Robin D. West v. Dean L. West

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3398
ROBIN D. WEST,
Plaintiff-Appellant,
v.
DEAN L. WEST,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:10-cv-03211-RM-BGC—Richard Mills, Judge.
SUBMITTED JULY 26, 2012—DECIDED SEPTEMBER 17, 2012
Before POSNER, MANION, and TINDER, Circuit Judges.
POSNER, Circuit Judge. This is a diversity suit for
battery and related torts under Illinois law, brought by a
woman who claims that her ex-husband beat and raped
her on March 17, 2008, while they were still married.
The district judge dismissed the suit on his own initia-
tive, ruling that it was malicious. The plaintiff is pro-
ceeding in forma pauperis, and 28 U.S.C. § 1915(e)(2)(B)(i)
requires a district court to dismiss such a suit “at any

-- 1 of 8 --

2 No. 11-3398
time if the court determines that . . . [it] is frivolous or
malicious.”
She complained about the beating and rape to the
police, but later withdrew charges, resumed living with
the defendant, and emailed him, for his approval, a
statement recanting the charges—saying she had
fabricated them and that he was a wonderful husband.
Later still, however, the couple separated and divorced,
and this suit ensued.
In ruling the suit malicious, the judge (writing in Septem-
ber 2011, some 18 months after the suit had been filed)
said that his court “has become the latest battleground
for the parties in their long-running personal feud. The
Plaintiff has submitted hours of recorded telephone
conversations documenting the ebb, flows and explosions
of her relationship with the Defendant. Most of the
filings to date do not relate directly to alleged tortious
actions of March 17, 2008.” He added: “this action may
be merely a fishing expedition. The Plaintiff has ex-
pressed her desire to subpoena the Defendant’s telephone
records, and has requested that the Court enter an order
blocking AT&T from disposing of any telephone records
relating to the Defendant. It is unclear how these
records would relate to the instant action . . . . The defen-
dant claims that the Plaintiff is seeking these records so
she can contact his friends and associates to disparage
his reputation . . . . The Plaintiff has generally confirmed
this in her latest filing, stating that she tried to contact
an individual to warn her regarding the Defendant’s
character . . . . The Court refuses to be pulled into
this vitriolic tug-of-war.”

-- 2 of 8 --

No. 11-3398 3
The accusation of a “fishing expedition” is not sub-
stantiated by the record. The plaintiff has requested
only the records of phone calls made by the defendant
to her; presumably she seeks these to prove that he ha-
rassed her. She does admit to having once called a
woman to warn her against the defendant, but there is
nothing to indicate that she seeks his phone records in
order to warn other women.
Nor can a suit be dismissed on the ground that it is
a “vitriolic tug-of-war.” That unfortunately is an apt
description of many suits, especially those that arise out
of a marriage, or other relationship, gone bad. See, e.g.,
Khan v. Fatima, 680 F.3d 781 (7th Cir. 2012). It is
an apt description of this suit. The record contains a
remarkable collection of mutual accusations. The defen-
dant accuses the plaintiff of being mentally ill and a
compulsive liar; the plaintiff accuses the defendant not
only of rape and assault but also of other acts of
violence (against other women as well as against her-
self—accusations that if supported by evidence would
be admissible in this case under Fed. R. Evid. 415), and
of threats, lies, frequent run-ins with the police, and
bigamy. There may well be merit to both sets of accusa-
tions, but the plaintiff’s are better grounded in the
record, being based on testimony by her under oath and
by police records and other official documents. The de-
fendant’s accusations are based primarily on long and
detailed but unsworn statements by him, with little
corroboration except that the plaintiff admits that she
has psychiatric problems—which she blames on the
defendant.

-- 3 of 8 --

4 No. 11-3398
Besides what the judge considered the suit’s factual
indeterminacy, he remarked that “the Defendant has
repeatedly stated throughout his filings that he, too, is a
pauper. The Plaintiff has not contested this issue, and
her filings confirm that Defendant is indigent”—the judge
was referring here to the plaintiff’s having stated that
the defendant had been represented by court-appointed
counsel in a recent criminal case. The judge said that “if
the Plaintiff were to prevail, it would be a hollow
victory, because every indication is that the Defendant
is judgment proof. The Court is unwilling to expend
scarce judicial resources in such a pursuit.” The “every
indication” is based on unsworn assertions by the defen-
dant; the only indication that he may be indigent is his
having been represented by court-appointed counsel.
The evidence that the suit is “malicious” is thus far
weak, but we need to be sure that we understand what
the word means in section 1915. It is natural to connect
it to the tort of malicious prosecution—the filing of a
groundless suit for purposes of harassment. See, e.g., Cult
Awareness Network v. Church of Scientology Int’l, 685
N.E.2d 1347, 1350 (Ill. 1997); Hammond Lead Products, Inc.
v. American Cyanamid Co., 570 F.2d 668, 673 (7th Cir. 1977).
Section 1915 as we know separately directs dismissal
of “frivolous” suits by indigents, but a suit can be ground-
less without being so utterly groundless as to be deemed
“frivolous.” See Denton v. Hernandez, 504 U.S. 25, 32-33
(1992); Edwards v. Snyder, 478 F.3d 827, 829-30 (7th Cir.
2007).
This suit is not groundless, let alone frivolous. The
plaintiff’s recantation is an admission and is therefore

-- 4 of 8 --

No. 11-3398 5
admissible against her, but it is not conclusive, see
Morales v. Johnson, 659 F.3d 588, 606 (7th Cir. 2011);
United States v. Parker, 508 F.3d 434, 437-38 (7th Cir.
2007), given police photos that corroborate her testi-
mony that her husband beat her on March 17, 2008, and
the fact that recantations by abused spouses often turn
out to be untruthful because of the victim’s fear of re-
taliation, financial dependence, or hope of saving the
marriage. See, e.g., United States v. Young, 316 F.3d 649,
655, 658 (7th Cir. 2002); Tom Lininger, “Prosecuting
Batterers After Crawford,” 91 Va. L. Rev. 747, 768-71 (2005),
and references cited there; U.S. Department of Justice
et al., “The Validity and Use of Evidence Concerning
Battering and Its Effects in Criminal Trials: Report Re-
sponding to Section 40507 of the Violence Against Women
Act” 20-21 (May 1996), www.ncjrs.gov/pdffiles/batter.pdf
(visited Sept. 12, 2012); cf. United States v. Skoien, 614
F.3d 638, 643 (7th Cir. 2010) (en banc).
But a suit can be wrongful even if it is not groundless, if
the aim is something other than a judgment, such as
bankrupting the defendant or destroying his reputation
or distracting him from his other pursuits or simply
immiserating him. Such a suit is an abuse of process. See,
e.g., Heck v. Humphrey, 512 U.S. 477, 486 n. 5 (1994); Nightin-
gale Home Healthcare, Inc. v. Anodyne Therapy, LLC, 626
F.3d 958, 963 (7th Cir. 2010); National City Bank v. Shortridge,
689 N.E.2d 1248, 1252 (Ind. 1997); Dan B. Dobbs, Paul T.
Hayden & Ellen M. Bublick, The Law of Torts § 594, pp. 410-
28 (2d ed. 2011). And since it is tortious conduct it is an
apt basis for a court’s exercise of its common law power
to protect itself from litigants’ abuses of the litigation
process. Abuse of process might also be thought “mali-

-- 5 of 8 --

6 No. 11-3398
cious” within the meaning of section 1915. Cf. id., §§ 592,
594, pp. 407, 419.
But the fact that a plaintiff is angry at the defendant
and may be exceeding proper bounds of discovery is not
enough by itself to justify an inference either that the
suit is groundless or that the plaintiff is aiming for some-
thing other than a damages award. Restatement (Second)
of Torts § 682, comment b (1977). It’s hardly unusual for
a plaintiff, however well-grounded his or her suit is, to
be furious at the defendant. If the present suit is a
“fishing expedition,” in the sense that the plaintiff is
casting the net of discovery too wide, this may reflect
a pro se’s ignorance of proper legal procedure rather
than an intention to harass. And anyway harassment is
a common litigation tactic even in meritorious litigation.
A defendant’s being judgment proof might be evidence
of improper purpose by the plaintiff. But as yet there is
no evidence that the defendant is judgment proof besides
the plaintiff’s statement that he is or was represented
by court-appointed counsel in another case; and we are
told nothing about that case, about the standard of
indigency applied by the court (a state, not a federal,
court) in it, or about the truthfulness of whatever rep-
resentations the defendant made that persuaded the
court to appoint counsel for him. There is not even a
financial statement from the defendant. But we agree
that a finding that he was judgment proof would be
relevant to whether the suit is an abuse of process. Cf.
Clark v. Georgia Pardons & Paroles Bd., 915 F.2d 636, 640-
41 (11th Cir. 1990). Relevant, but not determinative.

-- 6 of 8 --

No. 11-3398 7
We need to be careful about the meaning and sig-
nificance of the term “judgment proof.” The fact that a
defendant can’t (and the plaintiff knows he can’t) write
a check for the maximum foreseeable amount of damages
is not conclusive, since a judgment against the de-
fendant, or part of it, may be collectible by garnishment
of the defendant’s wages or by an order that he sell
illiquid assets. As far as we know, the defendant does
have wages—as of last year, at least, he was employed
by a substantial Tennessee firm called Enviro USA,
www.envirousa.com (visited Sept. 12, 2012).
But attempts to collect money judgments against an
individual are costly if he resists, as he is likely to do if
the judgment creditor has scant resources for pro-
tracted collection proceedings. And there are limits to
conjecture about collectibility. Must a federal court en-
tertain a suit for $1 million against a conceded pauper,
on the ground that the pauper might win the lottery? Or
be discovered to be the rightful heir to the Kingdom of
Ruritania?
A plaintiff who knows she can’t expect to obtain any
damages yet persists in her suit probably has other aims,
which can be summed up in the phrase “to harass.” The
harassment might be psychologically understandable
and well motivated; the plaintiff in this case may be
trying to save other women from brutal treatment at
the hands of her ex-husband, though she disclaims any
such motive. But well-motivated or not, making the
defendant a pariah is not a proper aim of a civil
damages suit; harassment is harassment whatever the

-- 7 of 8 --

8 No. 11-3398
motive. The requirement of a minimum amount in con-
troversy in federal diversity suits, though aimed at
keeping out of federal court small cases in the sense of
ones in which the injury alleged by the plaintiff is small,
is consistent with the exercise by district judges of
their traditional power to dismiss abusive litigation
even if not frivolous.
Nevertheless the judge in this case did not, on the
basis of the record compiled so far, have grounds for
dismissing the suit as frivolous, malicious, or an abuse
of process. The judgment must therefore be vacated.
Because of the judge’s evident exasperation with the
parties, we think it best that Circuit Rule 36 apply
on remand.
REVERSED AND REMANDED,
WITH INSTRUCTIONS.
9-17-12

-- 8 of 8 --