Cooper v. Tippecanoe County Sheriff's Department et al

Filing 14

OPINION AND ORDER: The Court GRANTS the plaintiff until 3/6/2024, to file an amended complaint; and CAUTIONS him that if he does not respond by the deadline, this case is subject to dismissal under 28 U.S.C. §1915A because the current complaint does not state a claim upon which relief can be granted. Signed by Judge Philip P Simon on 2/6/2024. (ash)(Copy mailed to pro se party) Modified on 2/6/2024 to add routing(ash).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
TIMOTHY A. COOPER,
Plaintiff,
v.

Cause No. 4:23-CV-84-PPS-JEM

TIPPECANOE COUNTY SHERIFF’s
DEPARTMENT, et al.,
Defendants.
OPINION AND ORDER
Timothy A. Cooper, a prisoner proceeding without a lawyer, filed an amended
complaint under 42 U.S.C. § 1983. [DE 5.] As required by 28 U.S.C. § 1915A, I must
review this pleading 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. To proceed beyond the pleading
stage, a complaint must contain sufficient factual matter to “state a claim that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Because Mr. Cooper is proceeding without counsel, I
must give his allegations liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Mr. Cooper is being detained at the Tippecanoe County Jail. Some of his
allegations are difficult to follow, but he appears to claim that when he was at the jail in

2019 and 2020 in connection with a prior case, his mail was opened and tampered with
by Melissa Smith, who worked in the jail commissary. 1 He further claims that Jail
Commander Tom Lehman and Assistant Jail Commander Carrie Morgan should be
held liable for Ms. Smith’s actions because they are “legally responsible for the
operation of the Tippecanoe County Jail.” He sues Ms. Smith, Commander Lehman,
Assistant Commander Morgan, and their employer the Tippecanoe County Sheriff’s
Department.
Inmates have a constitutional right to send and receive mail. Rowe v. Shake, 196
F.3d 778, 782 (7th Cir. 1999). However, suits filed under 42 U.S.C. § 1983 borrow the
statute of limitations for state personal injury claims, which in Indiana is two years.
Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). The date on which the claim
accrues, and the limitations period starts running, is the date when a plaintiff knows the
fact and the cause of an injury. O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir.
2015). Here, it is evident that Mr. Cooper is suing over events occurring in 2019 and
2020, and that he was aware his mail was opened at the time this occurred. He tendered
his original complaint for mailing in September 2023, more than two years later.2

1 Public records reflect that Mr. Cooper is currently in custody on a pending charge of failing to
register as a sex offender. State of Indiana v. Cooper, 79D02-2308-F5-164 (Tippecanoe Sup. Ct. filed Aug. 16,
2023). He incurred a prior conviction for this same offense in 2020. State of Indiana v. Cooper, 79D02-1907F5-123 (Tippecanoe Sup. Ct. closed Mar. 24, 2020). It can be discerned from the docket in the prior case
that he was detained at the jail from roughly July 2019 to March 2020. Id. I am permitted to take judicial
notice of public records at the pleading stage. See FED. R. EVID. 201; Tobey v. Chibucos, 890 F.3d 634, 647
(7th Cir. 2018).
2 His original complaint was stricken because it was not on the right form and contained other
deficiencies. I will presume for purposes of this opinion that the amended complaint filed in November
2023 “relates back” to the original under Federal Rule of Civil Procedure 15(c).

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Untimeliness is an affirmative defense, but dismissal at the pleading stage is
permissible when it is clear from the face of the complaint that the claims are untimely.
Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009). That
standard is satisfied here with respect to any claim stemming from alleged mishandling
of his mail in 2019 and 2020.
Mr. Cooper additionally claims that Ms. Smith, Commander Lehman, and
Assistant Commander Morgan are “responsible for my guilty sentence, because they
were preventing me from getting into contact with the ACLU” and the “Indiana Judicial
Nomination Commission.” It appears he wanted to report an alleged conspiracy
between his attorney, the prosecutor, and the judge who presided over his criminal
case; he claims the three worked together to secure a conviction by requiring him to
wear shackles during his jury trial. He also believes the judge “did absolutely nothing”
to protect his rights during the criminal case.
He may be claiming a denial of his right of access to the courts based on these
allegations. The right of access to the courts is not an “abstract, freestanding right,”
Lewis v. Casey, 518 U.S. 343, 351 (1996), and instead hinges on whether there was
prejudice to a non-frivolous legal claim. Marshall v. Knight, 445 F.3d 965, 969 (7th Cir.
2006). To state a claim, the inmate is required to “spell out” the connection between the
denial of access to the courts and the resulting prejudice to a potentially meritorious
legal claim. Id.
Mr. Cooper claims that he was convicted of a criminal offense because jail staff
prevented him from contacting organizations that could have investigated alleged
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misconduct by the judge, prosecutor, and defense attorney in his criminal case.
However, Heck v. Humphrey, 512 U.S. 477 (1977), prevents him from arguing in a civil
suit that he was wrongfully convicted, even in connection with an access-to-the-courts
claim. See Hoard v. Reddy, 175 F.3d 531, 532–33 (7th Cir. 1999) (prisoner’s claim for
violation of his right of access to the courts was barred by Heck, “which forbids a
convicted person to seek damages on any theory that implies that his conviction was
invalid without first getting the conviction set aside, which [he] has not done”); Nance v.
Vieregge, 147 F.3d 589, 591 (7th Cir. 1998) (prisoner could not sue for denial of access to
the courts based on alleged hindrance of his ability to challenge his guilty plea unless he
first succeeded in getting his conviction set aside). A claim that his rights were violated
because he had to wear shackles in front of the jury, or that he did not receive effective
assistance of counsel because his attorney was conspiring with the prosecutor, belongs
in a habeas petition, not a civil rights suit. Preiser v. Rodriguez, 411 U.S. 475, 488 (1973);
Morgan v. Schott, 914 F.3d 1115, 1119 (7th Cir. 2019). Mr. Cooper cannot pursue an
access-to-the-courts claim based on an allegation that he was wrongfully convicted
unless his conviction is overturned, vacated, or set aside. This claim must be dismissed
without prejudice. Polzin v. Gage, 636 F.3d 834, 839 (7th Cir. 2011).
Therefore, the amended complaint does not state a claim upon which relief can
be granted. He has already amended his complaint once, but in the interest of justice, I
will allow him an additional opportunity to replead if he believes he can overcome the
barriers identified in this order to state a plausible claim, consistent with the allegations

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he has already made under penalty of perjury. See Abu-Shawish v. United States, 898 F.3d
726, 738 (7th Cir. 2018); Luevano v. Wal-Mart, 722 F.3d 1014, 1024 (7th Cir. 2013).
For these reasons, the Court:
(1) GRANTS the plaintiff until March 6, 2024, to file an amended complaint; and
(2) CAUTIONS him that if he does not respond by the deadline, this case is
subject to dismissal under 28 U.S.C. § 1915A because the current complaint does not
state a claim upon which relief can be granted.
SO ORDERED on February 6, 2024.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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