David Snyder v. J. King etal

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1899

DAVID R. SNYDER,

Plaintiff-Appellant,

v.

J. BRADLEY KING, TRENT DECKARD,

LINDA SILCOTT, AND PAM BRUNETTE,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:10-cv-01019 — William T. Lawrence, Judge.

ARGUED SEPTEMBER 30, 2013 — DECIDED MARCH 11, 2014

Before WOOD, Chief Judge, and BAUER and KANNE, Circuit

Judges.

KANNE, Circuit Judge. This case is about small town politics,

a bare-knuckle brawl, and the right to vote. But the appeal

before us is limited to drier subjects: sovereign immunity, and

2 No. 13-1899

the pleading requirements for a civil rights action against a

municipality. The district judge dismissed the state-affiliated

defendants on immunity grounds, and found that the plaintiff

failed to state a claim against the county-affiliated defendants.

He then went on to consider whether injunctive or declaratory

relief might be available to the plaintiff, but that was

unnecessary. His initial findings were correct, and they dispose

of the case entirely. We affirm the dismissal.

I. BACKGROUND

In 2003, David Snyder was elected to the Roseland Town

Council, which serves a small incorporated community located

at the north end of South Bend, Indiana, near the Indiana-

Michigan line. It is fair to describe Snyder’s tenure on the

Roseland Town Council as controversial. See, e.g., Welcome to

Snyderville (Notre Dame Student Film Festival 2007), available

at http://www.youtube.com/watch?v=Xzyny_bThHs

(published Feb. 28, 2013). At a council meeting on January 11,

2007, Snyder was involved in a fistfight with fellow council

member Ted Penn. He was arrested and charged with battery,

as defined at Ind. Code § 35-42-2-1, and with felony

intimidation, as defined at Ind. Code § 35-45-2-1(a)(2).

On July 31, 2008, a jury convicted Snyder of battery as a

Class A misdemeanor, but acquitted him of the felony

intimidation charge. The court handed down a one-year

sentence, with six months suspended and six months to be

executed on home detention. In February 2009, the court

determined that Snyder had violated the terms of his probation

and found that a period of incarceration was warranted.

No. 13-1899 3

Snyder served the remainder of his sentence at the St. Joseph

County Jail. He was released in May 2009.

On March 4, 2009, while Snyder was still incarcerated,

defendants Linda Silcott and Pam Brunette, then members of

the St. Joseph County Voter Registration Board, sent him a

letter announcing that his voter registration had been cancelled

pursuant to Ind. Code § 3-7-46. Section 3-7-46-2 provides that

“[a] person imprisoned following conviction of a crime is

disfranchised during the person’s imprisonment,” and Section

3-7-46-1 directs that “a county voter registration office shall

remove from the official list of registered voters the name of a

voter who is disfranchised under this chapter due to a criminal

conviction.” Indiana law did (and does) permit Snyder to re-

register to vote at any time following his release from jail, and

Snyder knew he could exercise that right. See Ind. Code § 3-7-

13-5. Nonetheless, Snyder refused to re-register. He went to the

polls to vote in a special election in November 2009, and, to

nobody’s surprise, he was turned away.

This lawsuit followed. Invoking 42 U.S.C. § 1983 as the

basis for his action, Snyder sued J. Bradley King and Trent

Deckard (“State Defendants”) in their official capacities as Co-

Directors of the Indiana Election Division, and he sued Linda

Silcott and Pam Brunette (“County Defendants”) in their

official capacities as members of the St. Joseph County Voter

Registration Board. He alleged that his temporary

disenfranchisement violated the National Voter Registration

Act of 1993, 42 U.S.C. § 1973gg; the Help America Vote Act of

2002, 42 U.S.C. § 15301; the Civil Rights Act of 1964, 42 U.S.C.

§ 1971; the First and Fourteenth Amendments to the United

States Constitution; and Article 2, Section 8, of the Indiana

4 No. 13-1899

Constitution. Notably, he did not include any allegations that

his injury was caused by a municipal-level custom or policy

promulgated by the County Defendants.

At the request of the parties, the district court certified the

Indiana constitutional question to the Indiana Supreme Court.

Snyder’s argument was that Article 2, Section 8, only

authorizes the General Assembly to disenfranchise those

convicted of “infamous crimes,” and, since his was not an

“infamous crime,” he could not be stripped of his voting rights.

The Indiana Supreme Court agreed that Snyder’s

disenfranchisement was not authorized under the particular

provision at issue, but held that the Indiana Constitution

separately authorized the assembly to temporarily

disenfranchise any incarcerated convict: “the Indiana General

Assembly has authority under its general police power to

disenfranchise persons incarcerated upon conviction of a

crime, so long as the disenfranchisement lasts only for the

duration of incarceration.” Snyder v. King, 958 N.E.2d 764, 785-

86 (Ind. 2011).

After the Indiana Supreme Court issued its ruling, the

parties cross-moved for summary judgment on the remaining

claims in the district court. Before ruling on the motions,

however, the district court, acting sua sponte, ordered the

parties to file additional briefing addressing the continued

justiciability of the controversy. The issues were fully briefed,

and both parties took the position—albeit for different

reasons—that the case was not moot and could continue.

Regardless, the district court dismissed the case. Snyder v. King,

No. 1:10–cv–01019, 2013 WL 1296791 (S.D. Ind. March 28,

2013).

No. 13-1899 5

As a threshold matter, the district court held that the State

Defendants were not a proper party to the suit on sovereign

immunity grounds. Neither party takes issue with that

conclusion. Next, the district court held that the suit against the

County Defendants also failed, because a county “cannot be

held liable under Section 1983 for acts that it did under the

command of state or federal law.” Id. at *2 (quoting Bethesda

Lutheran Homes and Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th

Cir. 1998)). That rule is based on the statutory elements of a 42

U.S.C. § 1983 claim against a municipal entity, as discussed by

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and its

progeny.

Despite the Monell dismissal, the district court went on to

separately consider Snyder’s claim for injunctive and

declaratory relief against the County Defendants. The district

court found those claims insufficient to preserve a live

controversy for two reasons. First, the specific language of the

complaint sought an injunction “preventing” the defendants

from removing Snyder from the voter rolls. Since Snyder had

already been removed, the district court held that it had no

power to redress his injury through the relief requested: “one

cannot ‘prevent’ something that has already occurred.” Id. at

*3. Second, to the extent that Snyder’s claim for injunctive relief

might be construed more broadly as a demand for reinstatement

to the voter rolls, the district court found that no controversy

existed because Snyder was free to re-register at any time if he

would simply choose to do so. Id. at *4.

On appeal, the parties continue to agree that the case is not

moot, and jointly ask us to reverse the dismissal by the district

court. Their reasons differ in some respects. Snyder believes

6 No. 13-1899

that a live controversy exists because nominal damages are

available against the County Defendants and because his

requests for declaratory and injunctive relief—namely,

reinstatement to the voter rolls under his previous

registration—are still pending. The defendants disagree as to

the availability of money damages of any kind, but agree that

Snyder may still seek equitable relief from the County

Defendants.

We are not at all bound to find that a dispute is justiciable

simply because both parties believe that it is, and this is an

instance where we must exercise our prerogative to hold

otherwise. Snyder has affirmatively waived any challenge to

the dismissal of the State Defendants, and he has failed to state

a Monell claim against the County Defendants. As a result, he

simply has no lawsuit left; mootness is not the issue. Despite

some confusion along the way, the district court reached the

right result, and we affirm its dismissal of the case.

II. ANALYSIS

The district court ultimately dismissed the case because it

believed that the case was moot. But the district court arrived

at the mootness question only after reaching several

preliminary conclusions. First, the district court found that the

State Defendants were not proper parties to the suit. Next, the

district court threw out the claim against the County

Defendants on Monell grounds, essentially finding that Snyder

failed to state a claim. Finally, the district court found that the

remaining claim for injunctive relief against the County

Defendants was moot, and dismissed the case entirely.

No. 13-1899 7

We review each of the district court’s conclusions de novo.

See, e.g., Lavalais v. Village of Melrose Park, __ F.3d __, 2013 WL

5753781 at *2 (7th Cir. Oct. 24, 2013) (“We review de novo a Rule

12(b)(6) dismissal for failure to state a claim.”); Wisconsin v.

Ho-Chunk Nation, 512 F.3d 921, 929 (7th Cir. 2008) (we review

a grant or denial of sovereign immunity de novo); Home Builders

Ass’n of Greater Chi. v. U.S. Army Corps of Eng’rs, 335 F.3d 607,

614 (7th Cir. 2003) (we review questions of justiciability de novo,

looking beyond the pleadings if necessary). Our review shows

that the district court’s last step—the mootness analysis—was

unnecessary. The lawsuit is properly dismissed on immunity

and Monell grounds alone. We therefore affirm the dismissal of

the case without reaching the mootness question.

A. The State Defendants

We first review the dismissal of the State Defendants. The

specific grounds for the district court’s dismissal of the State

Defendants are not discussed in its order, but it is clear that

they were dismissed. Snyder knew dismissal was a possibility;

the district court’s order demanding additional briefing by the

parties highlighted its concerns about the viability of the State

Defendants as parties to this suit. But Snyder’s briefing did not

respond to those concerns at all, nor has Snyder attacked the

district court’s dismissal of the suit against the State

Defendants on appeal. Accordingly, any argument on the

subject is waived. Luellen v. City of East Chicago, 350 F.3d 604,

612 nn.4–5 (7th Cir. 2003) (arguments not raised on appeal are

waived); Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001)

(“We have long held that ‘[i]ssues that a claimant fails to raise

before the district court are waived on appeal.’”) (quoting

Ehrhart v. Sec’y of Health and Human Servs., 969 F.2d 534, 537 n.

8 No. 13-1899

4 (7th Cir. 1992)). Moreover, Snyder has affirmatively conceded

that he cannot obtain any meaningful relief against the State

Defendants. The district court’s dismissal of the State

Defendants must therefore be affirmed.

B. The County Defendants

The second question is whether Snyder can obtain any

relief from the County Defendants. He believes that he can,

both in terms of nominal damages for a proven constitutional

violation and in terms of injunctive and declaratory relief. The

defendants disagree as to nominal damages, but agree as to the

availability of injunctive or declaratory relief. In fact, neither is

available.

1. Nominal Damages

Snyder first argues that his case is not moot because he may

obtain nominal damages from the County Defendants in the

event that a federal constitutional violation is shown. Snyder’s

argument is based on the general rule that a plaintiff who

successfully proves a constitutional violation is entitled to at

least a nominal award. See, e.g., Calhoun v. DeTella, 319 F.3d 936,

941–42 (7th Cir. 2003). But that argument misses the point.

Under well-established precedent, a plaintiff cannot state a

Section 1983 claim against a municipal entity, or against a

municipal officer in his or her official capacity, unless certain

requirements are met. If Snyder has not stated an actionable

claim against the County Defendants, then he cannot possibly

be entitled to any damages against the County Defendants,

regardless of whether a successful plaintiff might be entitled to

nominal damages in some other hypothetical context.

No. 13-1899 9

a. Snyder Has Not Stated a Section 1983 Claim.

Snyder sued the County Defendants in their official

capacities under 42 U.S.C. § 1983, which is essentially another

way of suing the county-affiliated entity they represent. This

means that Snyder can only proceed against the County

Defendants to the extent that he would be able to proceed

against the county—or, more specifically, against the St. Joseph

County Voter Registration Board—itself. Monell, 436 U.S. at 690

n.55. Accordingly, we apply the rules governing municipal

liability to determine whether Snyder has stated a claim

against the County Defendants. In doing so, we note that a

district court’s sua sponte dismissal on Monell grounds, while

unusual, is not legally impermissible so long as the district

court gives the parties an opportunity to respond. Pourghoraishi

v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir. 2006). The district

court did so in this case.

Section 1983 only permits an individual to sue a “person”

who deprives that individual of his or her federally-guaranteed

rights under color of state law. Local governing bodies—and

the officers thereof, acting in their official capacities—do

generally qualify as “persons” under the statute. Monell, 436

U.S. at 690–95 (establishing the foundational rule). But that is

not true when a local governing body acts solely as an

extension of the State, because State governments and State

officials are not “persons” within the ambit of Section 1983. See,

e.g., Kaimowitz v. Bd. of Trs. of Univ. of Ill., 951 F.2d 765, 767 (7th

Cir. 1991) (citing Will v. Michigan Dep’t of State Police, 491 U.S.

58, 64 (1989)). As a result, whether or not a plaintiff has stated

a Section 1983 claim against a municipal entity typically hinges

on the extent to which that municipal entity was

10 No. 13-1899

independently responsible for the allegedly unconstitutional

act.

In answering that question, courts have focused on whether

“there is a direct causal link between a municipal policy or

custom and the alleged constitutional deprivation.” City of

Canton v. Harris, 489 U.S. 378, 385 (1989); Leahy v. Bd. of Trs., 912

F.2d 917, 922 (7th Cir. 1990) (“Proximate causation between the

municipality’s policy or custom and the plaintiff’s injury must

be present.”) (quoting Strauss v. City of Chicago, 760 F.2d 765,

767 (7th Cir. 1985)). To say that any such direct causal link

exists when the only local government “policy” at issue is

general compliance with the dictates of state law is a bridge too

far; under those circumstances, the state law is the proximate

cause of the plaintiff’s injury. See Surplus Store and Exchange,

Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir. 1991));

Whitesel v. Sengenberger, 222 F.3d 861, 872 (10th Cir. 2000)

(county cannot be liable for “merely implementing” a policy

created at the state level); Familias Unidas v. Briscoe, 619 F.2d

391, 404 (5th Cir. 1980) (municipal entity cannot be held liable

for simply enforcing state law because the municipal policy in

that instance “may more fairly be characterized as the

effectuation of the policy of the State … embodied in that

statute, for which the citizens of a particular county should not

bear singular responsibility.”). This is the rule to which the

district court was referring when it invoked Bethesda: a county

“cannot be held liable under Section 1983 for acts that it did

under the command of state or federal law.” 154 F.3d at 718.

The operative complaint in this case is devoid of any

remotely specific allegation that a county-level policy or

custom caused Snyder’s harm. That alone is grounds for

No. 13-1899 11

dismissal. See, e.g., Pam v. City of Michigan City, No. 3:12-CV-

265, 2012 WL 4060970 at *3 (N.D. Ind. Sept. 7, 2012) (collecting

cases from district courts within our circuit). For one reason or

another, both the parties and the court expanded their

discussion to include matters outside of the pleadings, rather

than grapple with the obvious defect in the complaint itself.

But even when those outside matters are taken into account

Snyder has failed to state an actionable claim.

Snyder argues that his injury was directly caused by the

County Defendants because they made a “conscious policy

choice [to remove him from the voter rolls] from among

existing alternatives, a choice which violated the constitution.”

(Appellant’s Br. at 18.) There are three basic steps to his

argument. First, Snyder claims that the Indiana Code defines

the word “crime,” as used in Section 3-7-46-2 and elsewhere,

in such a way that it is ambiguous, meaning either “felony,”

“misdemeanor,” or both. Second, Snyder argues that the

County Defendants, in removing him from the voter rolls,

themselves resolved the “crime” ambiguity in the voter-

disenfranchisement provisions in question to include both

felonies and misdemeanors. Third, Snyder argues that, in

doing so, the board took an action that was merely

“authorized,” not “compelled,” by state law, and that this case

therefore falls outside the scope of Bethesda and related

authorities. Putting it all together, Snyder sees an independent

policy decision by the County Defendants to remove him from

the voter rolls, one made possible—but not dictated—by

statute.

If each step of Snyder’s argument was correct, it would

indeed lead to the conclusion he desires. See, e.g., Vives v. City

12 No. 13-1899

of New York, 524 F.3d 346, 351 (2d Cir. 2008) (collecting

authorities which, to varying degrees, found “that a

municipality engages in policy making when it determines to

enforce a state law that authorizes it to perform certain actions

but does not mandate that it do so.”); Cooper v. Dillon, 403 F.3d

1208 (11th Cir. 2005). The problem is that none of them are

correct.

The first step in Snyder’s argument is his assertion that the

use of the word “crime” in the statute is ambiguous, because

the word “crime” in the Indiana Code can refer to a felony, a

misdemeanor, or both. Snyder is mostly right about the

meaning of the word. For our purposes, “‘crime’ means a

felony or a misdemeanor.” Ind. Code § 35-31.5-2-75(a)

(emphasis added).1 But nothing about that makes the relevant

code provision ambiguous. Replacing the phrase “a crime”

with the phrase “a felony or a misdemeanor” in the text

illustrates our point. Section 3-7-46-2 would read, “[a] person

imprisoned following conviction of [a felony or a

misdemeanor] is disfranchised during the person’s

imprisonment.” No rule of usage in the English language

supports construing that sentence to create a “reader’s choice”

scenario, in which local boards choose which crimes it covers

and which it does not. That sentence means that a person

convicted of either a felony or a misdemeanor is temporarily

1

This is consistent with what any layperson would understand the word

“crime” to mean. There are few words in the legal lexicon with a more

widely understood plain meaning than “crime,” defined generally as “[a]n

act that the law makes punishable; the breach of a legal duty treated as the

subject-matter of a criminal proceeding.” Black’s Law Dictionary

(9th ed. 2009).

No. 13-1899 13

disenfranchised. There is no ambiguity to the statute, and that

alone invalidates Snyder’s argument. Contrary to his

assertions, the statutory directive does not leave the reader

with any room to choose how broadly to define the word

“crime.”

The second step in Snyder’s argument is his assertion that

the County Defendants themselves decided to broadly

interpret the word “crime” in the statute. That assertion is

independently faulty. Even if there was room to interpret the

statute—and there is not—the County Defendants would never

be the ones doing the interpretation. The mechanism by which

disenfranchisement of incarcerated persons occurs is laid out

in the code. Under the scheme, on a quarterly basis, a county

sheriff must provide the county voter registration board with

a list of every individual who “(1) is a resident of Indiana; (2)

has been convicted of a crime; and (3) has been placed in a

county correctional facility during the previous quarter.” Ind.

Code § 3-7-46-6. When the county voter registration board

receives such notice, it “shall … remove the name of the person

from the voter registration records[.]” Ind. Code § 3-7-46-7.5

(emphasis added). In other words, there is no opportunity for

the County Defendants—as members of the voter registration

board—to decide what constitutes “a crime” under Section 3-7-

46-2. The county sheriff, if anyone, decides who qualifies for

the disenfranchisement list; all the voter registration board

does is delete the names the sheriff provides. The role of the

local voter registration boards is therefore purely reactionary.

It is easy to see, given the flaws in the first two steps in

Snyder’s argument, why the third step and his conclusion are

also wide of the mark. Snyder hopes to paint this case as one

14 No. 13-1899

in which the County Defendants made an independent choice

from among various alternatives authorized by state law, but

that characterization is based on an inaccurate understanding

of the Indiana system. The statute in question does not merely

authorize removal from the voter rolls for incarcerated

convicts. The statutory language is compulsory.2 And to the

extent that any discretion is permitted, it is exercised by actors

other than the County Defendants. Snyder knows that; the

“Factual Allegations” section of his own Amended Complaint

places interpretive responsibility squarely on the shoulders of

State-level actors, and not on the County Defendants.

For all of these reasons, this situation does not support a

finding of Monell liability. When state law unequivocally

instructs a municipal entity to produce binary outcome X if

condition Y occurs, we cannot say that the municipal entity’s

“decision” to follow that directive involves the exercise of any

meaningful independent discretion, let alone final policy-

making authority.3 It is the statutory directive, not the follow-

2

In addition to the provisions concerning how removal is carried out, see

the general directive at Ind. Code § 3-7-46-1: “a county voter registration

office shall remove from the official list of registered voters the name of a

voter who is disfranchised … due to a criminal conviction.”(emphasis

added).

3

We say that the code sections instruct county registration boards to

produce a certain “binary outcome” under the circumstances prescribed

because a person either is, or is not, removed from the voter rolls. There is

no in-between, and there are no constitutionally or statutorily meaningful

variables that govern the manner in which the act of removal from the voter

rolls is accomplished. We highlight this reality to distinguish the instant

(continued...)

No. 13-1899 15

through, which causes the harm of which the plaintiff

complains.

Finally, we note that it makes no difference that the County

Defendants exercise broad independent discretion with respect

to other matters of election law and procedure; the question is

whether the plaintiff has identified the decisionmaker

“responsible for establishing final policy with respect to the

subject matter in question.” Pembaur v. Cincinnati, 475 U.S. 469,

483 (1986). The subject matter in question is the removal of

incarcerated convicts from the voter rolls, and the only

“policy” the County Defendants established with respect to

that issue was to follow the mandatory mechanism laid out by

statute. Whether one views their role as merely implementing

the statutory directive, or as carrying out the removal of those

identified as statutorily appropriate by the local sheriff, the

3

(...continued)

case from those in which state law instructs a municipal official to take a

certain action, but leaves room for abundant discretion in determining the

manner in which such an action should be carried out. For example, in

Mercado v. Dart, 604 F.3d 360, 365 (7th Cir. 2010), we explained that even if

the Illinois code provision authorizing county sheriffs to perform a strip

search of all inmates entering a county jail is read to make a strip search

mandatory, it still leaves room for the sheriffs to set local policy with

respect to the level of intrusiveness involved and the manner in which the

search is conducted. Id. 365. A given sheriff’s independent decisions, with

respect to those secondary questions, could easily be the difference between

an unconstitutionally intrusive search and one which was not. Id. But the

instant case is clearly different. The alleged constitutional violation is the

removal from voter rolls—the very thing mandated by statute—and there

is no more to it than that. It is not as if removal by white-out might be

constitutionally suspect, while removal by delete key clearly is not.

16 No. 13-1899

local voter registration boards simply do not make an

independent policy judgment. “The mere authority to

implement pre-existing rules is not the authority to set policy,”

Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004), and neither

is it enough to sustain a suit under Section 1983.

b. Nominal Damages Are Not Available.

The next question is whether Snyder may still obtain

nominal damages from the County Defendants despite the fact

that he has not stated a claim against them under Section 1983.

It is clear that he cannot. No plaintiff can recover any kind of

damages against a defendant without first obtaining a

judgment against that defendant, and a prerequisite to a

judgment is a lawsuit. Snyder does not have a lawsuit against

the County Defendants, because he failed to state a claim.

2. Injunctive and Declaratory Relief

Both the parties and the district court spoke about the

possibility of injunctive and declaratory relief against the

County Defendants as though it were an issue totally distinct

from whether Snyder adequately stated a Monell claim against

those defendants. That was incorrect. The Supreme Court has

squarely held that Monell’s “policy or custom” requirement

applies in Section 1983 cases irrespective of whether the relief

sought is monetary or prospective. Los Angeles Cnty., Cal. v.

Humphries, 131 S. Ct. 447, 453–54 (2010). Snyder cannot obtain

injunctive or declaratory relief against the County Defendants

for the same reason he cannot obtain nominal damages: he has

not adequately pleaded a suit against them. It is therefore

unnecessary to consider whether any claim for injunctive relief

is moot.

No. 13-1899 17

III. CONCLUSION

We acknowledge that the right to vote is fundamental, and

we do not take any case alleging its infringement lightly. But

it is incumbent on a litigant to identify a proper defendant for

his suit and to properly plead an action against that defendant.

Snyder has not done so. Because Snyder has waived any

challenge to the dismissal of the State Defendants, and because

he has failed to state a claim against the County defendants, we

AFFIRM the district court’s dismissal of his suit.

18  No. 13‐1899

WOOD,  Chief  Judge,  concurring  in  the  judgment.  I  agree

with my colleagues that David Snyder’s suit against the Co‐

Directors of the Indiana Election Division (the State Defend‐

ants) and the named members of the St. Joseph County Voter

Registration Board (the County) must be rejected as a matter

of  law.  My  path  to  that  conclusion  is,  however,  somewhat

different  from  theirs.  I  agree  with  them  that  Snyder’s  suit

against the State Defendants was properly dismissed on sov‐

ereign immunity grounds. Indeed, as they point out, ante at

5,  that  conclusion  appears  to  be  unchallenged  on  appeal.

With  respect  to  the  County  (and  the  named  defendants  in

their  official  capacity,  which  amounts  to  the  same  thing),  I

would stop with the majority’s observation at the bottom of

page 10 that “[t]he operative complaint in this case is devoid

of any remotely specific allegation that a county‐wide policy

or custom caused Snyder’s harm.” In other words, the reason

Snyder fails is not because a claim was impossible under the

state  and  county  laws  governing  voter  registration;  it  is  be‐

cause Snyder failed to plead the correct causes of action.

Monell v. Dep’t of Soc. Servs. held that municipalities and

counties  qualify  as  “persons”  for  liability  under  42  U.S.C.  §

1983, 436 U.S. 658, 663 (1978); states do not, according to Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989). Entities do

not  lose  their  status  as  “persons”  because  of  rulings  on  the

merits. It is thus important to recognize, as I believe the ma‐

jority  does,  ante  at  5,  that  even  though  a  county  “cannot  be

held  liable  under  section  1983  for  acts  that  it  did  under  the

command  of  state  or  federal  law,”  Bethesda  Lutheran  Homes

and Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998), that

is not because the county somehow loses its status as a “per‐

No. 13‐1899  19

son” in such a situation. It is because there is no county poli‐

cy that is driving the county to act in a certain way. The latter

is a point on the merits, not a point about which kinds of en‐

tities fall within the scope of the statute.

Having recognized that the County is subject to suit un‐

der § 1983, the majority turns to the details of Snyder’s com‐

plaint.  It  rejects  the  idea  that  Snyder  could  have  been  com‐

plaining  about  the  way  in  which  county  officials  were  im‐

plementing Indiana’s statutory scheme for temporary disen‐

franchisement of convicted criminals. But as I read his com‐

plaint, that is exactly what he is doing: he believes that state

law  leaves  enough  discretion  with  the  local  authorities  to

permit  a  valid  claim  against  the  County  under  Monell.

Snyder  argues  that  state  law  merely  gives  county  officials

the  authority  to  cancel  the  voter  registration  of  someone  in

his position (a convicted misdemeanant), and that it does not

compel them to take this step. All that Ind. Code 3‐7‐46‐1 says

is that counties must remove voters who are disenfranchised

because of a “criminal conviction.” The statute does not con‐

strain  them  further,  and  so,  Snyder  argues,  a  county  could

decide that a threshold of seriousness must be passed before

something  as  drastic  as  the  loss  of  the  right  to  vote  takes

place.  The  usual  such  threshold  would  be  the  line  between

misdemeanors and felonies. See Compl. ¶¶ 9, 10, for places

in  which  Snyder  explains  that  this  is  where  he  finds  the

County’s  discretion.  Paragraph  10,  in  fact,  alleges  that  the

State Defendants “advised” all county officials that all crim‐

inals—felons  and  misdemeanants  alike—should  be  disen‐

franchised, not that they ordered this result.

20  No. 13‐1899

Essentially,  Snyder  is  making  a  legal  point  about  the  In‐

diana  statute.  Our  review  of  the  law  is  de  novo,  and  it  lies

comfortably within the authority of the district court to dis‐

miss a complaint for failure to state a claim upon which re‐

lief  can  be  granted.  With  the  contribution  of  the  Supreme

Court of Indiana in this very case, Snyder v. King, 958 N.E.2d

764  (Ind.  2011),  they  conclude  that  the  governing  Indiana

statutes  operate  to  require  the  temporary  disenfranchise‐

ment  of  any  person  incarcerated  after  any  criminal  convic‐

tion.  Under  that  understanding  of  Indiana  law,  Snyder’s

complaint  was  properly  dismissed  under  Federal  Rule  of

Civil Procedure 12(b)(6). It was not moot, however. I believe

that  my  colleagues  also  find  no  mootness,  since  they  con‐

clude  at  the  end  that  Snyder  “has  failed  to  state  a  claim

against the County defendants,” ante at 17. (If it were moot,

then the dismissal would have to be under Rule 12(b)(1), for

lack of subject‐matter jurisdiction.)

I am not thoroughly convinced that Indiana law restricts

the County so strictly that there is no room left for a genuine

county‐level policy in this area  that can be evaluated under

Monell.  Nor  is  it  crystal‐clear  to  me  that  any  attempt  to  re‐

plead this case would be doomed. But the district court has

substantial discretion on the latter point, and Snyder’s com‐

plaint does not do a good job of explaining exactly what dis‐

cretion  he  thinks  the  County  retains.  For  these  reasons,  I

concur in the judgment.