POLZIN v. GAGE (February 18, 2011)

Gerald Polzin pleaded guilty in 2005 to sexual abuse of two teenage boys. In connection with his presentence investigation, Polzin claimed he was himself a victim of sexual abuse as a boy at the hands of his uncle, an Appleton, Wisconsin police officer. The prosecutor asked the Wisconsin Department of Justice to investigate. The Appleton Police Department declined to conduct its own investigation. Although the prosecutor expressed doubts about the allegations, the trial judge considered it a mitigating factor in Polzin's sentence. Polzin a) filed a state civil suit against Appleton and several police officers which was resolved against him and affirmed on appeal, b) took an appeal from his sentence which was also affirmed on appeal, c) brought a state motion for postconviction relief, and d) brought a § 1983 suit against the prosecutor, the trial judge, the court reporter and the state investigators. In the § 1983 case, he alleged the falsification of evidence and the fabrication of the sentencing transcript. His motion for postconviction relief was pending when he filed his § 1983 claim. He asked the district court to stay the case because of the Supreme Court’s holding in Heck that a § 1983 challenge to a conviction cannot be made unless the conviction has been invalidated. Judge Griesbach (E.D. Wis.) denied the request for a stay, concluding that Polzin was not faced with a statute of limitations problem like Wallace. His claims were akin to malicious prosecution, which do not accrue until the prosecution terminates in his favor. The court therefore dismissed the complaint as barred by Heck. On a motion for reconsideration, however, the court added that Polzin also failed to state a claim on the merits. Specifically, the court ruled that the claims against the court reporter and trial court judge were frivolous in that neither had a role in the investigation and that his claims regarding the investigation did not amount to a constitutional violation. Polzin appeals.

In their opinion, Judges Coffey, Flaum, and Ripple affirmed in part and vacated and remanded in part. The Court held (for the first time) that a district court can ignore the Heck doctrine and proceed to the merits since Heck is not jurisdictional. On the merits, the Court concluded that a) the judge had absolute immunity with respect to the claims of falsifying the transcript, b) the court reporter is not liable because the transcript attached to the complaint showed that Polzin's allegations about the transcript were actually wrong, and c) the prosecutor is entitled to absolute immunity either as a prosecutor or as a witness at the sentencing hearing. Finally, the Court did point out that the district court did not specifically address Polzin's claims against the prosecutor and state investigators in their investigatory role. It remanded for further explanation or consideration of that claim.