SISK v. INDIANA et al

Filing 11

Entry Dismissing Action and Directing Entry of Final Judgment - The Entry of October 31, 2013, explained this Court's determination that pursuant to 28 U.S.C. § 1915A(b) the Complaint fails to state a claim upon which relief may be grante d. The complaint and statement of remaining claims filed on November 12, 2013, fail to state a claim upon which relief may be granted. The action must be dismissed pursuant to Sec. 1915A(b), and judgment consistent with this Entry shall now issue. The dismissal of action, however, shall be without prejudice. (See Entry. Signed by Judge Jane Magnus-Stinson on 11/14/2013.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

GEORGE SISK,
Plaintiff,
vs.
INDIANA City Of,
PEGGY R. HART, ANNE FLANNELLY,
MICHAEL PENCE, MATTHEW
WHITMIRE, MARC LUNDY,
DEBORAH SNIDER, TOM MCLENNON,
BRAD HAYES, SHARI WETZEL,
MATIA MCGREGOR, JAMES COFFEY,
SHARON STAPLES, STEVE SMITH,
JAMES COLEMAN, PAMLA BAILS,
KATHLEEN GILL, RYAN SCHANK,
CHRIS ESKEW, ROBERT J. HILL,
JEFF MERRYMAN, KENT MEIER,
LAWLESS Officer, MICHAEL FORREST,
C. DUCKWORTH, C. MANN,
M. KUNST, ELIZABETH L. WHITE,
CHRISTINE CLEMENS, BOBBIE
BELDEN, STEVE EICHHOLTZ,
Defendants.

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Case No. 2:13-cv-00383-JMS-WGH

Entry Dismissing Action and Directing Entry of Final Judgment
The Entry of October 31, 2013, explained this Court’s determination that pursuant to 28
U.S.C. § 1915A(b) the Complaint fails to state a claim upon which relief may be granted. In the
event the plaintiff disagreed with this Court’s assessment, he was given a period of time in which
to file a statement of remaining claims which he contends are legally sufficient. In response, the
plaintiff filed a statement of remaining claims with supporting documents. These documents
were properly considered in screening the statement of remaining claims. See Lindell v.

Huibregtse, 205 Fed. Appx. 446, 449 (7th Cir. 2006) (citing Fed.R.Civ.P. 10(c); Centers v.
Centennial Mortgage, Inc., 398 F.3d 930, 933 (7th Cir.2005); Int'l Mktg. Ltd. v. Archer-DanielsMidland Co., Inc., 192 F.3d 724, 729 (7th Cir. 1999). These claims are discussed below.
First, the plaintiff alleges that Peggy R. Hart, Master Commissioner of the Marion
County Court, Criminal Division, issued orders, modified the court record, failed to act
impartially, mishandled a search warrant, and participated in ex parte proceedings in violation of
plaintiff’s civil rights. These allegations fail to state a claim upon which relief may be granted.
Peggy Hart is a judicial officer of the State of Indiana. See Marion County Superior Court local
rule 49-TR78-304 (stating that the Court may employ judicial officers including commissioners).
The actions allegedly taken by Commissioner Hart (even if wrongful) could only be taken in her
official capacity and for this reason she is entitled to judicial immunity. Accordingly, the claims
against Peggy R. Hart must be dismissed. See Stump v. Sparkman, 435 U.S. 349, 359 (1978)
(discussing judicial immunity); Mireles v. Waco, 502 U.S. 9, 11 (1991)(“Judicial immunity is an
immunity from suit, not just from ultimate assessment of damages.”).
Next, the plaintiff alleges that Kent Meier, Officer Lawless, Michael Forrest, C.
Duckworth, C. Man, and M. Kunst violated his Fourth Amendment rights when they entered his
wife’s residence and seized his belongings without a search warrant. But the documents
submitted with the plaintiff’s statement of remaining claims reflect that there was no violation.
First, there was a search warrant issued for 3949 Graham Avenue (his wife’s residence) on
March 30, 2010 at 2:31 p.m. by Commissioner Anne Flannelly. See dkt. 10-1 at p. 18. The
search was conducted at approximately 8:10 p.m. at 3949 Graham Ave. See dkt. 10-1 at p. 2. The
search resulted in drug related charges being filed against the plaintiff in Marion Superior Court,
cause number 49G201004FA026999 See dkt. 10-1 at p. 4. He was convicted of these charges.

In any event, even if the allegations could state a claim based on a constitutional violation
they would be barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). The Indiana Department
of Corrections website reflects that the plaintiff is currently serving his sentence in cause number
49G201004FA026999. AHeck bars any suit for damages premised on a violation of civil rights if
the basis for the suit is inconsistent with or would undermine the constitutionality of a conviction
or sentence.@ Whiley v. City of Chicago, 361 F.3d 994, 996 (7th Cir. 2004). AShould success in a
civil suit necessarily imply the invalidity of a conviction or sentence, Heck requires the potential
plaintiff to wait until his conviction is nullified before bringing suit.@ Id.; see also Apampa v.
Layng, 157 F.3d 1103, 1105 (7th Cir. 1999).
The complaint and statement of remaining claims filed on November 12, 2013, fail to
state a claim upon which relief may be granted. “[I]f a plaintiff chooses to ‘plead particulars, and
they show he has no claim, then he is out of luck-he has pleaded himself out of court.’” Jefferson
v. Ambroz, 90 F.3d 1291, 1296 (7th Cir. 1996) (quoting Thomas v. Farley, 31 F.3d 557, 558-59
(7th Cir. 1994)). That is the case here. Accordingly, the action must be dismissed pursuant to
' 1915A(b), and judgment consistent with this Entry shall now issue. The dismissal of action,
however, shall be without prejudice.
IT IS SO ORDERED.

_______________________________

11/14/2013
Date: __________________

Distribution:
GEORGE SISK
DOC # 944137
Wabash Valley Correctional Facility
Electronic Service Participant -- Court Only

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