United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted September 17, 2019*

Decided September 18, 2019 

Before 

FRANK H. EASTERBROOK, Circuit Judge 

ILANA DIAMOND ROVNER, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 18-3286 

DAVID A. BERTHA, 

Plaintiff-Appellant, 

v. 

RON HAIN**, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 1:16-cv-04982 

Harry D. Leinenweber, 

Judge. 

O R D E R 

David Bertha, a former attorney, appeals the dismissal of his civil-rights suit 

against several judges, prosecutors, and law enforcement officers in connection with his 

prosecutions for trespass and contempt in Kane County, Illinois. See 28 U.S.C. § 1983. 

After dismissing or staying all but one of his claims, the district court later dismissed 

 

*

 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. See FED. R. APP. P 34(a)(2)(C). 

** We have substituted the current Sheriff of Kane County for his predecessors, 

sued in their official capacities. FED. R. CIV. P. 25(d). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-3286 Page 2 

the case for failure to prosecute. See FED. R. CIV. P. 41(b). We affirm. Many of the 

defendants enjoy absolute immunity from suits for damages, and to the extent Bertha 

stated any claims, the district court appropriately abstained from hearing them and 

permissibly dismissed the case after Bertha missed two hearings. 

Bertha was arrested twice in October 2013 when he tried to enter the jail at the 

Kane County Adult Justice Center after he had been banned from the building for 

disruptive behavior. (He had claimed to be an attorney but could not produce current 

credentials and became belligerent when challenged.) The State charged him with 

criminal trespass in separate cases. During the proceedings he submitted motions and 

sent letters, some ex parte, to the presiding judges, then-Chief Judge Judith Brawka of 

the Sixteenth Judicial Circuit Court, the Kane County State’s Attorney’s Office, and his 

public defenders, crudely berating and threatening the prosecutors and judges. Chief 

Judge Brawka reviewed the letters and ordered them to be entered into the record in 

Bertha’s cases. In the orders, Judge Brawka described her review of the letters as 

“administrative.” Assistant State’s Attorneys for Kane County then charged Bertha with 

criminal contempt for the filings and missives. 

Questions about Bertha’s competence complicated the criminal proceedings. 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, one went to trial and resulted in a guilty verdict, but both the 

sentencing in that case and further proceedings in the second case were delayed when 

Bertha was found unfit to stand trial—a finding that since has been reversed. 

While all three criminal cases were pending, Bertha filed this case in federal 

court. The district court dismissed the complaint, but we remanded the case to allow 

Bertha to amend his pleadings “once as a matter of course,” see FED. R. CIV. P.

15(a)(1)(B), and for the district court to consider the amended complaint. Bertha 

v. Sullivan, 719 F. App’x 516, 518 (7th Cir. 2017). 

The amended complaint, as clarified by its exhibits and a memorandum, 

see Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013), alleges: (1) sheriff’s deputies 

banned Bertha from the county jail without due process; (2) deputies twice arrested him 

without probable cause for trespassing; (3) Chief Judge Brawka denied him due process 

by entering the menacing letters into the records in his trespass cases; (4) the judges and 

prosecutors denied him due process and violated his right to free speech by bringing 

charges and entering a conviction for contempt and then retrying him after the 
No. 18-3286 Page 3 

conviction was vacated;1 (5) during his trials, sheriff’s deputies assaulted him and 

removed him from the courthouse without cause; (6) deputies unreasonably 

strip-searched him while he served his sentence for contempt; (7) deputies inflicted 

cruel and unusual punishment by placing him in segregation during that sentence; and 

(8) deputies denied him due process by providing (and therefore viewing), in response 

to a public-records request that Bertha filed, privileged communications between him 

and his public defenders about trial strategy. 

The defendants moved to dismiss the amended complaint, and in August 2018 

the district court largely granted their motions. It first concluded that absolute judicial 

immunity barred Bertha’s claims against the judges. The claims against the state’s 

attorneys, the court said, were untimely and prohibited by prosecutorial immunity. 

Also untimely, the court ruled, were Bertha’s claims that sheriff’s deputies banned him 

from the jail without due process and arrested him without probable cause. The court 

next dismissed the claims against the two Sheriffs of Kane County in their official 

capacities (the events had transpired over two Sheriffs’ terms) on the ground that 

Bertha failed to allege that their deputies acted unconstitutionally pursuant to an actual 

or de facto policy of the Sheriff’s Office. See Monell v. Dep’t of Soc. Servs. of City of New 

York, 436 U.S. 658 (1978). 

The district court allowed Bertha to proceed on his claim against the individual 

deputies who allegedly strip-searched him. As for Bertha’s claims that deputies 

assaulted him and removed him from the courtroom without cause and violated his 

privileged communications, the district court abstained from exercising jurisdiction, 

see Younger v. Harris, 401 U.S. 37 (1971), and stayed these damages claims until 

resolution of the criminal proceedings. Bertha missed a status hearing and later filed a 

motion for recruitment of counsel, but he then missed another status hearing despite 

the court’s warning that doing so again would result in dismissal. The district court in 

September 2018 therefore dismissed the case for failure to prosecute. 

We begin with the judge-defendants’ contention that this appeal is limited to 

review of the September order dismissing the case for failure to prosecute. Citing two 

 

1 The alleged due process and First Amendment violations included: Judge John 

Barsanti issued an arrest warrant for contempt; Judge Elizabeth Flood submitted an 

affidavit about Bertha’s motion to substitute another judge for her in the contempt case; 

different chief judges appointed out-of-circuit judges to preside over Bertha’s cases; and 

the prosecutors asked the police to investigate him for disorderly conduct. 
No. 18-3286 Page 4 

nonprecedential cases from other circuits, they argue that Bertha waived his challenges 

to the August order dismissing the bulk of the complaint. They contend that, because 

Bertha does not argue about the dismissal for want of prosecution in his opening brief, 

the interlocutory order in August did not merge into the final judgment. See Montez 

v. Chase Home Fin., LLC, 710 F. App’x 328, 328 (9th Cir. 2018); Afuwajomo v. De Guzman, 

478 F. App’x 67, 68 (5th Cir. 2012). But we see no reason here to depart from the usual 

rule that all interlocutory decisions merge into the final judgment. See Walton v. Bayer 

Corp., 643 F.3d 994, 997–98 (7th Cir. 2011). We would not apply the rule if it would 

encourage bad-faith tactics. See Sere v. Bd. of Trustees of Univ. of Ill., 852 F.2d 285, 288 

(7th Cir. 1988). But nothing suggests that Bertha deliberately missed hearings so that he 

could obtain a final judgment2 and more quickly appeal the August order—the record 

suggests that he planned to pursue his remaining claims. Therefore, we proceed with a 

full review. See Walton, 643 F.3d at 997–98. 

Bertha first challenges the application of absolute immunity to the claim against 

Kane County prosecutors for charging him with criminal contempt. He asserts that the 

prosecutors had first directed the police to investigate his letters—conduct that he 

argues is “investigative ... rather than that of [an] advocate.” See Kalina v. Fletcher, 

522 U.S. 118, 125 (1997) (quoting Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976)). True, 

prosecutors do not have absolute immunity for every action, as immunity attaches to 

the function rather than to the office, Kalina, 522 U.S. at 127, but Bertha’s claim is not 

directed at “investigative” acts. He claims that the prosecution of the contempt charges 

violated his rights under the First and Fourteenth Amendments. Those charges did not 

depend on the police’s investigation of disorderly conduct or involve other alleged 

misconduct by prosecutors. See, e.g., id. at 126 (explaining that absolute immunity does 

not protect falsifying evidence). Here, “in initiating a prosecution and in presenting the 

State's case,” the prosecutors are “immune from a civil suit for damages under § 1983.” 

Imbler, 424 U.S. at 430; Tobey v. Chibucos, 890 F.3d 634, 649–50 (7th Cir. 2018). 

The district court also correctly ruled that the circuit court judges are entitled to 

absolute immunity. Judges have immunity for judicial acts even if they act erroneously, 

maliciously, or in excess of their authority; they can be liable only when acting in the 

 

2 The district court never entered a judgment under Federal Rule of Civil 

Procedure 58 after the September 26, 2018, dismissal for want of prosecution, which 

disposed of the whole case. The judgment therefore became final 150 days after that 

date (February 23, 2019) under Rule 58(c)(2)(B). The notice of appeal that Bertha had 

filed prematurely on October 23, 2018, is deemed filed then, too. FED. R. APP. P. 4(a)(2). 
No. 18-3286 Page 5 

“clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). Bertha 

contends that immunity does not protect Judge Barsanti because he issued an arrest 

warrant for “direct” contempt without jurisdiction. In Illinois, “direct” contempt is 

contemptuous conduct that occurs in the presence of the judge or disrupts judicial 

proceedings. See In re Marriage of Betts, 558 N.E.2d 404, 418 (Ill. App. Ct. 1990). Here, the 

judges presiding over Bertha’s cases did not charge him—the prosecutors sought a 

warrant from another judge based on his crude filings and letters. But Bertha concedes 

that a judge other than the one who witnessed the offense may preside over direct 

contempt charges when there is probable cause to prosecute. See Kaeding v. Collins, 

668 N.E.2d 572, 578 (Ill. App. Ct. 1996). Probable cause existed because the filing of 

disrespectful, disruptive, or deceitful documents in court is direct contempt. See In re 

Marriage of Betts, 558 N.E.2d at 416, 418. Therefore, Judge Barsanti is absolutely immune 

for his role in signing the arrest warrant. 

Bertha’s challenge to Chief Judge Brawka’s absolute immunity likewise fails. 

Bertha argues that the judge deprived him of a fair trial by entering his letters into the 

records in his trespass cases after her “administrative” review. See Forrester v. White, 

484 U.S. 219, 228 (1988) (holding that judges are not absolutely immune for 

administrative acts). But whether immunity applies depends not on labels but on the 

function served; an act warrants judicial immunity when it involves resolving disputes 

between parties before the court. Id. at 224, 227. And when it is pertinent to a dispute, 

“[a] judge can be expected to circulate an ex parte communication to all relevant 

parties.” Kowalski v. Boliker, 893 F.3d 987, 999 (7th Cir. 2018). Bertha’s letters were 

relevant to his fitness for trial in the trespass cases, so making them available to the 

presiding judges, the prosecutors, and his public defenders qualified as a judicial act. Id. 

Judicial immunity also shields Judge Flood (the first judge to find Bertha guilty 

of trespass) for submitting an affidavit about Bertha’s motion for substitution of judge. 

Illinois permits a judge who is the subject of a substitution motion to “submit an 

affidavit if the judge wishes.” 725 ILCS 5/114-5(d). Submitting the affidavit facilitated a 

ruling on the substitution motion and was tied to Judge Flood’s adjudicatory role. It 

was therefore a judicial act for which she is absolutely immune. 

Bertha has waived any claims against the chief judges related to their assignment 

of out-of-circuit judges to preside over his criminal cases. In the district court he 

theorized that these acts violated his due process rights and the First Amendment, but 

now he argues instead that he pleaded a class-of-one equal protection claim against the 

chief judges. When litigants change theories after losing in the district court, new 
No. 18-3286 Page 6 

arguments raised for the first time on appeal are waived. O’Gorman v. City of Chicago, 

777 F.3d 885, 890 (7th Cir. 2015). Bertha said nothing about equal protection until now, 

so this argument is waived. 

We turn next to the claims against Kane County and the elected Sheriffs in their 

official capacities, which are based on sheriff’s deputies’ alleged violations of Bertha’s 

constitutional rights when they banned him from the jail and arrested him for trespass. 

Bertha now frames these exclusively as Monell claims, asserting that Kane County and 

the Sheriffs had an unconstitutional policy of unfair and arbitrary treatment of visitors 

to the jail. The claims against the Sheriffs in their official capacities are really against the 

Kane County Sheriff’s Office. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Thomas v. Cook Cty. 

Sheriff’s Dep’t, 604 F.3d 293, 305 n.4 (7th Cir. 2010) (citation omitted). The County is not 

responsible for policies set by the Sheriff’s Office and carried out by its deputies because 

in Illinois a sheriff is an independently elected county officer, not an employee of the 

county that he or she serves, and the deputies are employees of the Sheriff’s Office. 

See Carver v. Sheriff of La Salle Cty., 787 N.E.2d 127, 136–38 (Ill. 2003). The County, 

therefore, cannot be liable under Monell for the acts of sheriff’s deputies. (Nonetheless, 

the County remains a proper defendant because state law requires it to pay a judgment 

entered against a sheriff in his official capacity. Carver v. Sheriff of LaSalle Cty., 324 F.3d 

947, 948 (7th Cir. 2003).) 

The district court dismissed most of the claims against the Sheriffs as untimely. 

Bertha argues that that the limitations period should have been tolled based on his 

alleged period of incompetency. But he waived this argument by raising it for the first 

time on appeal. O’Gorman, 777 F.3d at 890. Therefore, the claim that deputies banned 

him from the jail without due process per a policy of the Sheriff’s Office is untimely 

because the events occurred in 2013, and he did not sue until 2016, by which time the 

two-year statute of limitations for § 1983 actions in Illinois had passed. See id. at 889. 

Further, Bertha failed to state a Monell claim against the Sheriff’s Office for 

allegedly maintaining a policy of arresting him for trespass without probable cause in 

violation of the Fourth Amendment. He argues that it was sufficient to allege that the 

Sheriff’s Office had an express policy of arresting him when he tried to visit the jail but 

allowing “the rest of the public” to enter. Even if such particularized action could be 

considered a “policy,” the Sheriffs “cannot be liable under Monell when there is no 

underlying constitutional violation.” See Sallenger v. City of Springfield, 630 F.3d 499, 504 

(7th Cir. 2010). And Bertha’s allegations show that the sheriff’s deputies had probable 

cause to arrest him. In Illinois, criminal trespass is trespass plus knowledge that the 
No. 18-3286 Page 7 

owner of the property has not authorized the trespass. 720 ILCS 5/21–3(a). Bertha was 

informed that he was not allowed at the jail and failed to challenge this decision 

through proper channels. He admittedly went to the jail anyway; the deputies therefore 

had probable cause to arrest him and did not violate the Fourth Amendment. 

See Squires-Cannon v. White, 864 F.3d 515, 517 (7th Cir. 2017); see also District of Columbia 

v. Wesby, 138 S. Ct. 577, 585–86 (2018). Bertha also contends that he stated a timely claim 

under the Fourteenth Amendment for “malicious prosecution,” but no such claim based 

on the Due Process Clause exists. Manuel v. City of Joliet, 137 S. Ct. 911, 919 (2017). 

Bertha next says that the district court should not have stayed his claims related 

to his removal from the courtroom during the contempt trial and his privileged 

communications with his public defenders because his criminal cases had already 

concluded. Younger instructs that federal district courts should abstain from exercising 

jurisdiction over constitutional claims that may interfere with ongoing state 

proceedings. Tobey, 890 F.3d at 651. Removing a defendant from the courtroom and 

breaching his privileged communications may implicate the fairness of the trial, 

see Illinois v. Allen, 397 U.S. 337, 345–347 (1970) (discussing defendant’s right to be 

present at trial); United States v. Leonard-Allen, 739 F.3d 948, 952–53 (7th Cir. 2013) 

(examining scope of attorney-client privilege), so claims based on such events could 

interfere with the state cases. Bertha does not argue that the district court should have 

allowed these claims while the criminal cases were ongoing. And he had been 

instructed, but failed, to notify the district court when the criminal cases concluded. 

Bertha cannot now complain that the court erred by staying the claims when he failed to 

keep the court updated. 

Finally, Bertha argues that he must be permitted to proceed on his claim that he 

was subjected to an unreasonable strip search. But he does not challenge the dismissal 

of this claim for failure to prosecute (except in his reply brief, which is too late, 

see Daugherty v. Page, 906 F.3d 606, 610 (7th Cir. 2018)). He needed to grapple with that 

ruling before addressing the merits of the claim. Bertha’s failure to contest the issue on 

appeal results in waiver. See United States v. Crisp, 820 F.3d 910, 912 (7th Cir. 2016). Even 

if the issue is merely forfeited, as Bertha contends, he fails to justify a departure from 

the rule against reviewing forfeited issues for plain error in civil cases. See S.E.C. 

v. Yang, 795 F.3d 674, 679–80 (7th Cir. 2015). 

We have considered Bertha’s other contentions, but none has merit. 

AFFIRMED