The John K. Maciver Institute For Public Policy, Inc. v. Schmitz, Francis et alBrief in ReplyW.D. Wis.January 13, 2017UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ THE JOHN K. MACIVER INSTITUTE FOR PUBLIC POLICY, INC., Plaintiff, v. FRANCIS SCHMITZ, JOHN CHISHOLM, BRUCE LANDGRAF, DAVID ROBLES, ROBERT STELTER, KEVIN KENNEDY, SHANE FALK AND JONATHAN BECKER, Defendants. Case No.: 3:16-cv-00539-wmc Judge William M. Conley Magistrate Judge Stephen L. Crocker REPLY IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS Defendants FRANCIS SCHMITZ, JOHN CHISHOLM, DAVID ROBLES, BRUCE LANDGRAF, KEVIN KENNEDY, SHANE FALK and JONATHAN BECKER (collectively "defendants") submit this reply in support of their Motion to Dismiss plaintiff’s First Amended Complaint: I. THE SEARCH WARRANT WAS VALID UNDER THE SCA Under plaintiff's novel legal theory, it does not matter that the Wisconsin Supreme Court has recognized that a circuit court judge can lawfully issue a search warrant under Wisconsin law as part of a John Doe proceeding, e.g. State v. Cummings, 199 Wis. 2d 721, 735 (1996), or that Wisconsin law specifically authorizes the issuance of search warrants to providers of an electronic communication service ("ECS") or a remote computing service ("RCS"), see Wis Stat. 968.375 3(a). Apparently it also does not matter that the state judge who issued the search warrant, Judge Barbara Kluka, was a judge of Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 1 of 30 2 the Wisconsin circuit court,1 or that under the Wisconsin Constitution the circuit court is vested with "original jurisdiction in all matters civil and criminal," Wis. Const. Art. VI, §8. It also seems immaterial to plaintiff's theory that it does not allege any failure to follow warrant procedures required under state law in connection with the issuance of the search warrant at issue. Under plaintiff's theory, the issuance of that warrant violated the Stored Communications Act ("SCA") simply because Judge Kluka issued it in a John Doe proceeding. That argument ignores the structure and jurisdiction of Wisconsin courts. Plaintiff's arguments confuse a type of judicial proceeding that might be before a Wisconsin judge at any particular moment with the undisputable authority of a Wisconsin judge to issue a search warrant, in connection with that proceeding or otherwise, under Wisconsin law. The Wisconsin Constitution authorized the formation of the circuit court in Art. VI, §8, and the formation of municipal courts in Art. VI, §14. Unlike the circuit court, which has jurisdiction over all matters civil and criminal, the jurisdiction of municipal courts is limited to actions arising under municipal ordinances, id., typically traffic, parking, etc. A Wisconsin municipal court would thus not be a "court of competent jurisdiction" under the SCA, and a search warrant issued by a municipal court judge would not satisfy 18 U.S.C. §§ 2703(a), (b)(A) or (c)(A). A judge of the Wisconsin circuit court, however, can lawfully issue such a warrant under the SCA. 1 See Wis. Stat. §967.02(6) and (7) defining the term judge as a "judge of a court of record" and the term court as a "circuit court." Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 2 of 30 3 Perhaps more importantly, a John Doe proceeding is not some sort of "court" of its own, but is instead merely one type of matter that might be handled by a Wisconsin circuit court judge on a given day. Although it is Defendants' understanding that John Doe proceedings, especially when investigations are active and time-consuming, are often assigned to reserve judges who happen not to have other cases assigned to them— as was the case with Judge Kluka—nothing in Wisconsin law prevents a "John Doe judge" from also presiding over other kinds of cases, and indeed the current John Doe II judge has other unrelated cases on his docket. Under Wisconsin law a circuit court judge could thus deal with matters in a John Doe proceeding in the morning and probate an estate or try a criminal case in the afternoon; accordingly a Wisconsin circuit judge presides over a court of general jurisdiction no matter what the case she is presiding over at any moment is about. Under plaintiff's legal theory if the very same warrant was issued by another Wisconsin circuit court judge, one with a variety of matters on her docket, the warrant would pass muster under the SCA. But the kind of case (or cases) a Wisconsin circuit court judge is assigned to handle when she issues a search warrant does not limit the judge's lawful authority under Wisconsin law to issue that warrant. Some of plaintiff's apparent confusion may stem from the fact that, prior to 1969, a John Doe proceeding could be conducted by a circuit court judge, a court commissioner or even a justice of the peace. See State ex. rel. Jackson v. Coffey, 18 Wis. 2d 529, 535-36 (1963). In 1969, however, the John Doe statute was amended to limit the authority to preside over John Doe proceedings to a "judge of a court of record," which barred court commissioners and justices of the peace from handling John Doe Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 3 of 30 4 proceedings. See State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee Cnty., 65 Wis. 2d 66, 70-71 (1974). In the case at bar, Judge Kluka, a "judge of a court of record" (the circuit court), issued a search warrant authorized by Wisconsin law, in accord with Wisconsin warrant procedures as interpreted by the Wisconsin Supreme Court. Nothing more was required to comply with §2703 of the SCA. Plaintiff's response devotes pages of argument trying to manufacture a purely metaphysical distinction between a "court" and a "judge." It argues that "only a 'court' may issue warrants to seize stored electronic communications," as opposed to a "judge." E.g., Response at p. 9. Under Wisconsin law a search warrant is "an order signed by a judge." Wis. Stat. 968.12(1). The warrant plaintiff challenges was issued by a judge of the Wisconsin circuit court, 2 and the SCA simply requires a search warrant be issued in accordance with a State's warrant procedures, which it was, by a judge with the legal authority to issue the warrant. United States v. Orisakwe, 624 Fed. Appx. 149, 155 (5th Cir. 2015) ("the plain text of the statute permits the state to issue a search warrant if authorized by the law of that state"). There is no dispute that Judge Kluka was a circuit court judge, or that the Wisconsin Supreme Court permits search warrants to be issued in a John Doe proceeding (a point plaintiff concedes, see Response p. 11-12), and plaintiff 2 It is hard to figure where the absurd procedural distinction between a judge and a court plaintiff is hawking would end. If a circuit court judge in Wisconsin was contacted at home at night or on a weekend about a search warrant seeking emails from an "ECS" provider, would she be required to leave his or her home and go to the courthouse to read and sign the warrant in order for the warrant not to violate the SCA? Apparently under plaintiff's theory the judge would have to, because, it argues, it’s the "'procedural formalities' that distinguish a judge from a court" (Response p. 10), and only a "court" may issue a search warrant under the SCA. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 4 of 30 5 does not claim that state warrant procedures were not followed. These points sound the death knell for plaintiff's SCA claim. Plaintiff's purported distinction between a person and the institution in which she serves, between a "judge" and a "court," are, if they exist at all, immaterial to this case. In plain terms, a judge is an official who presides in court, and the two are not separable. See, e.g., B. Garner, et al., Black's Law Dictionary 916 (9th ed. 2009) (defining "judge" as "[a] public official appointed or elected to hear and decide legal matters in court") (emphasis added); id. at 405 (defining "court" as "[a] governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice") (emphasis added). The statutory specifics of a John Doe proceeding do not divest a circuit court judge who is assigned to such a proceeding of her position or powers as a judge of that court, or of her consequent authority to issue a search warrant, in that proceeding or out of it. To the contrary, a Wisconsin judge who does so in a John Doe proceeding is simply exercising "the authority inherent in his or her judicial office," In re John Doe Proceeding, 260 Wis.2d 653, 684-5 (2003), which is the same authority she would also exercise in a non-John Doe matter. Because the SCA allows warrants to be issued by competent state courts, including courts of general criminal jurisdiction, and because a Wisconsin circuit court judge is authorized under Wisconsin law to exercise her inherent judicial powers in a John Doe proceeding, which includes issuing a search warrant, a warrant issued by a Wisconsin circuit court judge in the context of a John Doe proceeding meets the SCA's standards. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 5 of 30 6 A. Section 2703's Warrant Requirements Were Met Plaintiff repeatedly argues that only state courts with general criminal jurisdiction have the authority to issue a search warrant under the SCA, and remarkably even suggests that the SCA requires the state court have "the authority to try, convict and penalize." Response at p.12. No court has ever held that a state court must have the authority to try, convict and penalize before a judge of that court may lawfully issue a search warrant under the SCA—in fact the law is just the opposite: If a federal warrant would have sufficed under Section 2703(a) despite having been issued by a magistrate judge who could not have presided over a trial of the investigated offense, the same no doubt can be said of an "equivalent State warrant." The warrant at issue therefore was not insufficient merely because the Georgia magistrate could not have presided over a criminal trial of the plaintiff. Hubbard v. MySpace, Inc., 788 F.Supp. 2d 319, 324 (S.D.N.Y. 2011). Plaintiff is attempting to attach requirements to the SCA beyond those Congress has imposed. Section 2703 merely requires "a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction." 18 U.S.C. §2703(a). Plaintiff makes no claim that the necessary Wisconsin warrant procedures were not followed. Plaintiff's "court of competent jurisdiction" argument also ignores the 2009 amendment to the definition of that term found in 18 U.S.C. 2711(3)(B) of the SCA. Section 2711(3)(B) formerly provided that the term "court of competent jurisdiction" had the meaning ascribed to it in 18 U.S.C. §3127. At the time of that 2009 amendment, §3127 provided "the term 'court of competent jurisdiction' means… (B) a court of general Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 6 of 30 7 criminal jurisdiction of a State authorized …." Id. (emphasis added). The 2009 amendment to §2711(3)(B) deleted the cross reference to 18 U.S.C. §3127, but brought over its definitional language, with one notable change—it substituted the word "includes" for "means." See Pub.L 111-79, §2(2).3 As a result, in the 2009 amendment, and as applicable herein, §2711(3)(B) was changed to provide that the term "court of competent jurisdiction" "includes," but does not exclusively "mean," a "court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants." The 2009 amendment of §2711(3)(B) changing from "means" to "includes" reflects a clear Congressional intent to broaden the types of courts that are competent to issue search warrants that comply with the SCA, and not to limit them to "courts of general criminal jurisdiction," as plaintiff repeatedly argues in its response brief. See, e.g., FTC. MTK Mktg., Inc., 149 F.3d 1036, 1040 (9th Cir. 1998) ("[i]n terms of statutory construction, use of the word 'includes' does not connote limitation. In definitive provisions of statutes and other writings, ‘include’ is frequently, if not generally, used as a word of extension or enlargement rather than as one of limitation or enumeration"); Hwy. and City Freight Drivers, Dockmen and Helpers, Loc. Union No. 600 v. Gordon Transports, Inc., 576 F.2d 1285, 1289 (8th Cir. 1978)("Basic principles of statutory construction lend support to a broad construction" when a statutory definition "uses the word 'includes' … within the definition rather than the word 'means.' When a statute is 3 This amendment was part of the Foreign Evidence Efficiency Act, which was a generic bill designed to improve title 18. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 7 of 30 8 phrased in this manner, the fact that the statute does not specifically mention a particular entity … does not imply that the entity falls outside of the definition."). A court of competent jurisdiction under §2703 can include a court having general criminal jurisdiction, but since 2009 it is not limited to only such a court. As explained above, the warrant at issue was issued by a court with general criminal jurisdiction. But even if it had not been, even if a judge presiding over a John Doe proceeding somehow becomes something else, the SCA would still be satisfied because Wisconsin law specifically authorizes search warrants to be issued to ECS and RCS providers by a circuit court judge in a John Doe proceeding, and because since 1969 only a circuit court judge, as a "judge of a court of record," is permitted to handle a John Doe proceeding. II. PLAINTIFF HAS FAILED TO STATE A VIOLATION OF THE SCA A. No SCA Violation Where Access Occurs Pursuant to a Valid Warrant. Plaintiff's FAC fails to state a claim for a purported violation of the SCA for a simple reason—as explained above, a valid warrant was obtained for the emails in question. See Guest v. Leis, 255 F.3d 325 (6th Cir. 2001). Guest concluded that plaintiff failed to state a claim, reasoning: "There is no violation of §2703(a), (b) or (c) if access is pursuant to a valid warrant, and the officials in this case had a valid warrant." Id. at 339; accord Chapman v. Lawson, 89 F.Supp.3d 959, 976 (S.D. Ohio, 2015). The same is true in the case at bar. Because the disclosure occurred pursuant to a valid issued warrant plaintiff has failed to state a claim upon which relief can be granted and its FAC should be dismissed. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 8 of 30 9 B. No Knowing or Intentional Violation Demonstrated. In their opening brief, defendants noted that the civil remedy provided under the SCA was limited to "knowing or intentional violations." Plaintiff contends that this was a "crude elision of the statutory text." Response at p.21. It is undisputed that § 2707(a) requires that "the conduct constituting the violation is engaged in with a knowing or intentional state of mind." 18 U.S.C. § 2707(a). In other words, §2707 requires that a defendant have acted with knowledge and intent that the warrant at issue was unauthorized. The terms knowing and intentional are not defined in the SCA, so the Sixth Circuit examined the legislative history surrounding the Electronic Communications Privacy Act ("ECPA") to define them. Long v. Insight Communications of Cent. Ohio, LLC 804 F.3d 791, 797 (6th Cir. 2015). The court in Long noted: As used in the [ECPA], the term 'intentional' is narrower than the dictionary definition… [and] means more than that one voluntarily engaged in conduct or caused a result. Such conduct or the causing of the result must have been the person's conscious objective. Id. at 797, quoting S. Rep. 99-541, at 23 (1986) (reprinted at 1986 U.S.C.C.A.N. 3555, 3577).4 And Long added that "[t]he concept of 'knowingly' does not include, however, 'reckless' or 'negligent' conduct." Id. at 797-98 quoting H. Rep. 99-647 at 64. To meet the "knowing or intentional" element of a claim for the purported violation of the SCA thus requires that a plaintiff plead more than that a defendant 4 Long also held it was "reasonable to conclude that this definition was intended to apply to both Title I and Title II of the ECPA." Id. at 797. The reference to Title II is to the SCA. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 9 of 30 10 negligently or recklessly violated the SCA. Rather, it requires plausible allegations establishing that the defendants made a conscious choice to do so. In the context of plaintiff's claims in this case, because the SCA specifically permits the contents of an ECS or RCS provider be obtained via a search warrant, plaintiff would be required to plead that defendants consciously choose a means to obtain the information that they knew was not permitted under the SCA. Nothing in the FAC meets that requirement. Because Wisconsin's warrant procedures authorized the issuance of the type of warrant involved, and because the Wisconsin Supreme Court had previously authorized its issuance in a John Doe proceeding, plaintiff has not alleged that any of the defendants knowingly or intentionally violated the SCA with the understanding that Judge Kluka, a judge of a court authorized to issue search warrants issuing one in connection with a proceeding for which they are allowed under state law, was in fact unable to do so.5 For this additional reason plaintiff's FAC should be dismissed. C. No Secondary Liability Under the SCA Plaintiff acknowledges that liability under §2707 can only be imposed on "the person or entity… which engaged in that violation. Response at p. 18. But it then suggests that liability can be imposed on all of the defendants, even though most are 5 The district court decision cited by plaintiff, Freedman v. American Online, Inc. 325 F.Supp. 2d 638 (E.D.Va. 2004), involved a claim against an ISP that disclosed the plaintiff's subscriber information in response to a search warrant application that had not been signed by a judge. Here, by contrast, the warrant was signed by a judge with authority to do so and issue in accordance with state warrant procedures. Freedman bears absolutely no factual similarity whatsoever to the case at bar, which negates any possible persuasive authority plaintiff ascribes to the decision. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 10 of 30 11 not alleged to have anything to do with the warrant in question. In support of this contention plaintiff cites Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F.Supp. 432 (W.D. Tex. 1994). While the district court in Steve Jackson Games considered the defense of good faith under the SCA, the issue of secondary liability (as raised by the defendants here) was never raised or addressed in that case; accordingly it does not support plaintiff's contention.6 The other decision plaintiff cites, Freedman, 303 F.Supp. 2d 121, 127 9D. Conn. 2004), also did not purport to address the liability of defendants who were not alleged to have been involved in seeking the warrant in question. While one of the two defendants in Freedman argued that he was not liable given his limited involvement, the district court noted that both he and the other defendant "served as affiants." 303 F.Supp. 2d at 129; id. at 123 ("Bensey's claim to have only been a witness is contradicted by his signature on the Warrant Application as an affiant.").7 Plaintiff's response thus fails to support the concept of secondary liability under the SCA. There is nothing in its text, structure or legislative history suggesting that 6 In addition, the actual holding in Steve Jackson Games that the defendants had violated the SCA by failing to give notice when seizing materials under a warrant, was considered and rejected by the Sixth Circuit. Guest v. Leis, 255 F.3d 325, 339 n. 7 (6th Cir. 2001). 7 Nor is there support, in either of those cases or elsewhere, for plaintiff's distinction between obtaining the warrant and forcing disclosure. See Response at p. 18. ("The statute does not prohibit the issuance of a warrant by itself. The conduct that creates liability is forcing the service provider to disclose the materials without following the prescriptions of the SCA."). Like plaintiff's purported distinction between a judge and a court, this one makes no difference. Section 2703 of the act permits the requiring of disclosure of specified materials "only" if sought under a process specified in the statute, such as a search warrant issued by a court of competent jurisdiction. It is hard to see how the device by which a defendant allegedly "forces" disclosure—can be conceptually separated from the act of disclosure compelled by that device. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 11 of 30 12 secondary liability is a recognized theory of recovery under the Act. As defendants noted in their opening brief, the only defendants who are alleged to have had anything to do with obtaining the warrant at issue are two of the prosecutors. FAC, ¶65. Liability cannot be imposed vicariously under the SCA upon any other defendants.8 III. PLAINTIFF'S IMMUNITY ARGUMENTS PROVIDE NO BASIS TO DODGE DISMISSAL A. Immunities can be Considered on a 12(b) Motion Plaintiff proffers a number of lengthy arguments in an attempt to evade the effect of various defendants' absolute immunity, qualified immunity and Eleventh Amendment immunity on its SCA claim. It argues that it is improper to consider defendants' immunity arguments in the context of a motion to dismiss filed under Fed. R. Civ. P. 12(b), and insists that such a claim must be brought (if prior to summary judgment) under Rule 12(c). Plaintiff is wrong; in any number of cases in this Circuit district courts have applied immunity on motions filed under Rule 12(b) and been upheld in doing so. See, e.g., Bianchi v. McQueen, 818 F.3d 309, 316-19 (7th Cir. 2016) (affirming Rule 12(b)(6) dismissal of claims against a special prosecutor based on absolute and qualified immunity); Heyde v. Pittenger, 633 F.3d 512, 517 (7th Cir. 2011) (same); Katz-Crank v. Haskett, No. 15-809, 2016 WL 7167893 (7th Cir. Dec. 8, 2016) (affirming dismissal of various state and county officials, including prosecutors, under 8 Of course, the warrant challenged by plaintiff was reviewed, approved and signed by Judge Kluka, but she enjoys absolute immunity for her actions in issuing that warrant. Harris v. Harvey, 605 F.2d 330, 336 (7th Cir. 1979). Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 12 of 30 13 the Eleventh Amendment and absolute immunity). As the Seventh Circuit in Haskett, observed: We don't need to parse which of [plaintiff's] claims were resolved under Rule 12(c) and which were resolved under Rule 12(b)(6); "[a] motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is subject to the same standard as a Rule 12(b)(6) motion to dismiss." Id. at * 2, quoting United States v. Wood, 925 F.2d 1580, 1581 (7th Cir 1991). It is clear that a "defendant may raise a qualified immunity defense in a motion to dismiss." Kernats v. O’Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994); see also Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997) ("Qualified immunity is an affirmative defense which may be raised in a motion to dismiss."). The good faith defense found in §2707(e) similarly may be considered on a Rule 12(b) motion. Chole SAS v. Sawabeh Information Srvs. Co., 2012 WL 7679387, at *2 (C.D. Cal. Dec. 5, 2012). Plaintiff's FAC plainly contains allegations that support the application of the immunities defendants assert. Where a party makes factual allegations beyond those necessary to meet Rule 8's "short and plain statement requirement," as in the case at bar, that party cannot prevent an opposing party from suggesting those additional facts demonstrate the availability of a defense or that the plaintiff is not entitled to any relief. See, e.g., Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002). The FAC is 29 pages long (plus attachments) and clearly demonstrates the availability of the defenses raised by defendants. For instance, plaintiff alleges that defendants Schmitz, Chisholm, Landgraf and Robles are prosecutors, (FAC ¶¶5-7) and asserts that its claim is against defendants for allegedly "present[ing] warrant requests to John Doe judges who were not courts of Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 13 of 30 14 competent jurisdiction." Id. at ¶3. Those assertions demonstrate the availability of absolute immunity for the prosecutors. B. No Line-Drawing Necessary Given the Narrow Single Issue Presented At several points in its Response, plaintiff suggests that absolute immunity involves "a fact specific line-drawing exercise" and that qualified immunity is fact- intensive (Response at pp. 26 and 38). Whether that would be true in some other case, especially as to absolute immunity, defendants do not concede. But the notion plainly has no application in this case. These assertions ignore the narrowness of the single legal issue presented by plaintiff's claim—whether a judge presiding over a John Doe proceeding sits in a court of competent jurisdiction, such that a search warrant she issued satisfies the SCA. Plaintiff does not raise any other statutory or constitutional claim in its FAC. Given the narrowness of the single legal issue presented, the immunities raised by the defendants can be addressed as a matter of law from the allegations made within the four corners of plaintiff's FAC. The only type of "line drawing" that is required in addressing the defendants' motion to dismiss will be to parse the unsupported conclusory allegations, which are not accepted as true when ruling on a motion to dismiss, e.g. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), from the remainder of the FAC.9 9 In Iqbal, allegations that defendants ‘‘knew of, condoned, and willfully and maliciously agreed to subject" plaintiff to harsh conditions "solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest," and that one of the defendants was the ‘‘principal architect’’ of that policy, and another defendant was ‘‘instrumental’’ in adopting and executing it, were held to be nothing more than a formulaic recitation of the elements" of a discrimination claim. Id. at 1951. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 14 of 30 15 C. Immunities are Applicable to Plaintiff's Statutory Claim. Plaintiff suggests at page 29 of its response that absolute and qualified immunity "are tied to a specific statute" and notes that it has not brought a claim under §1983, but rather pursuant to the SCA. Plaintiff argues that defendants have not cited any authority that Congress intended to include common-law defenses available in 1871 to a statute that it enacted in 1986, which has nothing to do with §1983. Plaintiff's historical argument rests on a faulty premise. The Supreme Court has noted that: [W]hen the issue of prosecutorial immunity under § 1983 reached this Court in Imbler, the Court did not simply apply the scope of immunity recognized by common-law courts as of 1871 but instead placed substantial reliance on post–1871 cases extending broad immunity to public prosecutors sued for common-law torts. Rehberg v. Paulk, 132 S.Ct. 1497, 1504 (2012). More to the point of this case, in this Circuit absolute and qualified immunity are not limited to §1983 claims as plaintiff suggests, as these immunities have been extended to other statutes beyond § 1983. See, e.g., Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998) ("The fact that the prosecutions in some sense may have rested on violations of the Federal Wiretap Act and its Indiana counterpart makes no difference."); Narducci v. Moore, 572 F.3d 313, 323 (7th Cir. 2009)("This circuit, like a few others recognizes qualified immunity as a defense to a lawsuit under Title III."). As the Eleventh Circuit noted—in a case cited in Narducci—the concerns behind extending immunities available in § 1983 cases to the same kinds of defendants are the same in statutory cases: avoiding the cost of distracting those officials from the performance of their statutory duties. Tarpley v. Collins, 211 F.3d 1210, 1216 (11th Cir. 2000), citing Blake v. Wright, 179 F.3d 1003, 1013 (6th Cir. 1999) ("We fail Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 15 of 30 16 to see the logic of providing a defense of qualified immunity to protect public officials from personal liability when they violate constitutional rights that are not clearly established and deny them qualified immunity when they violate statutory rights that similarly are not clearly established.").10 In any event, there is no general basis to restrict any otherwise available immunity to constitutional cases. Indeed, qualified immunity protects governmental officials who do not violate "clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added); see also Kalina v. Fletcher, 118 S.Ct. 502, 507 (1997) ("The policy considerations that justified the common-law decisions affording absolute immunity to prosecutors when performing traditional functions applied equally to statutory claims based on the of the same functions."). Moreover. there is nothing in the text or legislative history of the SCA suggesting that Congress intended to render the doctrines of absolute or qualified immunity inapplicable to the claims under the SCA. At the time of §1983's enactment, the immunity of legislators and judges was then well established and "presume[d] that Congress would have specifically provided had it wish to abolish the doctrine." Pierson v. Ray, 386 U.S. 547, 555 (1967); accord Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)("Certain immunities were so well established… that we presume that Congress would have specifically so provided had it wished to abolish them.") The same is true 10 Plaintiff argues (Response p. 30 n. 12) that these decisions are wrong, and instead urges reliance on Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1998). Tarpley and Blake rejected Berry's holding, though, and the Seventh Circuit, relying on Tarpley, seemed to agree. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 16 of 30 17 with the SCA. Congress was well aware of the doctrines of absolute and qualified immunity when it enacted the SCA and did not abrogate their availability as to claims brought for the alleged violation of the SCA. Accordingly, absolute and qualified immunity are available in connection with plaintiff's SCA claim. While rejecting policy arguments made in opposition to the availability of qualified immunity in statutory cases, Tarpley also rejected the idea as a matter of statutory interpretation. The Eleventh Circuit noted that it had previously rejected the suggestion that the existence of a good faith defense in the Fair Housing Act abrogated the defense of qualified immunity as to claims brought under that Act. 211 F.3d at 1214, citing Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290 (11th Cir. 1998). The Tarpley court recalled that in Gonzalez it had "cited eleven federal appeals court decisions holding that qualified immunity was available as a defense to claims under eight different federal statutes." Tarpley, 211 F.3d at 1215, n.9. Because "qualified immunity is so well-rooted in our jurisprudence" Tarpley concluded that "only a specific and unequivocal statement of Congress can abolish the defense." 211 F.3d at 1216. Plaintiff identifies no such statement with respect to the SCA. IV. GOOD FAITH DEFENSE ESTABLISHED Section 2707(e) provides that a "good faith reliance" on "a court warrant, or order, grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under 2703(f) of this title" is a "complete defense to any civil or criminal action brought under this chapter or any other law." 18 U.S.C. § Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 17 of 30 18 2707(e)(1); Chole SAS, 2012 WL 7679387 at *3-4 (good faith reliance on a court order warranted Rule 12(b)(6) dismissal). At page 45 of its Response plaintiff repeats its now well-worn "court of competent jurisdiction" argument, suggesting defendants did not objectively act in good faith in reliance on Judge Kluka's issuance of the warrant. But plaintiff does not dispute that: 1) the Wisconsin legislature statutorily authorized the issuance of a search warrant to an ECS or RCS provider, Wis. Stat. 968.375 3(a), 2) state warrant procedures were followed, even as alleged by plaintiff; and 3) the Wisconsin Supreme Court has held that search warrants can be issued in a John Doe proceeding. Plaintiff also "does not challenge the evidentiary basis" for the warrant in question. Response at 44. Accordingly plaintiff proffers no legal or factual basis from which to claim that defendants did not objectively act in good faith in reliance on all those factors, as well as Judge Kluka's issuance of the warrant itself. Much of plaintiff's remaining argument on this point is devoted to suggesting that the Seventh Circuit did not adopt an objective test of good faith in McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006), as the Ninth Circuit described McCready's holding in Sams v. Yahoo! Inc., 713 F.3d 1175, 1180 (9th Cir. 2013). While the Ninth Circuit in Sams concluded that §2707(e) contains both an objective and subjective element, id., under either a purely objective approach or one that combines objective and subjective elements the defense is established as a matter of law. As to Sams' subjective element, the Ninth Circuit held a "defendant may not benefit from the good faith defense, however, if the defendant actually knew the subpoena (or other process) Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 18 of 30 19 was invalid under the applicable law." Id. at 1181 (emphasis in original). Here no such allegation would be plausible given that no court has ever held that the issuance of a search warrant in the context of a John Doe proceeding violated the SCA and that search warrants are authorized in John Doe proceedings. So plaintiff cannot establish that any of the defendants actually knew the use of the search warrant in question would violate the SCA.11 The fact that preservation letters were sent, or that at the request of an attorney from Google a sentence was added to a warrant indicating that the warrant sought information that was preserved pursuant to §2703(f) (FAC, ¶65), does not mean the warrant was invalid (or was rendered invalid) under the SCA, the Fourth Amendment or under state warrant procedures (especially since §2703(f) is specially mentioned in §2707(e)(1)). Nor do those allegations establish actual knowledge on the part of any of the defendants that the warrant was invalid under Wisconsin law. Here the defendants acted in good faith in seeking the search warrant, even as plaintiff alleges those events, and plaintiff's SCA claim should be dismissed. V. ABSOLUTE IMMUNITY BARS PLAINTIFF'S SCA CLAIM AGAINST THE PROSECUTORS Plaintiff's challenge to absolute immunity rests on the mistaken notion that it can make immunity disappear simply by calling the Prosecutors' actions "investigatory." That was never the line, even after Buckley. That case explains that "[a] prosecutor's 11 The district court decision in Freedman, which plaintiff also cites at page 44 of its response, involved an unsigned warrant, so it bears no factual similarity to the case at bar, where the defendants followed state warrant procedures and obtained a lawful warrant signed by a judge. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 19 of 30 20 administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity. 509 U.S. at 273 (emphasis added). Accordingly absolute immunity necessarily extends beyond court functions to protect a prosecutor's "investigatory functions" that do relate to "preparation for the initiation of a prosecution or for judicial proceedings." Later Supreme Court decisions confirm that understanding. Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009) (prosecutor's "administrative obligations" that "require legal knowledge and the exercise of related discretion" protected by absolute immunity, "unlike administrative duties concerning, for example, workplace hiring, payroll administration, [and] the maintenance of physical facilities"). In Rehberg v. Paulk, 132 S.Ct. 1497 (2012), a unanimous Court held that a grand jury witness was absolutely immune for his testimony, which could not be circumvented by claiming the witness "conspired to present false testimony" or by "using evidence of the witness' testimony to support any other §1983 claim." Id. at 1506. "Were it otherwise," the Court observed, a "civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves." Id. Rehberg went on to explain that: In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity that is so easily frustrated. Id. at 1506-07(emphasis added). Rehberg makes it clear that the Buckley distinction is not where Plaintiff would find it. Notably, Rehberg did not limit its holding to interactions between a grand jury witness and a prosecutor that occur after the prosecutor had made Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 20 of 30 21 a decision to indict, or that take place after probable cause exists. Merely labeling a prosecutor's actions investigatory, as plaintiff attempts in its response, will not defeat absolute immunity. A prosecutor need not be in the midst of a judicial proceeding for absolute immunity to attach. Van de Kamp noted that "absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding or appears in court to present evidence in support of a search warrant application." 555 U.S. at 343 (citations omitted; emphasis added); see also Imbler v. Pachtman, 424 U.S. 409, 431, n.33 (1976) (absolute immunity covers "action preliminary to the initiation of a prosecution and actions apart from the courtroom"). Indeed, a search warrant may be sought long before probable cause to charge exists or even before a decision to indict has been made. Yet Kalina v. Fletcher, 522 U.S. 118, 126 (1997), applied absolute immunity to that function. This point was made by Justice Kennedy in his Buckley opinion, which the Rehberg Court later adopted, 132 S.Ct. at 1506. He wrote that a "probable cause demarcation between when conduct can be considered absolutely immune and when it cannot… creates the true anomaly," 509 U.S. at 286 (Kennedy, J., concurring and dissenting), and that it would be "hard to accept any line that can be so easily manipulated…to avoid a dismissal on absolute immunity grounds by throwing in an allegation that the prosecutor acted without probable cause." Id. at 287. Given the Court's unanimous endorsement in Rehberg of that very point, plaintiff cannot evade immunity simply by alleging that probable cause was absent. Rehberg clarified Buckley's application and its reach. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 21 of 30 22 Plaintiff's arguments against absolute immunity conflate two distinct strands of "functional-approach" jurisprudence. Plaintiff does not contest that prosecutors enjoy absolute immunity when they are performing prosecutorial functions or duties. Accordingly, whenever a prosecutor appears at or prepares for a judicial proceeding, absolute immunity is applicable. Thus, absolute immunity is triggered when a prosecutor appears before a grand jury, Bianchi, 818 F.3d at 318 , or applies for an arrest warrant, Thomas, 580 F.3d 633, 639 (7th Cir. 2009), or a search warrant, Burns v. Reed, 500 U.S. 478, 492 (1991). Indeed, immunity is available even for actions taken in a non- criminal matter. Thomas, 580 F.3d at 638-39 ("This is so whether the whether their 'prosecutions' are civil or criminal or merely, as in the case of unpaid parking tickets in Peoria, administrative."). Plaintiff proffers no legitimate argument why absolute immunity's functional approach can be applied to an administrative proceeding for unpaid parking tickets, as in Thomas, but not in a John Doe proceeding that can result in felony convictions. "[A]pplying for a warrant is part of the prosecutor's role as an advocate, and that means it belongs to the 'judicial phase' of criminal justice." Thomas, 580 F.3d at 639; see also Srivastava v. Newman, 12 Fed. Appx. 369, 372 (7th Cir. 2001) (interviewing affiant and preparing affidavit "is the sort of preliminary pre-prosecution activity that directly relates to the advocate's role and warrants absolute immunity"). Plaintiff's arguments against absolute immunity ignore not only what the prosecutors were doing, but the unique procedural context in which they were doing it. Instead plaintiff would apply precedent that addresses actions taken by prosecutors before any judicial proceeding occurs to negate the immunity applicable when a Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 22 of 30 23 prosecutor is involved in some sort of judicial proceeding. In Buckley, the alleged activity occurred months before a grand jury was even empaneled. And the Court in Buckely was careful in limiting the reach of its decision to situations where the prosecutor's actions were "entirely investigative" in nature. 509 U.S. at 274. Here, plaintiff does not contend that defendants took any action before the John Doe II proceeding was initiated, like the prosecutors did in Buckley before the grand jury was empaneled. Therefore, Buckely provides no basis to avoid absolute immunity in the case at bar.12 Finally, plaintiff argues that defendants Robles and Landgraf, both prosecutors, signed and notarized at least one of the search warrant applications at issue in this lawsuit (FAC ¶¶7, 65), and argues that a prosecutor who acts as a complaining witness by signing a search warrant affidavit is not immune following Kalina. Plaintiff ignores, however, that the Supreme Court in Rehberg rejected the complaining witness exception to absolute immunity for trial or grand jury testimony from Malley v. Briggs and Kalina. Rehberg, 132 S.Ct. at 1507-08. When in rare instances it is unclear if a prosecutor was functioning as an advocate or as a witness, the Seventh Circuit has nonetheless held the prosecutor enjoys absolute immunity, because both functions are immune. See Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011("It is unclear from the record whether the special 12 The sole legal theory on which plaintiff's SCA claim is based involves seeking a search warrant from a Wisconsin circuit court judge in the context of a John Doe proceeding. Yet much of plaintiff's response to absolute immunity addresses alleged conduct by unspecified defendants, such as determining the targets of electronic search warrants or evidence review and retention. These arguments have nothing to do with the single issue presented in the FAC for which the prosecutors submit they are entitled to absolute immunity. Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 23 of 30 24 prosecutor was acting in a prosecutorial role or as a witness testifying about her investigation undertaken by appointment of the court. Absolute immunity shields a person acting in either capacity—whether as a witness or as a prosecutor—from § 1983 liability when performing her duties in the judicial process.") Plaintiffs attempt to dodge absolute immunity fails as a result, and its damages claims against the prosecutors should be dismissed. VI. QUALIFIED IMMUNITY BARS PLAINTIFF'S SCA CLAIM AGAINST ALL DEFENDANTS Try as it might, plaintiff cannot point this Court to any decision of the U.S. Supreme Court or the Seventh Circuit that even remotely suggests that liability under the SCA can be premised on the theory that the execution of a search warrant issued by a judge of a state court of record authorized under applicable state law to issue search warrants violated the SCA because of the type of proceeding over which the judge was presiding when she did so. In tacit recognition of this problem plaintiff makes the only argument that it can, claiming that in rare instances a case "on all fours" may not be necessary to defeat qualified immunity but acknowledging that this scenario is generally limited to situations where the alleged violation is "patently obvious." Response at p. 39. As an initial matter, whether the plaintiff's formulation of this supposed exception is correct is in some doubt. As the Supreme Court pointed out only last week, "[w]hile this Court's case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 24 of 30 25 question beyond debate. In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law." White v. Pauly, No. 16-67, slip op. at 6 (U.S. S. Ct. January 9, 2017) (per curiam) (citation and internal quotation marks and brackets omitted). And the Court warned that the presentation of an argument or underlying facts that are "unique" represents a red flag for immunity that "alone should have been an important indication" that "conduct did not violate a 'clearly established' right." Id. at 7. Plaintiff's theory that a judge otherwise authorized to issue search warrants can't do so in a John Doe proceeding without violating the SCA because it is not then sitting in a "court" states a claim for a violation of that statute that is neither "clearly established" nor "patently obvious." As noted, no case so holds (or even comes close), much less one from the Supreme Court or the Seventh Circuit, and plaintiff does not really claim otherwise. Nor would it be obvious, patently or otherwise, that a judge who could issue a search warrant for e-mails in a criminal proceeding in the morning without violating the SCA would be doing anything different in issuing the same warrant in a John Doe proceeding in the afternoon. Put another way, given Wisconsin's warrant procedures and its statutory and Supreme Court law permitting John Doe judges to issue search warrants, it is (in addition to being wrong, as explained above) far from "obvious" that a search warrant issued by a Wisconsin circuit court judge presiding over a John Doe proceeding was not sitting in the same court she would have sat in at any other time. Certainly plaintiff has not articulated a theory of "obviousness" that rises to the level of "patently obvious" as formulated in prior caselaw. See, e.g., Vance v. Rumsfeld, 653 F.3d Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 25 of 30 26 591, 610 (7th Cir. 2011) (plaintiffs "were interrogated with physical violence and threats, were kept in extremely cold cells without adequate clothing, were continuously deprived of sleep, and were often deprived of food, clothing, and medical care"), superseded on rehearing en banc, 701 F.3d 193 (7th Cir. 2012); see also Hope v. Pelzer, 536 U.S. 730, 741-42 (2002) (chaining inmate to hitching post in hot sun violated right that was clearly established, possibly by general Eight Amendment cases but also by specific precedent and applicable regulation). Accordingly plaintiff's claims are barred by qualified immunity as to all defendants. VII. EX PARTE YOUNG IS INAPPLICABLE TO PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF Plaintiff suggests that under Ex parte Young, 209 U.S. 123 (1908), it is entitled to injunctive relief that would direct defendants to return the seized materials to it. First for the reason explained above, plaintiff has not stated a violation of the SCA. Therefore, injunctive relief is not available. Even if plaintiff had stated a claim, and was able to side-step defendants' good faith arguments, the purported relief plaintiff seeks faces another hurdle. The John Doe II proceeding in connection with which the warrant it challenges was issued is closed, and the Wisconsin Supreme Court has ordered that all evidence be turned over to it, an order with which defendants have now complied. Accordingly defendants no longer have possession of the materials in question. Plaintiff's suggestion that Ex parte Young nonetheless applies here because of some continuing violation of federal law (Response at p. 48-49) is meritless for the same reason. As noted in Defendants' opening brief, the John Doe I proceeding was closed Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 26 of 30 27 after 6 convictions were obtained, and the order closing the John Doe II proceeding has been affirmed by Wisconsin's highest court. In the absence of any ongoing proceeding, the notion that there is an ongoing chance of more John Doe search warrants for e-mails being issued in one is nil. For these reasons plaintiff's reliance on Vickery v. Jones, 100 F.3d 1334, 1346-47 (7th Cir. 1996), is misplaced. Where in that case the defendants had not "clearly stated their intention to permanently cease" the prohibited practice, id. at 1347, defendants have unquestionably "permanently ceased" participating in the John Doe II proceeding (except for defending against lawsuits like plaintiff's). Plaintiffs ask the Court "to enjoin Defendants from disclosing its records… and from seizing its records … in violation of the SCA in the future." Response at p.48. The fact that defendants no longer have the John Doe II records should render moot the first part of plaintiff's request. Plaintiff does not elaborate on the second part. The relief requested there, asking that defendants be ordered not to violate the SCA in the future, would be tantamount to asking that they be ordered to follow the law, and in any event seems unlikely in the absence of any John Doe proceeding. Such a request is too vague to be either enforced or enforceable. If by its request plaintiff means to ask the Court to limit the defendants' ability to pursue future criminal investigations or prosecutions, in John Doe proceedings or otherwise, it runs afoul of Younger v. Harris, 401 U.S. 37, 44-51 (1971). In that case the Supreme Court emphasized the limited availability of Ex parte Young to enjoin state court criminal proceedings. Younger explained that "[t]he underlying reason for restraining courts of equity from interfering with criminal prosecutors is reinforced by Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 27 of 30 28 an even more vital consideration, the notion of 'comity,' that is the proper respect for state functions." Id. at 44. See also O'Shea v. Littleton, 414 U.S. 488, 500-01 (1974) (holding abstention was required where the injunctive relief would essentially require "an ongoing federal audit of state criminal proceedings"). Plaintiff has conceded that allegations of past violations of federal law do not trigger Ex parte Young, and its FAC fails plausibly to allege any facts that suggest a future seizure of their records in any future John Doe proceeding is imminent, or even likely. The analysis of this issue involves a "straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645, (2002). It is well settled that a plaintiff must allege facts that plausibly state a claim, even one for equitable or injunctive relief. Iqbal, 556 U.S. at 678. To invoke Article III jurisdiction, a plaintiff in search of prospective injunctive relief must show a significant likelihood and immediacy of sustaining some direct injury. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210–11 (1995); City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Lyons involved a claim in which it was alleged that police officers had stopped the plaintiff and applied a chokehold without provocation. Plaintiff sought an injunction against further use of chokeholds unless the police were threatened with deadly force. The Court held that Lyons lacked standing to seek injunctive relief because he could not show a real or immediate threat of future harm: "That Lyons may have been illegally choked by the police on October 6, 1976… does nothing to establish a real and immediate threat that he would again be stopped for a Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 28 of 30 29 traffic violation . . . by an officer . . . who would illegally choke him into unconsciousness without any provocation or resistance on his part." 461 U.S. at 105. Here, there is no violation of the SCA in the first instance, and there is not a single fact pled in the FAC which plausibly supports the likelihood of a future SCA violation. Accordingly this Court should hold that plaintiff's claim for injunctive relief is barred by the Eleventh Amendment. The primary equitable relief that plaintiff seeks, the return of seized records, is retrospective in nature, which demonstrates that it is barred by Ex parte Young. The return of the seized records relates solely to an alleged prior wrong – not a remedy to prevent future misconduct. The "overriding question" to determine whether relief sought is prospective or not is "whether the relief will 'remedy future rather than past wrongs.'" Elephant Butte Irr. Dist. of New Mexico v. Dep't of Interior, 160 F.3d 602, 611 (10th Cir. 1998) (citations omitted). "[B]y its very nature, a past violation tends to implicate retroactive, as opposed to prospective relief." Peterson v. United States, 2003 WL 22053622 (N.D. Ill. Sept. 2003). The request for the return of records is nothing more than an effort to undo an alleged harm by injunction, which when aimed at official defendants is barred by Ex parte Young. See, e.g., Heabler v. Madigan, 2013 WL 5405679, *7 (N.D. Ill. Sept. 24, 2013) ("At bottom, Heabler's feeble facial challenge appears to be little more than an effort to mask his real aim: to undo how the IPDA was applied to him… Heabler's claim fails to satisfy the Ex parte Young requirement for prospective relief of an ongoing violation."). The court in Heabler also noted that Ex parte Young was inapplicable because the Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 29 of 30 30 plaintiffs were "unable to identify future disciplinary proceedings threatened against him; what he complains of is the lingering effect of" the alleged prior misconduct. Id. at *8. Because plaintiff is "merely asserting violations of federal law from a period of time in the past… there is no 'ongoing or threatened violation of federal law, and the Ex parte Young doctrine is not applicable to this case." Sierakowski v. Ryan, 1999 WL 286290, *2 (N.D. Ill. April 27, 1999), aff'd 223 F.3d 440 (7th Cir. 2000); Sonnleitner v. York, 304 F.3d 704, 718 (7th Cir.2002) (holding official capacity claims barred by the Eleventh Amendment where the underlying violation could not reasonably be construed as ongoing). As a result the court should dismiss plaintiff's request for injunctive relief. WHEREFORE, the defendants FRANCIS SCHMITZ, JOHN CHISHOLM, DAVID ROBLES, BRUCE LANDGRAF, KEVIN KENNEDY, SHANE FALK and JONATHAN BECKER, pray that this Honorable Court grant their motion to dismiss and enter judgment in their favor thereon. Dated this 13th day of January, 2017. /s/Michael P. Russart One of the Attorneys for Defendants FRANCIS SCHMITZ, JOHN CHISHOLM, BRUCE LANDGRAF, DAVID ROBLES, KEVIN KENNEDY, SHANE FALK AND JONATHAN BECKER HINSHAW & CULBERTSON LLP 100 East Milwaukee Avenue, Suite 2600 Milwaukee, Wisconsin 53202-4115 Telephone: 414-276-6464 Fax: 414-276-9220 E-mail: mrussart@hinshawlaw.com Case: 3:16-cv-00539-wmc Document #: 83 Filed: 01/13/17 Page 30 of 30