Opinion
21-1221
10-20-2021
ANDREW JOHNSTON, Plaintiff-Appellant, v. FRANCES WARD and REBECCA R. PALLMEYER, Defendants-Appellees.
NONPRECEDENTIAL DISPOSITION
Submitted October 20, 2021 [*]
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 20-cv-07247 Andrea R. Wood, Judge.
Before FRANK H. EASTERBROOK, Circuit Judge DANIEL A. MANION, Circuit Judge DIANE P. WOOD, Circuit Judge
ORDER
Andrew Johnston, a federal prisoner, appeals the dismissal of his civil suit against the judge who presided over his criminal trial and her court reporter. He alleges that they violated his constitutional rights during the proceedings. The district court dismissed the complaint as barred by Heck v. Humphrey. 512 U.S. 477 (1994). We affirm.
After we upheld his conviction for attempted bank robbery, see United States v. Johnston, 814 Fed.Appx. 142, 144 (7th Cir. 2020), cert. denied, 141 S.Ct. 1257, 1257-58 (2021), Johnston brought this action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the presiding judge and her court reporter. He alleged that during his criminal trial, the judge ordered the court reporter to alter the proceedings' transcripts by omitting key portions of testimony favorable to him. These omissions, he added, violated his Fifth Amendment right to due process and reflected judicial bias that entitled him to acquittal as a matter of law.
At screening, the district court determined that the suit was premature because Johnston's claim, if true, would necessarily invalidate his conviction. See Heck, 512 U.S. at 487. To the extent that any omissions in the transcript resulted from the judge's rulings, the court added that the doctrine of judicial immunity conferred absolute immunity on her.
On appeal, Johnston presses his Bivens claim without any discussion of the district court's Heck analysis. We have long held that similarities between Bivens actions and suits under 42 U.S.C. § 1983 warrant the application of Heck to Bivens claims. See Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997). A ruling that a judge was biased would "necessarily imply the invalidity" of a prior conviction. Heck, 512 U.S. at 487; Edwards v. Balisok, 520 U.S. 641, 647 (1997). Unless and until his conviction is set aside, Johnston may not seek damages for alleged judicial bias. Savory v. Cannon, 947 F.3d 409, 417-18 (7th Cir. 2020) (en banc).
Johnston's petition for habeas corpus relief has been denied, and his appeal is pending. Johnston v. United States, No. 21 C 02720, 2021 WL 2550071, at *1 (N.D. Ill. June 22, 2021), appeal docketed, No. 21-2257 (7th Cir. July 8, 2021).
One final matter warrants discussion. In our December 2019 order denying Johnston's petition for a writ of mandamus, we warned Johnston-for a third time- that "further frivolous filings may result in the imposition of sanctions and a filing bar." United States v. Johnston, No. 19-3376 (7th Cir. Dec. 13, 2019). This appeal is frivolous. Johnston knew when he appealed that the district court had found his claim Heck-barred, but he appealed anyway without even addressing Heck in his brief. We order Johnston to show cause within fourteen days why he should not be sanctioned $1,000 for filing a frivolous appeal, the nonpayment of which will result in this court directing the clerks of all federal courts in this circuit to return unfiled any papers submitted by him or on his behalf until he pays the sanction in full. See Support Sys. Int'l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).
AFFIRMED
[*] We have agreed to decide this case without oral argument because the brief and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See Fed. R. App. P. 34(a)(2)(C).