Gerald L. Polzin v. Michael W. Gage

The appellees were not served with process in the district å
court and are not participating in this appeal. After examining
the appellant’s brief and the record, we have concluded that
oral argument is unnecessary. Accordingly, the appeal is
submitted on the appellant’s brief and the record. See Fed. R.
App. P. 34(a)(2)(C).
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1545
GERALD L. POLZIN,
Plaintiff-Appellant,
v.
MICHAEL W. GAGE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:10-cv-00038-WCG—William C. Griesbach, Judge.
SUBMITTED NOVEMBER 17, 2010 —DECIDED FEBRUARY 18, 2011 å
Before COFFEY, FLAUM and RIPPLE, Circuit Judges.
PER CURIAM. Gerald Polzin brought this action against
a state judge and other public officials under 42 U.S.C.

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2 No. 10-1545
§ 1983, alleging that they had violated his constitutional
rights during his sentencing proceedings in state court.
The district court dismissed Mr. Polzin’s complaint at
screening and denied his subsequent postjudgment
motion to reconsider or for leave to amend his complaint.
Mr. Polzin appeals, and we affirm the judgment in part
and vacate and remand in part.
I
BACKGROUND
In August 2005, Mr. Polzin pleaded guilty to six counts
of sexually abusing two teenage boys. During the
presentence investigation, Mr. Polzin claimed that as a
child, his uncle, an Appleton, Wisconsin police officer,
had sexually abused him. The presentence investi-
gator informed the special prosecutor, and the special
prosecutor requested an investigation by the Wisconsin
Department of Justice, Division of Criminal Investigation
(“DCI”). The Appleton police decided not to conduct
a duplicate investigation of the matter.
At the sentencing hearing, the special prosecutor ex-
pressed doubts that Mr. Polzin actually was abused and
opposed any mitigation based on evidence of past
sexual abuse. The special prosecutor believed that
Mr. Polzin was trying to recast himself as a victim in
order to excuse his criminal behavior. The state trial
judge doubted the thoroughness of the special pros-
ecutor’s investigation. The state trial judge ultimately
considered the past sexual abuse “more probable than

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No. 10-1545 3
not” and included it as a mitigating factor. Sent. Tr. at 123.
Considering both aggravating and mitigating factors,
the state trial judge sentenced Mr. Polzin to a thirty-
year term of imprisonment.
Mr. Polzin appealed his conviction and filed a sep-
arate civil suit in state court. In the criminal appeal, the
Court of Appeals of Wisconsin affirmed Mr. Polzin’s
conviction. The Supreme Court of Wisconsin denied
Mr. Polzin’s petition for review. State v. Polzin, 746 N.W.2d
810 (Wis. 2008) (table decision). Mr. Polzin then filed
a postconviction motion for relief, which the state court
denied. In November 2010, the Court of Appeals of Wis-
consin affirmed the district court’s denial of postconvic-
tion relief. See State v. Polzin, No. 2010AP167, 2010 WL
4643647 (Wis. Ct. App. Nov. 18, 2010) (per curiam).
The civil suit was an action in state court against
the city of Appleton and members of its police force.
Mr. Polzin alleged constitutional violations of his rights
because the Appleton police did not conduct a duplicate
investigation into his claims, the defendants exhibited
disbelief that he previously was abused, and the defen-
dants did not attempt to correct the special prosecutor’s
assessment of the investigation during the sentencing.
The state court granted the defendants’ joint motion for
summary judgment, holding that the defendants were
protected by qualified immunity and that Mr. Polzin
failed to show any violation of constitutional rights or
malice. The Court of Appeals of Wisconsin affirmed. See
Polzin v. City of Appleton, No. 2007AP1528 (Wis. Ct. App.
Feb. 26, 2008).

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4 No. 10-1545
In January 2010, prior to the resolution of his motion
for postconviction relief, Mr. Polzin brought this action
in the United States District Court for the Western
District of Wisconsin under 42 U.S.C. § 1983 against the
special prosecutor, the state trial judge, the state trial
court reporter and DCI investigators. Mr. Polzin alleged
constitutional violations as a result of the special pros-
ecutor and DCI investigators falsifying evidence during
the investigation, the special prosecutor’s presentation
of false evidence during sentencing, and the state trial
judge and court reporter’s fabrication of the sentencing
transcript.
The same day he filed his case in federal district
court, Mr. Polzin asked the district court to stay the pro-
ceedings. He observed that because he had a post-
conviction motion pending in state court, the rule an-
nounced in Heck v. Humphrey, 512 U.S. 477 (1994), would
bar his claims until that conviction was overturned.
The Supreme Court held in Heck that arguments
attacking the validity of a conviction cannot be ad-
vanced under § 1983 unless the conviction or sentence
previously has been invalidated. Id. at 486-87. Mr. Polzin
explained that he nonetheless had filed an action
because the statute of limitations would run on some of
his claims if he waited to file until after the state
resolved his claim for postconviction relief. Relying on
Wallace v. Kato, 549 U.S. 384 (2007), he requested the
district court stay the proceedings instead of dismissing
the suit under Heck. In Wallace, the Supreme Court ad-
dressed the issue of whether a § 1983 claim for false
arrest was filed timely. See id. at 386. The Court held that

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No. 10-1545 5
the rule in Heck does not affect the date when a claim
for false arrest under § 1983 accrues or when its statute
of limitations is tolled. Id. at 393-95. Yet, in those cases
where Heck would bar a civil action but the statute of
limitations might run before the criminal case was com-
plete, the Court commented that a district court had
the discretion to stay the civil action. Id. at 393-94.
The district court denied Mr. Polzin’s request to stay
the proceedings. It characterized all of Mr. Polzin’s
claims to concern “the behavior of the prosecution in
his sentencing and that of the court after sentencing.”
Polzin v. Gage, No. 10-C-38, 2010 WL 414906, at *4 (E.D.
Wis. Jan. 28, 2010). Wallace dealt with the accrual date
for a claim of false arrest. By contrast, in the district
court’s view, Mr. Polzin essentially alleged a claim of
malicious prosecution, and, the district court observed,
a claim for malicious prosecution does not accrue
unless and until the allegedly malicious prosecution
terminates in the plaintiff’s favor. As a result, the
district court found Wallace inapplicable to Mr. Polzin’s
complaint and denied the request to stay the case.
The district court did recognize, however, that Heck
applied. It stated that if Mr. Polzin “were to prevail on his
claims regarding his sentencing proceedings, it would
necessarily call into question the validity of his sen-
tence.” Id. Because the district court found that Heck
barred Mr. Polzin’s complaint, it dismissed the com-
plaint for failure to state a claim under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Four days later, Mr. Polzin moved for reconsideration
or, alternatively, for an opportunity to amend his com-

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6 No. 10-1545
plaint. His request did not detail the basis for reconsidera-
tion, but, in denying the motion, the district court reiter-
ated that the case was barred by Heck. The district court
also added that, “even aside from Heck v. Humphrey,
Polzin fails to state any claim that is cognizable under
the Constitution.” R.10 at 1. In particular, the court
noted that the failure to investigate did not violate any
of Mr. Polzin’s constitutional rights. Additionally, the
court determined that neither the state trial judge nor
the court reporter had any role in investigating
Mr. Polzin’s allegations of sexual abuse and that, con-
sequently, his decision to sue them was frivolous.
The district court denied Mr. Polzin’s motion for recon-
sideration.
II
DISCUSSION
On appeal, Mr. Polzin submits that the district court
erred in dismissing his claims. We review de novo the
dismissal of a complaint under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1) for failure to state a claim. See DeWalt
v. Carter, 224 F.3d 607, 611 (7th Cir. 2000).
Mr. Polzin maintains that the district court improperly
ruled on the merits of his claims. In his view, the
district court could not address his constitutional argu-
ments on the merits because Heck required the court to
dismiss his case without prejudice.
The Heck doctrine is not a jurisdictional bar. See Okoro
v. Bohman, 164 F.3d 1059, 1061 (7th Cir. 1999); Nesses v.

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No. 10-1545 7
Shepard, 68 F.3d 1003, 1005 (7th Cir. 1995). Because it is
not jurisdictional, the Heck defense is subject to waiver.
See Carr v. O’Leary, 167 F.3d 1124, 1126 (7th Cir. 1999). We
have implied, but never explicitly held in a published
opinion, that district courts may bypass the question of
whether Heck applies to decide a case on its merits. We
now hold explicitly that district courts may bypass the
impediment of the Heck doctrine and address the merits
of the case. Accord Jiron v. City of Lakewood, 392 F.3d 410,
413 n.1 (10th Cir. 2004) (deciding to reach the merits
of the claims without first addressing whether Heck
applies because Heck is not jurisdictional).
We now proceed to the merits of Mr. Polzin’s constitu-
tional claims. Mr. Polzin contends that the state trial
judge and court reporter falsified the transcripts of
the special prosecutor’s testimony; specifically, they
eliminated portions where the judge allegedly scolded
the special prosecutor for conducting a poor investiga-
tion. Mr. Polzin faces insuperable obstacles on these
claims. A judge has absolute immunity for any judicial
actions unless the judge acted in the absence of all juris-
diction. See Loubser v. Thacker, 440 F.3d 439, 442 (7th Cir.
2006); John v. Barron, 897 F.2d 1387, 1391 (7th Cir. 1990).
The state trial judge had jurisdiction over Mr. Polzin
during the sentencing, and so he has absolute immunity
for his judicial actions.
The same absolute immunity does not extend to the
court reporter. See Antoine v. Byers & Anderson, Inc., 508
U.S. 429 (1993); Loubser, 440 F.3d at 442. Mr. Polzin’s
contention against the court reporter nevertheless fails.

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8 No. 10-1545
See Chicago Dist. Council of Carpenters Welfare Fund v. Caremark, 1
Inc., 474 F.3d 463, 466 (7th Cir. 2007) (concluding that the
district court properly relied upon contracts attached to the
complaint even when the contracts contradicted the com-
plaint); Flannery v. Recording Indus. Ass’n of America, 354 F.3d
632, 638 (7th Cir. 2004) (“[W]hen a document contradicts a
complaint to which it is attached, the document’s facts or
allegations trump those in the complaint.”).
The portions of the transcripts that Mr. Polzin supplied
to the district court illustrate that the court reporter in
fact transcribed the state trial judge’s doubts about the
thoroughness of the special prosecutor’s investigation.
Mr. Polzin’s exhibits are part of his complaint. Fed. R. Civ.
P. 10(c). Because these attached exhibits contradict his
claims, the district court was entitled to rely on them in
dismissing the allegations against the court reporter.1
Mr. Polzin’s claim against the special prosecutor for
her courtroom conduct also cannot be maintained. It is
unclear from the record whether the special prosecutor
was acting in a prosecutorial role or as a witness testi-
fying about her investigation undertaken by appoint-
ment of the court. Absolute immunity shields a person
acting in either capacity—whether as a witness or as a
prosecutor—from § 1983 liability when performing
her duties in the judicial process. See Briscoe v. LaHue,
460 U.S. 325, 329-36 (1983) (witness and prosecutorial
immunity); Imbler v. Pachtman, 424 U.S. 409, 420-29 (1976)
(prosecutorial immunity).
Mr. Polzin also submits that, while the special pros-
ecutor was performing an investigatory function, she

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No. 10-1545 9
and the DCI investigators violated his constitutional
rights by failing to conduct a full investigation and by
falsifying evidence to conceal information about his
childhood sexual abuse. When the district court dis-
missed all claims, it neglected to mention Mr. Polzin’s
contentions regarding this out-of-court investigation.
We therefore cannot be certain of the basis upon which
they were dismissed, and so must remand on this point.
Accordingly, on remand, if the district court concludes
that dismissal with prejudice is appropriate, it should
explain the basis of its decision. If the district court
decides that dismissal on the Heck doctrine alone is ap-
propriate, it should dismiss that portion of Mr. Polzin’s
complaint without prejudice.
Conclusion
For the foregoing reasons, the dismissal of Mr. Polzin’s
claims concerning the courtroom conduct of the special
prosecutor, the state trial judge and the court reporter
are affirmed. With respect to Mr. Polzin’s claims against
the special prosecutor and the DCI investigators re-
garding the out-of-court investigation of his allegations,
the judgment of the district court is vacated, and the
case is remanded for further proceedings consistent
with this opinion.
AFFIRMED in part, VACATED and
REMANDED in part
2-18-11

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