§ 1983 Pleading Rule: No Fifth Amendment Due Process Claim Against State Actors; Prosecutors Absolutely Immune for Reviewing Search-Warrant Affidavits

1. Introduction

Dale Economan v. Garrison Law Firm, LLC arises out of a joint federal–state “pill-mill” investigation into physician Dale W. Economan and his practice, Economan and Associates Family Medicine (“EAFM”), for allegedly overprescribing controlled substances. After a search of Economan’s home and office, the State pursued (i) a civil forfeiture action that froze more than $1 million in bank and retirement accounts, (ii) a licensing action that resulted in an emergency suspension, and (iii) a criminal prosecution that ultimately ended when Economan pled guilty to a marijuana charge and surrendered his medical license, after which the State dismissed the remaining charges and the forfeiture case.

Economan and EAFM then sued under 42 U.S.C. § 1983, alleging (as narrowed on appeal) that defendants violated the Fourth Amendment and the Fifth Amendment by using materially false or misleading affidavits in the civil forfeiture proceeding. Defendants included a DEA diversion investigator (Gary Whisenand), a task-force officer (Tonda Cockrell), two prosecutors (James Luttrull and Jessica Krug), and a private firm (Garrison Law Firm) involved in the forfeiture filing.

The central appellate issues were whether defendants were entitled to qualified immunity or absolute immunity, and whether the Seventh Circuit had interlocutory jurisdiction over each immunity appeal given factual disputes.

2. Summary of the Opinion

In a nonprecedential order, the Seventh Circuit sharply criticized the district court’s “grouped” analysis and its failure to evaluate immunity defendant-by-defendant and claim-by-claim, as required by Mabes v. Thompson. The court then untangled the claims and entered the following dispositions:

Fifth Amendment: All defendants received qualified immunity because the Fifth Amendment Due Process Clause constrains the federal government, not state actors; the complaint’s Fifth Amendment theory was therefore legally defective in a § 1983 case.
Fourth Amendment (Whisenand): Whisenand received qualified immunity because, after correcting for alleged misstatements/omissions under Franks v. Delaware and Rainsberger v. Benner, the affidavit still established probable cause to believe Economan engaged in “corrupt business influence” under Indiana law.
Fourth Amendment (Luttrull & Krug): Both prosecutors received absolute immunity, relying principally on Buckley v. Fitzsimmons and the Seventh Circuit’s application in Greenpoint Tactical Income Fund LLC v. Pettigrew, because their role was limited to reviewing/editing a search-warrant affidavit as advocates preparing for judicial proceedings.
Fourth Amendment (Garrison Law Firm): The court dismissed the interlocutory appeal for lack of jurisdiction because qualified-immunity review would require resolving disputed facts—especially whether Garrison knew the Cockrell affidavit lacked support for freezing specific accounts.

The court reversed the district court as to all reviewable immunity denials and remanded with instructions to enter judgment for Whisenand, Cockrell, Luttrull, and Krug consistent with the order (leaving Garrison’s Fourth Amendment claim to proceed in the district court).

3. Analysis

A. Precedents Cited

1) Interlocutory appellate jurisdiction over immunity denials

The court reaffirmed that immunity denials are immediately appealable only to the extent they turn on “issues of law,” not disputed facts, citing Smith v. Finkley (qualified immunity) and Whitlock v. Brueggemann (absolute and qualified immunity). It emphasized the constraint of Johnson v. Jones, as applied in Davis v. Allen: if the denial depends on factual disputes, the appellate court lacks jurisdiction.

The decision’s jurisdictional screening relied on Stewardson v. Biggs and its “closely examine” approach for identifying “back-door” attempts to relitigate facts on interlocutory appeal. This framework drove the split outcome: the court could decide Whisenand’s and the prosecutors’ immunity defenses as legal questions, but it could not review Garrison’s Fourth Amendment appeal because the firm’s asserted lack of knowledge was factually contested.

2) Waiver/forfeiture of immunity defenses in the district court

Economan argued immunity was waived due to delayed assertion. The court drew on the distinction between waiver and forfeiture in Whyte v. Winkleski (quoting Reed v. Columbia St. Mary's Hosp.) and treated immunity as an affirmative defense under Leiser v. Kloth (qualified) and Tully v. Barada (absolute). While recognizing that simply pleading is not enough for summary-judgment preservation under Henry v. Hulett, the court upheld the district court’s discretion to entertain late-raised defenses absent prejudice under Burton v. Ghosh, reviewing the waiver question de novo per e360 Insight v. The Spamhaus Project.

3) Qualified immunity standard

The court applied the familiar two-part test from District of Columbia v. Wesby (quoting Reichle v. Howards): a plaintiff must show (1) a constitutional violation and (2) that the right was clearly established at the time. It emphasized immunity’s protective breadth (“plainly incompetent”) using Malley v. Briggs. It also reiterated, via Mabes v. Thompson, that courts must analyze qualified immunity individually for each defendant and claim.

4) Fifth Amendment due process and § 1983

The opinion’s most categorical doctrinal move relied on the non-incorporation principle that the Fifth Amendment Due Process Clause applies to federal action, not state action, citing multiple circuits: Koessel v. Sublette County Sheriff's Dep't, Bingue v. Prunchak, Martinez-Rivera v. Sanchez Ramos, Scott v. Clay County, and Nguyen v. U.S. Catholic Conf.

The court then anchored the § 1983 framing in Sabo v. Erickson (en banc), which in turn cites Albright v. Oliver for the principle that § 1983 is a vehicle for enforcing rights “conferred elsewhere,” not a source of substantive rights. Because the defendants were treated as acting “under color of state law,” the Fifth Amendment theory failed at prong one of qualified immunity: state actors cannot violate a clause that does not bind them.

5) Fourth Amendment: false or misleading affidavits (Franks doctrine) and civil forfeiture seizures

For the Fourth Amendment claim, the court applied Franks v. Delaware and its Seventh Circuit implementation in Rainsberger v. Benner, using the “hypothetical affidavit” method (as described in Betker v. Gomez): remove alleged falsehoods, add omitted facts, then assess probable cause.

The court stressed that the Fourth Amendment applies to civil forfeiture seizures, citing United States v. James Daniel Good Real Prop.. It used Manuel v. City of Joliet (notably its discussion of proceedings tainted by fabricated evidence material to probable cause) to frame the relevant “probable cause determination” as the one supporting the asset-freeze order.

For probable cause content, the court relied on Illinois v. Gates (as quoted by Wesby) for the “probability or substantial chance” standard, and it criticized the district court for excluding information on evidentiary-admissibility grounds, citing Brinegar v. United States and Johnson v. Myers (including its point that the Federal Rules of Evidence do not govern warrant applications). It also corrected the district court’s discounting of witness information as “allegations” by referencing informant reliability standards in United States v. Hollingsworth.

6) Indiana controlled-substance and racketeering framework; “pill-mill” probable cause

The court’s probable-cause analysis was tightly linked to Indiana’s “corrupt business influence” statute and forfeiture statutes, and it imported a Seventh Circuit “pill-mill” analogue: Dollard v. Whisenand. Dollard supplied a roadmap for how high-volume prescribing data, pharmacy concerns, informant statements, and corroboration can combine to establish probable cause that a physician was prescribing outside legitimate medical purpose.

The court also used Pryor v. Corrigan for the proposition that probable cause is an objective standard determined by judges, not officers’ subjective views, rejecting the district court’s reliance on deposition snippets as purported “admissions” negating probable cause.

7) Absolute prosecutorial immunity for warrant-affidavit review

The prosecutors’ absolute immunity turned on the functional test from Buckley v. Fitzsimmons, as applied in the Seventh Circuit’s Greenpoint Tactical Income Fund LLC v. Pettigrew. Greenpoint is especially influential here because it squarely held that prosecutors act as advocates when they help prepare and review a search-warrant affidavit based on evidence already assembled by law enforcement—work “in preparing for the initiation of judicial proceedings.”

B. Legal Reasoning

1) The court’s “claim-narrowing” and waiver determination

A pivotal procedural move was the panel’s acceptance of Economan’s oral-argument representation that his Fourth and Fifth Amendment claims were based solely on the civil forfeiture proceeding. The court treated any other Fourth/Fifth theories as waived “for all purposes in this litigation.” This narrowing mattered because the same affidavit had been used across multiple proceedings (search warrant, forfeiture, licensing), each potentially raising different causation and materiality questions.

2) Fifth Amendment due process: a pleading mismatch that becomes dispositive at prong one

The court did not treat the Fifth Amendment issue as a “technicality”; it treated it as a categorical legal defect once defendants were assumed state actors. The reasoning is straightforward: (i) § 1983 requires deprivation of a federal right, (ii) the Fifth Amendment Due Process Clause restricts only federal actors, so (iii) state actors cannot violate it.

The opinion underscores a practical pleading lesson: although plaintiffs often intend a Fourteenth Amendment due process theory against state actors, courts will not necessarily rewrite the complaint late in the litigation, particularly at the immunity stage. Here, the panel stated it was “far too late” to amend from Fifth to Fourteenth.

3) Fourth Amendment (Whisenand): materiality and objective probable cause under the corrected affidavit

The court accepted several alleged inaccuracies/omissions as assumptions in Economan’s favor—most prominently the INSPECT “per day” misinterpretation— but deemed them immaterial because the remaining evidence still established probable cause of the underlying Indiana racketeering predicate: repeatedly prescribing controlled substances without legitimate medical purpose.

Two reasoning moves are central:

Probable cause is holistic: Even if “daily counts” were overstated, the affidavit still reflected extraordinary total prescribing volume, pharmacy refusals/concerns, undercover buys from patients, colleague/practitioner concerns, and overdose/death linkages—collectively meeting the Gates/Wesby threshold.
Role separation within the forfeiture probable cause showing: The court treated the forfeiture’s probable cause as having two “halves”: (a) criminal activity (Whisenand affidavit) and (b) nexus to specific assets (Cockrell affidavit). That structure supported its conclusion that Whisenand could not be held responsible for omissions about the particular accounts frozen because he neither investigated nor drafted that nexus showing.

4) Fourth Amendment (Garrison): why jurisdiction failed despite an immunity appeal

Garrison’s interlocutory posture failed because the firm’s theory—“we didn’t know the Cockrell affidavit was unsupported”—depended on disputed facts. The panel highlighted deposition testimony suggesting the affidavit’s account-specific “good cause” assertions were built largely from a trash pull that identified accounts but did not establish balances or criminal provenance. If Garrison drafted the affidavit using incomplete information while representing it as a sufficient basis to freeze assets, a jury could find the requisite knowledge or recklessness. Under Johnson v. Jones, that factual contest forecloses interlocutory review.

5) Absolute immunity (Luttrull & Krug): advocacy function, not investigation

The district court had characterized the prosecutors’ affidavit review as “investigative.” The Seventh Circuit rejected that characterization as inconsistent with Greenpoint Tactical Income Fund LLC v. Pettigrew and Buckley v. Fitzsimmons. On the record (viewed for Economan), the prosecutors evaluated an affidavit assembled by law enforcement and provided edits—classic preparatory advocacy for a judicial proceeding, even if the broader investigation was ongoing.

Notably, the panel made the absolute-immunity holding non-optional on remand: “This is not to be revisited on remand.”

C. Impact

1) Practical pleading and theory selection in civil-rights litigation

The decision spotlights a recurring trap: pleading “Fifth Amendment due process” against state actors under § 1983. While many courts construe such claims as Fourteenth Amendment claims when possible, this panel refused to allow that late-stage reconstruction. Litigants should treat this as a high-risk drafting error, especially where immunity is in play and amendment is no longer feasible.

2) Reinforcement of individualized immunity analysis

The court’s repeated emphasis (from Mabes v. Thompson) on defendant-by-defendant, claim-by-claim analysis is a pointed institutional message. In complex multi-defendant investigations, a “collective responsibility” narrative is insufficient for immunity determinations, particularly where different actors supply different elements of probable cause (criminality vs. asset nexus).

3) Prosecutors’ role in warrant applications

The absolute-immunity holding—grounded in Greenpoint Tactical Income Fund LLC v. Pettigrew—signals that prosecutors can review and edit warrant affidavits without fear that such assistance will be relabeled “investigation” and stripped of immunity, absent evidence that they fabricated facts or directed material omissions. This protects routine prosecutorial quality-control over filings presented to judges.

4) Interlocutory appeals: the hard limit where knowledge/recklessness is disputed

The dismissal of Garrison’s Fourth Amendment appeal illustrates the jurisdictional boundary of immunity appeals: where an appellant’s entitlement depends on disputed intent (knowledge/recklessness), appellate courts typically cannot step in midstream. Practically, private or quasi-private actors asserting qualified immunity may be forced to litigate to trial (or further summary-judgment development) if the record supports competing inferences about their mental state.

4. Complex Concepts Simplified

Qualified immunity: A defense that protects officials from damages unless they violated a constitutional right and that right was clearly established at the time. Courts often decide it early to avoid unnecessary trials.
Absolute immunity (prosecutors): Stronger protection for prosecutors when acting as advocates in judicial proceedings—e.g., preparing for trial or presenting matters to a court. It does not cover purely investigative or administrative conduct.
Franks v. Delaware rule: If an affidavit supporting a warrant or seizure includes deliberate/reckless falsehoods (or omits key facts), a court tests materiality by imagining a “corrected” affidavit and asking whether it would still show probable cause.
Probable cause: Not proof beyond a reasonable doubt; it is a fair probability/substantial chance that wrongdoing occurred.
Incorporation / why the Fifth Amendment failed here: The Fifth Amendment Due Process Clause limits the federal government. State and local officials are governed by the Fourteenth Amendment’s Due Process Clause, not the Fifth, in typical § 1983 suits.
Interlocutory jurisdiction: Appeals usually wait until final judgment. Immunity denials can be appealed early only when the dispute is legal (not factual). If the appeal would require the appellate court to decide “who knew what,” it is often dismissed under Johnson v. Jones.

5. Conclusion

The Seventh Circuit’s order delivers three main takeaways. First, a § 1983 plaintiff cannot proceed on a Fifth Amendment due process theory against defendants treated as state actors; that mismatch fails at the threshold and results in qualified immunity. Second, applying Franks v. Delaware, an affidavit’s imperfections do not create Fourth Amendment liability if the corrected affidavit still establishes probable cause—here, for Indiana “corrupt business influence” based on evidence consistent with Dollard v. Whisenand. Third, prosecutors who review/edit warrant affidavits as part of preparing for judicial proceedings fall within the core of absolute immunity under Buckley v. Fitzsimmons and Greenpoint Tactical Income Fund LLC v. Pettigrew. Finally, the opinion highlights a structural discipline for courts: immunity must be analyzed with precision for each defendant and each claim, and interlocutory appeals end where factual disputes about knowledge or intent begin.