NONPRECEDENTIAL DISPOSITION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 November 20, 2017 *
Decided December 11, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 16-3916
DAVID A. BERTHA, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern District
of Illinois, Eastern Division.
v.
No. 1:16-cv-04982
MICHAEL SULLIVAN, et al.,
Defendants-Appellees. Harry D. Leinenweber,
Judge.
ORDER
David Bertha, a former lawyer, initiated this civil-rights action against the state
judges, prosecutors, county sheriff, and court-appointed mental-health evaluator
involved in his criminal cases for trespass and contempt. The district court dismissed
Bertha’s suit with prejudice because of perceived deficiencies in his original complaint.
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(A)(C).
No. 16-3916 Page 2
By then, however, Bertha had filed, as a matter of course, an amended complaint that
the district judge refused to consider. Because the judge did not have discretion to
ignore Bertha’s amended complaint, we vacate the dismissal and remand for further
proceedings.
Bertha twice was arrested in October 2013 when he tried to enter the
Kane County jail to visit a client after being told to leave. He was charged with trespass
in separate cases. During the criminal proceedings he personally drafted and submitted
motions and letters crudely berating and threatening the participating judges. He then
was charged with criminal contempt. Questions about Bertha’s competence have
delayed the criminal proceedings significantly, and all three cases remain ongoing in
one way or another. As best we can tell, he was convicted and served an eight-month
sentence for criminal contempt, but a judge vacated that conviction and ordered a series
of fitness examinations and a new trial. As for the trespass cases, it appears that one of
them has gone to trial and resulted in a guilty verdict, but both the sentencing in that
case and further proceedings in the second trespass case were delayed when Bertha was
found incompetent—a finding that since has been reversed.
While these state proceedings were unfolding, Bertha turned to federal court. His
original complaint named as defendants the Kane County state’s attorney and his office,
an assistant prosecutor, the Kane County sheriff’s office, eight judges, and the
mental-health evaluator appointed to assess Bertha’s fitness to stand trial. Bertha
alleged a litany of constitutional claims under 42 U.S.C. § 1983. The district judge
screened the complaint, see 28 U.S.C. § 1915(e)(2)(B); Rowe v. Shake, 196 F.3d 778, 783
(7th Cir. 1999), and allowed Bertha to proceed. The defendants did not answer the
complaint. Instead (in two groups) they filed motions to dismiss under Federal Rule of
Civil Procedure 12(b)(1) and (6). The motions raised broad defenses including
abstention, the Eleventh Amendment, judicial and prosecutorial immunity, the statute
of limitations, and lack of personal involvement.
Ten days after the first motion to dismiss was filed, and five days after the
second, Bertha filed an amended complaint. See FED. R. CIV. P. 15(a)(1)(B). He tried to
blunt the concerns raised in the motions to dismiss by removing the offices of the state’s
attorney and sheriff as defendants, and naming all defendants in their individual
capacity only. (Because of this we have amended the caption for this appeal to replace
the Kane County state’s attorney’s office, which Bertha removed as a defendant, with
Judge Michael Sullivan, the first named defendant in the amended complaint.) Bertha
also added as defendants fifteen jail employees and other law-enforcement officers.
No. 16-3916 Page 3
The amended complaint, as clarified by its attached “memorandum of law” and
Bertha’s appellate briefs, see Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013); Smith
v. Knox County Jail, 666 F.3d 1037, 1039 (7th Cir. 2012), sets forth the following
allegations against the named defendants: (1) jail employees banned him from the Kane
County jail without due process, (2) law-enforcement officers twice arrested him
without probable cause for allegedly trespassing at the jail, (3) the chief judge of the
Circuit Court of Kane County denied him due process by entering into evidence in his
trespass cases the letters he sent the various judges, (4) the judges and prosecutors
denied him due process and violated his right to free speech by bringing and entering a
conviction on the charge of criminal contempt, (5) during his trials several
law-enforcement officers physically assaulted and removed him from the Kane County
courthouse without cause, (6) jail employees subjected him to an unreasonable strip
search while he was serving his sentence for criminal contempt, and (7) jail employees
subjected him to cruel and unusual punishment by placing him in segregated housing
during that sentence. The amended complaint seeks damages and dismissal of the
contempt case that is awaiting retrial.
The district judge disregarded Bertha’s amended complaint and proceeded with
a hearing on the motions to dismiss the superseded initial complaint. From the bench at
that hearing, the judge dismissed the original complaint, citing judicial immunity,
prosecutorial immunity, and the ongoing state-court proceedings. The judge did not say
anything about the substance of the particular claims but declared that Bertha’s original
complaint did not “state federal jurisdiction or causes of action.” When Bertha
reminded the judge that he had filed an amended complaint, the judge said Bertha
could not “file an amended complaint without leave of the Court” and, since Bertha had
not sought leave, there was “nothing before the Court.” Later that day the judge entered
a minute order concerning the hearing: “For the reasons stated in open court
defendants’ motions to Dismiss for Failure to state a Claim . . . are granted. Plaintiff is
granted leave to file a motion for leave to file an amended complaint. Civil case
terminated.” Bertha responded to this minute entry by moving for leave to amend,
which prompted two additional minute orders. In the first, the judge “corrected” his
earlier entry to “strike the language granting Plaintiff leave to file an amended
complaint” because, the judge said, “[t]here was no pending motion to file an amended
complaint when the parties appeared before the Court.” In the second order, the judge
denied Bertha leave to amend his complaint, saying that Bertha’s “original complaint
was dismissed for lack of subject matter jurisdiction, and the dismissal was therefore
with prejudice.” Bertha then filed a timely notice of appeal.
No. 16-3916 Page 4
Bertha argues that the district judge erred by not addressing his amended
complaint and by denying him leave to amend. The defendants frame this as a question
of the district judge’s discretion to allow Bertha to amend his complaint, but that is a red
herring. Bertha points out that, under Federal Rule of Civil Procedure 15, a “party may
amend its pleading once as a matter of course.” Specifically, Rule 15 authorizes a party
to amend an unanswered complaint within “21 days after service of a motion under
Rule 12(b).” FED. R. CIV. P. 15(a)(1)(B). Bertha filed his amended complaint within that
time limit, so permission from the judge was unnecessary. See id.; Swanigan v. City of
Chicago, 775 F.3d 953, 963 (7th Cir. 2015) (explaining that, because of Rule 15(a)(1)(B),
“whether to allow an amendment” after an answer or motion to dismiss “was out of the
court’s hands entirely”); Ramirez v. County of San Bernardino, 806 F.3d 1002, 1007–08
(9th Cir. 2015) (describing ability to amend complaint under Rule 15(a)(1)(B) as
“automatic right”). The amended complaint became the operative complaint, see Riley
v. Elkhart Community Schools, 829 F.3d 886, 890 (7th Cir. 2016), cert. denied, 137 S. Ct. 1328
(2017), making the pending motions to dismiss the original complaint irrelevant,
see Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017) (holding that district
court “ruled on a mooted complaint, not the operative one” since plaintiff already had
filed timely amendment under Rule 15(a)(1)(B)).
We note that in Fawzy the Fourth Circuit concluded that its jurisdiction was
affected by the identical procedural posture. 873 F.3d at 455. The Fourth Circuit
dismissed the plaintiff’s appeal from the dismissal of his lawsuit, reasoning that there
was no final judgment because the district court had not addressed the amended
complaint. Id. But that analysis ignores the key to finality—did the district judge finish
with the case? See Hernandez v. Dart, 814 F.3d 836, 840–41 (7th Cir. 2016) (noting that this
court had jurisdiction over appeal given “multiple indicia that the district court was
finished with the case”); Martinez v. City of Chicago, 499 F.3d 721, 726 (7th Cir. 2007)
(same). We cannot tell from the Fawzy opinion if the Fourth Circuit disagrees with our
understanding of finality or if the court simply overlooked the question. But if the
Fourth Circuit meant to adopt a different standard, we reject it. Here, it is clear the
district judge was finished with Bertha’s case. The judge declared that the case was
“terminated,” and then he later clarified that he would not allow amendments to the
complaint and that the dismissal was with prejudice. We do not lack jurisdiction just
because the reasoning underlying the dismissal is wrong; rather, we must correct the
error.
Because the district judge had never addressed Bertha’s amended complaint, he
effectively dismissed the action sua sponte, which was error. Bertha was proceeding in
No. 16-3916 Page 5
forma pauperis, so the judge could have screened the amended complaint under
§ 1915(e)(2)(B), see Rowe, 196 F.3d at 783, and dismissed the lawsuit if that review
showed the case to be frivolous. But the judge did not screen the amended complaint.
Instead the judge emphasized that the case had been dismissed with prejudice on the
ground that the court lacked “subject matter jurisdiction” over the superseded original
complaint. And since the defendants had not moved to dismiss Bertha’s amended
complaint, the judge could not dismiss sua sponte without first disclosing his intentions
and giving Bertha a chance to respond. See Aljabri v. Holder, 745 F.3d 816, 819 (7th Cir.
2014); Dawson v. Newman, 419 F.3d 656, 660 (7th Cir. 2005). Here the judge did not even
consider the amended complaint, much less disclose any concerns he may have had
with the allegations contained in it.
The district judge’s concern about subject-matter jurisdiction changes nothing. At
the motions hearing, the judge did not identify a specific jurisdictional bar; he said only
that “this Court has no jurisdiction to interfere in a state court matter” and that the
original complaint did not “state federal jurisdiction or causes of action.” To the extent
the judge was alluding to the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971),
he was mistaken—Younger concerns whether a district court might have reason to
refrain from exercising its jurisdiction. See Sprint Comm’cns, Inc. v. Jacobs, 134 S. Ct. 584,
588 (2013) (noting that abstention is exception to general rule that federal courts must
hear cases “within the scope of federal jurisdiction”); Mulholland v. Marion Cty. Election
Bd., 746 F.3d 811, 815 (7th Cir. 2014) (same). And if the judge’s reference to
subject-matter jurisdiction instead was directed at the Eleventh Amendment defense
raised by some of the defendants in response to Bertha’s original complaint, see Garcia
v. City of Chicago, 24 F.3d 966, 969 (7th Cir. 1994), Bertha already had eliminated that
defense by amending his complaint to name only individual defendants in their
individual capacity. See Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t,
510 F.3d 681, 695 (7th Cir. 2007). Thus subject-matter jurisdiction is not an obstacle.
We do not mean to suggest that Bertha’s amended complaint will allow him to
dodge what appear to be significant defenses. Some, like absolute judicial immunity,
are obvious, and the list likely includes Younger abstention and prosecutorial immunity.
But we cannot say that Bertha’s suit is frivolous, in particular some of his allegations
against the law-enforcement officers working at the jail and courthouse. See Richman
v. Sheahan, 512 F.3d 876, 881 (7th Cir. 2008) (noting that courthouse beating could
support claim of excessive force if committed “maliciously and sadistically for the very
purpose of causing harm”); Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (noting
that strip search may support Eighth Amendment claim if “conducted in a harassing
No. 16-3916 Page 6
manner intended to humiliate and inflict psychological pain”). Rather than sift through
a complaint that has never been reviewed by the district judge and might be amended
again with the judge’s permission, we leave it to the district judge to address Bertha’s
amended complaint and any possible defenses in the first instance. We thus express no
opinion about these issues. See Dawson, 419 F.3d at 660.
VACATED and REMANDED.