Jurisdictional Statement — Scarvaci v. Matestic

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

EDITOR'S NOTE :

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

FILED

HWOSEPH F. SPANIOU, UR.

| CLERK

(86 1885

ee a ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

JOHN C. SCARVACI,

Appellant,

FREDERIC MATESTIC, et als,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

JURISDICTIONAL STATEMENT

JOHN C. SCARVACI, pro se

910 East Calumet Road

Milwaukee, Wisconsin 53217

(414) 352-6467

QUESTIONS PRESENTED

WHETHER THE SEVENTH CIRCUIT HAS ERRED IN

AFFIRMING THE ORDER OF A LOWER COURT THAT

HAS GRANTED ABSOLUTE IMMUNITY TO DEFEND -

ANTS IN DIRECT CONFLICT WITH ARTICLE IIT

OF THE UNITED STATES CONSTITUTION.

II.

WHETHER OFFICIALS ACTING IN THEIR OFFICIAL

CAPACITY ARE EXEMPT IN ALL INSTANCES FROM

PROVISIONS OF TITLE 42 U.S.C.A. #1983, THAT

DENY IMMUNITY FROM LIABILITY FOR CIVIL

RIGHTS VIOLATIONS.

IIl.

WHETHER THE SEVENTH CIRCUIT ERRED IN RE-

FUSING TO CONSIDER A -MOTION FOR A WRIT

OF ERROR-BECAUSE OF A PREVIOUS APPEAL.

IV.

WHETHER CITIES ARE IMMUNE TO FEDERAL CIVIL

RIGHTS DAMAGE SUITS BROUGHT BY PEOPLE WHO

BELIEVE THAT THEIR RIGHTS HAVE BEEN VIOL-

ATED BY THE ACTIONS’ OF CITY OFFICIALS.

LIST OF ALL PARTIES

Pursuant to the ruies of this court,

the following is ‘ list of the parties to

the proceedings in the court below whose

judgment is sought to be reviewed:

FREDERIC MATESTIC,

Assistant District Attorney

E. Michael McCANN,

District Attorney

MILWAUKEE COUNTY, WISCONSIN

William O*Dennell, Exec.Director

AARON E. GOODSTEDN,

U. S. Magistrate

THOMAS J. CURRAN

U. S. District Judge

FRANK H. EASTERBROOK,

Circuit Judge

KENNETH F. RIPPLE,

Circuit Judge

DANIEL A. MANION,

Circuit Judge

Lii

TABLE OF CONTENTS

Questions Presented. .«....« .-«

List of Parties Involved... .

Table of Authorities. .... .

Opinions Below. .~. .«. «© « « « « «

Jurisdiction. « « «© «© # © « « «

Constitutional and Statutory

Provisions Involved. .... .-«

Statement of Case. .« - « « « «

Reasons for Granting Appeal. .

Conclusion. .« « « « © « « « « e

Certificate of Service. ... .

Appendix:

A. Judgment Order of the United

States Court of Appeals.

B. Denial of Motion for

Reconsideration. « « « «

C. Judgment Order of the United

States District Court. .

D. Denial of Motion for

Reconsideration. . « « «

&.e Decision and Order of

Original Trial Court. .

F. Denial of Motion for

Reconsideration. .«. ..- .

l6a

G. Notice of Appeal to the United

States Court of Appeals. ..... 2la

H. Judgment Order of the United

States Court of Appeals on

original Trial Court ORDER. ... 22a

I. Notice of Appeal to the

United States Supreme Court. .. . 27e

State and Federal Statutes:

Wisconsin Criminal Statute 939.12. .

Wisconsin Criminal Statute 939.23. .

Wisconsin Criminal Statute 943.25. . 4&

Title 42 USCA #1983, n2743. ..... 8

Title 42 USCA #1983, n2744. .....9

Title 42 USCA #1983, n2745. .....

TABLE OF AUTHORITIES

Cases:

Monroe v. Pape, 365 US 167. ...-. -

Davis v. Packard, 33 US 312. ....-

Johnson v. Williams, 244 Ala 391...

~~ ws Ss Sw

State v. Hudspeth, 191 Ark 963... .

Ex parte Young, 209 US 123

28 S Ce 44l . * > . . 7 . . - * . _ 8

Doores v. McNamara, D.C. Mo. 1979. .. 8

Page

Jackson v. State of Mississi .

C.A. Miss 1981, 644 F.2d Tibe. oeees JF

McKinley v. Trattles, C.A. Wis. 1984. . 9

Briggs v. Malley, C.A.R.I. 1984, 748

F.2d cert. granted, 105 S Ct 2654... 9

Owen v. at of Independence, Mo.

5 Uete 22 ° . se . e 7 * es * ‘ se e 10

Gomez v. Toledo, (446 U.S. 635). ... 10

Beaudett v. City of Hampton, 775 F.2d

1274, cert. denied, 106 S. Ct 1475. .. 10

See also Harlow v. Fitzgerald, 457

US 800, 102 S Ct 2727

% :

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

No.

JOHN C. SCARVACI,

Appellant,

FREDERIC MATESTIC, et als,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The United States Court of Appeals for

the Seventh Circuit, issued a JUDGMENT ORDER

entered on February 17, 1987, affirming the

JUDGMENT ORDER of the United States District

Court for Eastern Wisconsin, filed on October

22, 1987 and November 3, 1987.

eS —“‘(_;'”t:;:‘(i<;i;i‘i‘i‘ZOié‘(‘CS;OCOC

A copy of the ORDER of the Court of Appeals

denying a ‘MOTION FOR RELIEF IN THE NATURE

OF WRIT OF ERROR’ is attached as Appendix A.

A copy of the ORDER denying a ’MOTION FOR RE-

CONSIDERATION OF ORDER DENYING WRIT OF ERROR’

dated April 1, 1987, is attached as Appen-

dix B.

A copy of the ORDER of the District

Court, dated October 22, 1986, denying a

"WRIT OF ERROR CORAM NOBIS’ directed to U.S.

Magistrate Goodstein, is attached as Appendix

C, and a copy of the ORDER denying reconsider-

ation of the order is attached as Appendix D,

dated November 3, 1987.

Appellant respectfully requests review

of the Judgment Order of the United States

Court of Appeals, entered February 17, 1987,

and of the Judgment Order of the District

Court which said Judgment Order affirmed.

JURISDICTION

Jurisdiction of this court is invoked pur-

Suant to 28 U.S.C. 1252, to review the Judg-

ment of the United States Court of Appeals,

dated February 17, 1987, which is in conflict

with 42 U.S.C. #1983, and Article III, Sec. 2

of the United States Constitution.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, Section 2, provides in pertinent

part:...but one state may sue another state or

its citizens and the United States may sue

a State, and the immunity of a state from

suit does not protect state officers vio-

lating rights protected by the United

States Constitution.

The 14th Amendment to the United States Const-

itution provides in pertinent part:... nor

Shall any state deprive any person of life,

liberty, or property, without due process

of law.

Title 42 U.S.C. #1983 provides; Every person

who under color of any statute, ordinance,

regulation, custom or usage, of any State

or Territory, subjects, or causes to be

subjected, any citizen of the United States

or other person within the jurisdiction

thereof, to the deprivation of any rights,

privileges, or immunities secured by the

Constitution...shall be liable to the

party injured in action at law, suit in

equity, or other proper inlet for

redress.

Wisconsin Criminal Statute 939.12

CRIME DEFINED

A crime is conduct which is prohibited

by state law and punishable by fine or inm-

prisonment or both.

Wisconsin Criminal Statute 939.23

CRIMINAL INTENT

l. When criminal intent is an element of

@ crime in chs. 939 to 948, such intent is

indicated by the term ’intentionally’ the

phrase ‘with intent to’, the phrase ‘with

intent’ or some form of the verbs ’know’®

or ‘believe’.

2. ‘Know’ requires only that the actor

believes that the specified fact exists.

4. ‘With intent to’ or ’with intent that’

means that the actor either has a purpose

to de the thing or cause the result spec-

ified or believes that his act, if sucess-

ful, will cause that result.

5. Criminal intent does not require proof

of knowledge of the existence or constitut-

lonality of the section under which he is

prosecuted or the scope of the meaning of

the termms used in that action.

Wisconsin Criminal Statute 943.25

TRANSFER OF ENCUMBERED PROPERTY

il. Whoever, with intent to defraud,

conveys real property which he or she

knows is encumbered, without informing

the grantee of the existence of the enc-

umbrance is guilty of a Class E felony.

2. Whoever, with intent to defraud,

does any of the following, is guilty of

a Class E felony.

(a) Conceals, removes or transfers any

personal property in which he knows an-

other has a security interest; or

(b) in violation of the security agreen-

ent, fails or refuses to pay over to the

secured party the proceeds from the sale

of property subject to a security interest.

3. It is prima facie evidence of ar int-

ent to defraud within the meaning of sub.

(2)(a) if a person with knowledge that the

security interest exists, removes or sells

the property without either the consent of

the secured party or authorization by the

security agreement and fails within 72

hours after service of written demand for

return of the property, either to return

it, or, in the event that return is not

possible, to make full disclosure to the-

secured party of all the information he has

concerning its disposition, location and

possesion.

4. In this section ’security interest’

means an interest in property which secures

payment or other performance of an oblig-

ation; *Security agreement’ means the agree-

ment creating the security interest;

"secured party’ means the person designated

in the security agreement as the person in

whose favor there is a security interest

or, in the case of an assignment of which

the debtor has been notified, the assignee.

STATEMENT OF THE CASE

The issues and facts of this case are

as presented in the Decision and Order of

the U. S. District Court, on case 84-C-752,

nerein attached as Appendix E, and also in

tne Order of of the U. S. Court of Appeals,

No. 84-2728, attached as Appendix H.

Appellant Scarvaci has proceeded pro se

only because of inability to acquire legal

counsel. Several law firms and numerous ind-

ividual attorneys, even those attorneys who

were contacted throght the Lawyer Referral

Service, declined to handle the case. No

one was Willing to become involved in this

matter with the District Attorney’s office.

Appellant had moved for summary judg-

ment because Assistant District Attorney

Matestic had clearly disregarded and cont-

ravened settled indisputable law, Wisconsin

Criminal Statute 943.25, thereby losing his

cloak of immunity under Federal Legislation

Title 42 U.S.C.A. #1983. Under these cir-

cumstances, appellant claims that Magistrate

Goodstein erred in granting absolute immun-

ity to Matestic. It is apparent that the

Appeals Court accorded respect to the eval-

uation of the case by the Magistrate and

would not reverse the judgment.

2 a o

eH y

: i : - e

at)

=o,

“ = rn =

- ; |= - Zz

= -_ . j

— s ’

7 -

The Court of Appeals, in its order dated

February 17, 1987, Appendix A, denied appell-

ant’s "MOTION FOR RELIEF IN THE NATURE OF

WRIT OF ERROR’, stating that appellant had al-

ready had an appeal. Appellant in his ’MOTION

FOR RECONSIDERATION OF ORDER DENYING WRIT OF

ERROR’, cited the caw of Monroe v. Pape, 365

U.S. 167, in which the Seventh Circuit granted

certiorari, even after affirmance. Other cases

where the writ of error coram nobis, did lie

in proper cases include; Davis v. Packard,

33 US 312, 8 L Ed 957; Johnson V. Williams,

244 Ala 391, 13 So 2d 683; State v, Hudspeth,

191 Ark 963, 88 SW 2d 858.

On December 18, 1986, appellant had

filed along with his brief of that date,

a Suggestion for an in banc consideration

of the case, but there was no response

from the court regarding the suggestion.

AUTHORITIES

In a seminal U. S. Supreme Court case,

Ex parte Young, 209 US 123, 28 S Ct 44l, it

has been settled that the Eleventh Amendment

provides no shield for a state official con-

fronted by a claim that he had deprived an-

other of a federal right under the color of

State law, When a state officer acts under a

State law in a manner violative of the Fed-

eral Constitution, he comes into conflict

with the superior authority of the Constit-

ution, and he is in that case stripped of

his official representative character and

is subjected in his person to the conseq-

uences of his individual conduct.

Title 42 USCA #1983 , n2743

IGNORANCE OF LAW

Qualified immunity cannot be utilized as

defense to to claim of deprivation of civil

rignts where ignorance of indisputed law

or disregard of such law is demonstrated.

DOORES v. McNAMARA, D.C. Mo. 1979, 476 F.

Supp. 987

Title 42 USCA #1983, n 2744

INTENT OR KNOWLEDGE

An official is immune if his motives are

permissable and he has not violated const-

itutional rights established by settled,

indisputable law; an o’ ficial, even if he

is acting in the sincere subjective belief

that he is doing right, loses his cloak of

qualified immunity if his actions contravene

settled; indisputable law. Jackson v. State

of Miss., C.A. Miss.1981, 644 F. 2d 1142,

McKinley v. Trattles, C.A. Wis. 1984.

Title 42 USCA #1983, n 2745

NEGLIGENCE

Official conduct which negligentl¥ leads to

violation of constitutional rights, is suf-

ficient to overcome any qualified immunity

official may have against civil rights lia-

bility. Briggs v. Malley, C.A.R.I. 1984,

748 F.2d, cert. granted, 105 S Ct 2654.

IMMUNITY OF CITIES

Cities are not immune to federal civil

rights damage suits brought by persons who

believe that their rights have been violated

by the actions of city officials; Owen v.

City of Independance, Mo. (445 U.S. 622).

IMMUNITY OF A GOVERNMENT OFFICIAL

The person suing a government official

for violating his constitutional rights

need not allege that the official committed

the offending action maliciously or other-

wise in good faith. It is up to the defend-

ant official to raise that argument by defend-

ing himself with the claim that he acted in

good faith and thus merits some immunity

from the charge; Gomez v. Toledo (446 U.S.635)

City, judges, and city attorneys, were

not immune from every type of relief in

42 U.S.C.A. civil rights action under all

circumstances. Beaudett v. City of Hampton,

775 F.2d 1274, cert. denied, 106 S Ct 1475.

REASONS WHY APPEAL SHOULD BE GRANTED

I. Appellant claims that the seminal U.S.

Supreme Court case, Ex parte Young, under

Article III, Section 2, of the United States

Constitution, is the controlling authority in

determining the immunity of state officials.

Cited on page 8, under Authorities.

II. Appellant cites on pages 8 and 9, under

Authorities, sections n2743, n2744 and n2745

of Title 42 U.S.C.A. #1983, that state circum-

Stances under which officials do not have

immunity for civil rights violations.

III. Appellant cites several cases where the

writ of error coram nobis was available, even

after affirmance of a previous appeal. Page 7.

IV. Appellant cites on page 10, cases where

cities and government officials are not

immune from civil rights violations.

CONCLUSION

In conclusion, appellant states that he,

without benefit of counsel, has presented this

appeal as best he can, under the circumstances.

At no time through the proceedings in the

lower courts was appellant afforded a hearing

to plead his case. Also, at no time was any

Statement made in the lower courts, that the

appellant had not been deprived of his rights

and property.

Appellant has proven that under Article III

of the U. S. Constitution, and Federal legis-

lation, Title 42 U.S.C.A. #1983, the absolute

immunity granted to the assistant district att-

orney was in error.

Appellant respectfully prays that this

court grant the appeal to the United States

Court of appeals for the Seventh Circuit to

review its Judgment Order.

Mol leave espectfully submitted,

—" gee Gs Che ara pro se

910 East Calumet Road

Milwaukee, Wisconsin 53217

(414) 352-6467

CERTIFICATE OF SERVICE

I, John C. Scarvaci, appellant, hereby

certifies that he mailed three true and correct

copies of the within Jurisdictional Statement

to Corporation Counsel, Robert G. Ott at 901

North 9th Street, Milwaukee, Wisconsin, by or-

dinary mail, postage prepaid, and copies also

to Federal Judge Thomas J. Curran and US Mag-

istrate Aaron E. Goodstein at 517 East Wiscon-

Sin Avenue, Milwaukee, Wisconsin, and to 7th

Circuit Judges, Frank H. Easterbrook, Kenneth

F. Ripple and Daniel A. Manion at 219 South

Dearborn Street, Chicago, Illinois, on the

date of docketjng to the Clerk of this court.

C Le ay rao,

John C. Scarvaci, pro se

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOHN C. SCARVACI, Feb. 17, 1987

Plaintiff-Appellant

Ve ‘ No. 86-2931

FRED MATESTIC, Assistant District

Attorney, et al.,

Def endant-Appellees

Appeal from the United States District

Court for the Eastern District of

Wisconsin. No. 84 C 752

Judge Thomas J. Curran

This matter comes before the court for its

consideration upon the - MOTION FOR RELIEF

IN THE NATURE OF WRIT OF ERROR - filed here-

in on December 22, 1986, by the pro se plain-

tiff-appellant. Petitioner has already had

an appeal on the merits of this case. There-

fore, the district court was correct in den-

ying the petition for a writ of error.

Accordingly, IT IS ORDERED that the district

court’s decision is affirmed.

Before: Easterbrook, Ripple & Manion, C.Js.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 86-2931

JOHN C. SCARVACI. April 1, 1987

Plaintiff-Appellant

Vv.

FRED MATESTIC, Assistant District

Attorney, et al.,

Defendant-Appellees

Appeal from the United States District

Court for the Eastern District of Wiscon-

sin. No. 84 C 752

Judge Thomas J. Curran

This matter comes before the court for its

consideration upon the - MOTION FOR RECON-

SIDERATION OF ORDER DENYING WRIT OF ERROR-

filed herein on March 3, 1987.

On consideration thereof,

IT IS ORDERED that said motion is DENIED.

Before: Easterbrook, Ripple & Manion, C.Js.

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

t. 22, 1986

JOHN C. SCARVACI, = ?

Plaintiff

v. Case No. 85-C=-752

FREDERIC MATESTIC, Assistant

District Attorney, E. MICHAEL

McCANN, District Attorney and

WILLIAM F. O’°DONNELL, County

Executive of Milwaukee County,

Defendants

ORDER

Although originally commenced in this court,

the above-captioned action was transferred

to U. S. Magistrate Aaron E. Goodstein, with

the consent of all parties to the action.

On August 24, 1984, Magistrate Goodstein

granted the defendants’ motion to dismiss

and denied the plaintiff’s motion for sumn-

ary judgment. The plaintiff’s motion for

reconsideration was denied on September 13,

1984.

Bis...

The plaintiff appealed the order of dismiss-

and order denying summary judgment to the

United States Court of Appeals for the

Seventh Circuit. On May 24, 1985, the Court

of Appeals affirmed the magistrate’s order.

The plaintiff has now filed a motion for

relief seeking a writ of error coram nobis

directed to Magistrate Goodstein. In view of

Federal Rule of Civil Proceedure 60(b), the

court will consider that the plaintiff is

attempting to appeal the magistrate’s de-

cision to this court.

The plaintiff’s motion must be denied because

he has already appealed the decision to the

Court of Appeals. Having exercised this op-

tion under 28 U.S.C #636(c)(3) & (4), the

plaintiff is now precluded from appealing

the magistrate’s decision to this court.

Accordingly,

IT IS ORDERED that the Plaintiff’s motion

for relief in the nature of error coram

nobis IS DENIED.

Done and Ordered in Chambers at the United

States Courthouse, Milwaukee, Wisconsin

this 22nd day of October, 1986.

Thomas J. Curran

U. S. District Judge

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

—

JOHN C. SCARVACT, Nov. 3, 1986

Petitioner,

Case No.

Ve 84-C-752

U.S. MAGISTRATE AARON E. GOODSTEIN

Respondant.

ORDER

Although the plaintiff has moved for re-

consideration of this court’s order of

October 22, 1986, he has offered no legal

reason why the court’s Order was in error.

Accordingly,

IT IS ORDERED that the plaintiff’s motion

for reconsideration be and hereby IS DENIED.

Done and Ordered in Chambers at the United

States Courthouse, Milwaukee, Wisconsin,

this 3rd day of November 1986.

Thomas J. Curran

U.S. District Judge

tw iaindd IO

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

JOHN C. SCARVACI, Aug. 24, 1984

Plaintiff,

Ve Case. No.

84-C=-752

FREDERIC MATESTIC,

E. MICHAEL McCANN and

WILLIAM F. O*DONNELL,

Defendants.

r DECISION AND ORDER

Plaintiff John C, Scarvaci filed this

lawsuit pro se on June 1l, 1984, alleging

violations of his due process rights. De-

fendants are an assistant district attorney,

the District Attorney and the County Exec-

utive of Milwaukee County, Wisconsin. The

case was transferred to this court pursuant

to 28 U.S.C. #636 (c).

Defendants filed a motion to dismiss

under Rule 12(b)(6), Fed. R. Civ. P., in

timely response to the complaint.

In reply, plaintiff has submitted a brief as

well as other materials, mostly consisting

of correspondence concerning his claim. In

view of the submission of this outside mat-

erial, the motion will be construed as one

for summary judgment under Rule 56, as pro-

vided in Rule 12(b), Fed. R. Civ. P. Plain-

tiff has in fact filed a motion for summary

judgment, purportedly based on the materials

already filed.

Although plaintiff*’s complaint is sket-

chy, the added materials and brief have all-

owed the court to form an idea of the nature

of his claim. In july of 1980, plaintiff

retained an attorney to assist him in ob-

taining the return of some property alleg-

edly transferred by one James F. Tall, prop-

erty that was encumbered by a security int-

erest held by the plaintiff. Eventually

plaintiff filed a criminal complaint with

the Consumer Fraud Division of the County

District Attorney’s Office alleging that

Mr. Tall had knowingly transferred secured

property in violation of Wis. Stats. #943.25.

The District Attorney’s office did contact Mr.

Tall on plaintiff’s behalf but did not file

criminal charges. When no action was taken on

his complaint, plaintiff wrote to several

state legislators. Queries from these legis-

lators brought a response from the District

Attorney’s office that Assistant District Att-

orney Matestic had concluded that Proof of

Intent was Lacking and that the case was not

an appropriate one upon which to expend the

resources of his office.

Plaintiff’s complaint alleges that def-

endant Matestic’s refusal to prosecute Mr.

Tall resulted in the loss of his livelihood

by denying him the means to re-enter the

printing business. His complaint cites the

Fourteenth Amendment to the United States Con-

stitution and the Civil Rights Act, 42 U.S.C.

#1983, as authorities for his suit, although

ee ee

10a

his brief in opposition to defendant’s

motion to dismiss specifies the Due process

and Equal Protection clauses of the Fourteenth

Amendment and Article I of the Wisconsin Const-

itution. Plaintiff names defendants O’Donnell ar

and McCann on hie complaint because they hold

positions of authority over defendant Matestic

but does not allege any specific acts or om-

issions on their part.

In support of their motion to dismiss,

defendants assert that the doctrine of pros-

ecutorial immunity shields them from liability

for any of the actions they are alleged to

have taken. In response, plaintiff asserts

that the immunity doctrine protects prosec-

utors only when they are performing ‘their

Sworn duty’. Plaintiff argues that defend-

ants refusal to prosecute his criminal comp-

laint violated their duty under Wis. Stats.

#59.47 to prosecute all violations of Wiscon-

Sin criminal law. See also 25 Opp. Att’y Gen.

549, 557-558 (1936).

eb aaa as oe

ee OT Ree Ow es

PO ERT ee Re A oe _

ent ns Tote AMO 68: wera ta Wht Fey eis

lla

Prosecutorial immunity, like judicial

immunity, is designed to permit officials

acting in the public interest to exercise

their authority independently and without

fear of intimidation or embarrassment due to

unfounded litigation. Imbler v. Pachtman,

424 U.S. 409, 423-424 (1976); Wickstrom v.

Ebert, 585 F. Supp. 924, 929 (E.D.Wis.1984).

Where the acts compained of are ‘quasi-jud-

icial’ in nature, i.e. where the prosecutor

acts in his capacity as an ‘advocate’ cond-

ucting litigation on the state’s behalf,

that immunity is absolute. Wickstrom, 585

F. Supp. at 930; Hampton v. Hanrahan, 600

F.2d 600, 631-632 (7th Cir.1979). See also

Butz v. Economou, 438 U.S. 478,510-511(1978).

In arguing that defendants are not

immune because they were violating a statu-

tory ‘duty’ by not prosecuting his complaint,

plaintiff fails to comprehend the natue of

immunity as a defense.

12a

Even if it is true that Wis. Stats. #59.47

places a duty on defendants to prosecute all

cases where criminal conduct is apparent, it

is the nature of that decision itself rather

than the manner in which it is exercised

that dictates the extent of the immunity

that courts wili afford to it. The decision

not to prosecute a criminal case is a judg-

ment made by a prosecutor in his role as the

state’s litigator. It is analogous to a dec-

ision to prosecute, and falls squarely with-

in the range of absolute protected advocacy

conduct. See Dohaish v. Tooley, 670 F.2d 934,

398 (10th Cir.) cert. denied, 459 U.S. 826

(1982); cf. Curry v. Jensen, 523 F.2d 387,388

(9th Cir. 1975), cert. denied, 423 U.S. 998

(1975) (decision to prosecute dog poisoning

as misdemeanor rather than as felony is pro-

tected by absolute immunity.

In his complaint plaintiff cites the

Fourteenth Amendment and the Civil Rights

Act as bases for liability; in his response

13a

brief to defendants’ motion to dismiss he

states that his case was brought under the

Amendment and not the Act. This distinction

is of no significance where the defense of

immunity is properly asserted. Litigation

based based directly on a constitutional

amendment is not likely to be any less in-

timidating or embarrassing than that cond-

ucted under 42 U.S.C #1983. The same concerns

that give rise to the doctrine of prosecut-

orial immunity thus apply in cases brought

under the Fourteenth Amendment or the Civil

Rights Act or, as is the case here and in

Dohaish, under both. Cf. Harlow v. Fitz-

gerald, 457 U.S. 800, 818 n. 30 (1982).

An additional ground exists for dismiss=

ing defendant O’Donnell. Plaintiff names

defendant McCann, the District Attorney,aas

the person ‘under whom Mr. Matestic serves’,

7 and defendant O’Donnell, the County Executive,

as the ‘employer of the office of District

Attorney.’

i4a

It is well established that liability for

violations of civil rights may not be imposed

on the basis of vicarious liability. Some all-

egation of personal conduct, either act or

omission, is required. Adams v. Pate, 445

F.2d 105, 108 (7th Cir. 1971). While in some

cases it may be appropriate at the pleading

stage to infer such involvment from mere all-

Ww platen Sx

DP ARS Seng

egations of general supervisory authority,

see,e.g-, Duncan v. Duckworth, 664 F.2d 653,

655-656 (7th Cir. 1981), it is clear that no

such inference is appropriate in the case of A

county executive. Defendant 0’Donnell’s pos-

ition in relation to the District Attorney’s

office is simply to remote to permit such

an inference based on the allegations pre-

sented here.

IT IS THEREFORE ORDERED that defendants»®

motion to dismiss the instant complaint is here-

by GRANTED, and that plaintiff’s motion for

Summary judgment is hereby DENIED.

15a

A judgment dismissing the complaint shall

be issued forthwith.

Dated at Milwaukee, Wisconsin, this

24th day of August 1984.

BY THE COURT

AARON E. GOODSTEIN

U. S. MAGISTRATE

16a

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

JOHN C. SCARVACI, Sep. 13, 1984

Plaintiff,

Vv. Case No.

84-C-752

FREDERIC MATESTIC,

E. MICHAEL McCANN and

WILLIAM F. O’DONNELL,

Defendants.

ORDER

On August 24, 1984, this court issued

a decision, order and judgment dismissing

the complaint in this action. Plaintiff has

moved for reconsideration of that decision.

Plaintiff’s complaint, filed pro se,

alleged that the Milwaukee County District

Attorney and an assistant of that office

violated his right to due process of law by

refusing to criminally prosecute someone who

nad Knowingly transferred property encum-

bered by his (plaintiff’s) security inter-

est, in violation of Wis. Stats. #943.25.

17a

The Milwaukee County Executive William

O’Donnell was also named as a defendant.

Defendants moved for dismissal on grounds

that their decision not to prosecute was ab-

solutely protected by the doctrine of pros-

ecutorial immunity. It was on that very

ground that this court dismissed the com-

plaint.

Plaintiff raises no new issues regard-

ing the merits of his complaint. He does,

however, question the dismissal of his conm-

plaint without hearing or trial. He states

that when he signed the form consenting to

the transfer of his case to this court under

28 U.S.C. #636(c), he believed that he would

thereupon be afforded the opportunity to

appear before the Magistrate and plead

nis case.

The fact that plaintiff’s complaint was

dismissed summarily had nothing to do with

the fact this court is a Magistrate’s court

as opposed to a Judge’s court.

18a

Because plaintiff submitted numerous evid-

entiary materials in opposition to defend-

ant’*s motion to dismiss, the court treated

that motion as one for summary judgment, as

is provided by Rule 12(b), Fed. R. Civ. P.

In fact, the plaintiff, himself, on August

13, 1984, asked that summary judgment be

zranted in his favor.

Rule 56(c) of the Civil Rules provides

that summary judgment may be granted ‘if

the pleadings...together with the affida-

vits, if any, show that there is no genuine

issue as to any material fact and that the

moving party is entitled to a judgment as

a matter of law.’ For purposes of defend-

ant’s motion, this court assumed that all

facts alleged in plaintiff’s pleadings and

other materials were true. It is for that

reason thace no trial or other hearing was

held. The purpose of a trial is to resolve

disputed issues of fact, of which there

were none in this case.

19a

The sum and substance of the court’s August

24th decision was that even if the defendants

had violated some duty under state law that

conferred a due process right upon plaintiff,

that conduct was protected by the immunity

doctrine as a matter of law. Accordingly,

the court will deny plaintiff’s motion for

reconsideration. :

Plaintiff has also requested, in the

event that the instant motion was denied,

that he be permitted to amend his complaint.

Other than deleting Mr. O’Donnell as a@ def-

endant ‘if it is not detrimental to plain-

tiff’s case,’ he has already clearly pre-

sented the facts upon which he bases his

"case.’ The defendants have raised an ab-

solute defense to that case. While mindful

of the admonition in Rule 15(a) Fed. R.

Civ. P., that leave to amend should be

"freely given when justice so requires,’

the plaintiff has failed to even suggest

Se nT eee ieditel

20a

the nature of substance of any other facts

or legal theories to which the defendants’

immunity would not pertain.

IT IS THEREFORE ORDERED that plaintiff's

motion for reconsideration is hereby DENIED.

Dated at Milwaukee, Wisconsin, this

13th day of September, 1984.

BY THE COURT

AARON E. GOODSTEIN

U.S. MAGISTRATE

21a

APPENDIX G

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

JOHN C. SCARVACI, Oct. 9, 1984

Plaintiff,

NOTICE OF APPEAL

Case. No.

FREDERIC MATESTIC, et al. 84-C-752

Defendants.

Notice is hereby given that plaintiff,

above named, hereby appeals to the United

States District Court of Appeals for the

Seventh Circuit from the final judgment ent-

ered in this action on the 13th day of Sep-

tember, 1984.

Dated and signed this 9th day of Oct-

ober, 1984, in Milwaukee, Wiscons‘n.

JOHN C. SCA}.ACI, pro se

910 East Calumet Road

Milwaukee, Wisconsin

S217

22a

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOHN C. SCARVACI,

Plaintiff-Appellant May 24, 1985

FREDERIC MATESTIC, Assistant

District Attorney, E. MICHAEL Case No.

McCANN, District Attorney and 84-2728

WILLIAM F. O*DONNELL, County

Executive of Milwaukee County,

Def endants-Appellees

nee

Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 84-C-7 52

Aaron E. Goodstein, Magistrate

ORDER

On June 11, 1984, John C. Scarvaci

filed a complaint alleging that Assistant

District Attorney for Milwaukee County, Fred-

eric Matestic, District Attorney E. Michael

McCann and Milwaukee County Executive Will-

jam F. O’Donnell had violated his civil rights.

Specifically, Scarvaci maintained defendants

violated his Fourteenth Amendment due process

rights by failing to criminally prosecute

23a

James Tall, an individual Scarvaci maintains

defrauded him by wrongfully transferring prop-

erty in which he held a security interest. 1/

On agreement of the parties, the suit was ref-

erred to a United States Magistrate. Defendants

filed a Motion to Dismiss pursuant to Rule

12(b)46 of the Federal Rules of Civil Proceed-

ure. The magistrate construed the motion as

one for summary judgment 2/ and granted summ-

ary judgment in defendants’ behalf. Scarvaci

appeals. We affirm.

In the interest of fostering independence

in prosecutorial performance, a district Att-

orney is afforded absolute immunity for dec-

isions and actions taken in the course of his

employment as a prosecutor. Imbler v. Pachtman

424 U.S. 409 (1976). Thus,even assuming Scar-

vaci’s allegations true,3/ it is clear, as a

matter of law, that both McCann and Matestic

are absolutely immune to civil process. The

jecision not to prosecute a case, like the

Aecision to vrosecute, is committed

24a

to the prosecutor’s discretion and thus falls

squarely within the range of absolutely p.o-

tected conduct. Dohaish v. Tooley, 670 F.2d

934, 938 (10th Cir.), cert. denied, 459 U.S.

826 (1982).4/ See also Curry v. Jensen, 523

F.2d 387, 388 (9th Cir.), cert. denied, 423

U.S. 998 (1975).

It is also clear that plaintiff’s com-

plaint does not state a cause of action a-

gainst O*Donnell. To begin, Scarvaci makes

no specific allegations against O’Donnell.

Purther, liability for the violation of

civil rights cannot be premised solely ona

theory of vicarious liability or respondeat

superior, Adams v. Pate, 445 F. 2d 105, 108

(7th Cir.), cert. denied, 400 U.S.1024(1971);

a civil rights plaintiff must show an affirm-

ative link between the alleged wrong and

wrongdoer. Id. Pro _se pleadings are liberally

construed, Haines v. Kerner, 404 U.S. 519

(1972), and thus court has held that pro se

civil rights pleadings are sufficient where the

+ ne Rae malls Fe

25a

defendant’s personal responsibility might

logically be inferred from the nature of

that defendant’s official duties. Duncan

v. Duckworth, 664 F.2d 653,655 (7th Cir.

1981). See also Wellman v. Faulkner, 715

F.2d 269 (7th Cir. 1983), cert. denied,

104 S. Ct. 3587 (1984)(personal respons-

ibility of senior prison official would

not br presumed beyond pleading stage).

However, in the absence of specific allega-

tions against O’Donnell and in light of the

attenuated link between the officials of

the District Attorney and the County Exec-

utive, we will not infer defendant 0O’Don-

nell’s personal responsibility.

Tne order of the district court grant-

ing defendants’ summary judgment is

AFFIRMED.

26a

1/ Scarvaci sold Tall his printing business

under a ten-year contract whereby he retain-

ed a security interest in the machinery and

equipment. Apparently in 1980, Tall defaulted

on the contract; Scarvaci then learned that

Tall had sold the encumbered property. Tall

subsequently filed for bankruptcy. In May,

1981, Scarvaci received a default judgment

against Tall but was unable to collect his

judgement.

te an lalla ah ro

2/ Rule 12(b) provides:

If, on a motion asserting the defense

numbered(6) to dismiss for failure of the

plea@ing to state a claim upon which retief

can be granted, matters outside the pleading

are presented to and not excluded by the

court, the motion shall be treated as one

for summary judgment and disposed of as pro-

vided in Rule 56, and all parties shall be

given reasonable opportunity to present all

material made pertinent to such a motion by

Rule 56.

3/ Ona motion for summary judgment, all

facts are construed in favor of the non-

moving party. Janowiak v. City of South

Bend, 750 F.2d 557 (7th Cir. 1984).

4/ Wis. Stats.#59.47, which Scarvaci cites

as support for his position, simply sets forth

the duties and obligations of a district att-

orney. It does not require tha district att-

orney to pursue criminal prosecution in all

cases. Nor does the provision waive the imm-

unity of Wisconsin’s district attorneys.

Appendix I. 27a

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOHN C. SCARVACI,

Plaintiff-Appellant, NOTICE OF APPEAL

No. 86-2931 U.S. District Court

Vv. E. Dist.of Wisconsin

FRED MATESTIC, Ass’t. Case 84-C-752

Dist. Attorney, et al. Judge

Def endants-Appellees Thomas J. Curran

Notice is hereby given that Plaintiff-App-

ellant, above named, hereby appeals to the

United States Supreme Court, from the ORDER

of the U.S. Court of Appeals for the Seventh

Circuit, denying the-MOTION FOR RECONSIDER-

ATION OF ORDER DENYING WRIT OF ERROR-filed on

March 3, 1987 and denied on April 1, 1987.

Plaintiff-Appellant claims that the Judg-

ment Order is in direct conflict with Federal

legislation Title 42 U.S.C. #1983, and also

Article III, Sec. 2, of the Constitution of

the United States.

Dated and signed this eas o PY 1987,

in Milwaukee, Wisconsin.

cl. y ere

ohn C. Scafvaci, pro se

910 East Calumet Road

aeaciaiities —Mtiwaukee, Wisconsin 53217

(414) 352-6467

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.