BIGSBY v. STATE OF INDIANA et al

Filing 6

ENTRY AND ORDER - The plaintiff's request to proceed in forma pauperis, dkt 2 is granted. The assessment of even an initial partial filing fee is not feasible at this time. For the reasons explained in Part II of this Entry, the complaint fails to state a claim upon which relief could be granted as to any of the defendants. The dismissal of the action pursuant to 28 U.S.C. § 1915A(b) is therefore mandatory. Accordingly, the plaintiff's motion to appoint counsel 3 and for service of process by the United States Marshals Service 4 are denied. Judgment consistent with this Entry shall now issue. Signed by Judge Jane Magnus-Stinson on 6/13/2012. (copy to Plaintiff via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NICK BIGSBY,
Plaintiff,
vs.
STATE OF INDIANA, et al.,
Defendants.

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1:12-cv-709-JMS-TAB

Entry and Order Dismissing Action
I.
The plaintiff’s request to proceed in forma pauperis (dkt 2) is granted. The
assessment of even an initial partial filing fee is not feasible at this time.
II.
Because the plaintiff is a Aprisoner@ as defined by 28 U.S.C. ' 1915(h), the
court has screened his complaint as required by 28 U.S.C. ' 1915A(b). Pursuant to
this statute, "[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). A complaint falls within this category if it “alleg[es] facts
that show there is no viable claim.@ Pugh v. Tribune Co., 521 F.3d 686, 699 (7th. Cir.
2008); 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.”).
Whether a complaint states a claim is a question of law. Morton v. Becker,
793 F.2d 185, 187 (8th Cir. 1986). In applying this standard, A[a] complaint must
always . . . allege >enough facts to state a claim to relief that is plausible on its
face.=A Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th
Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). AA
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). AA pleading
that offers >labels and conclusions' or >a formulaic recitation of the elements of a
cause of action will not do.= Nor does a complaint suffice if it tenders >naked
assertion[s]= devoid of >further factual enhancement.=@ Id. (quoting Twombly, 550
U.S. at 555, 557).

Bigsby sues the State of Indiana, the Marion County Prosecutor’s Office, the
current and former Marion County Prosecutors, and Deputy Prosecutor Eric
Schmadeke. Bigsby alleges that his due process rights were violated when Deputy
Prosecutor Schmadeke obtained “wiretaps” from the Marion County Jail II without
the permission of a judge and used those wiretapped conversations during his
criminal trial. Bigsby seeks damages.
Although the requirements of notice pleading are minimal, when a plaintiff
Apleads facts that show his suit is . . . without merit, he has pleaded himself out of
court.@ Tregenza v. Great American Communications Co., 12 F.3d 717, 718 (7th Cir.
1993), cert. denied, 511 U.S. 1084 (1994). Applying this standard here, the action
must be dismissed as legally insufficient for the reasons explained below:
1.
Claims for damages against a state are barred by the Eleventh
Amendment because "a State cannot be sued directly in its own name regardless of
the relief sought" absent consent or permissible congressional abrogation. Kentucky
v. Graham, 473 U.S. 159, 167 n.14 (1985).
2.
The individual prosecutors are immune from damages for their actions
in conducting the State=s case. Imbler v. Pachtman, 424 U.S. 409 (1976). That is
what Deputy Prosecutor Schmadeke is alleged to have done, and this absolute
immunity "shelters prosecutors even when they act maliciously, wantonly or
negligently." Rykers v. Alford, 832 F.2d 895 (5th Cir. 1987). In addition, because the
prosecutors were acting as a state official when representing the State of Indiana in
the prosecution against Bigsby, the Eleventh Amendment precludes an official
capacity suit against them. See Bibbs v. Newman, 997 F.Supp. 1174, 1178 (S.D.Ind.
1998); Study v. U.S., 782 F. Supp. 1293, 1297 (S.D.Ind. 1991).
III.
For the reasons explained in Part II of this Entry, the complaint fails to state
a claim upon which relief could be granted as to any of the defendants. The
dismissal of the action pursuant to 28 U.S.C. § 1915A(b) is therefore mandatory.
Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002). Accordingly,
the plaintiff’s motion to appoint counsel [3] and for service of process by the United
States Marshals Service [4] are denied.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

06/13/2012
Date: __________________

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

Distribution:
NICK BIGSBY
915268
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064