SUTTON v. UNITED STATES OF AMERICA et al

Filing 5

ENTRY Discussing Selected Matters - Plaintiff shall have through July 18, 2012, in which to show cause why the action should not be dismissed for failure to state a claim upon which relief can be granted. Signed by Judge Tanya Walton Pratt on 6/26/2012. Copy Mailed.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
VARNADOR SUTTON,

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Plaintiff,
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vs.
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UNITED STATES OF AMERICA, et )
al.,
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Defendants. )
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1:12-cv-531-TWP-DML

Entry Discussing Selected Matters
I.
The clerk shall not issue the summons tendered by the plaintiff unless it is
determined that a viable claim has been asserted against one or both of the
defendants. This process is required by 28 U.S.C. § 1915A(b) because of the
plaintiff’s status as a prisoner as defined in 28 U.S.C. § 1915(h). Pursuant to
§ 1915A(b), "[a] complaint is subject to dismissal for failure to state a claim if the
allegations, taken as true, show that plaintiff is not entitled to relief." Jones v. Bock,
127 S. Ct. 910, 921 (2007); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696,
699 (9th Cir. 1990)(“Dismissal under Rule 12(b)(6) can be based on the lack of a
cognizable legal theory or the absence of sufficient facts alleged under a cognizable
legal theory.”).

II.
A.
The complaint announces that the plaintiff’s claims are asserted against
Assistant United States Attorney Winfield Ong and against the United States
pursuant to the theory recognized in Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 38 (1971). The claim against defendant Ong would appear to be
barred by prosecutorial immunity, see Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir.
2012)(“A prosecutor is absolutely immune from suit for all actions and decisions
undertaken in furtherance of his prosecutorial duties.”)(citing Imbler v. Pachtman,
424 U.S. 409, 410 (1976)), whereas no Bivens claim can be asserted against the
United States. See FDIC v. Meyer, 510 U.S. 471, 475 (1994)("Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from suit.")
B.
In light of the foregoing, and because the complaint must be dismissed if it
fails to state a claim upon which relief can be granted, Lagerstrom v. Kingston, 463
F.3d 621, 624 (7th Cir. 2006), the plaintiff shall have through July 18, 2012, in
which to show cause why the action should not be dismissed for failure to state a
claim upon which relief can be granted.
IT IS SO ORDERED.

06/26/2012
Date: __________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
Varnador Sutton
59257-029
Atlanta U.S. Penitentiary
P.O. Box 150160
Atlanta, GA 30315