NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 16, 2009*
Decided April 28, 2009
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐2293
FIDELIS I. OMEGBU, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 05‐C‐596
MILWAUKEE COUNTY, et al.,
Defendants‐Appellees. Rudolph T. Randa,
Chief Judge.
O R D E R
Fidelis Omegbu wanted to run for public office in Milwaukee County, but his plans
were thwarted when he was convicted of election fraud and jailed. He then brought this
lawsuit under 42 U.S.C. § 1983 against a multitude of defendants including the Milwaukee
*
Appellees Wisconsin Election Board, Milwaukee County District Attorney’s Office,
E. Michael McCann, and Michael Mahoney have not submitted a brief and are not
participating in this appeal. After examining appellant’s brief, the remaining appellees’
brief, and the record, we have concluded that oral argument is unnecessary. Thus, the
appeal is submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2).
No. 08‐2293 Page 2
County District Attorney’s office, the district attorney (DA), and an assistant district
attorney, claiming that his civil rights were violated when he was selectively prosecuted on
the basis of his race and national origin (Nigerian) and raising various state‐law claims. The
court granted a motion to dismiss brought by the DA’s office and prosecutors, reasoning
that the office was not a suable entity and, in any event, was entitled to sovereign immunity
as Wisconsin’s prosecutorial arm, and that the individual prosecutors were absolutely
immune from suit. The court later declined to exercise supplemental jurisdiction over the
state‐law claims against the other defendants. We affirm.
Omegbu argues that he stated a claim that he was illegally prosecuted on the basis of
his race and national origin by alleging that certain other, presumably white, residents of
Milwaukee County were not prosecuted for committing election fraud.
As a threshold matter, however, the DA’s office and the prosecutors who decided to
charge him cannot be sued. The Milwaukee County DA’s Office is not a suable entity; each
Wisconsin county is a “prosecutorial unit” headed by an elected DA and staffed by deputy
or assistant DAs, who are state, and not county, employees. Wis. Stat. §§ 978.01, 978.03,
978.04; Ameritech Corp. v. McCann, 403 F.3d 908, 910 (7th Cir. 2005); Ass’n of State Prosecutors
v. Milwaukee County, 544 N.W.2d 888, 889 (Wis. 1996); see also Wis. Stat. § 17.19 (listing
“district attorney” as an “elective state office”) (emphasis added). Furthermore, oversight of
the DAs’ budgets is entrusted to the Wisconsin Department of Administration, not the
individual counties. See Wis. Stat. § 978.11. Thus, the “Milwaukee County District
Attorney’s Office” is merely a division of the state of Wisconsin, and a state is not a
“person” that can be sued under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64
(1989); Peirick v. Ind. Univ.‐Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 694 (7th
Cir. 2007). Accord Buchanan v. Kenosha, 57 F. Supp. 2d 675, 679 (E. D. Wis. 1999) (concluding
that the Kenosha County DA’s office is not a suable entity).
As for the individual prosecutors, they are entitled to absolute immunity from suit
for exercising their discretion to bring charges during the judicial phase of the criminal
process, even if the decision is made maliciously. See Imbler v. Pachtman, 424 U.S. 409, 428‐
29 (1976); Hartman v. Moore, 547 U.S. 250, 261‐62 (2006); Spiegel v. Rabinovitz, 121 F.3d 251,
256‐57 (7th Cir. 1997). Furthermore, even if immunity did not shield these defendants,
Omegbu’s claim would nonetheless fail because it is barred under the rule in Heck v.
Humphrey, 512 U.S. 477 (1994). A plaintiff seeking to recover damages under § 1983 for an
“allegedly unconstitutional conviction” or “actions whose unlawfulness would render a
conviction or sentence invalid,” must first have the conviction “reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such a
determination, or called into question by a federal court’s issuance of a writ of habeas
No. 08‐2293 Page 3
corpus.” Heck, 512 U.S. at 486‐87. A decision here that Omegbu was selectively prosecuted
would mean that his conviction was unlawful, see United States v. Armstrong, 517 U.S. 456,
463‐64 (1996); Kramer v. Vill. of N. Fond Du Lac, 384 F.3d 856, 862 (7th Cir. 2004); State v.
Johnson, 246 N.W.2d 503, 507 (Wis. 1976); thus his equal‐protection claim is barred under
Heck.
Omegbu devotes most of his attention to asserting for the first time that some of
Wisconsin’s election laws are unconstitutional and were enacted in violation of the Voting
Rights Act of 1965, 42 U.S.C. § 1973. But Omegbu did not raise in his complaint any claims
related to the legality of Wisconsin’s election procedures, and he cannot amend his
complaint on appeal. Joyce v. Morgan Stanley & Co., 538 F.3d 797, 801‐02 (7th Cir. 2008).
Finally, Omegbu takes issue with the district court’s decisions to reject his repeated
efforts to compel discovery and requests for sanctions after the defendants purportedly
refused to comply with his discovery demands. But the district court acted well within its
discretion when it denied Omegbu’s requested relief. See Walker v. Sheahan, 526 F.3d 973,
977‐78 (7th Cir. 2008). As the court pointed out, Omegbu was not entitled to prevail on his
motion to compel discovery because he failed to make a good‐faith effort to resolve
discovery disputes before asking the court to intervene. See FED. R. CIV. P. 37(a)(1);
Employers Ins. of Wausau v. Titan Int’l, Inc., 400 F.3d 486, 490 (7th Cir. 2005). And Omegbu’s
calls for sanctions were frivolous because the defendants did not violate any court order.
FED. R. CIV. P. 37(b); Employer’s Ins., 400 F.3d at 490.
AFFIRMED