### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20-1898

D AVID J ONES, Plaintiff-Appellant,

v.

R ODNEY C UMMINGS, et al ., Defendants-Appellees

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:19-cv-2684-SEB-MPB — Sarah Evans Barker , Judge

.

____________________
A RGUED N OVEMBER 2, 2020

— D ECIDED M AY 26, 2021

____________________

Before S YKES, Chief Judge , and E ASTERBROOKand W OOD , Circuit Judges

. W OOD , Circuit Judge . David Jones spent over ten years inprison before this court granted his petition for a writ of habeas corpus under 28 U.S.C. § 22 54, on the ground that he was deprived of his Sixth Amendment right to e ff ective assistance of counsel. See Jones v. Zatecky, 917 F.3d 578 (7th Cir. 2019) (Jones III). After the writ issued and Jones was freed, he fi led an action under 42 U.S.C. § 1983 against the Madison County,2 No. 20-1898

Indiana, prosecutors who had handled his case. He alleged that deputy prosecutors Steve Koester and Daniel Kopp, intheir individual capacities, maliciously prosecuted him in violation of his due process rights when they fi led an untimely amendment to his charges and secured a conviction, which resulted in his unlawful imprisonment. See Ind. Code § 35-34- 1-5 (1982). He also alleged th at Madison County Prosecutor Rodney Cummings (an elected o ffi cial), adopted and followed an o ffi cial policy of fl outing state-law limitations on amendments to charges. He re quested $50 million in general damages for his con fi nement, compensatory damages for past and future physical and emotional injuries, and a tt orneys’ fees.

The district court dismissed th e action. It found that Cummings was a state o ffi cial, and so the suit against him was in substance one against the state it self. Such an action falls outside the scope of section 1983, however, because the state is not a “person” that can be sued under that statute. See Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989). Jones’s suitagainst Koester and Kopp foundered on the absolute immunity prosecutors enjoy when they are acting as advocates. See, e.g. , Imbler v. Pachtman , 424 U.S. 409, 430–31 (1976). We do not doubt that Jones was injured by his ten years of wrongful imprisonment. That does not mean, however, that he has a remedy against any particular actor. In this instance, longstanding principles governing the scope of section 1983 and prosecutorial immunity block him at the threshold. The district court correctly applied this law, and so we a ffi rm.No. 20-1898 3

I At the time Jones’s case was pending, Indiana law allowed prosecutors to make substant ive amendments to a defendant’s charging information up to thirty days before an “omnibus date.” Ind. Code § 35-34-1-5 (1982). This rule was neither obscure nor arcane to a tt orneys in Indiana. In Haak v. State, 695 N.E.2d 944 (Ind. 1998), after di ff erentiating amendmentsof “immaterial defect” and “form” from amendments of “substance,” the Indiana Supreme Court held “amendments ... of substance” made after the omni bus date “impermissible.” 695 N.E.2d at 951. Jones originally was charged with ba tt ery, intimidation, and being a habitual o ff ender. Nine days after the omnibus date passed, deputy prosecutors Koester and Kopp moved to add a charge of criminal con fi nement. Jones’s a tt orney did notobject. The trial court granted the prosecutor’s motion without a hearing, and Jones’s trial began eight months later. The court later granted two more motions to amend the charges.A jury convicted Jones of all charges, including the untimely criminal con fi nement charge. His sentence reveals how signi fi cant that amendment was: he received twenty years’ imprisonment on the con fi nement charge alone (enhanced by another 25 years for being a habitual o ff ender) and shorter, concurrent terms of eight years for the original ba tt ery charge and three years for the intimida tion charge. The court later reduced the ba tt ery charge to six months. See Jones III, 917 F.3d at 580. After exhausting his state-court appeals, Jones fi led a pro se habeas corpus petition in federal court under 28 U.S.C. § 2254. He argued that his a tt orney’s failure to object to the4 No. 20-1898

untimely con fi nement charge constituted ine ff ective assistance of counsel in violation of the Sixth Amendment. Jones III at 581. The district court denied the petition, but following our decision in Shaw v. Wilson , 721 F.3d 908 (7th Cir. 2013), we reversed, holding that “[a] Si xth Amendment claim of ine ff ective assistance of counsel can be predicated on an a tt orney’s failure to raise a state-law issue in a state-court proceeding.” Id. ; see McNary v. Lemke, 708 F.3d 905, 920 (7th Cir. 2013). Indiana released Jones in May 2019. One month later he brought the present section 1983 action. Jones argued that Prosecutor Cummings had adopted an o ffi cial policy deliberately to ignore Ind. Code § 35-34-1-5 (1982) and the Haak decision. By defying state law, Jones asserted, the prosecutorcould bring untimely amendments and deprive criminal defendants of their rights. The co mplaint asserted that this policy resulted in Jones’s incarceration and the extreme emotional distress and other physical and mental injuries he experienced in prison and will continue to experience in the future. Citing to a 2019 article in a local newspaper, Jones argued that deputy prosecutors Koester and Kopp commi tt ed abuse of process and maliciously prosecuted him when they“investigated and added” the new charge “for the sole purpose to increase his prison time by decades[.]” The defendants moved to dismiss the action. Cummings argued that, as a county prosecutor sued in his o ffi cial capacity, he is a state o ffi cial of Indiana. In that capacity, he contended, he is not a “person” for purposes of section 1983. Relying on Imbler, 424 U.S. 409, Koester and Kopp argued that their act of fi ling an amended charge sits comfortably within the scope of their prosecutorial duties and entitled them to absolute prosecutorial immunity. The district court agreed.No. 20-1898 5

On appeal, Jones argues that Cummings was functioning as a county o ffi cial, not a state o ffi cial, and thus could be reached under section 1983. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690 (1978). The deputies, Jones argues, should receive only a quali fi ed immunity because their conduct was “rogue.” Jones also asks this court to create a new rule under which prosecutors are entitled only to quali fi ed immunity iftheir conduct is “unlawful,” even if it is prosecutorial in nature.
II We review de novo a district court’s decision to grant a 12(b)(6) motion to dismiss a co mplaint for failure to state a claim. We may a ffi rm the decision on any ground supported by the record. Divane v. Northwestern University, 953 F.3d 980, 987 (7th Cir. 2020).

A. Cummings Section 1983 imposes liability on“[e]very person who, under color of any ... State [law]” violates the federal rights of another. 42 U.S.C. § 1983. The meaning of the word “person” in this passage tracks the same principles that underlie state sovereign immunity under the Eleventh Amendment. Will , 491 U.S. at 66–67. The Eleventh Amendment prohibits suits against state o ffi cials in their o ffi cial capacities because “a suit against a state o ffi cial in his or her o ffi cial capacity is not a suit against the o ffi cial but rather a suit against the o ffi cial’s o ffi ce. As such, it is no di ff erent from a suit against the State itself.” Id. at 71 (citations omi tt ed). The Court in Will held that the Congress that passed section 19 83 “had no intention to disturb the States’ Eleventh Amendment immunity,” and so it construed the statute to exclude the states from the class of6 No. 20-1898

those who could be sued under its terms. As applied to Jones’s case, that means that we mu st decide whether Cummings, acting in his o ffi cial capacity, acts as anarm of the state and is thus outside the scope of the statute, or if he is a local o ffi cial who can be reached. In determining whether a person is a state o ffi cial, courts look to the state laws creating the o ffi cial’s position, as well as the state laws governing the o ffi cial’s actions, state-court decisions, and the fi nancial interdependence between the o ffi cial and the state. Regents of Univ. of California v. Doe, 519 U.S. 425, 429 (1997); Garcia v. City of Chicago , 24 F.3d 966, 969 (7th Cir. 1994) (“Whether a particular o ffi cial is the legal equivalent of the State itself is a question of that State’s law.”). Applying these cases, we fi nd Cummings to be a state o ffi cial of Indiana.

Under the Indiana Constitution , prosecutors, like Indiana circuit court judges, are constitutional judicial o ffi cers. See Ind. Const. art. 7, § 16; State ex rel. Stanton v. Murray, 108 N.E.2d 251, 256 (Ind. 1952). “[C]arved out of the o ffi ce of the

a tt orney general as it existed at common law[,]” Indiana’s prosecutors are elected within thei r respective judicial circuits and removable only by way of impeachment at the Indiana Supreme Court upon convictions of corruption or other high crimes. State ex rel. Neeriemer v. Daviess Circuit Court, 142 N.E.2d 626, 629 (Ind. 1957); Ind. Const. art 7, §§ 13, 16; Ind. Code § 5-8-1-19. They hold the authority to prosecute crimes commi tt ed against the state, and th ey bring charges on behalf of the state, not individual co unties. Ind. Code § 33-39-1-5(a); Ind. Code § 35-34-1-1(a). Indiana also pays each prosecutor and the chief deputies’ base salary, in addition to providing a retirement fund. Ind. Code §§ 33-39-6-2(a)-(g), 33-39-6-5(d); Ind. Code § 33-39-7-1. Fina lly, Indiana must “pay theNo. 20-1898 7

expenses incurred by a prosecuting a tt orney from a threatened, pending, or completed action or proceeding that arisesfrom making, performing, or failing to make or perform a decision, a duty, an obligation, a privilege, or a responsibility of the prosecuting a tt orney’s o ffi ce[]”, Ind. Code § 33-39-9-4, in addition to paying a tt orneys’ fees if the state a tt orney general does not represent the o ffi cial but authorizes the o ffi cial toemploy private counsel. Ind. Code § 33-39-9-2(1). Taken together, Indiana’s laws and statutes indicate that Cummings is
a state o ffi cial. Our sister courts routinely ha ve held that prosecutors and district a tt orneys in states with comparable laws are state offi cials. See Cady v. Arenac Cnty. , 574 F.3d 334, 342–44 (6th Cir. 2009) (Eleventh Amendment barred suit against Michigan county prosecutor); Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006) (North Carolina district a tt orney was a state o ffi cial because he prosecuted criminal actions on the state’s behalf and judgment against him would a ff ect the state’s treasury); Esteves v. Brock , 106 F.3d 674, 678 (5th Cir. 1997) (district a tt orneys were state o ffi cials because they were “advocates for the state, prosecuting violations of Texas criminal law”); Owens v. Fulton Cnty. , 877 F.2d 947, 952 (11th Cir. 1989) (a district a tt orney was a state o ffi cial because “the prosecution of state offenses” is “a state-created power”). Likewise, this court and the District Court for the Southern District of Indiana have held that Indiana’s county prosecutors are state o ffi cials when they are prosecuting criminal cases. Our description in one of our non-precedential orders puts it well: The office of prosecutor is a creation of the Indiana Constitution, see Ind. Const. art. 7, § 16, and state8 No. 20-1898

statutes govern the prosecutor’s duties and powers. For example, a prosecutor in Indiana is responsible for prosecuting virtually all crim inal prosecutions on behalf of the state. Ind. Code. § 33-14-1-4 (1996). Morespecifically, the state determines the prosecutor’s salary and provides legal repres entation to a prosecutorsued in a civil action arising out of the prosecutor’s performance of official duties, as well as indemnification against any resulting judgments. Ind. Code. §§ 33-14- 7-1, 33-2.1-9-1, 33-14-11-1 (1996).

Srivastava v. Newman , 12 F. App’x 369, 371 (7th Cir. 2001).Jones’s arguments to the contrary are unavailing. Recognizing this, he asks this cour t to hold that “unlawful rogueactions of a prosecutor are not ‘a decision, a duty, an obligation, a privilege, or a responsibility of the prosecuting a tt orney’s o ffi ce[]’” and thus his suit against Cummings would not be captured by Ind. Code § 33-39-9-4 (requiring the state to pay expenses incurred by an ac tion against a prosecuting attorney). But any such exception would sweep away the rule— immunity would mean nothing if it existed only when theprosecutor would win on the merits. Jones has sued Cummings for performing his duty to bring charges against criminal defendants. He tookthat action as an o ffi cer of the state, and that, under Will , is the end of it.

B. Koester and Kopp Similarly, the district court correctly determined that deputy prosecutors Koester and Kopp enjoy absolute prosecutorial immunity for their conduct in fi ling the untimely chargingamendment. In determining whether actions taken by government o ffi cials enjoy absolute immunity or quali fi edNo. 20-1898 9

immunity, the Supreme Court applies a “functional approach ... which looks to the nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fi tz simmons , 509 U.S. 259, 269 (1993) (cleaned up). Applying this approach in Imbler, the Court held prosecutors absolutely immune in civil suits for damages under section 1983 for activities “intimatel y associated with the judicial phase of the criminal process.” 424 U.S. at 430. In contrast, prosecutors acting in the role of administrator or investigator are entitled only to quali fi ed immunity. Burns v. Reed, 500 U.S. 259, 495–96 (1991); Buckley, 509 U.S. at 273–75. Jones makes a valiant e ff ort to squeeze himself under quali fi ed immunity by alleging that deputy prosecutors Koester and Kopp “investigated and added the con fi nement charge against Jones for the sole purpose to increase his prison time by decades.” He argues that their “deliberate investigative and administrative acts” are not entitled to absolute immunity. He wisely abandons this argument on appeal, but, jumping out of the frying pan and into the fi re, he contends that this court should create a new rule that applies quali fi ed immunity to prosecutors engaged in core prosecutorial functions if the prosecutors engaged in “unlawful rogue conduct.” Once again, this argument is a non-starter. A prosecutor’s “motives are irrelevant to the absolute immunity questionwhen the actions she is accused of taking are intimately associated with the quasi-judicial phase of the criminal process.” Tobey v. Chibucos , 890 F.3d 634, 649–50 (7th Cir. 2018). The only question is whether Koester and Kopp’s conduct— fi ling and amending criminal charges ag ainst a defendant—are core prosecutorial functions. We need not belabor the point. They are. See, e.g. , Bianchi v. McQueen , 818 F.3d 309, 316–17 (7th Cir.10 No. 20-1898

2016); Foreman v. Wadsworth , 844 F.3d 620, 622–23 (7th Cir.2016). The district court thus properly found absolute immunity.
III Finally, for the fi rst time on appeal all three prosecutors argue that Jones cannot state a claim for relief under section1983 because his claims all stem from the prosecutors’ decision to make an untimely amen dment in violation of Indiana law. This alone, they assert, does not trigger any federal claim. Jones responds that the state-la w violation resulted in the infringement of his federal due-process rights. This is an argument on the merits, rather thanan immunity claim, but we will address it brie fl y in the interest of completeness. Section 1983 provides a vehicle by which plainti ff s can sue persons who abuse state power ina way that violates federal law. Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 119 (1992). An action under section 1983 “requires a showing that the plainti ffwas deprived of a right secured by the Constitution or federal law, [and] ... the plainti ff bears the burden of proof on the constitutional deprivation that underlies the claim.” Padula v. Leimbach , 656 F.3d 595, 600 (7th Cir. 2011) (cleaned up). Essential to any section 1983 action is proof that a defendant violated a plainti ff ’s federal rights. The statute“does not provide a remedy for abuses that do not violate federal law” nor does it create substantive rights. Collins , 503 U.S. at 119; Levin v. Madigan , 692 F.3d 607, 611 (7th Cir. 2012).Section 1983 can be (and often is) used to vindicate a person’s federal due-process rights, but at the same time “a constitutional suit is not a way to enforce state law through the back door.” Wozniak v. Adesida , 932 F.3d 1008, 1011 (7th Cir.No. 20-1898 11

2019). As a result, we must determine whether Jones has presented any allegations that plausibly describe a due-process violation by the prosecutors. See Ledford v. Sullivan , 105 F.3d 354, 356 (7th Cir. 1997). It is common ground by now that when defendants Koester and Kopp fi led the untimely amendment, they violated Indiana law. Jones, however, is asserting that this statelaw problem led to the deprivation of his Fourteenth Amendment right to due process of la w. But a failure to follow state law does not automatically trigger a federal constitutional due-process violation. Indeed, the state-law consequences of the action are largely beside the point. What ma tt ers is the content of the plainti ff ’s argument. Often a state-law problem has no federal implications at a ll, though in some cases therecan be overlapping violations. For example, criminal defendants are entitled to advance notice of the charges they face in order to prepare for trial. Washington v. Texas , 388 U.S. 14, 18 (1967). An untimely amendment ma de so close to the start of trial that it prejudices a defendant’s ability to prepare for trial might simultaneously violate state law and the defendant’s federal due-process rights. But Koester and Kopp made their untimely amendment on October 27, 2005, about eight months before Jones’s trial began on June 12, 2006, Jones v. State, 876 N.E.2d 389 (Ind. Ct.App. 2007) (unpublished table decision). Jones has never alleged the amendment prejudiced his ability to prepare for trial or in any other way a ff ected the fundamental fairness of the procedures the state used. We need not delve into the question whether eight months was long enough to allow Jones to prepare, though the factthat the default rule under the Speedy Trial Act, 18 U.S.C. § 3161, calls for an indictment12 No. 20-1898

within 30 days of arrest and tr ial 70 days later strongly suggests that there is no generic problem with eight months. See also United States v. Sorich , 523 F.3d 702, 715 (7th Cir. 2008); Denton v. Duckworth , 873 F.2d 144, 149 (7th Cir. 1989). The only claim Jones makes is that the prosecutors violated state law and that our fi nding of a constitutional violation in Jones III proves the point. But Jones ha s received his remedy for the ine ff ectiveness of counsel, and he has not linked the underlying state-law violation to any other federal constitutional right. The district court thus could have dismissed on this ground as well, had it reached the merits.

* * *Although each of the defendants Jones sued had something to do with his lengthy incarceration, the district court properly recognized that the law does not permit him to sue any of them for redress. We therefore A FFIRM the judgment of the district court.