AJABU v. HAMILTON COUNTY PROSECUTOR'S OFFICE et al

Filing 42

ENTRY GRANTING MOTIONS TO DISMISS - For the reasons stated above, the Motions to Dismiss filed by the Roberts Defendants (Filing No. 4 ), the State Defendants (Filing No. 19 ), and Eric Koselke (Filing No. 23 ) are each GRANTED. The claims against Defendant Estate of Kevin Scionti are dismissed for the same reasons. Because all claims are dismissed, Ajabu's Motion for Summary Judgment (Filing No. 31 )is DENIED. Judgment dismissing the action without prejudice shall now issue. (See Entry.) Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 2/3/2017. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KOFI MODIBO AJABU,
Plaintiff,
v.
HAMILTON COUNTY PROSECUTOR’S
OFFICE, WAYNE STURTEVANT former
Hamilton County Prosecutor, KEN ROBERTS
Kofi Ajabu’s defense attorney, ROBERTS &
BISHOP LAW OFFICE, ESTATE OF KEVIN
SCIONTI deceased, Kofi Ajabu’s defense
attorney, SONIA LEERKAMP former
Hamilton County prosecutor, BRUCE
LEMMONS Commissioner, Indiana
Department of Corrections,
ERIC K. KOSELKE appeals attorney,
Defendants.

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Case No. 1:16-cv-02613-TWP-DKL

ENTRY GRANTING MOTIONS TO DISMISS
This matter is before the Court on three separate Motions to Dismiss: Defendants Hamilton
County Prosecutors Office, Wayne Sturtevant, Sonia Leerkamp, and Bruce Lemmon (the “State
Defendants”) (Filing No. 19), attorney Ken Roberts and Roberts & Bishop Law Office (the
“Roberts Defendants”) (Filing No. 4), and attorney Eric Koselke (Filing No. 23). Plaintiff Kofi
Modibo Ajabu (“Ajabu”) was convicted in Indiana state court of three counts of murder, three
counts of criminal confinement, three counts of robbery, and one count of burglary. He is now
serving his sentence for those crimes at the Wabash Valley Correctional Facility. Ajabu brings
this action pursuant to 42 U.S.C. § 1983 against the State Defendants, the Roberts Defendants, and
Eric Koselke, asserting that each Defendant violated his constitutional rights in the course of his

criminal trial, appeal, and post-conviction proceeding and concludes that he is being held
unlawfully. He seeks release from custody, that his conviction be overturned, and monetary
damages. For the reasons stated below, the Defendants’ individual motion to dismiss are granted. 1
I. MOTION TO DISMISS LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
is to test the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chi.
Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). The standard for assessing the procedural
sufficiency of pleadings is imposed by Federal Rule of Civil Procedure 8(a)(2), which requires “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, although
the complaint need not recite “detailed factual allegations,” it must state enough facts that, when
accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007). A claim is facially plausible when the plaintiff pleads facts
sufficient for the court to infer that the defendant is liable for the alleged misconduct. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
In ruling on a motion to dismiss, the Court views the complaint in the light most favorable
to the plaintiff, accepting all well-pleaded factual allegations as true and drawing all reasonable
inferences from those allegations in favor of the plaintiff. Lee v. City of Chi., 330 F.3d 456, 459
(7th Cir. 2003). Additionally, the Court may not rely upon evidence and facts outside of those
alleged in the complaint in ruling on a motion to dismiss.

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Defendant Estate of Kevin Scionti has not appeared in this action and appears not to have been served with a
summons and copy of the complaint. Because the claims against this defendant can be dismissed for the same reasons
as those discussed in this Entry, these claims are also dismissed.

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II.

DISCUSSION

The Defendants move to dismiss arguing, among other things, that Ajabu’s claims are
barred by the doctrine of Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). Because this argument
sufficiently disposes of all claims, the Court need not address the other arguments for dismissal
discussed in the motions to dismiss.
Heck provides that where “success in a . . . [42 U.S.C. §] 1983 damages action would
implicitly question the validity of conviction or duration of sentence, the litigant must first achieve
favorable termination of his available state, or federal habeas, opportunities to challenge the
underlying conviction or sentence.” Muhammad v. Close, 540 U.S. 749, 751 (2004) (citing Heck).
In other words, “under Heck, a § 1983 claim for damages is not cognizable (i.e. does not accrue)
if a judgment in favor of the plaintiff on that claim ‘would necessarily imply the invalidity of [the
plaintiff's] conviction or sentence.’” Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239
F.3d 892, 896-97 (7th Cir. 2001) (citing Heck, 512 U.S. at 487). Ajabu is currently in prison
serving the sentence imposed for the convictions identified in his complaint. It is clear from the
face of the complaint that those convictions have not been successfully challenged. Since Ajabu
has failed to show that his state convictions have been vacated, he cannot ask this Court to
“dismiss” his convictions or order his immediate release through § 1983 litigation. See Preiser v.
Rodriguez, 411 U.S. 475, 488-490 (1973) (A writ of “habeas corpus is the exclusive remedy for a
state prisoner who challenges the fact or duration of his confinement and seeks immediate or
speedier release, even though such a claim may come within the literal terms of § 1983.”). In
addition, he cannot recover monetary damages in the form of a civil rights action where such relief
would necessarily impugn the validity of his underlying conviction. Snodderly, 239 F.3d at 896-

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97 (citing Heck, 512 U.S. at 487). Accordingly, Ajabu’s claims are barred at this time and must
be dismissed without prejudice.
III. CONCLUSION
For the reasons stated above, the Motions to Dismiss filed by the Roberts Defendants
(Filing No. 4), the State Defendants (Filing No. 19), and Eric Koselke (Filing No. 23) are each
GRANTED. The claims against Defendant Estate of Kevin Scionti are dismissed for the same
reasons. Because all claims are dismissed, Ajabu’s Motion for Summary Judgment (Filing No.
31) is DENIED. Judgment dismissing the action without prejudice shall now issue.

SO ORDERED.
Date: 2/2/2017

DISTRIBUTION:
Kofi Modibo Ajabu, 955750
Wabash Valley Correctional Facility
6908 South Old US Hwy 41
P.O. Box 1111
Carlisle, Indiana 47838
David A. Arthur
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Tasha Roberts
ROBERTS & BISHOP
[e-mail]
James O. Giffin
RILEY BENNETT & EGLOFF LLP
[e-mail]

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