PERKINS v. JONES et al

Filing 6

ENTRY Dismissing Complaint and Directing Further Proceedings - For the reasons explained in this Entry, the complaint of Stacy Perkins is dismissed because it fails to state a claim upon which relief can be granted. The action is not dismissed at this point. Rather, Perkins will be permitted to file an amended complaint with respect to one of the two defendants. If an amended complaint is filed as permitted in this Entry, the court will determine its legal sufficiency and enter whatever or der which is warranted. If no amended complaint is filed as directed in this Entry, the action will be dismissed for failure to state a claim upon which relief can be granted. Signed by Judge Jane Magnus-Stinson on 7/17/2012. (copy to Plaintiff via US Mail)(JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

STACY K. PERKINS,

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Plaintiff,
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vs.
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AMY JONES, Attorney, and
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INDIANAPOLIS METROPOLITAN )
POLICE DEPARTMENT,
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Defendants. )

1:12-cv-490-JMS-DML

Entry Dismissing Complaint and Directing Further Proceedings
For the reasons explained in this Entry, the complaint of Stacy Perkins is
dismissed because it fails to state a claim upon which relief can be granted. The
action is not dismissed at this point. Rather, Perkins will be permitted to file an
amended complaint with respect to one of the two defendants.
Background
Stacy K. Perkins sues his former attorney and the Indianapolis Metropolitan
Police Department (“IMPD”). Perkins alleges that he was pulled over in
Indianapolis in August 2010, that he was arrested at that time (though no traffic
ticket was issued), that the charge was dismissed in July 2011, and that he is
dissatisfied with both the arrest and his representation. In addition, he paid the
attorney to seek expungement of the matter but that effort failed. Claiming that
this has caused him emotional and other harm, he seeks ½ million dollars in
damages.
Perkins’ action is brought pursuant to 42 U.S.C. § 1983, “the ubiquitous tort
remedy for deprivations of rights secured by federal law (primarily the Fourteenth
Amendment) by persons acting under color of state law.” Jackson v. City of Joliet,
715 F.2d 1200, 1201 (7th Cir. 1983), cert. denied, 465 U.S. 1049 (1984).

Discussion
To state a claim under § 1983, “a plaintiff must allege that the defendants
deprived him of a right secured by the Constitution or laws of the United States,
and that the defendants acted under color of state law.” Lekas v. Briley, 405 F.3d
602, 606 (7th Cir. 2005). A person acts under color of state law only when exercising
power Apossessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.@ United States v. Classic, 313
U.S. 299, 326 (1941).
First, Perkins has sued his former Attorney, Amy Jones, for her failure to
successfully seek the expungement of the matter after the charges were dismissed.
The claim against defendant Jones is not actionable under Section 1983 because
this defendant did not act under color of state law in representing Perkins. See Fries
v. Helsper, 146 F.3d 452 (7th Cir. 1998); French v. Corrigan, 432 F.2d 1211, 1214-15
(7th Cir. 1970). Although Perkins may have a viable claim based on state law,
42 U.S.C. § 1983 cannot be used to vindicate such matters. Scott v. Edinburg, 346
F.3d 752, 760 (7th Cir. 2003)("42 U.S.C. ' 1983 protects plaintiffs from constitutional violations, not violations of state laws . . . .").
Next, Perkins names the IMPD as a defendant, presumably because he was
pulled over by IMPD Officer Seth Ferrell, who proceeded to arrest Perkins on
charges which were subsequently dismissed. In Indiana, municipal police
departments “are not suable entities.” See Sow v. Fortville Police Dept., 636 F.3d
293, 300 (7th Cir. 2011). Even if it is assumed that the improper naming of the
IMPD is the equivalent of suing the City of Indianapolis, Best v. City of Portland,
554 F.3d 698, fn* (7th Cir. 2009), this claim still must be dismissed because there is
no claim sufficient to support municipal liability under Monell v. Dept. of Social
Services, 436 U.S. 658 (1978). More specifically, a municipality can be found liable
under ' 1983 only if action pursuant to an official policy or custom of the
municipality causes a constitutional tort. Id. at 690-91. Perkins has alleged no
municipal policy or custom of constitutional violations in actions by IMPD officers to
arrest persons for whom an open warrant for arrest exists. The filing of criminal
charges, moreover, lies in the hands of the county prosecutor, not the IMPD, and
the prosecutor cannot be held liable for such actions. Imbler v. Pachtman, 424 U.S.
409, 431 (1976); see also Redwood v. Dobson, 476 F.3d 462, 466 (7th Cir. 2007)
(“Dobson's decision to commence a criminal prosecution is covered by absolute
immunity.”)(citing Imbler).
Perkins shall have through August 15, 2012, in which to file an amended
complaint asserting a viable claim against the IMPD. In submitting an amended
complaint, Perkins shall conform to the following guidelines: (a) the amended
complaint shall comply with the requirement of Rule 8(a)(2) of the Federal Rules of
Civil Procedure that pleadings contain "a short and plain statement of the claim

showing that the pleader is entitled to relief. . . . ," (b) the amended complaint shall
comply with the requirement of Rule 10 that the allegations in a complaint be made
in numbered paragraphs, each of which should recite, as far as practicable, only a
single set of circumstances, (c) the amended complaint must identify what legal
injury he claims to have suffered and what persons are responsible for each such
legal injury, and (d) the amended complaint shall contain a clear statement of the
relief which is sought.
III.
If an amended complaint is filed as permitted in this Entry, the court will
determine its legal sufficiency and enter whatever order which is warranted. If no
amended complaint is filed as directed in this Entry, the action will be dismissed for
failure to state a claim upon which relief can be granted.
IT IS SO ORDERED.

07/17/2012
Date: __________________

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution:
STACY K. PERKINS
4440 N. Arlington Ave.
Indianapolis, IN 46206