Frederick Jay King v. Stephen Goldsmith, 897 F.2d 885

Frederick Jay King v. Stephen Goldsmith

897 F.2d 885

7th Cir.

1990

Check Treatment

Frеderick Jay KING, Plaintiff-Appellant, v. Stephen GOLDSMITH, et al., Defendants-Appellees.

No. 89-1142.

United States Court of Appeals, Seventh Circuit.

Decided March 12, 1990.

Rehearing Denied April 10, 1990.

897 F.2d 885

Submitted Jan. 17, 1990.

rank high in the list of excuses for default and certainly do not require a district judge to relieve a party from a default judgment. Chrysler Credit Corp. v. Macino, 710 F.2d 363 (7th Cir. 1983).

This observation would end the case had not Judge Conlon canceled without notice the status hearing at which the defendant planned to move for leave to file his untimely answer. When she granted the plaintiff‘s motion for default she had no idea that the defendant had just attempted to filе his answer; had she known, she might not have granted the motion. It is true that relief from a default order requires a showing of good cause, Fed.R.Civ.P. 55(c), that “good cause” is not sharply distinguishable frоm “excusable neglect,” if it is distinguishable at all, Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 231-232 (7th Cir. 1990), and that some decisions, illustrated by United States v. DiMucci, 879 F.2d 1488, 1493 n. 9 (7th Cir. 1989), imply that the standards for setting aside a default are the same under Rulеs 55(c) and 60(b). Most decisions, however, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍hold that relief from a default judgment requires a stronger showing of excuse than relief from a mere default order. North Central Illinois Laborers’ District Council v. S.J. Groves & Sons Co., 842 F.2d 164, 165, 166 n. 3 (7th Cir. 1988); Chrysler Credit Corp. v. Macino, 710 F.2d 363, 368 (7th Cir. 1983); Breuer Electric Mfg. Co. v. Toronado Systems of America, Inc., 687 F.2d 182, 187 (7th Cir. 1982); Phillips v. Weiner, 103 F.R.D. 177, 181 (D. Maine 1984); 10 Wright, Miller & Kane, Federal Practice and Procedure § 2691, at pp. 469-72 (2d ed. 1983). Such an order normally is entered by the clerk of court automatically upon the failure to file a timely pleading. Fed.R.Civ.P. 55(a). And as it does not conclude the lawsuit, the practical considerations that support a strong presumption against the reopening of final decisions are not in play. The defendant in this case was denied an оpportunity to argue that a default judgment should not be entered, but instead was forced to bear the heavier burden of showing that a judgment already entered should be set aside.

There is a more fundamental reason why the case must be remanded. No default had been entered against the defendant when he showed up for the hearing. If the hearing had been held, the initial question would simply have been whether Judge Conlon was willing to allow the defendant to file an untimely answer. To grant such a motion the judge would not have had to find good cause or excusable neglect, although some finding, however attenuated, of either would be implicit in favorable action on the motion. Beсause she canceled the hearing and simultaneously granted the plaintiff‘s motion for entry of a default judgment, she never had an opportunity to pass on a simple mоtion to file the answer that the defendant had prepared. We cannot be certain from Judge Conlon‘s brief order refusing to set the judgment aside whether she would have denied the defendant‘s motion to file his answer on the day of the status hearing if she had known about the motion then. By canceling the hearing she disabled herself from exercising the broad discretion that the civil rules give her.

The judgment is therefore vacated and the case remanded for consideration of the defendant‘s motion to file his answer lаte.

VACATED AND REMANDED, WITH DIRECTIONS.

Frederick J. King, Indianapolis, Ind., pro se.

Arthur T. Perry, Dist. Atty. Gen., Office of the Atty. Gen., Stephen E. Schrumpf, Barbara Malone, Office ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the Corp. Counsel, City Counsel, Legal Div., Indianapolis, Ind., for defendants-appellees.

Bеfore POSNER and RIPPLE, Circuit Judges, and PELL, Senior Circuit Judge.

POSNER, Circuit Judge.

The plaintiff brought this civil rights suit against a state prosecutor and police officers, claiming that they had procured his convictiоn of receiving stolen property by altering a transcript of a tape recording, withholding exculpatory evidence, and suborning perjury. 42 U.S.C. § 1983. The district judge dismissed the suit as to thе prosecutor on grounds of immunity that the plaintiff appears not to be challenging and that are in any event correct; that dismissal is affirmed. The judge later granted summary judgmеnt for the police officers on the ground that, at common law, conviction precludes a subsequent suit by the defendant charging law enforcement officers with falsе imprisonment or malicious prosecution. This is the ruling challenged on appeal. We emphasize that the judge did not hold that the conviction bars this suit by principles of rеs judicata or collateral estoppel, an issue of Indiana law. 28 U.S.C. § 1738; Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Harris Trust & Savings Bank v. Ellis, 810 F.2d 700, 705-06 (7th Cir. 1987); cf. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). She declined to consider other grоunds for dismissal because she thought the suit barred in any event by the common law rule.

Cameron v. Fogarty, 806 F.2d 380, 386-89 (2d Cir. 1986), applied the common law rule to a suit under section 1983, noting that the rule had existed back in 1871, whеn the original version of the statute was passed, and that the courts frequently have recognized, as defenses to suits under this and other Reconstruction civil rights statutes, the recognized tort defenses of the nineteenth century. Although Cameron was questioned in Rose v. Bartle, 871 F.2d 331, 351 (3d Cir. 1989), we may assume for purposes of this appeal, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍without having to decide, that Cameron was decided correctly. Even sо, all it holds is that conviction bars a suit for false arrest or malicious prosecution based on a claim that there was no probable cause to arrest the рlaintiff. This is a narrow holding, serving the limited function of preventing an end run around the principle that an unlawful arrest does not bar prosecution of the arrested person. Rose v. Mitchell, 443 U.S. 545, 577, 99 S.Ct. 2993, 3010-11, 61 L.Ed.2d 739 (1979). In formalistic terms, we might put it that if the plaintiff was imprisoned pursuant to a conviction that became final after the exhaustion of his appellate remedies (as it did in this case, King v. State, 469 N.E.2d 1201 (Ind.App. 1984)), it was not a false imprisonment. Nor could the prosecution have lacked probable cause, a lack that is a prerequisite to a suit for malicious prosecution. Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 966, 282 N.E.2d 452, 455 (1972); Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 470 (7th Cir. 1982). Probable cause requires much less ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍proof than a conviction does.

Nothing in the formulation or rationale of the common law rule bars relitigation of the issue of the plaintiff‘s criminal guilt if the prosecution in the criminal proceeding had procured the рlaintiff‘s conviction by fraud, as the plaintiff in this case charges. Otherwise police officers could procure a conviction by fraud and then—irrespective of whatever exceptions a state‘s law of res judicata and collateral estoppel had created for just such cases—use that conviction to bar their victim‘s effort to redress the fraud by means of a tort action, whether for false imprisonment, or for malicious prosecution, or for violation of civil rights. Cameron does not read on that case. Unger v. Cohen, 718 F.Supp. 185, 187-88 (S.D.N.Y. 1989); cf. Brumfield v. Jones, 849 F.2d 152, 155 (5th Cir. 1988). Cameron may have been arrested unlawfully, but there was no irregularity in his conviction.

Here there was; or so at least we must assume in the posture of the case. The dismissal of the suit against the officеrs was therefore erroneous, and must be reversed. Smith v. Springer, 859 F.2d 31, 35 (7th Cir. 1988); cf. Haring v. Prosise, 462 U.S. 306, 318-23, 103 S.Ct. 2368, 2375-78, 76 L.Ed.2d 595 (1983); Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988). We do not hold that this case cannot be disposed of on summary judgment—there may be good grounds for summary judgmеnt on which the district court has not ruled, cf. Harris Trust & Savings Bank v. Ellis, supra, 810 F.2d at 705-06—but only that it cannot be disposed of on the basis of the common law rule barring resort to tort law to circumvent a criminal conviсtion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PELL, Senior Judge, concurring.

I concur in the result reached in the majority opinion because in the posture of the case, as it was presented to us, entry of summary judgment was inappropriate.

Nevertheless, I find it somewhat disturbing that a person may be charged with a crime, proceed through a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial, be convicted, exhaust post-conviction remediеs, serve his sentence, and then return to file a § 1983 action for damages against those who were involved as investigative police officers during the proceedings leading to conviction. With the present day proclivity to resort to litigation it would seem to be an attractive avenue for pursuit, i.e., to seek, and hopefully find, some apparent misconduct before or during the trial, not for the purpose of setting aside the conviction and clearing his name, but simply to recover damages.

The mаjority opinion speaks of not barring relitigation of the issue of plaintiff‘s criminal guilt if the conviction had been procured by fraud but as I understand the present litigation it is not to rеlitigate the issue of guilt but only for the purpose of securing damages for some action of the police officers which may or may not have had anything to do with whether in fact he was guilty or whether he was properly convicted.

It appears to me that resort to the procedure of damage-seeking of this ex post faсto nature should only proceed under strictly limited standards. The case is being returned to the district court and I am assuming a full record on the validity of the claim will now be developed either by summary judgment procedures or by an evidentiary hearing.

Accordingly, I am concurring at this time.