Konrath v. Embrey

Filing 7

OPINION AND ORDER: This case is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A. Signed by Chief Judge Philip P Simon on 8/22/2016. (lhc)(cc: Plaintiff)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GREGORY KONRATH,
Plaintiff,
vs.
BRUCE EMBREY,
Defendant.

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CAUSE NO. 3:16CV519-PPS

OPINION AND ORDER
Gregory Konrath, a pro se prisoner, filed this case pursuant to 42 U.S.C. § 1983
against Miami County prosecuting attorney Bruce Embrey. Konrath complains that
Embrey, the prosecutor in his underlying state criminal case, filed a probable cause
affidavit for attempted murder, even though there was insufficient evidence to establish
probable cause. He also complains that the prosecutor moved the case to a different
county from where the alleged attempted murder occurred. Konrath seeks money
damages against Embrey based on those actions.
“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.

Konrath’s claims against the prosecutor are barred by the doctrine of
prosecutorial immunity. The prosecutor is entitled to absolute immunity for his actions
“in initiating a prosecution and in presenting the State’s case” against Konrath. See
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.”). “[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). Filing probable cause affidavits and motions concerning venue during trial
are both part of presenting the State’s case. Therefore, the prosecuting attorney is not
subject to civil liability based on those actions. Accordingly, Miami County Prosecutor
Bruce Embrey is immune from suit.
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 prosecutor.
For these reasons, this case is DISMISSED without prejudice pursuant to 28
U.S.C. § 1915A.
ENTERED: August 22, 2016

/s/ Philip P. Simon
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Chief Judge

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