                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1



              United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604

                                  Submitted March 3, 2010*
                                   Decided March 5, 2010

                                            Before

                             JOEL M. FLAUM, Circuit Judge

                             MICHAEL S. KANNE, Circuit Judge

                             ILANA DIAMOND ROVNER, Circuit Judge

No. 09-3340

B. MICHAEL SCHNEIDER,                           Appeal from the United States District Court
      Plaintiff-Appellant,                      for the Northern District of Illinois,
                                                Eastern Division.
       v.
                                                No. 8 C 3054
COUNTY OF WILL, et al.
    Defendants-Appellees.                       Wayne R. Andersen,
                                                Judge.

                                          ORDER

       Michael Schneider claims in this lawsuit that the defendants confined him for too
long after an Illinois circuit judge ordered him jailed for criminal contempt. Because the suit
was dismissed prematurely, we vacate the dismissal and remand.




       *
        After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 09-3340                                                                                Page 2

        Schneider refused to identify himself and raised his voice during a May 2007
foreclosure action against his fiancée in the Circuit Court of Will County. Judge James
Garrison, who was presiding, held Schneider in criminal contempt. The contempt order
states: “The court sentences contemnor to 20 days in the Will County Jail beginning May 25,
2007.” The mittimus directed the sheriff to hold Schneider “until Wed. June 13, 2007, or
until released by process of law, pursuant to the order of this court entered 5/25, 2007.”

       Schneider accepted his punishment, but he also surmised that under the County Jail
Good Behavior Allowance Act, 730 ILCS 130, he was entitled to day-for-day credit while
serving the sentence. He told everyone at the jail that he must be released after 10 days, not
20, and it turns out he was correct. See People v. Davis, 683 N.E.2d 1260, 1265 (Ill. App. Ct.
1997); Kaeding v. Collins, 668 N.E.2d 572, 579 (Ill. App. Ct. 1996); People v. Russell, 604 N.E.2d
420, 423 (Ill. App. Ct. 1992); People v. Bailey, 600 N.E.2d 1267, 1269 (Ill. App. Ct. 1992).
According to Schneider, however, a guard told him that a secretary at the jail had called
Judge Garrison, who said that Schneider was to be held until June 13. Schneider indeed
served all 20 days.

       Schneider has sued the county, the sheriff, and the warden under 42 U.S.C. § 1983
and state law. The defendants moved to dismiss the federal claims on the ground that they
were simply carrying out Judge Garrison’s directive and thus are shielded from liability by
absolute “quasi-judicial immunity.” The district court agreed that the individual
defendants are immune and dismissed the federal claims as to them. To this conclusion the
court added that Will County cannot be liable if its agents are not, and so the court also
dismissed the federal claims against the county. The court then declined to exercise
supplemental jurisdiction over Schneider’s state-law claims.

        Judges are generally entitled to absolute immunity from suit for their judicial
conduct. Mireles v. Waco, 502 U.S. 9, 9 (1991); Brokaw v. Mercer County, 235 F.3d 1000, 1015
(7th Cir. 2000). But the Supreme Court has been “quite sparing” in its recognition of
absolute judicial immunity, Forrester v. White, 484 U.S. 219, 224 (1988), refusing to extend it,
for example, to court reporters because they did not possess immunity at common law,
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993). The Court explained that the
“touchstone” of judicial immunity has been “performance of the function of resolving
disputes between parties.” Burns v. Reed, 500 U.S. 478, 500 (1991) (Scalia, J., concurring in
the judgment in part and dissenting in part). Accordingly, judicial immunity has been
extended to non-judges who are functionally comparable to judges, that is, persons who
“‘exercise a discretionary judgment’ as a part of their function.” Antoine, 508 U.S. at 436
(quoting Imbler v. Pachtman, 424 U.S. 409, 423 n.20 (1976)). The Court has presumed that
qualified rather than absolute immunity is sufficient to protect other government officials in
No. 09-3340                                                                              Page 3

the exercise of their duties, and that an official seeking quasi-judicial immunity has the
burden of proving that coverage is justified. Antoine, 508 U.S. at 432 n.4.

        Both before and after Antoine, this court and other circuit courts have extended the
doctrine to a second category of nonjudicial actors: “those performing ministerial acts under
a judge’s supervision and intimately related to judicial proceedings.” See, e.g., Henry v.
Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir. 1986) (quotation marks and citation
omitted); Snyder v. Nolen, 380 F.3d 279, 287 (7th Cir. 2004); Penn v. United States, 335 F.3d
786, 790 (8th Cir. 2003); Turney v. O'Toole, 898 F.2d 1470, 1474 (10th Cir. 1990). We have
justified the extension of immunity because, just as judges should not be subjected to
lawsuits from disappointed litigants, neither should someone who acts as a judicial agent
become a “lightning rod for harassing litigation.” Ashbrook v. Hoffman, 617 F.2d 474, 476
(7th Cir. 1980) (quotation marks and citation omitted). See Gallas v. Supreme Court of Pa., 211
F.3d 760, 772 (3d Cir. 2000) (extending quasi-judicial immunity to court administrator who
released information at judge’s order); Martin v. Hendren, 127 F.3d 720, 721 (8th Cir. 1997)
(extending quasi-judicial immunity to bailiffs who cleared courtroom at judge’s direction);
Mays v. Sudderth, 97 F.3d 107, 113 (5th Cir. 1996) (extending quasi-judicial immunity to
sheriff who executed facially valid judicial order).

        Although the contours of quasi-judicial immunity remain unsettled, courts regularly
require nonjudicial actors invoking the doctrine to demonstrate that their acts were directly
and explicitly ordered by a judge. See Stein v. Disciplinary Bd. of Supreme Court of N.M., 520
F.3d 1183, 1191 (10th Cir. 2008); Richman v. Sheahan, 270 F.3d 430, 437-38 (7th Cir. 2001);
Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992). Sheriffs, for example, have been held
immune for the act of enforcing a facially valid court order. See Mays, 97 F.3d at 113;
Patterson v. Von Riesen, 999 F.2d 1235, 1241 (8th Cir. 1993) (“[A] warden is absolutely
immune from damages flowing from the fact of a prisoner’s incarceration, when that
incarceration occurs pursuant to a facially valid order of confinement.”); Valdez v. City &
County of Denver, 878 F.2d 1285, 1288 (10th Cir. 1989); Henry, 808 F.2d at 1238. We have,
though, refused to extend quasi-judicial immunity to the manner a judge’s order was
executed. Hernandez v. Sheahan, 455 F.3d 772, 776 (7th Cir. 2006) (denying absolute
immunity to deputies who detained wrong person wanted on arrest warrant); Richman, 270
F.3d at 437-38 (refusing to extend absolute immunity from wrongful-death claim to deputies
who responded to judge’s order to seize a litigant in court).

        The Eighth Amendment is violated if, through deliberate indifference, prison
officials hold a prisoner too long. See Burke v. Johnston, 452 F.3d 665, 669 (7th Cir. 2006);
Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001). A claim that prison officials failed to
give proper credit for time served is not an attack on the judge’s sentence, but on the
manner of executing that sentence. See Burke, 452 F.3d at 670; cf. Patterson, 999 F.2d at 1241.
No. 09-3340                                                                                  Page 4

Accordingly, claims against jailers for confinement beyond the term of a sentence typically
involve qualified, not absolute, immunity. See, e.g., Cousins v. Lockyer, 568 F.3d 1063, 1069-70
(9th Cir. 2009); Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004); Campbell, 256 F.3d at 700;
Haygood v. Younger, 769 F.2d 1350, 1358 (9th Cir. 1985). After all, at common law sheriffs
were not immune from suit for their ministerial acts. See Richman, 270 F.3d at 435 n.3;
THOMAS M. COOLEY, A TREATISE ON THE LAW OF TORTS 460-66 (1888); see also Burns, 500 U.S.
at 499-500 (Scalia, J., concurring in the judgment in part and dissenting in part) (citing
COOLEY).

       At this point in the litigation, the defendants have not yet answered the complaint,
and so we have only Schneider’s account of the information he received third hand:

              Upon information and belief, sometime after June 7, 2007, at the order
       of Michael O’Leary and/or Paul Kaupas, an unknown administrative
       secretary of the Will County Adult Detention Center phoned the trial judge,
       Judge James Garrison, to confirm that Plaintiff was to be held until June 13,
       2007 without allowance for day for day provisions of the County Jail Good
       Behavior Act. According to Correctional Officer Santarelli, James Garrison
       told the unknown administrative secretary that Plaintiff was to be held until
       June 13, 2007.

Of course, not having actually been a party to the conversation, Schneider cannot vouch for
the accuracy of the guard’s account, and its inclusion in his complaint is not a stipulation to
its truth. See Gale v. Hyde Park Bank, 384 F.3d 451, 452 (7th Cir. 2004) (“[T]he plaintiff may
tell the court what his adversary has said without throwing in the towel.”); Carroll v. Yates,
362 F.3d 984, 986 (7th Cir. 2004).

        We presume allegations in a complaint are true for purposes of a motion to dismiss,
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002), but the district court apparently
went on to assume that the guard talked to the secretary, the secretary phoned Judge
Garrison, the judge engaged in an ex parte conversation with the secretary and conveyed a
directive that Schneider be held until June 13, the secretary communicated that information
back to the sheriff and warden, and the sheriff and warden then relied on the judge’s
directive in deciding to hold Schneider beyond the period lawfully permitted. Just as most
claims for qualified immunity are too fact-intensive to be decided on a motion to dismiss,
Tamayo v. Blagojevich, 526 F.3d 1074, 1090 (7th Cir. 2008); Alvarado v. Litscher, 267 F.3d 648,
651 (7th Cir. 2001); Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000) (Easterbrook, J.,
concurring), so too is the defense raised in this case, and the district court erred by
extending quasi-judicial immunity to law-enforcement personnel without any competent
evidence that they were acting at the direction of a judge.
No. 09-3340                                                                 Page 5

      The judgment is VACATED; and the case is REMANDED for further proceedings.
