ZAVODNIK et al v. CARROLL et al

Filing 11

ENTRY - Dismissing Complaint, Denying Request for Temporary Restraining Order or Preliminary Injunction and Directing Further Proceedings; The plaintiffs' motion for leave to proceed in forma pauperis [dkt. 2] is granted. TRO orders & preli minary injunction orders, and to set an emergency expedited hearing on a preliminary injunction" [dkt. 3] is denied. The plaintiff's motion requesting assistance with service of process [dkt. 5] is denied as premature.The dismissal of the complaint does not in this instance require the dismissal of this cause of action for now. Instead, plaintiffs shall have through July 22, 2014, in which to file an amended complaint. *** SEE ORDER ***. Signed by Judge Sarah Evans Barker on 06/16/2014. Copies Mailed. (CKM) (Main Document 11 replaced on 6/17/2014) (CKM).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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Plaintiffs,
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vs.
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THOMAS J. CARROLL, MARION COUNTY )
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SUPERIOR COURT CIVIL 06, ADAM C.
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COBB, JENNIFER R. FITZWATER,
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JENNIFER MCNAIR, MERCER
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BELANGER, ROBYN L MOBERLY,
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KEVIN DEMPSEY, FRANK OTTE,
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ELLEN K. FUJAWA, DEWAYNE
PITTMAN, US BANKRUPTCY COURT FOR )
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THE SOUTHERN DISTRICT OF INDIANA
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Indianapolis Division, JOHN R. LAYTON,
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JEFFREY J. EDENS Boone County Circuit
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Court,
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Defendants.
GERSH ZAVODNIK and
TATIANA ZAVODNIK,

Case No. 1:14-cv-00995-SEB-TAB

Entry Dismissing Complaint, Denying Request for Temporary Restraining Order or
Preliminary Injunction and Directing Further Proceedings
I.
The plaintiffs’ motion for leave to proceed in forma pauperis [dkt. 2] is granted.
II.
A.
District courts have an obligation under 28 U.S.C. § 1915(e)(2)(B) to screen complaints
before service on the defendants, and must dismiss the complaint if it is frivolous or malicious,

fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from
such relief. In determining whether the complaint states a claim, the Court applies the same
standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal under
federal pleading standards,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face. A 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, 556 U.S. 662, 678 (2009). Thus, a “plaintiff must do better than putting a few
words on paper that, in the hands of an imaginative reader, might suggest that something has
happened to her that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400,
403 (7th Cir.2010) (emphasis in original).
B.
Presently before the Court is the plaintiffs’ 291-page complaint. The plaintiff’s unwieldy
complaint, which is full of legal analysis and irrelevant facts, violates Rule 8(a)(2) of the Federal
Rules of Civil Procedure. That rule requires that pleadings contain “a short and plain statement
of the claim showing that the pleader is entitled to relief. . . . .” The complaint is dismissed for
violating Rule 8(a)(2) and for the additional reasons set forth below. See United States ex rel.
Garst v. Lockheed–Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) (“Rule 8(a) requires parties
to make their pleadings straightforward, so that judges and adverse parties need not try to fish a
gold coin from a bucket of mud.”); Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir. 1990)
(complaint “must be presented with sufficient clarity to avoid requiring a district court or
opposing party to forever sift through its pages” to determine whether it states a valid claim).

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C.
Even giving the complaint liberal construction, the Court cannot discern within it any
plausible federal claim against any defendant. First, it appears that the plaintiffs’ primary
purpose in filing this action is to stop the sheriff’s sale set to take place on June 18, 2014. But,
this Court has no authority to dismiss, review, or otherwise interfere with the state court case in
which the foreclosure order was issued. See In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001)
(observing that as a general matter, federal courts lack authority to “control or interfere with state
court litigation”); Lewis v. Anderson, 308 F.3d 768, 771–72 (7th Cir. 2002) (“lower federal
courts do not have jurisdiction to conduct direct review of state court decisions.”). The RookerFeldman doctrine strips the district court of jurisdiction to involve itself in the plaintiffs’ attempt
at an appeal of the state court decisions, notwithstanding their allegations that the state court’s
judgment runs afoul of the United States Constitution. See Brokaw v. Weaver, 305 F.3d 660, 664
(7th Cir. 2002)(“Simply put, the Rooker [v. Fidelity Trust Co., 263 U.S. 413 (1923)]-[District of
Columbia Court of Appeals v.] Feldman[, 460 U.S. 462 (1983),] doctrine ‘precludes lower
federal court jurisdiction over claims seeking review of state court judgments . . . [because] no
matter how erroneous or unconstitutional the state court judgment may be, the Supreme Court of
the United States is the only federal court that could have jurisdiction to review a state court
judgment.’ Thus, if a claim is barred by the Rooker-Feldman doctrine, a federal court lacks
subject matter jurisdiction over the case.”) (internal citations and footnote omitted).
Second, the judges in the state court case and bankruptcy court are entitled to immunity
for their actions taken in the state case, even if the plaintiffs believe they acted improperly. See
Stump v. Sparkman, 435 U.S. 349, 359 (1978) (judicial immunity). Accordingly, defendants
Thomas J. Carroll, Judge of the Marion County Superior Court; Robyn L. Moberly, Former

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Judge of the Marion County Superior Court and Judge of the United States Bankruptcy Court,
S.D. of Indiana; Frank J. Otte, Judge of the United States Bankruptcy Court, S.D. of Indiana; and
Jeffrey J. Edens, Judge of the Boone County Circuit Court are subject to dismissal on this basis.
Third, the Marion County Superior Court is not a suable entity under Indiana law and
thus cannot be sued for constitutional violations. See IND. CODE § 36–1–2–10; Sow v. Fortville
Police Dept., 636 F.3d 293, 300 (7th Cir. 2011). Accordingly, the Marion County Superior Court
is dismissed.
Fourth, defendants Adam C. Cobb, Jennifer R. Fitzwater, and Jennifer McNair appear to
be attorneys involved in other lawsuits. To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution or laws of the United States and must show that
the alleged deprivation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). There is no plausible basis to conclude that the defendant
attorneys were acting under state law such that they are subject to liability under § 1983. They
are dismissed on this basis.
Similarly, the United States Bankruptcy Court, Ellen K. Fujawa, Trustee of the United
States Bankruptcy Court, S.D. of Indiana, Kevin P. Dempsey, Clerk of the U.S. Bankruptcy
Court, S.D. of Indiana, and DeWayne Pittman, Clerk of the U.S. Bankruptcy Court, S.D. of
Indiana, are not proper defendants in a § 1983 action. There is no plausible basis to conclude that
their alleged actions resulted in a constitutional violation such that liability under the theory set
forth in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) is possible.

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III.
Without a viable federal claim, the “plaintiffs’ verified emergency motion for the
immediate (TRO) temporary restraining order & preliminary injunction order enjoining the
sheriff’s sale of ‘the roof over the old & sick plaintiffs’ heads’ – our home, scheduled to take
place in a few days – on June 18th, 2014, other TRO orders & preliminary injunction orders, and
to set an emergency expedited hearing on a preliminary injunction” [dkt. 3] is denied.
IV.
The dismissal of the complaint will not in this instance lead to the dismissal of the
complaint at present. Instead, the plaintiffs shall have through July 22, 2014, in which to file an
amended complaint.
In filing an amended complaint, the plaintiffs 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 they claim 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. The plaintiffs are further notified that A[u]nrelated claims
against different defendants belong in different suits.@ George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007).
If an amended complaint is filed as directed above, it will be screened. If no amended
complaint is filed, this action will be dismissed for lack of subject matter jurisdiction.

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V.
The plaintiff’s motion requesting assistance with service of process [dkt. 5] is denied as
premature. If a viable claim is identified in the amended complaint, the Court will assist with
serving the defendants.
IT IS SO ORDERED.

6/16/2014
Date: __________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
GERSH ZAVODNIK
4410 Clayburn Dr.
Indianapolis, IN 46268
TATIANA ZAVODNIK
4410 Clayburn Dr.
Indianapolis, IN 46268

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