Paul Smith and Gloria Smith v. L. Patrick Power

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1811
P AUL S MITH AND G LORIA S MITH ,
Plaintiffs-Appellants,
v.
L. P ATRICK P OWER ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-CV-2083—Michael P. McCuskey, Judge.
____________
A RGUED S EPTEMBER 8, 2003—D ECIDED O CTOBER 6, 2003
____________
Before K ANNE , R OVNER , and D IANE P. W OOD , Circuit
Judges.
R OVNER , Circuit Judge. Paul and Gloria Smith sued L.
Patrick Power, an assistant city attorney in Kankakee,
Illinois, under 42 U.S.C. § 1983 for initiating proceedings to
demolish a house on their property, allegedly in retaliation
for Paul Smith’s public criticism of Power when Smith was
a Kankakee alderman. The district court concluded that
Power was entitled to absolute immunity from suit and
dismissed the case. We affirm.

-- 1 of 5 --

2 No. 03-1811
In determining whether to apply absolute immunity, we
accept the facts in the complaint as true. Kalina v. Fletcher,
522 U.S. 118, 122 (1997). According to the complaint, the
Smiths are former residents of Kankakee and now live in
Lyon County, Kentucky. They are in the business of buying
and selling houses, one of which was located on Rosewood
Avenue in Kankakee. In November 1997 the Smiths
contracted to sell the Rosewood property to David Carroll,
who then received a building permit to repair and improve
the property. Carroll, however, did not receive title to the
property until October 1999.
In the meantime, city attorney Power sent a notice of
demolition to the Bank of Lyon County, Kentucky, which
held a security interest in the Rosewood property because
the Smiths had pledged it as security for a loan. The notice
informed the Bank that the house on the Rosewood property
“is dilapidated and uninhabitable and fails to comply with
the City of Kankakee Building Code in so many particulars
that it is impracticable to list same.” (R. 15, Exh. B.) The
notice warned that unless the house was “put in a safe
condition” within 15 days, the City of Kankakee would file
a complaint in an Illinois circuit court seeking an order of
demolition. Id. Neither the Smiths nor Carroll received a
copy of the notice. When the 15-day period expired, Power
filed a complaint in state court, but he voluntarily dis-
missed the suit more than two years later. As a result of
the demolition proceedings, the Bank of Lyon County has
denied the Smiths various business loans.
The Smiths then filed this suit in the district court,
alleging that Power violated their rights under the First
and Fourteenth Amendments because he initiated the
demolition proceedings in retaliation for Paul Smith’s public
criticism of him when Smith was an alderman in Kankakee.
The district court dismissed the case, concluding that Power
was entitled to absolute prosecutorial immunity.

-- 2 of 5 --

No. 03-1811 3
Prosecutors are absolutely immune from suits for mone-
tary damages under § 1983 for conduct that is “intimately
associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976); accord Burns
v. Reed, 500 U.S. 478, 491-92 (1991); Anderson v. Simon,
217 F.3d 472, 475 (7th Cir. 2000). A prosecutor is shielded
by absolute immunity when he acts “as an advocate for the
State” but not when his acts are investigative and unrelated
to the preparation and initiation of judicial proceedings.
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). These
standards also apply to a prosecutor’s acts in initiating civil
proceedings as long the prosecutor is “functioning in an
enforcement role analogous to” his role in criminal proceed-
ings. Mendenhall v. Goldsmith, 59 F.3d 685, 691 (7th Cir.
1995); accord Butz v. Economou, 438 U.S. 478, 515-16
(1978) (absolute immunity protects federal agency officials
who instituted administrative proceedings); Cooper v.
Parrish, 203 F.3d 937, 947 (6th Cir. 2000) (absolute immu-
nity protects prosecutor for filing public nuisance action and
civil forfeiture complaint). Moreover, absolute immunity
shields prosecutors even if they act “maliciously, unreason-
ably, without probable cause, or even on the basis of false
testimony or evidence.” Henry v. Farmer City State Bank,
808 F.2d 1228, 1238 (7th Cir. 1986).
On appeal the Smiths contend that Power is not entitled
to absolute immunity because he acted as an investigator
when he determined that the house violated various
building codes. But nowhere in their complaint did they
allege that Power personally inspected the house to deter-
mine its compliance with the building codes. The notice
itself said merely that the house “[h]as been inspected and
found to be in [a] dangerous and unsafe condition.” (R. 15,
Exh. B.) Although Power signed the notice, he did not
personally vouch under penalty of perjury for the truth of
the facts in the notice. Cf. Kalina, 522 U.S. at 129-31 (no
absolute immunity for prosecutor who vouched under

-- 3 of 5 --

4 No. 03-1811
1 An Illinois appellate court recently held that this statute is
unconstitutional because 15 days is not a reasonable amount of
time for the property owner to repair the defects of the property.
Vill. of Lake Villa v. Stokovich, 778 N.E.2d 750, 759-62 (Ill. App.
Ct. 2002), appeal allowed, 787 N.E.2d 174 (Ill. Feb. 5, 2003).
penalty of perjury for truth of facts supporting probable
cause for arrest warrant).
Instead of alleging that Power personally inspected the
house, the Smiths alleged that Power acted as an investiga-
tor by “preparing, signing and sending” the 15-day notice.
(R. 46 at ¶ 14.) We fail to see how those acts can be
characterized as investigative. Cf. Buckley, 509 U.S. at 273-
76 (prosecutor’s endeavors to determine whether bootprint
at scene of crime had been left by suspect were investiga-
tory and not entitled to absolute immunity). The 15-day
notice is a statutory prerequisite to filing a suit for an order
of demolition. 65 ILCS 5/11-31-1(a) (West 2003).1 By
sending the notice, Power was acting as an advocate of the
City of Kankakee, which is authorized to institute civil
proceedings to demolish unsafe buildings. Id. The notice is
“intimately associated” with the judicial process because it
was simply the first step of the demolition proceedings. As
explained in Imbler, “the duties of the prosecutor in his role
as advocate for the State involve actions preliminary to the
initiation of a prosecution.” 424 U.S. at 431 n.33. Sending
the 15-day notice is such a preliminary act for which Power
is absolutely immune. See Thomas v. City of Dallas, 175
F.3d 358, 362-63 (5th Cir. 1999) (chairman of hearing board
absolutely immune for allegedly giving improper notice of
demolition proceedings to property owner); see also Pusey v.
City of Youngstown, 11 F.3d 652, 658 (6th Cir. 1993) (prose-
cutor’s decision whether to notify crime victim of hearing is
entitled to absolute immunity because it is intimately
associated with the judicial process and “is simply a
litigation-related duty”).

-- 4 of 5 --

No. 03-1811 5
Lastly, the Smiths contend that Power is not entitled to
absolute immunity because he exceeded his prosecutorial
authority by sending the 15-day notice without authoriza-
tion from the Kankakee City Council. We agree with the
district court that, according to Kankakee city ordinances,
the city’s law department does not need express authority
from the city council to file complaints. See Kankakee City
Ordinances, Art. III, §§ 2-115, 2-120. In any event, a
prosecutor does not lose the protection of absolute immunity
by merely exceeding his authority; only when a prosecutor
acts in the clear absence of all statutory authority is the
immunity lost. See Stump v. Sparkman, 435 U.S. 349, 357
(1978) (absolute judicial immunity lost only in clear absence
of all jurisdiction); Kerr v. Lyford, 171 F.3d 330, 337 & n.10
(5th Cir. 1999) (applying Stump to prosecutorial immunity);
Snell v. Tunnell, 920 F.2d 673, 694 (10th Cir. 1990) (same).
Because the city ordinances grant assistant city attorneys
the authority to prosecute all actions for violations of
Kankakee ordinances, Power was not acting in the clear
absence of all authority when he sent the 15-day notice.
Kankakee City Ordinances, Art. III, §§ 2-115, 2-120.
Accordingly, the judgment of the district court is AFFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-6-03

-- 5 of 5 --