RONDEAU v. CURRY
ENTRY Dismissing Amended Statement of Claim, ORDER denying 11 Motion to Set Aside Judgment; denying 12 Motion for Relief. As plaintiff has failed to show cause why this action should not be dismissed in its entirety, the action is now dismissed with prejudice. Judgment consistent with this Entry shall now issue. (S.E.). Signed by Judge William T. Lawrence on 5/16/2017. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRY R. CURRY,
Entry Dismissing Amended Statement of Claim,
Denying Motion to Set Aside Judgment,
Dismissing Action, and Directing Entry of Judgment
Plaintiff commenced this 42 U.S.C. § 1983 action on April 3, 2017, against Terry Curry,
the Marion County Prosecuting Attorney, for Curry’s decision not to prosecute for perjury one of
the witnesses who testified against plaintiff at plaintiff’s state court criminal trial. In screening the
complaint pursuant to 28 U.S.C. § 1915A, the Court dismissed the complaint finding Curry had
prosecutorial immunity for all decisions concerning the prosecutorial function. See Imbler v.
Pachtman, 424 U.S. 409, 431 (1976); Fields v. Wharrie, 672 F.3d 505, 510 (7th Cir. 2012). The
Court allowed plaintiff through May 18, 2017, to show cause why the action should not be
dismissed or to file an amended complaint that stated a claim upon which relief may be granted.
Plaintiff has responded with two filings, (1) an “amended statement of claim,” and (2) a
motion to set aside judgment, both filed May 12, 2017.
I. Amended Statement of Claim
The amended statement of claim, which is in effect an amended complaint, names the
original defendant Terry Curry, and adds defendants Carl Brizzi, Stephanie Wade, Noah Schafer,
and Clarke Campbell. All four of the added defendants are current or former Marion County
prosecutors. All of the allegations against all of the defendants concern their involvement with the
state prosecution of plaintiff in State of Indiana v. Christopher Rondeau, Case No. 49G01-0904MR-038670, a murder case tried in Marion County, Indiana.
Plaintiff has now reframed his complaint to add to his original claim allegations that the
prosecutors presented a fraudulent representation of the facts to his jury and unconstitutionally
withheld information from the state trial court and the state post-conviction court. He also
generally adds the four additional defendants to the original claim for not prosecuting a trial
witness for perjury. As to the trial-related claims, plaintiff’s allegations concern the presentation
of evidence, evidence that was not used, and the way arguments were made. Plaintiff extrapolates
the prosecutors’ selective use of evidence into a fraud-upon-the-court argument, and contends this
fraud continued through the post-conviction trial and appellate stages of his state conviction.
Finally, plaintiff takes issue with this Court’s finding that a prosecutor has immunity for
prosecutorial actions and decisions. He contends that their actions, because they were fraudulent
and because they unconstitutionally suppressed evidence, remove the prosecutors’ immunity and
make them liable in civil rights actions.
Plaintiff seeks compensatory and punitive damages against the five prosecutors. He also
seeks to have the criminal judgment against him set aside pursuant to Fed. R. Civ. P. 60(d)(3).
II. Motion to Set Aside Judgment
Plaintiff’s Motion to Set Aside Judgment pursuant to Fed. R. Civ. P. 60(d)(3) attacks the
judgment of the Marion County criminal court, case number 49G01-0904-MR-038670, on the
grounds of “fraud upon the court.” Plaintiff’s motion has no argument section, and is supported
solely by exhibits to the state trial record. It is a collateral attack on the validity of plaintiff’s state
court criminal conviction.
Amended Statement of Claim.
Plaintiff continues to assert his claims against the state prosecutors for their prosecutorial
actions and conduct in his state criminal trial. With the exception of his original claim against the
elected prosecuting attorney, Terry Curry, for not commencing perjury charges against one of the
police officers who testified against plaintiff at trial, the new claims are lumped together against
the four additional prosecutors for their trial decisions, tactics, and strategies. Plaintiff is
particularly concerned about a police officer’s characterization of plaintiff’s injuries, which he
calls perjury, about prosecutors not using all of the evidence at their disposal, which he calls fraud,
and for allegedly not turning over all of the evidence to his defense, which he correctly identifies
as a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963).
It is clear that plaintiff is attempting another attack on his state conviction, as the relief he
seeks in his complaint is not only monetary damages but also relief from the state judgment. To
drive that point home, he filed the above-referenced motion for relief from judgment pursuant to
Fed. R. Civ. P. 60(d)(3). See discussion, part III.B., infra. Notwithstanding the fact that all five of
the named defendants are or were state prosecutors or deputy prosecutors and continue to have
absolute immunity from suit for their prosecutorial actions, see Imbler, 424 U.S. at 431 (1976),
and Fields, 672 F.3d at 510, because it is now clear plaintiff’s civil rights action is another attempt
to collaterally attack plaintiff’s state court conviction, the action is barred by Heck v. Humphrey,
512 U.S. 477 (1994). Heck instructs:
[I]n order to recover damages for [an] allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus,
28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction
or sentence that has not been so invalidated is not cognizable under § 1983.
Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that the plaintiff's
action, even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be allowed to proceed, in
the absence of some other bar to the suit.
Heck, 512 U.S. at 486-87 (internal footnotes omitted) (emphasis added).
This Court finds that, again notwithstanding the prosecuting attorneys’ absolute immunity,
that a judgment in this case would necessarily call into question the validity of plaintiff’s state
court conviction. Plaintiff’s conviction was upheld on state direct appeal. Rondeau v. State,
No. 49A02–1006–CR–694, slip op. at 2–5, 2011 WL 977075 (Ind. Ct. App. Mar. 21, 2011). The
state supreme court denied transfer on May 12, 2011. Plaintiff’s efforts at state post-conviction
relief were unsuccessful, and relief was denied. Rondeau v. State, 48 N.E.3d 907 (Ind. Ct. App.
2016). The state supreme court denied transfer on March 17, 2016. Plaintiff sought habeas corpus
relief in federal court, but relief was denied. Rondeau v. Zatecky, No. 1:16-cv-0762-WTL-DKL,
2016 WL 4088720 (S.D. Ind. 2016). Because plaintiff cannot demonstrate that his conviction has
been invalidated, and a judgment in this action would call the conviction into question, Heck
requires this action be dismissed.
Alternatively, if relief in this case would not call into question the validity of plaintiff’s
state court conviction, the named defendants still cannot be sued because they have prosecutorial
immunity. This action would be dismissed on that ground if Heck did not apply.
Motion for Relief From Judgment
Plaintiff’s motion for relief from judgment is brought under Fed. R. Civ. P. 60(d)(3).
Unfortunately for plaintiff, this is a federal civil rule completely inapplicable to state court
judgments. The Federal Rules of Civil Procedure have no applicability to state court cases, and
cannot be used to set aside a state court criminal judgment. See Fed. R. Civ. P. 1 (“[the federal
rules of civil procedure] govern the procedure in all civil actions and proceedings in the United
States district courts”); see also Weems v. Oregon University System, 2012 WL 4093539 (D. Ore.
Sept. 17, 2012). But moreover, a motion under Rule 60(d) that attacks a state court’s judgment of
conviction is properly construed as a petition for habeas corpus under 28 U.S.C. § 2254.
Thompkins v. Berghuis, 509 F. App’x 517 (6th Cir. 2013). Plaintiff cannot bring a second habeas
corpus petition in this Court without prior authorization from the Seventh Circuit Court of Appeals.
Burton v. Stewart, 549 U.S. 147, 153 (2007). He does not have that authorization.
For the reasons explained above, the amended statement of claim, dkt. , is dismissed
for failure to state a claim upon which relief may be granted. The motion to set aside judgment,
dkt. , is denied. As plaintiff has failed to show cause why this action should not be dismissed
in its entirety, the action is now dismissed with prejudice. Judgment consistent with this Entry
shall now issue.
IT IS SO ORDERED.
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Christopher Rondeau, #198058
Pendleton - CF
Pendleton Correctional Facility
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