                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

Nos. 02-4296 & 03-1021
MARK A. NISENBAUM,
                                         Plaintiff-Appellant,
                                             Cross-Appellee,
                             v.


MILWAUKEE COUNTY, et al.,
                                      Defendants-Appellees,
                                          Cross-Appellants.
                       ____________
          Appeals from the United States District Court
               for the Eastern District of Wisconsin.
     No. 99-C-1232—Patricia J. Gorence, Magistrate Judge.
                       ____________
      ARGUED JUNE 2, 2003—DECIDED JUNE 25, 2003
                     ____________


 Before POSNER, EASTERBROOK, and WILLIAMS, Circuit
Judges.
  EASTERBROOK, Circuit Judge. At the end of 1998, Mark
Nisenbaum lost his job as a security supervisor at
Milwaukee County’s Department of Public Works. Invok-
ing 42 U.S.C. §1983, he sued everyone in sight: the
County, the County Executive (F. Thomas Ament), the
Department’s Director of Facilities Management (Daryl
Bzdawka) and his deputy (Lawrence Lauer), its Human
Resources Manager (Doris Harmon), and his immediate
supervisor (Cortez VanFelder). According to Nisenbaum, he
2                                   Nos. 02-4296 & 03-1021

was sacked because he ran for public office (County Clerk)
in the fall of 1998. He contends that the discharge violated
his rights under the Constitution’s first amendment,
applied to the states and their subdivisions through the
fourteenth amendment. All parties agreed that a magistrate
judge could preside. See 28 U.S.C. §636(c). She granted
summary judgment in favor of each defendant other than
Bzdawka, who prevailed at a jury trial. We must re-
solve cross-appeals: Nisenbaum contends that the court
should hold a second trial at which Lauer, Harmon, and
VanFelder would be defendants; defendants contend that
Nisenbaum’s claims against them are frivolous and his
manner of prosecuting the case vexatious, so that they
are entitled to sanctions.
  Nisenbaum’s job was to superintend security at the
Milwaukee County Courthouse complex. After the
County directed the Department of Public Works to pro-
vide security at additional facilities, increase the size of
the security staff at each, and make greater use of com-
puters in providing for security, Bzdawka decided that
this would be best handled if Nisenbaum’s position were
replaced with a “security coordinator” having more re-
sponsibilities, better qualifications, and a higher salary. In
June 1998 Bzdawka prepared a budget that replaced
Nisenbaum’s slot with a new position dubbed “security
coordinator.” Under the County’s policies, Nisenbaum
would be entitled to apply for that job but could get it
only if he prevailed in an open competition. The County
Executive transmitted the budget to the County Board,
which enacted it. A month or two after Bzdawka wrote
out his budget request, Nisenbaum entered the race for
County Clerk. He lost; his job was abolished on schedule;
and he did not apply for the new coordinator position, so
he was laid off. The County’s Department of Human
Resources prepared a list of people eligible for the new
position. Local law required the Department of Public
Nos. 02-4296 & 03-1021                                   3

Works to choose someone from that list, which did
not include Nisenbaum. He does not contend that the
Department of Human Resources omitted him from the
list for an improper reason; since he did not apply, no
such argument would be tenable. It might be possible, if
barely, to say that Bzdawka disapproved of his campaign
and on that account discouraged him from applying for
the coordinator position—though this would be a stretch, as
the Department of Human Resources had a free hand
to make its own list. At all events, it is not possible to
see how any of the other defendants could be liable for
the fact that Nisenbaum was not on the list and thus
was ineligible for the new position.
   What Nisenbaum says on appeal is that in fall 1998
Lauer, Harmon, and VanFelder knew that he was run-
ning for office (as they concede) and that a jury could
infer that they also knew his platform (honesty and hard
work in the County Clerk’s office). But what difference
could that knowledge have made? By the time they learned
of Nisenbaum’s candidacy, the die had been cast. They
had nothing to do with the County Board’s decision to
eliminate his slot or with the fact that he was not on the
list for the coordinator’s position. It is not enough for a
plaintiff to show that a given defendant knows of pro-
tected speech; the plaintiff also must show that the
speech, and the defendant in question, played a causal
role in the adverse decision. See Mt. Healthy City Board
of Education v. Doyle, 429 U.S. 274 (1977); Vukadinovich
v. North Newton School Corp., 278 F.3d 693, 699 (7th
Cir. 2002). Nisenbaum did not establish any material
dispute about these defendants’ role in the causal chain:
they had none. Indeed, it is hard to see why even Bzdawka
should have been put through a trial. His budget had
been prepared at least a month before Nisenbaum threw
his hat into the ring—and Nisenbaum does not contend
that he had told Bzdawka (or anyone else) before July
4                                   Nos. 02-4296 & 03-1021

that he was going to run. At oral argument, Nisenbaum’s
lawyer said that he had run for office twice before. That
he had remained on the payroll makes it even harder to
perceive any connection between the third candidacy
and the end of his job. It is not as if his platform the
third time around were controversial—who is against
honesty and hard work? A campaign might imply that
“the incumbent” must be the opponent of good govern-
ment, but Nisenbaum did not work in the Clerk’s office, so
his candidacy did not implicitly criticize Bzdawka or his
superiors in the bureaucratic hierarchy.
  Perhaps one could say that even in June 1998, when
preparing his budget, Bzdawka was out to get rid of
Nisenbaum. But it would not be possible to think that the
reason was a political campaign that lay in the future.
Time’s arrow points in one direction; the reason had to
be some event preceding the budget’s preparation. It is
not hard to perceive one. During 1997 Nisenbaum submit-
ted a forged document that enabled him to take seven
weeks’ paid leave under the workers’ compensation pro-
gram, even though he was fit to work. He was caught
and fired. The County’s civil service authority converted
the discharge to a lengthy, unpaid suspension. Bzdawka,
Lauer, and VanFelder soured on Nisenbaum and had testy
relations with him thereafter. Maybe the impetus for
the reorganization of 1998 was to get rid of someone who
had lost his superiors’ confidence. But that view of mat-
ters would not entitle Nisenbaum to relief under §1983,
which does not create remedies for the evasion of local civil-
service systems. Proof that the ostensible reason for
the reorganization was not the real one does not imply
that the real reason was forbidden by federal law. See
Visser v. Packer Engineering Associates, Inc., 924 F.2d 655,
657 (7th Cir. 1991) (en banc). No reasonable jury could
find that the real reason for a decision taken in June was
a political campaign launched in August.
Nos. 02-4296 & 03-1021                                   5

   Thus we arrive at the cross-appeal, by which defen-
dants seek sanctions for frivolous litigation. Potential
bases of that relief include 42 U.S.C. §1988, which allows
prevailing defendants to recover attorneys’ fees if the
litigation was frivolous, see Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978); Fed. R. Civ. P. 11(c), which
authorizes sanctions for complaints filed without reason-
able investigation; Fed. R. Civ. P. 37, which authorizes
sanctions for misconduct in discovery; and 28 U.S.C. §1927,
which permits courts to penalize an attorney “who . . .
multiplies the proceedings in any case unreasonably
and vexatiously”. Defendants have invoked all of these,
and with considerable justification.
  Take, for example, the claim against Milwaukee County.
A unit of municipal government may be held liable under
§1983 only for its own policies, not for the improper acts
of its agents and employees. See Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978).
Nisenbaum did not allege, and has never argued, that
Milwaukee County has a policy of eliminating civil-
service employees who run for office. What is more, if the
County did have such a policy, it would be entirely lawful.
See Broadrick v. Oklahoma, 413 U.S. 601 (1973) (“baby
Hatch Acts” forbidding civil-service employees to engage
in politics are valid); Clements v. Fashing, 457 U.S. 957
(1982) (states may require employees to resign in order to
run for a different position). A municipality with a local
version of the Hatch Act or a resign-to-run policy must
implement that rule evenhandedly; it may not require
Democrats to resign while allowing Republicans to keep
their civil-service positions as fallbacks. But Nisenbaum,
having omitted any allegation that Milwaukee County acted
pursuant to any policy, necessarily failed to allege that
the County engages in viewpoint discrimination as a mat-
ter of policy. The claim against the County thus has
been frivolous from the get-go, sanctionable under Rule
11(c) and a warrant for fee-shifting under §1988.
6                                  Nos. 02-4296 & 03-1021

   Party-initiated sanctions under Rule 11 depend on the
filing of a motion under Rule 11(c)(1)(A). This motion must
be served, but it may not be filed with the court until
the opposing party has had three weeks to decide wheth-
er to withdraw the supposedly offending pleading. Only
if the adverse party maintains its position may the movant
inform the court and request sanctions. When denying
the motion under Rule 11, the magistrate judge stated
that defendants had failed to comply with Rule 11(c)(1)(A).
In a footnote, however, the magistrate judge revealed
that any noncompliance was technical: the defendants
sent Nisenbaum’s lawyer a “letter” or “demand” rather
than a “motion.” Before turning to the court, defendants
alerted Nisenbaum to the problem and gave him more
than 21 days to desist; he decided to press on. Defendants
have complied substantially with Rule 11(c)(1)(A) and are
entitled to a decision on the merits of their request for
sanctions under Rule 11.
   Nisenbaum’s claim against Ament, the County Executive,
is no stronger than his claim against the County. Monell
does not protect Ament, but the doctrine of legislative
immunity does. Ament’s only role was transmitting a
budget from the Department of Public Works to the
County Board. The Board enacted the budget that elimi-
nated Nisenbaum’s position. Bogan v. Scott-Harris, 523
U.S. 44 (1998), holds that state and local officials may
not be mulcted under §1983 on account of introducing,
voting for, or signing legislation. Ament asked to be dis-
missed on the authority of Bogan; Nisenbaum ignored
the subject (as he has disdained to discuss Bogan in his
appellate briefs) and contended that Ament should re-
main a party on the off-chance that he knew of Bzdawka’s
supposed antipathy to his run for office. An off-chance
does not satisfy Rule 11 (investigation must precede
litigation); but even if Ament knew about Nisenbaum’s
politics and opposed his political stance, Ament still would
Nos. 02-4296 & 03-1021                                     7

be immune from damages liability. Burying one’s head
in the sand, in the hope that a judge will disregard an
adverse decision by the Supreme Court, is a paradigm of
frivolous litigation. See Szabo Food Service, Inc. v. Canteen
Corp., 823 F.2d 1073 (7th Cir. 1987). If Nisenbaum had
an answer to Bogan he needed to offer it; courts do not
penalize litigants who try to distinguish adverse prece-
dents, argue for the modification of existing law, or pre-
serve positions for presentation to the Supreme Court.
Nisenbaum, however, did none of these things.
  As for Lauer, Harmon, and VanFelder: Nisenbaum knew
before launching this suit that the budget had been pre-
pared before anyone learned of his campaign. He (or
his lawyer) had to know that his absence from the list
compiled by the Department of Human Resources pre-
cluded Lauer, Harmon, VanFelder, and anyone else at the
Department of Public Works from hiring him as the
new security coordinator. These facts render frivolous the
claims against these three persons, who were outside the
causal chain—as Nisenbaum conceded at his own deposi-
tion. When asked why he had sued these persons,
Nisenbaum revealed that he had done so simply because
of their positions in the bureaucracy.
    Q: What role do you believe Doris Harmon played
       in retaliating against you?
    A: Doris Harmon is part of the policy-making—
       or decision-making on grievances, on disciplinary
       actions.
    ...
    Q: What specific involvement did she have with
       your employment decisions that led you to be-
       lieve she wanted to retaliate against you?
    A: My job was abolished.
    Q: Okay.
8                                  Nos. 02-4296 & 03-1021

    A: My job was abolished. Her name’s on some of
       the documentation signing me off, you’re out of
       a job.
    ...
    Q: What decisions do you think she made?
    A: Not having the paperwork in front of me, what-
       ever the forms, you know, that had to go
       through to have the job abolished.
    ...
    Q: Well, can you describe for me what role Doris
       Harmon played?
    A: I don’t recall.
    Q: Can you describe for me the role Cortez
       VanFelder played in the decision to abolish
       your job?
    A: I don’t recall what his role was.
    Q: Can you describe for me the role Larry Lauer
       played in deciding to abolish your job?
    A: I don’t recall.
This “inability to recall” is striking, given that Nisenbaum
had attended all of the defendants’ depositions, in which
their roles were covered in detail. It amounts to a confes-
sion that the suit never had a factual basis. Pressing
a claim even after its emptiness became pellucid must
be described as vexatious.
  Bzdawka prevailed at trial, and the magistrate judge’s
decision that a trial was essential precludes any shifting
of trial costs back to Nisenbaum. It was the magistrate
judge’s decision, and not Nisenbaum’s alone, that required
Bzdawka to bear the attorneys’ fees for those proceed-
ings that followed the denial of his motion for summary
Nos. 02-4296 & 03-1021                                   9

judgment. Still, Bzdawka may be entitled to recover some
or all of the attorneys’ fees incurred in discovery, which
proceeded very oddly. Here’s an example: When asked why
he was sure that his campaign was the reason for the
abolition of his job, Nisenbaum said that he knew this
because there could have been no other possible reason.
Nisenbaum described himself as a sterling employee
who, until launching his campaign in August 1998, had
been universally praised and enjoyed a blemish-free record.
Defendants then brought up Nisenbaum’s 1997 discharge
for fraud (later converted to a suspension without pay)
and a trail of disciplinary actions for other infractions.
At this point, his client having been caught in a lie,
Nisenbaum’s lawyer “withdrew” his answers on the sub-
ject and undertook not to make Nisenbaum’s employment
history an issue in the case. Then, when responding to
defendants’ motion for summary judgment, Nisenbaum
proclaimed that a trial was essential because the record
did not contain any evidence that other reasons, such as
disciplinary problems, might justify abolition of the job.
Indeed, the record had no such evidence, but not for the
reason implied by the position Nisenbaum took.
  Another issue that Bzdawka and the other defendants
sought to explore in discovery was Nisenbaum’s criminal
record. It would not do to have a security coordinator
with a felony conviction—and although belated discovery
of a criminal record would not absolve Bzdawka of all
liability for a wrongfully motivated discharge, it would
stop the accrual of damages. See McKennon v. Nashville
Banner Publishing Co., 513 U.S. 352 (1995). In a form that
Nisenbaum completed while still employed, he answered
“no” to the question whether he had “ever been convicted
of any violation of the law or [had] any pending criminal
charges other than minor traffic violations.” That state-
ment was false: Nisenbaum has been convicted of theft
by fraud and of fraudulent use of an identification card to
10                                 Nos. 02-4296 & 03-1021

obtain a parking pass reserved for persons with disabil-
ities. The latter charge was pending at the time he checked
the “no” box on the form. When this subject was broached
in discovery, Nisenbaum first denied that he had a crim-
inal record, then falsely stated that the convictions had
been expunged, and finally denied knowing what the
word “conviction” means and thus, he asserted, was unable
to answer the questions. No litigant is entitled to balk
the defendants’ efforts at discovery in this fashion without
paying a price. Civil sanctions are a minimum; criminal
prosecution for perjury is another option (though initia-
tion is reserved to a different branch of government).
  One more example suffices. Defendants served a con-
tentions interrogatory asking Nisenbaum what evidence
he had that each of the defendants retaliated against
his speech. In answer to this request for pointers to the
record, Nisenbaum replied: “See document production in
response to requests 1 and 2.” We have examined these
documents; they have nothing to do with the subject. When
defendants persisted, Nisenbaum “supplemented” this
answer by reprinting, verbatim, the factual averments
of his complaint. Allegations in a complaint are not evi-
dence. Defense counsel again protested. Nisenbaum supple-
mented his answer a second time, referring generally
to depositions but not including any record references.
This left defendants adrift and made much of the discov-
ery process pointless from their perspective—though it
remained expensive.
  Motions for sanctions under Rules 11 and 37, and re-
quests for awards of fees under §§ 1927 and 1988, are
addressed to the sound judgment of the district court.
Appellate review is correspondingly deferential. See, e.g.,
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399-405
(1990); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d
928 (7th Cir. 1989) (en banc). But a court of appeals can
defer only to decisions actually taken and explained. The
Nos. 02-4296 & 03-1021                                    11

magistrate judge committed a legal error in declining
to consider defendants’ request under Rule 11, and when
opining that the suit was not frivolous for purposes of
other rules and statutes she did not discuss any of the
obstacles (such as Monell, Bogan, and the impracticality
of time travel) that render bootless the claims against
everyone other than Bzdawka. The magistrate judge did
allude to Nisenbaum’s misconduct during discovery but
did not analyze it in any detail. A serious request for
sanctions is entitled to more than a brushoff. It is open to
fair debate how the judiciary should respond to the dis-
covery abuse that took place. Which particular legal
expenses can be chalked up to Nisenbaum’s misconduct?
But for five of the six defendants (those sued with no
legal or factual basis) the entitlement to attorneys’ fees is
clear, and for Bzdawka only the amount of the sanction is
seriously debatable. The district court must conduct a
hearing to explore these issues further and make appropri-
ate orders with respect to sanctions and attorneys’ fees
under §1988. Defendants have asked for sanctions
on appeal as well, but, as both §1988 and Rule 37 estab-
lish fee-shifting regimens, an award is automatic. See
Commissioner of INS v. Jean, 496 U.S. 154 (1990); Rickels
v. South Bend, 33 F.3d 785 (7th Cir. 1994). The district
court should take up this issue as part of the proceedings
on remand.
   Finally, there is the matter of costs. Prevailing parties
recover costs as of course. Fed. R. Civ. P. 54(d)(1). Yet
the final judgment requires both sides to bear their own
costs. The magistrate judge did not explain why she
was departing from the norm under Rule 54, and we can-
not imagine any reason why the victims of unfounded
litigation should be out of pocket the costs listed in 28
U.S.C. §1920. Nisenbaum attempts to defend this aspect
of the disposition by observing that defendants did not
file appropriate bills of costs. Well, of course they didn’t;
before the time came for filing, the judge stated that costs
12                                 Nos. 02-4296 & 03-1021

would not be allowed. Nisenbaum also contends that the
district court could have ordered the defendants to bear
their own costs as a sanction for making “punitive” motions.
He does not identify which motions he has in mind. When
awarding costs, the magistrate judge may exclude any
that the defendants incurred in filing pointless and un-
founded motions; these are self-inflicted wounds. That
the defendants may have filed lots of motions may
show nothing more than that Nisenbaum persisted too
long in this unwarranted litigation, however, and that is
a reason why Nisenbaum rather than the defendants
should cover the §1920 costs.
  Defendants also recover their costs in this court, but in
light of our rulings with respect to attorneys’ fees and
sanctions we deny the defendants’ request for double costs.
  The judgment on the merits is affirmed on Nisenbaum’s
appeal. The judgment with respect to costs, attorneys’ fees,
and sanctions is vacated on defendants’ appeal, and the
case is remanded for further proceedings consistent with
this opinion.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-25-03
