Payne v. Cotter et al

Filing 4

OPINION AND ORDER DISMISSING CASE pursuant to 28 U.S.C. § 1915A, ***Civil Case Terminated. (cc: Payne) Signed by Judge Jon E DeGuilio on 10/6/15. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANDRE DEMETRIC PAYNE,
Plaintiff,
v.
KENNETH COTTER, et al.,
Defendants.

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Case No. 3:15-CV-457 JD

OPINION AND ORDER
Andre Demetric Payne, a pro se prisoner, filed this case against two deputy prosecuting
attorneys and the City of South Bend. He alleges that the deputy prosecutors used perjured testimony
against him during his State criminal trial in 2009. He alleges that they were employed by the City
of South Bend when they did. “A document filed pro se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations
omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, the court must review the merits of 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.
Here, the deputy prosecutors must be dismissed because they are immune from civil suit.
“[I]n initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a
civil suit for damages under § 1983.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). “[A]bsolute
immunity shields prosecutors even if they act maliciously, unreasonably, without probable cause,
or even on the basis of false testimony or evidence.” Smith v. Power, 346 F.3d 740, 742 (7th Cir.

2003) (quotation marks and citation omitted). Giving opening statements and examining witnesses
is a part of the presenting the State’s case, therefore the two deputy prosecutors are immune from
suit.
The City of South Bend must be dismissed because it did not employ the deputy prosecutors.
Though they worked in the City, they worked for the St. Joseph County Prosecutor’s Office. See
Indiana Code 33-39-6-2 (deputy prosecutors appointed by prosecuting attorney) and Indiana
Constitution Art. 7, § 16 (prosecutors are an independently elected office). Moreover, even if they
had been employed by the City of South Bend, there is no general respondeat superior liability under
42 U.S.C. § 1983. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). “[P]ublic employees are
responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 596
(7th Cir. 2009).
Though it is usually necessary to permit a plaintiff the opportunity to file an amended
complaint when a case is dismissed sua sponte, see Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir.
2013), that is unnecessary where the amendment would be futile. Hukic v. Aurora Loan Servs., 588
F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad discretion to deny leave to amend where . . . the
amendment would be futile.”) Such is the case here. No amendment could overcome the immunity
of the deputy prosecutors or the fact that they were not employed by the City of South Bend.
For these reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A.
SO ORDERED.
ENTERED: October 6, 2015
/s/ JON E. DEGUILIO
Judge
United States District Court

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