Bolin v. Persin et al

Filing 8

OPINION AND ORDER Stephen K. Bolin is GRANTED until 03/29/2018, to file an amended complaint and CAUTIONED if he does not respond by the deadline, this case will be dismissed pursuant to 28 U.S.C. § 1915A because the current complaint does not state a claim for which relief can be granted. Signed by Judge Jon E DeGuilio on 02/23/2018. (sct)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
STEPHEN K. BOLIN,
Plaintiff,
v.

CAUSE NO.: 3:17-CV-975-JD-MGG

SEAN M. PERSIN, et al.,
Defendants.
OPINION AND ORDER
Stephen K. Bolin, a prisoner without a lawyer, filed a vague complaint against
ten defendants. A filing by an unrepresented party “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.
Bolin was convicted and sentenced for Obstruction of Justice and he is suing ten
defendants related to his arrest, conviction, and incarceration. He alleges Investigator
Sean C. Leshney made a false statement of material fact in the Affidavit of Probable
Cause. The Fourth Amendment is violated “if the requesting officer knowingly,
intentionally, or with reckless disregard for the truth, makes false statements in
requesting the warrant and the false statements were necessary to the determination

that a warrant should issue.” Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012) quoting
Knox v. Smith, 342 F.3d 651, 658 (7th Cir. 2003). Here, though Bolin attached the
Affidavit (ECF 1-2 at 1), he does not explain which statements are false nor why he
believes Investigator Leshney knew they were false. Neither does he say whether he
challenged the Affidavit of Probable Cause during his State criminal trial – and if he
did, what was the result. With the answers to these questions, Bolin may be able to state
a claim against Investigator Leshney. But as plead, the complaint does not state a claim
against him.
Boling alleges Prosecutors Patrick Harrington and Kristan McVey used the
Affidavit to charge him with Obstruction of Justice. He alleges McVey entered evidence
in the record during his trial and elicited testimony from witnesses. All of these actions
were taken “as an advocate for the State” for which they have absolute prosecutorial
immunity. 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.”). Therefore these claims and defendants must be dismissed.
On January 10, 2017, an arrest warrant was issued for Bolin.1 On January 23,
2017, Bolin alleges Detectives D.J. Morgan and Travis Dowell arrested him and took
him to the Tippecanoe County Jail which was operated by Sheriff Richards. However
the complaint provides no explanation as to why it was wrong for the detectives to have

1 State v. Bolin, 79D05-1701-F6-000038 (Tippecanoe Superior Court filed January 9, 2017),
https://public.courts.in.gov/mycase/#/vw/CaseSummary/eyJ2Ijp7IkNhc2VUb2tlbiI6IlpEY3pNekl5T0
RFeE1qSXdPak13TWpFMk5qVXlOalE9In19.

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executed the warrant or for the sheriff to have held him in jail pending trial. Therefore
these claims and defendants must be dismissed.
Bolin alleges Judge Sean M. Persin denied motions, found him guilty, and
sentenced him to prison. Bolin alleges the judge’s rulings were wrong. However, “[a]
judge has absolute immunity for any judicial actions unless the judge acted in the
absence of all jurisdiction.” Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011). “A judge will
not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to liability only
when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S.
349, 356-57 (1978) (quotation marks, footnote, and citation omitted). Here, Judge Persin
had jurisdiction to preside over Bolin’s criminal trial. Therefore he had judicial
immunity and these claims must be dismissed.
Finally, Bolin sues Indiana Department of Correction Commissioner Robert E.
Carter, Jr., Westville Warden Mark Savier, and Governor Eric J. Holcomb for
wrongfully holding him in prison because he should not have been convicted.
Nevertheless, Bolin acknowledges he was convicted. Bolin did not file a direct appeal
and he has not yet filed a post-conviction relief petition challenging this conviction.2

See State v. Bolin, 79D05-1701-F6-000038 (Tippecanoe Superior Court filed January 9, 2017), and
https://public.courts.in.gov/mycase/#/vw/SearchResults/eyJ2Ijp7Ik1vZGUiOiJCeVBhcnR5IiwiQ2FzZ
U51bSI6bnVsbCwiQ2l0ZU51bSI6bnVsbCwiQ3Jvc3NSZWZOdW0iOm51bGwsIkZpcnN0Ijoic3RlcGhlbiIsI
k1pZGRsZSI6bnVsbCwiTGFzdCI6ImJvbGluIiwiQnVzaW5lc3MiOm51bGwsIkRvQlN0YXJ0IjpudWxsLCJ
Eb0JFbmQiOm51bGwsIk9BTnVtIjpudWxsLCJCYXJOdW0iOm51bGwsIlNvdW5kRXgiOmZhbHNlLCJDb
3VydEl0ZW1JRCI6MTc1LCJDYXRlZ29yaWVzIjpbIkNWIl0sIkxpbWl0cyI6bnVsbCwiQWR2YW5jZWQiO
nRydWUsIkFjdGl2ZUZsYWciOiJBbGwiLCJGaWxlU3RhcnQiOm51bGwsIkZpbGVFbmQiOm51bGwsIkN
vdW50eUNvZGUiOm51bGx9fQ==
2

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“Habeas corpus is the exclusive remedy for a state prisoner seeking to challenge the fact
or duration of his custody.” See Preiser v. Rodriguez, 411 U.S. 475, 488 (1973). But Bolin
has not filed a habeas corpus petition challenging this conviction either. Bolin has not
yet had his sentence reversed or overturned. Therefore the complaint does not state a
claim against these defendants and these claims must be dismissed.
As explained, this complaint does not state a claim against any defendant.
However, it is possible Bolin could state a claim against Investigator Sean C. Leshney if
he provided more information. Therefore, he may file an amended complaint. See
Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013). In the amended complaint, Bolin
needs to name Investigator Sean C. Leshney as a defendant and present the claims
against him. Bolin needs to specifically identify which statements in the Affidavit are
false and explain why he believes Investigator Leshney knew they were false. He also
needs to say whether he challenged the Affidavit of Probable Cause during his State
criminal trial – and if he did, what was the result.
For these reasons, Stephen K. Bolin is GRANTED until March 29, 2018, to file an
amended complaint and CAUTIONED if he does not respond by the deadline, this case
will be dismissed pursuant to 28 U.S.C. § 1915A because the current complaint does not
state a claim for which relief can be granted.
SO ORDERED on February 23, 2018.
/s/ JON E. DEGUILIO
JUDGE
UNITED STATES DISTRICT COURT

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