RIPPLE, Circuit Judge.
This case is before us on appeal from the district court's judgment dismissing the complaint. The plaintiff-appellant, Herbert Dellenbach, brought suit for damages under 42 U.S.C. § 1983. He alleged that the five defendants — two state judges, a court commissioner, and two court reporters — had violated his right to due process by interfering with the appeal of his criminal conviction. The district court granted the defendants' motion to dismiss on the ground that Mr. Dellenbach's claims were barred by the doctrine of judicial immunity. For the following reasons, we affirm.
On June 2, 1987, Mr. Dellenbach filed a pro se complaint under 42 U.S.C. § 1983 alleging that the defendants had violated his constitutionally protected due process rights by interfering with his right to appeal his criminal state-court conviction. The defendants named in this suit were Judge James Letsinger of the Superior Court of Lake County, Indiana; Judge Paul Buchanan, Chief Judge of the Indiana Court of Appeals; Ms. Janet Roberts Blue, a Commissioner on the Indiana Court of Appeals; and Ms. Marianna Novak and Ms. Debra Banach, both of whom are court reporters for the Superior Court of Lake County.
Mr. Dellenbach was charged in an Indiana state court with various offenses relating to an alleged scheme to defraud consumers in the purchase of heating systems. Mr. Dellenbach's trial was consolidated with the trial of his son, Randall Dellenbach (Randall), who was represented by separate counsel. Judge Letsinger of the Superior Court of Lake County presided over the trial. A jury found Mr. Dellenbach guilty of one count of conspiracy to commit theft, four counts of attempted theft, two counts of theft, and one count of corrupt business influence.
Before Mr. Dellenbach filed his appeal, Randall's attorney had purchased a copy of the consolidated trial transcript for the purpose of preparing Randall's case. Mr. Dellenbach then filed his appeal and moved to consolidate Randall's case with his own pursuant to Rule 5(B) of the Indiana Rules of Appellate Procedure.
B. District Court Opinion
In his complaint, Mr. Dellenbach alleged that the defendants had deprived him of his constitutional rights under the fifth, sixth, eighth, and fourteenth amendments by conspiring to delay his criminal appeal in the state court. He further alleged that Judge Letsinger had refused to hear testimony at trial regarding "threats to the lives of Herbert Dellenbach and his son, Randall Dellenbach."
The district court granted the defendants' motion to dismiss on the ground that Mr. Dellenbach's claims were barred by the doctrine of judicial immunity. In analyzing the claims against Judge Letsinger and Chief Judge Buchanan, the court relied upon our decision in Eades v. Sterlinske, 810 F.2d 723, 725-26 (7th Cir.), cert. denied, 484 U.S. 847, 108 S.Ct. 143, 98 L.Ed.2d 99 (1987), and invoked the "well-established doctrine of immunity" that recognizes that "judges are not subject to personal liability for judicial acts performed within their jurisdiction." Dellenbach v. Letsinger, No. H 87-339, order at 2 (N.D. Ind. Nov. 2, 1987) [hereinafter Order] (citing Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 12 L.Ed. 618 (1849)). "Immunity totally insulates judges from liability for actions taken within their judicial capacity, even if
A. The Basic Principles
Mr. Dellenbach alleges that the state trial court violated his civil rights when it burdened his access to the courts and intentionally delayed his appeal by conspiring to make him pay for an unnecessary transcript. Although Mr. Dellenbach has a right to sue under section 1983 for damages that arise from violations of his civil rights, these defendants have an equal right to be free from suit for civil damages if their actions qualify for absolute judicial or quasi-judicial immunity. Absolute immunity, like qualified immunity, has the important attribute of "its possessor's entitlement not to have to answer for his conduct in a civil damages action." Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2814, 86 L.Ed.2d 411 (1985). This "entitlement is an immunity from suit rather than a mere defense to liability." Id. at 526, 105 S.Ct. at 2815 (emphasis in original); see also Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) (Judicial immunity is applicable in suits under section 1983 because the "legislative record [gave] no clear indication that Congress meant to abolish wholesale all common-law immunities."); Lowe v. Letsinger, 772 F.2d 308, 311 (7th Cir.1985).
As Chief Judge Bauer noted in Eades, 810 F.2d at 725, the Supreme Court's recognition of the judicial immunity doctrine dates back to its decision in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). In Bradley, the Court held that judges are not liable in civil actions for their judicial acts unless they have acted in the "clear absence of all jurisdiction." 80 U.S. (13 Wall.) at 351; see also Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978) ("[T]he scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather he will be subject to liability only when he has acted in the `clear absence of all jurisdiction.'"); Pierson, 386 U.S. at 553-54, 87 S.Ct. at 1217 ("Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction...."). In Eades, our circuit also reiterated five considerations the Supreme Court previously had identified in support of judicial immunity:
810 F.2d at 725 (citing Bradley, 80 U.S. (13 Wall.) at 347-54). Because the underlying purpose of immunity is to preserve judicial independence in the decision-making process, these defendants will be entitled to absolute immunity if their actions meet a two-part test: first, the acts must be within the judge's jurisdiction; second, these acts must be performed in the judge's judicial capacity. See Stump, 435 U.S. at 356, 360, 98 S.Ct. at 1104, 1106; Bradley, 80 U.S. (13 Wall.) at 351-52.
We note that, since November 2, 1987, when the district court filed its decision, the Supreme Court has added to the jurisprudence in this area by its decision in Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). In Forrester, a probation officer filed a section 1983 action against a state judge who had discharged her. The district court granted summary judgment on the basis of absolute judicial immunity. The court of appeals affirmed, concluding that the probation officer "performed functions that were `inextricably tied to discretionary decisions that have consistently been considered judicial acts.'" Id. at 222, 108 S.Ct. at 541 (quoting the court below, Forrester v. White, 792 F.2d 647, 657 (7th Cir.1986)). The Supreme Court reversed the lower courts and denied absolute immunity because the judge was acting in an administrative and not a judicial capacity when he demoted and discharged Ms. Forrester. Id. 484 U.S. at 229-30, 108 S.Ct. at 545-46. Forrester emphasizes that every inquiry in the common law immunity context must be a functional one — an inquiry that considers the nature of the governmental function performed and the effect "that exposure to particular forms of liability would likely have on the appropriate exercise of those functions." Id. at 224, 108 S.Ct. at 542. In the context of judicial immunity, that functional inquiry is informed by numerous Supreme Court decisions, left undisturbed by Forrester, that have concluded that truly judicial functions are worthy of absolute immunity. See id. at 225-28, 108 S.Ct. at 543-45 (citing with approval Bradley, Pierson, and Stump). Indeed, Forrester reaffirmed the conclusion of these cases that "truly judicial acts" are deserving of absolute judicial immunity. Id. at 227, 108 S.Ct. at 544 ("Difficulties have arisen primarily in attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges.") (emphasis supplied). Thus, our present task is to undertake a functional inquiry to determine whether the acts in question are truly a judicial function, as opposed to an act that "simply happen[s] to have been done by [a] judge." Id.
B. Application of the Principles to this Case
As we already have noted, our evaluation of the case before us must be guided by the analysis set forth by the Supreme Court in Stump. First, we must inquire whether the judge "had jurisdiction over the subject matter." Stump, 435 U.S. at 356, 98 S.Ct. at 1105. In considering this question, we must remember that "`some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction....'" Id. (quoting Bradley, 80 U.S. (13 Wall.) at 352). Therefore, "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the `clear absence of all jurisdiction.'" Id. 435 U.S. at 356-57, 98 S.Ct. at 1104-05 (quoting Bradley, 80 U.S. (13 Wall.) at 351). "A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors." Id. 435 U.S. at 359, 98 S.Ct. at 1106. Second, we must determine whether the alleged acts were performed in the judge's "judicial capacity." "It is only for acts performed in his
1. The Judges
a. Jurisdiction over the subject matter
Mr. Dellenbach argues that Judge Letsinger is not entitled to absolute judicial immunity because he acted in the absence of jurisdiction. Appellant's Br. at 11. In conclusory fashion, Mr. Dellenbach appears to argue that Judge Letsinger telephoned Chief Judge Buchanan after the case was pending before the Indiana Court of Appeals and asked him not to consider Mr. Dellenbach's appeal until $1200 had been paid for a transcript of the consolidated trial. Id. at 4-5. He submits that "[a]s the presiding trial judge, Judge Letsinger's jurisdiction did not encompass matters involving Mr. Dellenbach's pending appeal." Id. at 11 (emphasis supplied).
Rule 3(A) of the Indiana Rules of Appellate Procedure states the general rule concerning the acquisition of appellate jurisdiction and the concurrent loss of jurisdiction in the trial court: "Every appeal shall be deemed submitted and the appellate tribunal deemed to have acquired jurisdiction thereof on the date the record of proceedings is filed with the clerk of the Supreme Court and Court of Appeals." Ind.R.App.P. 3(A). Indiana courts consistently have interpreted this rule to mean that, "when appellate jurisdiction is acquired, the trial court is deprived of any further jurisdiction in the action." Donahue v. Watson, 413 N.E.2d 974, 975-76 (Ind.Ct. App.1980); see also Bright v. State, 259 Ind. 495, 289 N.E.2d 128, 129 (1972); Nehring v. Raikos, 181 Ind.App. 125, 390 N.E.2d 1092, 1096 (1979); Beard v. State, 176 Ind.App. 348, 375 N.E.2d 270, 271 (1978). Since Mr. Dellenbach apparently had not filed his transcript, it is not at all clear, even accepting Mr. Dellenbach's factual allegations, that the appellate court had jurisdiction to the exclusion of the trial court at the time the telephone call allegedly was made. In any event, Judge Letsinger did not act "in the clear absence of jurisdiction." He was acting with respect to a criminal matter tried in his court. If he erred in his belief that he had authority to deal with matters relating to the transcript, his error was, at most, a "grave procedural error" — not an act in the "clear absence of all jurisdiction." As the Supreme Court stated in Bradley:
80 U.S. (13 Wall.) at 351-52.
Mr. Dellenbach next asserts that Chief Judge Buchanan was acting in the absence
b. Judicial capacity
We also cannot accept Mr. Dellenbach's argument that the judges did not perform the alleged acts in their judicial capacity. In Stump, Justice White set forth the approach we must follow in analyzing this issue. "[T]he factors determining whether an act by a judge is a `judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." 435 U.S. at 362, 98 S.Ct. at 1107. In Eades, Chief Judge Bauer applied the same analysis. 810 F.2d at 725-26.
Supervising the preparation of the record of trial, while a task ordinarily delegated to the court's officers and counsel, is clearly within the general responsibility of the court. Once the appropriate portions of the record have been requested, the trial judge must examine all prepared transcripts, papers, and other items in order to certify that they correctly reflect the proceedings. Ind.R.App.P. 7.2(A)(4). Certainly, enforcing the payment of fees is the responsibility of the court. Moreover, this court recently has concluded that the process used to transfer the requested record to the court of appeals is a judicial act. In Scruggs v. Moellering, 870 F.2d 376 (7th Cir.1989), this court affirmed a district court's dismissal of a claim for civil damages against a judge who allegedly had falsified a trial transcript. In upholding the dismissal, we stated as follows:
Id. at 377.
Moreover, the policy concerns that undergird the immunity doctrine clearly are fostered by granting immunity here. The party perfecting the appeal is necessarily the litigant who lost before the trial judge. This party may be quick to ascribe malevolent motives to the judge. Thus, judicial acts concerning the preparation and ultimate transfer of papers and transcripts to the appellate court qualify as judicial acts for which the grant of absolute immunity is functionally appropriate.
Finally, contrary to Mr. Dellenbach's assertions, the ex parte nature of the alleged call between Judge Letsinger and Chief Judge Buchanan does not, without more, transform that communication into a nonjudicial act. In Stump, the Supreme
One additional consideration requires mention. In Forrester, the Supreme Court noted that absolute judicial immunity could also be justified on the ground that:
Id. Mr. Dellenbach admits that his attorney was advised of Chief Judge Buchanan's decision that a separate transcript must be purchased. However, his attorney apparently never sought legal redress from the alleged wrong. Apparently, Mr. Dellenbach's attorney never requested a reconsideration of the payment or petitioned for a writ of mandamus in the Supreme Court of Indiana. See Ind.Code Ann. §§ 34-1-58-1 to -2 (West 1983 & Supp.1989).
2. The Court Personnel
In Mr. Dellenbach's complaint he alleged that, at the request of Chief Judge Buchanan, "Ms. Blue informed [Mr. Dellenbach's attorney that] the appeal would `not be heard' until the money for the transcripts was received by the Lake County Indiana Court Reporters, Ms. Marianna Novak and Ms. Debra Banach." R. 2 (Allegation 1) (emphasis removed). He further alleged that, after payment was made for the transcripts, "Ms. Novak went into Judge Letsinger's office and spoke to him and told him the money had been received. Upon returning [to her office,] Ms. Novak told the Plaintiff[']s wife and sister that Judge Letsinger had spoken to [Chief] Judge Buchanan and told him it was now alright to proceed with the Plaintiff[']s appeal...." Id. (emphasis removed). Without more, Mr. Dellenbach alleges that "James Letsinger, Paul Buchanan, Ms. Janet Roberts Blue, Marianna Novak and Debra Banach conspired together with each other to compel the Plaintiff to obtain and pay for unneeded and unnecessary `transcripts' as a pre-condition for the consolidated appeal of Herbert Dellenbach and Randall Dellenbach to be heard by the Indiana Court of Appeals." Id. (emphasis removed).
In Lowe v. Letsinger, 772 F.2d 308, 313 (7th Cir.1985), this court held that absolute immunity does not apply to clerks involved in nondiscretionary and ministerial functions. In Lowe, a clerk was alleged to have concealed from the plaintiff a court order by failing to send notice of the outcome for about three weeks. The court held that, because the clerk's duty of typing and sending a notice after judgment was a nondiscretionary function, the clerk was not entitled to quasi-judicial immunity. Id. By contrast, in Eades, 810 F.2d 723, a clerk and a court reporter were charged with altering a trial record. The court distinguished Lowe. It held that the clerk and court reporter were entitled to immunity because their alleged actions, filing a false certificate and altering the docket to reflect that falsity, constituted a breach of discretionary duties that "had an integral relationship with the judicial process." Id. at 726.
The district court properly dismissed the complaint filed against Judge Letsinger, Chief Judge Buchanan, Ms. Blue, Ms. Novak, and Ms. Banach on the basis that Mr. Dellenbach's claims are barred by the doctrine of judicial immunity. Accordingly, the judgment of the district court is affirmed.