeal frivolous. Appellate courts sometimes

relieve the parties of forfeitures, especially when the

litigation is against a public official in a representa-

tive rather than a personal capacity. See, e.g., Day v.

McDonough, 547 U.S. 198 (2006); Granberry v. Greer, 481

U.S. 129 (1987); Ford Motor Co. v. Department of Treasury,

323 U.S. 459, 466–67 (1945); Indiana Protection and Advocacy

Services v. Indiana Family and Social Services Administration,

No. 08-3183 (7th Cir. Apr. 22, 2010) (en banc). But this

appeal is substantively frivolous. It is nothing but

a delaying tactic and deserves to be swiftly squelched.

Cf. Abney v. United States, 431 U.S. 651, 662 n.8 (1977).

The Sheriff of Cook County, a local official, is not “the

state” for the purpose of either Illinois or federal law, and

therefore the Sheriff is a “person” as §1983 uses that

word. (City and county officials also are not “states” for

8 No. 09-3092

the purpose of the eleventh amendment and related

doctrines of sovereign immunity, see Northern Insurance

Co. v. Chatham County, 547 U.S. 189, 193–94 (2006); Lincoln

County v. Luning, 133 U.S. 529, 530 (1890)—though, as we

have said already, only the definition of “person” matters

to this suit.) The Sheriff’s contrary argument proceeds

in two steps: first, he contends that Illinois law requires

all sheriffs to conduct strip searches of all inmates

arriving at county jails; second, he maintains that any

local official whose conduct is dictated by state law is

“the state” to the extent of that obligation. It follows, the

Sheriff concludes, that he is not a “person” under Will

(or, in his own language, that he has “eleventh amend-

ment immunity”). Neither premise of this syllogism

is sound.

1. The state law on which the Sheriff relies is 20 Ill.

Admin. Code §701.40(f), a regulation that specifies proce-

dures for admissions to county jails. It provides:

1) A strip search shall be performed in an area that

ensures privacy and dignity of the individual. The

individual shall not be exposed to the view of

others who are not specifically involved in the

process.

2) Strip searches shall be conducted by a person

of the same sex.

3) All personal clothing shall be carefully searched

for contraband.

4) The probing of body cavities may not be done

except where there is reasonable suspicion of

No. 09-3092 9

contraband. Intrusive searches may only be con-

ducted:

A) By a medically trained person who is not a

detainee, for example, a physician, physician’s

assistant, registered nurse, licensed practical

nurse, or paramedic; and

B) In a private location under sanitary condi-

tions.

The Sheriff reads this regulation as if it said “[a] strip

search shall be performed” and the sentence stopped

there. Plaintiffs, by contrast, read the language as a re-

quirement that strip searches, if performed, “shall be

performed in an area that ensures privacy and dignity”

(and so on). In other words, the Sheriff treats the “shall”

in this construction as compelling a strip search, while

the plaintiffs treat it as compelling the preservation

of dignity.

Either reading is possible, because “shall” is a notori-

ously slippery word. See, e.g., Gutierrez de Martinez v.

Lamagno, 515 U.S. 417, 432–33 & n.9 (1995). One reason

to think that the Sheriff’s reading is sensible is subsec-

tion (b), which says: “Detainees shall be given an im-

mediate frisk search.” This uses “shall” in the same

way that the Sheriff thinks that the word works in sub-

section (f). But if subsection (f) directs the Sheriff to

conduct a strip search of every newly admitted detainee,

it also directs the Sheriff to conduct each search in

a dignified manner, and to refrain from conducting a

body-cavity search “except where there is reasonable

suspicion of contraband”.

10 No. 09-3092

Plaintiffs have not contended in this suit that the Jail’s

practice of conducting strip searches of detainees first

entering the jail violates either the federal Constitution

or Illinois law. Rather the plaintiffs contend, and the jury

found, that the manner of the search is unreasonable

and thus violates the fourth amendment as well as

§701.40(f). No matter how favorably to the Sheriff sub-

section (f) is read, it does not compel him or his staff to

perform any of the acts—such as having large numbers

of detainees drop their pants simultaneously to raucous

hooting and taunts from guards of both sexes—that

have led to this litigation and the jury’s verdict. And

because no plausible understanding of subsection (f)

treats it as authorizing, let alone commanding, the chal-

lenged practices, the major premise of the Sheriff’s ar-

gument has not been established. (We assume for this

purpose that the evidence supports the class’s view of

matters; an interlocutory appeal under Mitchell does not

authorize a court of appeals to resolve factual disputes.

See Johnson v. Jones, 515 U.S. 304 (1995).)

2. The minor premise also is wrong. The proposition

that anyone who obeys state law must be “the state” is not

supported by any rule or decision of which we are

aware. We asked the Sheriff’s lawyer at oral argument if

a business that puts soot scrubbers on its smokestack, in

compliance with regulations under the Clean Air Act of

1970, would be “the federal government” for purposes

of citizen suits under that statute (which therefore

would have to be dismissed as barred by sovereign im-

munity). Counsel answered yes but could not supply

authority for the proposition, which if true would make

No. 09-3092 11

many state and federal laws unenforceable by entitling

private defendants to the benefit of sovereign immunity.

The National Labor Relations Act requires employers to

recognize and bargain with unions that are supported

by a majority of its workers; does this turn all collective

bargaining into an activity by the federal government?

The Fair Labor Standards Act sets minimum wages; do

employers act as “the United States” when they pay (or

fail to pay) the legally required wages?

The Sheriff may be confused by the fact that some

public officials in Illinois serve in dual capacities. Each

county has a State’s Attorney. That official is “the state”

when representing the state (all criminal prosecutions

are brought in the state’s name) and “the county” when

representing the county (which he serves as its lawyer

in civil suits). See National Casualty Co. v. McFatridge,

No. 09-1497 (7th Cir. Apr. 28, 2010), slip op. 12–14 (dis-

cussing this dual-capacity status). But it does not

follow from the fact that one person may be an official

of two different public entities that every person who

is subject to state or federal law is “the sovereign” whose

law he obeys. A sheriff in Illinois may perform some

tasks on behalf of the state—so we assumed in Scott v.

O’Grady, 975 F.2d 366 (7th Cir. 1992)—but when running

the county jail he is a county official. DeGenova v. Sheriff

of DuPage County, 209 F.3d 973, 976–77 (7th Cir. 2000);

see also Ill. Const. Art. VII §4(c); People ex rel. Davis v.

Nellis, 249 Ill. 12, 21, 94 N.E. 165, 169 (1911).

That some rules for the conduct of county officials (and

private citizens) are set by a state does not make that

12 No. 09-3092

person “the state” for the purpose of §1983, the eleventh

amendment, or doctrines of sovereign immunity. Status

of an entity as “the state” depends on the organization

chart and not on whose law supplies the substantive

rule or who pays the judgments. See Regents of University

of California v. Doe, 519 U.S. 425 (1997).

Sometimes a person who follows another sovereign’s

commands is entitled to offsetting benefits. For example,

a person acting on the directions of a federal agency

may be treated as a “person acting under” that agency,

which entitles the person to remove any litigation to

federal court. See 28 U.S.C. §1442(a)(1); Watson v. Philip

Morris Cos., 551 U.S. 142, 151–52 (2007). A vendor that sells

products made strictly according to a federal buyer’s

specifications is not liable to private persons in tort for

defects in those products. See Boyle v. United Technologies

Corp., 487 U.S. 500 (1988). And a private firm that

complies with a state law that replaces competition with

regulation does not violate the antitrust laws, even when

an identical private agreement would be deemed

unlawful per se. See, e.g., Parker v. Brown, 317 U.S. 341

(1943). But rules such as these are a far cry from a norm

that anyone whose behavior is controlled by state or

federal law must be treated as part of the government, and

suits against it dismissed by operation of sovereign

immunity or the limited scope of the word “person” in

§1983.

The Sheriff is responsible for his own policies—and as

a state actor (but not himself “the state”) for any uncon-

stitutional policies that Illinois has directed him to im-

No. 09-3092 13

plement. This interlocutory appeal is dismissed because

it is not from a “final decision” and because it is frivolous.

Any remaining arguments are open to review on appeal

from the final decision.

4-28-10