The defendants were not served with process in the district



court and are not participating in this appeal. After examining the appellant’s brief and the record, we have concluded

that the appeal is appropriate for summary disposition.

The appeal is thus submitted on the 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. 12-3345

PETER GAKUBA,

Plaintiff-Appellant,

v.

CHARLES O’BRIEN, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 12 C 7296—Ruben Castillo, Judge.

SUBMITTED FEBRUARY 14, 2013 —DECIDED MARCH 25, 2013 

Before POSNER, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge. Peter Gakuba appeals the district

court’s dismissal of his civil-rights lawsuit against law
2 No. 12-3345

enforcement personnel and others who participated in

a criminal investigation of him that led to sexual abuse

charges, which remain pending. Because the district

court should have stayed some of his claims and

allowed others to proceed, we vacate and remand.

In 2006 a runaway teenager accused Gakuba of kidnapping and raping him in Rockford, Illinois. Gakuba

alleges that investigating police barged into his Rockford

hotel room without a warrant and seized his wallet

and other unspecified items. The police acted after obtaining Gakuba’s video rental records from Hollywood

Video to corroborate the accuser’s story that he had

spent time watching videos in Gakuba’s room. Gakuba

was charged in Winnebago County Circuit Court with

three counts of aggravated sexual abuse; those charges

remain pending. See 720 ILCS 5/12-16(d) (2006).

In 2012 Gakuba filed a complaint in the Eastern

Division of the Northern District of Illinois under

42 U.S.C. § 1983, alleging that police officers and state

prosecutors violated his civil liberties by searching his

hotel room, seizing his belongings, detaining him, and

abusing the judicial process by attempting to revoke

his pretrial bond to dissuade him from filing a civil suit.

He also sought damages under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710. (He asserts that

he did not learn that Hollywood Video disclosed his

rental records until a pretrial hearing in 2011.)

The district court dismissed the suit without prejudice,

granting Gakuba leave to amend his complaint if the

pending indictment in his criminal case concluded in
No. 12-3345 3

his favor. The court advised Gakuba that certain claims

against some of the defendants would be barred

on immunity grounds, and that any refiling of the case

should be made in Rockford (the Western Division of

the Northern District of Illinois), the site of his allegations. (We note that although the district court

could have transferred the case to the Western Division, see 28 U.S.C. § 1404(a), venue would be proper in

either division, see id. § 1391(b)(2); Graham v. UPS, 519

F. Supp. 2d 801, 809 (N.D. Ill. 2007); 14D CHARLES ALAN

WRIGHT,ARTHUR R.MILLER & EDWARD H.COOPER, FEDERAL

PRACTICE AND PROCEDURE § 3809 (3d ed. 2007). Divisional

venue was abolished by the Judicial Improvements

and Access to Justice Act of 1988, Pub. L. No. 100-702,

Title X, § 1001(a), Nov. 19, 1988, 102 Stat. 4664.) The

court denied Gakuba’s postjudgment motions to reconsider and his request for leave to appeal in forma pauperis.

On appeal Gakuba asserts that his pending state

criminal case does not prevent him from asserting his

§ 1983 claims, which arise out of the defendants’ conduct

in investigating or prosecuting his case (he also clarifies

that he is not raising a claim of malicious abuse of process). At first glance, one might ask whether Gakuba’s

claims are barred by Heck v. Humphrey, 512 U.S. 477

(1994). But Heck does not apply absent a conviction. See

Wallace v. Kato, 549 U.S. 384, 393-94 (2007); Evans v.

Poskon, 603 F.3d 362, 363 (7th Cir. 2010).

It is Younger v. Harris, 401 U.S. 37 (1971), with which

we must be concerned. Younger holds that federal courts

must abstain from taking jurisdiction over federal con-
4 No. 12-3345

stitutional claims that may interfere with ongoing

state proceedings. See SKS & Assocs., Inc. v. Dart, 619

F.3d 674, 677 (7th Cir. 2010). Gakuba’s claims of

damages resulting from illegal searches, seizures, and

detentions meet that description: they involve constitutional issues that may be litigated during the course of

his criminal case, see Simpson v. Rowan, 73 F.3d 134,

138 (7th Cir. 1995); Gilbertson v. Albright, 381 F.3d 965,

968 (9th Cir. 2003) (en banc); Carroll v. City of Mount Clemens, 139 F.3d 1072, 1075 (6th Cir. 1998). Deciding those

issues in federal court could undermine the state court

proceeding, see Simpson, 73 F.3d at 138. Because

monetary relief is not available to him in his defense

of criminal charges, however, and because his claims

may become time-barred by the time the state prosecution has concluded, the district court should have

stayed rather than dismissed Gakuba’s civil-rights

claims. See Simpson, 73 F.3d at 138-39; see also Green

v. Benden, 281 F.3d 661, 667 (7th Cir. 2002); D.L. v. Unified

Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004);

Habich v. City of Dearborn, 331 F.3d 524, 533 n.4 (6th

Cir. 2003).

Gakuba also continues to press his contention

that Hollywood Video violated the VPPA when it

turned over his video rental records to the police. The

Act makes “video tape service providers” civilly liable

to their customers if they disclose their rental information under certain circumstances. See 18 U.S.C.

§ 2710(b)-(c); Sterk v. Redbox Automated Retail, LLC, 672

F.3d 535, 538 (7th Cir. 2012). According to Gakuba’s

complaint, Hollywood Video appears to qualify as such
No. 12-3345 5

a service provider, see 18 U.S.C. § 2710(a)(4); Daniel v.

Cantrell, 375 F.3d 377, 383 (6th Cir. 2004), and its employees knowingly disclosed his rental information

to the police without a warrant, see 18 U.S.C. § 2710(b)(1),

(b)(2)(C); Daniel, 375 F.3d at 381. Therefore, the district

court should not have dismissed Gakuba’s VPPA

claims against Hollywood Video.

The judgment of the district court is VACATED and

the action is REMANDED for further proceedings consistent with this opinion.

3-25-13