Clark v. State of Indiana

Filing 8

OPINION AND ORDER DISMISSING this action pursuant to 28 U.S.C. § 1915A. Signed by Judge Rudy Lozano on 5/6/2013. (lyb) Modified on 5/6/2013 to note cc of Order to plaintiff Gerald Clark (lyb).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GERALD CLARK,
Plaintiff,
vs.
STATE OF INDIANA, et al.,
Defendants.

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CAUSE NO. 3:13-CV-209

OPINION AND ORDER
Gerald Clark, a pro se prisoner, filed an amended complaint
pursuant to 42 U.S.C. § 1983. (DE # 3.) For the reasons set forth
below, this action is DISMISSED pursuant to 28 U.S.C. § 1915A.

BACKGROUND
Clark filed this action on March 15, 2013. (DE # 1.) His
original complaint was stricken due to numerous deficiencies. (DE
# 2.) On April 17, 2013, he filed an amended complaint. (DE # 3.)

DISCUSSION
Pursuant to 28 U.S.C. § 1915A, the Court must review a
prisoner complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915A(a), (b). To survive dismissal, a
complaint must state a claim for relief that is plausible on its
face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03

(7th

Cir.

2009).

“A

claim

has

facial

plausibility

when

the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct alleged.” Id. at 603. Nevertheless, a pro se complaint
must be liberally construed, “however inartfully pleaded.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007).
The amended complaint, like the original, is not a model of
clarity, but it is clear that Clark is complaining about a state
criminal case in which he was convicted of criminal recklessness
and other offenses. He sues four different attorneys appointed to
represent him during the course of the criminal proceedings,
claiming

that

their

failure

to

provide

effective

assistance

resulted in his wrongful conviction. He also sues the prosecutor,
asserting that he improperly charged him with offenses based on
items found during a search of a residence where Clark claims he
was only visiting. He also sues the State of Indiana, as well as an
attorney from the Indiana Supreme Court Disciplinary Commission,
who

allegedly

mishandled

his

complaints

about

the

attorneys

involved in his criminal case.
These claims cannot proceed. Clark cannot sue his appointed
attorneys for constitutional violations, because they are not state
actors. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“[A]
public

defender

performing

a

does

lawyer’s

not

act

under

traditional

2

color

of

functions

state

as

law

counsel

when
to

a

defendant in a criminal proceeding.”). To the extent Clark is
seeking an order declaring that his Sixth Amendment rights were
violated in the criminal case, such that his conviction was
unlawful, he can only pursue this relief in a habeas petition. See
Preiser v. Rodriguez, 411 U.S. 475, 488 (1973).
The prosecutor cannot be sued for damages based on his
decision to pursue charges against Clark, or to present certain
evidence in support of the government’s case. Imbler v. Pachtman,
424 U.S. 409, 431 (1976). (“[I]n initiating a prosecution and in
presenting the State’s case, the prosecutor is immune from a civil
suit for damages under § 1983.”). To the extent there is any claim
against the prosecutor that survives prosecutorial immunity, it
would be barred by Heck v. Humphrey, 512 U.S. 477 (1994) in any
event. In Heck, the Supreme Court held:
[I]n
order
to
recover
damages
for
allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a
determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.
Id. at 486-87. Therefore, unless Clark’s conviction is vacated, set
aside, or otherwise called into question, he cannot pursue a claim
for damages for wrongful prosecution.
The

State

of

Indiana

is

entitled

to

Eleventh

Amendment

immunity, as is the Indiana Supreme Court Disciplinary Commission

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and its employee, Michael Witte, to the extent Clark is suing him
in his official capacity. Crenshaw v. Supreme Court of Indiana, 170
F.3d 725, 727 (7th Cir. 1999); Kashani v. Purdue University, 813
F.2d. 843, 845 (7th Cir. 1987). Immunity does not block a damages
claim against Witte in his individual capacity, but Clark fails to
allege a plausible federal claim against him. Clark claims that
Witte failed to comply with the Commission’s internal policies and
procedures in processing his complaint, but the failure to comply
with state law does not give rise to a constitutional violation.
See Sobitan v. Glud, 589 F.3d 379, 389 (7th Cir. 2009) (“By
definition, federal law, not state law, provides the source of
liability for a claim alleging the deprivation of a federal
constitutional right.”); Scott v. Edinburg, 346 F.3d 752, 760 (7th
Cir. 2003) (observing that 42 U.S.C. § 1983 protects plaintiffs
from constitutional violations, not violations of state statutes or
administrative regulations).
Clark also complains that Witte’s failure to take disciplinary
action against his attorneys violated his “constitutional rights to
be free from all official misconduct.” (DE # 3 at 19.) However,
there is no such constitutional right. “The Constitution is a
charter of negative liberties; it tells the state to let people
alone; it does not require the federal government or the state to
provide services[.]” Sandage v. Bd. of Commr’s of Vanderburgh
County, 548 F.3d 595, 596 (7th Cir. 2008). Clark cannot raise a

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constitutional claim against Witte based on his failure to take
disciplinary action against his attorneys, or to otherwise protect
him from their alleged wrongdoing. Id. at 596-98. Accordingly, this
action must be dismissed.

CONCLUSION
For the reasons set forth above, this action is DISMISSED
pursuant to 28 U.S.C. § 1915A.

DATED: May 6, 2013

/s/RUDY LOZANO, Judge
United States District Court

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