Robert A. Austin v. COOK COUNTY, ILLINOIS, and BRIAN CURRAN

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 3, 2023*
Decided August 5, 2024
Before
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2856
ROBERT A. AUSTIN,
Plaintiff-Appellant,
v.
COOK COUNTY, ILLINOIS, and
BRIAN CURRAN,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:21-CV-3826
John Robert Blakey,
Judge.
O R D E R
Robert Austin sued Brian Curran, a psychologist working for Cook County,
Illinois, for falsely testifying in a state criminal proceeding, and Cook County for its
alleged practice of suborning such perjury. The district court dismissed the case,
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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correctly ruling that Curran was absolutely immune as a testifying witness and that
Austin had not stated a plausible claim against Cook County. Thus, we affirm.
We recite and at this stage accept as true the factual allegations in Austin’s
complaint. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). In 2018, Austin
was criminally charged—wrongfully, he says—with unspecified offenses in the Circuit
Court of Cook County. Curran, a forensic-services psychologist with that county,
evaluated Austin and testified that he was not fit to stand trial; as a result, Austin says,
the court prolonged his pretrial detention but later dismissed the charges.
Austin and his limited liability company sued Curran and Cook County under
42 U.S.C. § 1983. As relevant on appeal, Austin alleged that Curran testified falsely,
leading the state court to detain him in violation of the Fourteenth Amendment. He also
asserted a claim under Monell v. Department of Social Services, 436 U.S. 658 (1978), against
Cook County. As he frames the issue on appeal, Cook County has a “widespread
practice or custom” of using its forensics psychologists to give “false” opinions that
defendants are “unfit for trial” so that “the judge” will “use the false testimony” to
remand defendants to custody. (The complaint also asserted other county-wide
practices, but Austin does not rely on these on appeal; thus, we discuss them no
further.) Austin also brought claims under Illinois law against both defendants. Finally,
he later filed a transcript of Curran’s testimony and “exhibits” that, Austin said, showed
a conspiracy to have Austin wrongfully prosecuted.
The district court granted the defendants’ motions to dismiss. It dismissed
Austin’s company without prejudice because it had to be represented by counsel yet
had no attorney. The court then dismissed Austin’s § 1983 claims with prejudice. His
claim against Curran failed because witnesses are absolutely immune from § 1983 suits
based on their testimony, and any derivative claim against Cook County failed because
governments are not vicariously liable under § 1983. It also ruled that Austin had not
stated a Monell claim against Cook County because his allegations were conclusory.
Finally, it relinquished jurisdiction over the state-law claims. The court did not consider
the transcript and exhibits, reasoning that they were outside the pleadings. Finally, the
court gave Austin a chance to amend his complaint and retain counsel for his company.
He did neither, filing instead this appeal on behalf of himself and his company. We
ordered his company to retain counsel because limited liability companies must be
represented by a lawyer. See United States v. Hagerman, 545 F.3d 579, 581–82 (7th Cir.
2008). After no attorney appeared for the company, we dismissed it.

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No. 22-2856 Page 3
We begin our analysis of the appeal by commenting on the district court’s
jurisdiction over this § 1983 suit. Although Austin’s suit arises from events that
occurred during state-court proceedings, the Rooker-Feldman doctrine, see Rooker v.
Fidelity Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983),
did not deprive the district court of jurisdiction because Austin did not ask the court to
reverse, undo, or overturn any state-court order. See Gilbank v. Wood Cnty. Dep’t of Hum.
Servs., No. 22-1037, slip op. at 68–70 (7th Cir. Aug. 1, 2024) (en banc). Instead, Austin
asked for damages (which he alleges arise from an injury preceding the state court’s
decision), an order revoking Curran’s “clinical license,” and an order for an
investigation into Cook County.
On appeal, Austin first argues that the district court should not have dismissed
his § 1983 claims against Curran because, Austin asserts, Curran committed perjury and
violated Austin’s clearly established rights. But the district court got it right: Curran is
immune from Austin’s claims. As the court explained, witnesses are absolutely immune
from § 1983 suits for committing perjury at a criminal pretrial hearing. Curtis v.
Bembenek, 48 F.3d 281, 283–85 (7th Cir. 1995) (citing Briscoe v. LaHue, 460 U.S. 325, 333,
342–43 (1983)). Thus, Curran is absolutely immune from Austin’s § 1983 suit alleging
that Curran falsely testified at Austin’s pretrial fitness hearing. And whether the
allegedly violated rights were clearly established is relevant only to whether Curran is
entitled to qualified immunity, not absolute immunity. See Buckley v. Fitzsimmons,
509 U.S. 259, 268–69 (1993) (contrasting qualified and absolute immunity).
Next, Austin contends that the court should not have dismissed his Monell claim.
Monell holds that a municipality may be liable under § 1983 if it has a widespread
practice that causes a constitutional violation. 436 U.S. at 690–91, 694. In assessing the
plausibility of a Monell claim, we accept as true Austin’s factual assertions but not legal
conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).
A naked allegation that a municipality has a practice of committing constitutional
violations is a legal conclusion of Monell liability couched as a factual allegation and
thus does not, on its own, state a Monell claim. McCauley, 671 F.3d at 617–18.
The district court properly dismissed Austin’s Monell claim. The complaint
provides only two relevant allegations: first, that Cook County has “a widespread
practice” of using “false” testimony in order to get “a judge” to prolong pretrial
detention, and second, that Curran falsely testified. The former does not suffice to state
a Monell claim because it is devoid of factual content. See McCauley, 671 F.3d at 614, 617–
18 (rejecting as insufficient to state Monell claim allegation that city had practice of

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intentionally discriminating against domestic-violence victims). Other than the single
case of Curran, the complaint does not state when this practice occurred, how it came to
light, or who has been hurt. Likewise, the allegation that Curran testified falsely is not
enough because one example of an alleged practice does not permit the reasonable
inference that Cook County customarily follows it. See Flores v. City of South Bend,
997 F.3d 725, 733 (7th Cir. 2021). For the first time on appeal, Austin also argues that
Cook County is liable because it ratified Curran’s false testimony and gave him final
decision-making authority over his testimony. But this argument is waived because
Austin did not mention it in the district court. Mahran v. Advoc. Christ Med. Ctr., 12 F.4th
708, 713 (7th Cir. 2021). And in any event, it too is devoid of factual content.
Next, Austin contends that the district court erred by refusing to consider the
transcript of Curran’s testimony and Austin’s other exhibits. Although that court could
have considered documents outside the pleadings if they illustrated Austin’s
allegations, see Geinosky v. City of Chicago, 675 F.3d 743, 746 n.1 (7th Cir. 2012), any error
was harmless, see F ED. R. C IV. P. 61, because Austin’s filings were irrelevant. The
transcript did not matter because, as discussed, Curran is immune regardless of his
testimony’s content. See Curtis, 48 F.3d at 283–85. And the “exhibits” were irrelevant
because they concerned an alleged conspiracy with no connection to Austin’s claims
against the defendants.
We can quickly dispatch Austin’s remaining contentions. He argues that the
district court should not have dismissed his company for lack of counsel because, he
insists, a non-lawyer, sole beneficiary of an estate may represent the estate pro se. But
even assuming that is true, an estate is not the same as a limited liability company; the
latter must be represented by counsel. Hagerman, 545 F.3d at 581–82.
Next, Austin argues for the first time on appeal that the district judge should
have recused himself under 28 U.S.C. § 455(a) because from 1996 to 2014 he worked for
the Cook County State’s Attorney’s Office, which represents the defendants. In civil
cases like this one, we generally treat as waived and thus do not review arguments that
are new on appeal. See Henry v. Hulett, 969 F.3d 769, 785–86 (7th Cir. 2020) (en banc).
Moreover, the argument is baseless. A party seeking recusal under § 455(a) must show
that a reasonable, disinterested observer would harbor serious doubts that justice
would be done in the case. United States v. Simon, 937 F.3d 820, 826 (7th Cir. 2019). And
no reasonable observer would question the judge’s impartiality based on distant past
employment with no connection to the events underlying the current case. See id.
at 826–28 (rejecting § 455(a) argument in criminal case based on judge’s unrelated prior

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employment with prosecutor’s office); see also Nicholson v. City of Peoria, 860 F.3d 520,
524–25 (7th Cir. 2017) (rejecting as “preposterous” argument that judge cannot hear
cases involving city that employed him decades earlier).
Finally, Austin contends that the court should have retained supplemental
jurisdiction over his state-law claims because, he says, the court dismissed only some of
his federal claims. He is incorrect; the court dismissed all his federal claims. True, it
dismissed his company’s claims without prejudice to allow Austin to retain an attorney.
But he did not, and those claims remain dismissed with finality. Further, a district court
may decline to exercise supplemental jurisdiction when it dismisses all the claims over
which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). We presume that the court will
relinquish supplemental jurisdiction when it dismisses all federal claims before trial.
RWJ Mgmt. Co. v. BP Prod. N. Am., Inc., 672 F.3d 476, 479 (7th Cir. 2012). Here, the court
properly followed that practice.
We have considered Austin’s remaining arguments, but he does not develop
them enough to merit discussion.
AFFIRMED

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