AJABU v. HAMILTON COUNTY PROSECUTOR'S OFFICE, et al.

Filing 9

Entry Dismissing Complaint and Directing Further Proceedings. Plaintiff shall have through June 16, 2017, in which to show cause why this action should not be dismissed for failure to state a claim upon which relief can be granted. Luevano v. Wal-Mar t Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013) (plaintiffs should be given at least an opportunity to amend or to respond to an order to show cause before a case is "tossed out of court without giving the applicant any timely notice or opportunity to be heard to clarify, contest, or simply request leave to amend.") (Copy to Plaintiff via U.S. Mail) Signed by Judge William T. Lawrence on 5/19/2017.(JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KOFI M. AJABU,
Plaintiff,
vs.
HAMILTON COUNTY PROSECUTOR’S
OFFICE,
et al.
Defendants.

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No. 1:17-cv-01218-WTL-DML

Entry Dismissing Complaint and Directing Further Proceedings
I. Background
The plaintiff, Kofi M. Ajabu (“Mr. Ajabu”), is a prisoner currently incarcerated at
Wabash Valley Correctional Industrial Facility (“Wabash”). Because the plaintiff is a “prisoner”
as defined by 28 U.S.C. § 1915(h), this Court has an obligation under 28 U.S.C. § 1915A(b) to
screen his complaint before service on the defendants. Pursuant to 28 U.S.C. § 1915A(b), the
Court 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,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for 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).

II. Screening
The complaint is brought under the Rackateer Influenced and Corrupt Organizations Act,
18 U.S.C. § 1961, et seq. (“RICO”), and 42 U.S.C. § 1983. Mr. Ajabu names the following
defendants: 1) Hamilton County Prosecutor’s Office; 2) Wayne Sturtevant, former Hamilton
County Prosecutor; 3) Ken Roberts; 4) Estate of Kevin Scionti; 5) Sonia Leerkamp, former
Hamilton County Prosecutor; 6) Bruce Lemmons, Commissioner of the Indiana Department of
Correction; and 7) Eric K. Koselke, appeals attorney. Mr. Ajabu seeks compensatory and
punitive damages.
Allegations
Mr. Ajabu alleges that in October 1995, he was sentenced to life without parole on three
counts of murder and one count of burglary. He alleges that his defense attorney Mr. Roberts and
the Hamilton County Prosecutors colluded to fraudulently deprive him of his constitutional right
to effective counsel and of his right to put forth a defense. His appellate attorneys also allegedly
worked in concert with the Hamilton County Prosecutor’s Office and his trial attorneys to
conceal fraudulent acts.
Jumping ahead a decade in an unrelated claim, Mr. Ajabu alleges that while in prison in
2006, he was charged with battery resulting in serious bodily injury. His defense attorney,
Chadwick Hill, visited the prison and determined that the layout of the prison would not have
allowed Mr. Ajabu to commit the battery. The Madison County Prosecutor ultimately decided
that there was insufficient evidence to proceed to trial and dismissed the charges. Nonetheless,
the Indiana Department of Correction kept Mr. Ajabu in solitary confinement for over a year
based on the same facts from which the prosecutor found exonerating evidence and decided not
to prosecute.

RICO Claims
Mr. Ajabu brings claims under RICO. RICO’s private civil remedy provision states:
Any person injured in his business or property by reason of a violation of section
1962 of this chapter may sue therefor ... and shall recover threefold the damages
he sustains and the cost of the suit, including a reasonable attorney's fee....
18 U.S.C. § 1964(c).
To state a claim under RICO, a plaintiff must allege that he suffered an injury to his
business or property as a result of the underlying acts of racketeering. Empress Casino Joliet
Corp. v. Johnston, 763 F.3d 723, 728 (7th Cir. 2014); 18 U.S.C. § 1964(c). “Under RICO, the
plaintiff can only recover to the extent that [ ] he has been injured in his business or property by
the conduct constituting the violation.” Id. (internal quotation omitted). Personal injuries and
pecuniary losses flowing from those injuries are not sufficient to support a civil RICO claim.
Cannon v. Burge, 752 F.3d 1079, 1088 n. 6 (7th Cir. 2014) (lost employment opportunities
during time imprisoned are personal and not sufficient to satisfy the injury to “business or
property” requirement). Here, Mr. Ajabu alleges no injury to his business or property. Rather, he
alleges that he lost his liberty and suffered mental anguish. His claims that his former attorneys
and the county prosecutors violated RICO are dismissed for failure to state a claim upon
which relief can be granted.
In addition, the statute of limitations for a civil RICO claim is four years. Jay E. Hayden
Foundation v. First Neighbor Bank, N.A., 610 F.3d 382, 383, 387 (7th Cir. 2010). This action
was filed on April 18, 2017. Mr. Ajabu attempts to avoid the timeliness issue by alleging that
because the defendants concealed the scheme, he did not learn of it until May 21, 2015. The

Court need not discuss the doctrine of equitable estoppel, however, because the RICO claims fail
to state a claim upon which relief can be granted even if they were timely filed.
Section 1983 Claims
Any due process claims brought against former prosecuting attorneys Sturtevant and
Leerkamp are also barred because these individuals have absolute immunity from suit. The
United States Supreme Court, in Imbler v. Pachtman, 424 U.S. 409, 431 (1976), established the
absolute immunity of a prosecutor from a civil suit for damages under § 1983 “in initiating a
prosecution and in presenting the State’s case.” Id. at 427; see also 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.”). The section 1983 due process
claims asserted against Sturtevant and Leerkamp are dismissed for failure to state a claim
upon which relief can be granted on this basis.
Mr. Ajabu also brings an Eighth Amendment claim under section 1983 against Bruce
Lemmons, Commissioner of the Indiana Department of Correction. The Court need not discuss
the fact that this claim is misjoined and does not belong in the same suit as the first claim,
because it fails on the merits. Mr. Ajabu alleges that because the State dropped charges of battery
against him in 2006, the Department of Correction imposed cruel and unusual punishment when
it kept him in solitary confinement for over a year based on the same facts. The statute of
limitations for a section 1983 claim is two years. Serino v. Hensley, 735 F.3d 588, 590 (7th Cir.
2013). It appears from the face of the complaint that this claim was filed nine years too late.
Even though the statute of limitations is an affirmative defense, the Court may dismiss a claim if
the defense “is so plain from the face of the complaint that the suit can be regarded as frivolous.”

Best v. City of Portland, 554 F.3d 698, 700 (7th Cir. 2009). This claim is so late that it is
frivolous.
In addition, Mr. Ajabu has not named a proper defendant for this claim even if it were
timely filed. Under section 1983, to be liable, a defendant must participate in or otherwise direct
or condone an unconstitutional act. Munson v. Gaetz, 673 F.3d 630, 637 (7th Cir. 2012) (section
1983 liability requires a defendant’s personal involvement in the alleged constitutional
violation). Supervisors are not automatically liable for acts of their subordinates. It is highly
unlikely that the Commissioner himself would have made any decision to place or keep a
particular inmate in segregation for a disciplinary proceeding.
Accordingly, for these reasons, the Eighth Amendment claim asserted against
Commissioner Lemmons is dismissed for failure to state claim upon which relief can be
granted.
“[A] plaintiff can plead himself out of court by alleging facts that show there is no viable
claim.” Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). For the above reasons, the
complaint fails to state a claim upon which relief can be granted as a matter of law and is
therefore dismissed pursuant to 28 U.S.C. § 1915A.
III. Further Proceedings
The plaintiff shall have through June 16, 2017, in which to show cause why this action
should not be dismissed for failure to state a claim upon which relief can be granted. Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013) (plaintiffs should be given at least an
opportunity to amend or to respond to an order to show cause before a case is “tossed out of
court without giving the applicant any timely notice or opportunity to be heard to clarify, contest,
or simply request leave to amend.”).

If the plaintiff fails to show cause or seek leave to amend, the action will be dismissed for
the reasons set forth in this Entry without further notice.

Date: 5/19/17

_______________________________

Distribution:

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

KOFI M. AJABU
955750
WABASH VALLEY CORRECTIONAL FACILITY
Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
Carlisle, IN 47838