Craig Stingley v. JOHN T. CHISHOLM, PATRICIA HANSON, and BRAD SCHIMEL

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2020 *
Decided May 21, 2020
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-2364
CRAIG STINGLEY,
Plaintiff-Appellant,
v.
JOHN T. CHISHOLM, PATRICIA
HANSON, and BRAD SCHIMEL,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 18-C-2014
Lynn Adelman,
Judge.
O R D E R
Craig Stingley sued Wisconsin prosecutors under 42 U.S.C. § 1983 alleging that
they unlawfully failed to investigate and charge those responsible for his son’s murder.
The district court correctly dismissed the complaint because the prosecutors are
absolutely immune for these alleged acts, so we affirm.
In his pro se complaint, Stingley alleges that three prosecutors did not investigate
and charge his son’s murderers. He asserts that John Chisholm, the district attorney of
Milwaukee County, avoided charging the offenders because of a racial bias. Stingley’s
* We have agreed to decide this 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. F ED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 19-2364 Page 2
son was African American and most of the perpetrators are white, and Chisholm feared
that he could not secure a conviction given the county’s “Racially Segregated Cultural
History.” Also, according to Stingley, Chisholm tried to “cover up” his rationale by
falsely documenting that Stingley’s son died from “positional asphyxiation” and not, as
the medical examiner found, by “homicide, from a violent struggle with multiple
individuals.” Further, Patricia Hanson, another district attorney assigned to the case,
and Brad Schimel, the former attorney general of Wisconsin, both allegedly refused to
investigate the case, making them complicit in the “cover up.” Stingley seeks injunctive
and monetary relief.
The case was short-lived. The defendants moved to dismiss under Federal Rule
of Civil Procedure 12(b)(6), arguing that they were absolutely immune from suit for the
acts that Stingley had alleged. Stingley responded that absolute immunity reaches only
acts in court. The district court granted the motion. It ruled that absolute immunity
shields the prosecutors’ decisions not to charge or investigate suspects, as well as
decisions about what documents to create in making those decisions.
On appeal, Stingley argues that prosecutors lack absolute immunity for refusing
to convene a grand jury to file homicide charges, to investigate and review evidence of
murder, and to document that evidence accurately.
The district court correctly dismissed this suit. We note that “a private citizen
lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). But we need not rely on this obstacle to
this damages suit because there is no priority among reasons not to reach the merits of a
lawsuit. See Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431
(2007).
The prosecutors are absolutely immune from this damages suit. Absolute
immunity covers any suit for damages under section 1983 based on conduct that is
“intimately associated with the judicial phase of the criminal process.” Imbler v.
Pachtman, 424 U.S. 409, 430 (1976). Using the “functional approach” to determine the
immunity’s reach, Burns v. Reed, 500 U.S. 478, 486 (1991), absolute immunity applies to
both the decision to prosecute and the decision not to prosecute. See Ross Yordy Constr.
Co. v. Naylor, 55 F.3d 285, 287–88 (7th Cir. 1995). In addition, the immunity applies when
the refusal to prosecute is based, as alleged here, on a reason that the plaintiff considers
improper (here, the victim’s race). See Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir. 1982)
(prosecutor immune from suit alleging racial bias in declining to prosecute case against
son’s murderer). That is because the prosecutor’s function—deciding whether to bring a

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No. 19-2364 Page 3
criminal case—is relevant to immunity, not his rationale. See Savage v. Maryland, 896
F.3d 260, 270–71 (4th Cir. 2018) (collecting cases and noting that prosecutor’s motivation
in declining to prosecute is “immaterial”). Furthermore, because absolute immunity
covers the decision not to prosecute, it necessarily also covers a prosecutor’s decisions
in the course of a charging decision as to the need to investigate or document an
investigation. See Imbler, 424 U.S. at 430–31. Finally, Stingley cannot overcome the
prosecutors’ absolute immunity to this damages suit by appending a request for
injunctive relief because, as we mentioned earlier, he also lacks a “judicially cognizable
interest” in demanding prosecutorial action. Linda R.S., 410 U.S. at 619. Therefore, the
district court correctly dismissed this suit.
We have considered Stingley’s other arguments, and none has merit.
AFFIRMED

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