DAVIS v. POVALERI et al

Filing 45

ENTRY Dismissing Complaint - All of Davis' federal claims have been dismissed. Davis shall have through June 8, 2015, in which to show cause why Judgment consistent with this Entry should not issue. **SEE ENTRY** Signed by Judge William T. Lawrence on 5/6/2015.(AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CHARLES DAVIS,

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) Case No. 2:14-cv-0220-WTL-DKL
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Plaintiff,
vs.
GAIL POVALERI, CHRIS MONROE,
and TAMI HINES,
Defendants.

Entry Dismissing Complaint and
Directing Further Proceedings
On December 2, 2014, this Court issued an Entry dismissing the plaintiff’s federal claims
against the defendants. The Entry gave the plaintiff time to show cause why judgment should not
issue. [dkt. 35]. After several extensions of time, the plaintiff filed his return on February 18, 2015.
[dkt. 40].
I.
As an initial matter, the plaintiff raises a claim in his return that he did not raise in the
complaint filed on July 15, 2015, which is whether this action was properly transferred to this
Court from the Bartholomew County, Indiana, Superior Court. The plaintiff claims that he
requested in “open court” that his civil rights action be transferred to this Court on July 10, 2014.
[dkt. 17]. On July 11, 2014, the Bartholomew Superior Court dismissed the plaintiff’s complaint
with prejudice pursuant to motions to dismiss filed by the defendants. [dkt. 10-1]. Any appeal of
this dismissal is to the Indiana Court of Appeals, not to this Court. The plaintiff’s “transfer request”
was filed with this Court on July 15, 2014. [dkt. 3]. Thus, to the extent the plaintiff claims this
action was transferred to this Court, there is no such mechanism to transfer an action by the

plaintiff.1 This Court treated the plaintiff’s complaint that was filed on July 15, 2014, as a new
civil rights action filed pursuant to 42 U.S.C. § 1983.
II.
In this return, the plaintiff argues that his claims should not be dismissed. These arguments
are discussed in turn.
Judge Monroe
In the screening entry, this Court dismissed the claims against Judge Monroe based on
judicial immunity. [dkt. 35]. In the return, the plaintiff alleges that Judge Monroe is not entitled to
the protections of judicial immunity because “the defendant’s actions were administrative in nature
and not covered by immunity.” The plaintiff also alleges that Judge Monroe has an “administrative
responsibility to ensure the integrity of the records in his Court.” In other words, the plaintiff is
alleging that Judge Monroe is responsible, as the supervisor, for the errors made by the court
reporter. The claims against Judge Monroe must be dismissed because neither the complaint nor
the return alleges that Judge Monroe personally participated in the conduct or directed it to occur.
To be liable for a constitutional violation, an individual must have personally participated in the
conduct or it must have occurred at his direction. Starzenski v. City of Elkhart, 87 F.3d 872, 879
(7th Cir. 1996) (“‘An individual cannot be held liable in a [42 U.S.C.] § 1983 action unless he
caused or participated in [the] alleged constitutional deprivation.’”) (quoting Wolf-Lillie v.
Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)); See also West v. Waymire, 114 F.3d 646, 649 (7th
Cir. 1997) (“the doctrine of respondeat superior is not available to a plaintiff in a section 1983
suit”).

1
In fact, a state court plaintiff may not remove an action to federal court. Only a state court defendant is
permitted to remove an action to federal court pursuant to 28 U.S.C. § 1441 and 1442(a)(1).

Additionally, in the plaintiff’s response to Judge Monroe’s motion to dismiss, he requested
that all claims against Judge Monroe be dismissed. [dkt. 30, ¶ 1]. As such, the claims against Judge
Monroe are dismissed.
Gail Povaleri
In the screening entry, the claims against Gail Povaleri were dismissed based on the fact
that his allegations against her did not implicate a protected interest and did not include a
constitutional dimension. In the return, the plaintiff alleges that Povaleri committed fraud upon the
court. He also alleges that the errors in the transcript deprived him of a fair opportunity to present
his case to the Indiana Court of Appeals on appeal. Before errors in a transcript may be the basis
for relief under 42 U.S.C. § 1983, the plaintiff must demonstrate that he was disadvantaged by the
errors in the transcript. There is no constitutional right to an absolutely and totally accurate
transcript. Loubser v. Pala, 497 F. Supp.2d 934, 940 (N.D. Ind. 2007). In support of this allegation,
the plaintiff states “the errors in the transcript has disadvantaged him during the appellate process
because the missing testimony proved the stop by Officer Roberts on September 16, 2010 was
without reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’”
[dkt. 40, p. 9].
However, this did not disadvantage the plaintiff because the Indiana Court of Appeals
found that the plaintiff did not have standing to challenge the search of the vehicle. See Davis v.
State, 977 N.E.2d 31 (Ind. Ct. App. 2012), trans. denied. (Unpublished decision). Moreover, any
allegation of harm as a result of errors in the transcript that formed the bases of his conviction is
precluded by Heck v. Humphrey, 512 U.S. 477 (1994). Heck forbids a convicted person from
seeking damages on any theory that implies that his conviction was invalid unless the conviction
is overturned first. Here, the plaintiff seeks money damages for errors in the transcript. He claims

that an error-free transcript would have overturned his conviction on appeal. This challenges the
validity of the conviction, which is not permitted. Any claims against Gail Povaleri are dismissed.
Tami Hines
In the screening entry, the claims against Tami Hines were dismissed because the plaintiff
made no allegations of wrongdoing against her. In the return, the plaintiff for the first time alleges
that the Bartholomew County Clerk’s Office received pleadings for one case that were never filed
with the Indiana Court of Appeals in another case. Construing the complaint liberally, this claim
might be described as one for negligence. However, 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). A claim for negligence does not support a claim under 42
U.S.C. § 1983. County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“liability for negligently
inflicted harm is categorically beneath the threshold of constitutional due process”). The claims
against Tami Hines are dismissed for failure to state a claim.
State Law Claims
The foregoing resolves Davis’ federal claims in the case. This Court’s jurisdiction over his
pendent claims under Indiana law is conferred by 28 U.S.C. ' 1367(a). However, when a district
court dismisses the claims over which it had original jurisdiction, it has discretion either to retain
jurisdiction over the supplemental claims or to dismiss them. 28 U.S.C. ' 1367(c)(3); Kennedy v.
Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 717 (7th Cir.), cert. denied, 119 S. Ct. 167
(1998).
The general rule under these circumstances is to dismiss the pendent state law claims.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“in the usual case in which all

federal law claims are eliminated before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine--judicial economy, convenience, fairness, and comity--will point
toward declining to exercise jurisdiction over the remaining state-law claims”) (citing United Mine
Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)). The general rule will be followed here,
and application of this rule dictates that the pendent state law claim be dismissed for lack of
jurisdiction.
III.
The plaintiff’s claims are subject to dismissal for an additional reason, which is that this
action is barred by collateral estoppel. This Court applies Indiana’s collateral estoppel law. See
28 U.S.C. § 1738, (stating that federal courts are required to give state court judgments the same
preclusive effect as would be given under the law of the state that rendered the judgment); see also
Rekhi

v.

Wildwood

Indus.,

Inc.,

61

F.3d

1313,

1317

(7th

Cir.

1993)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995161377&pubNu
m=506&originatingDoc=I71057c45dc3011df952c80d2993fba83&refType=RP&fi=co_pp_sp_506_1317&o
riginationContext=document&transitionType=DocumentItem&contextData=(sc.Search) 

‐ 

co_pp_sp_506_1317 (stating “the effect of a state judgment in federal court depends on the state’s

rather than the federal law of ... collateral estoppel”). In Indiana, “collateral estoppel operates to
bar a subsequent re-litigation of the same fact or issue where that fact or issue was necessarily
adjudicated in a former suit and the same fact or issue is presented in the subsequent lawsuit.”
Tofany v. NBS Imaging Sys., Inc., 616 N.E.2d 1034, 1037 (Ind. 1993). “In that situation, the first
adjudication will be held conclusive even if the second is on a different claim.” Id. (citing Sullivan
v. Am. Cas. Co., 605 N.E.2d 134, 137 (Ind. 1992)). Here, the plaintiff filed a substantially similar
complaint in the state court proceeding as he filed or “transferred” to this Court. He is suing the
same three defendants based on the same set of facts relating to the transcription of his criminal

proceedings. [dkts. 2; 22, pp. 23-25]. The state court granted the defendants’ motions to dismiss.
Because the plaintiff had an opportunity to litigate the same set of facts and issues in state court
against the same defendants, he is precluded from re-litigating them in this Court. This complaint
is dismissed.
IV.
All of Davis’ federal claims have been dismissed. Davis shall have through June 8, 2015,
in which to show cause why Judgment consistent with this Entry should not issue. See Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013) (“Without at least an opportunity to
amend or to respond to an order to show cause, an IFP applicant’s case could be 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.”).
IT IS SO ORDERED.
Dated:5/6/15
Distribution:
Charles Davis, # 960610
Wabash Valley Correctional Facility
Electronic Service Participant - Court only

Electronically registered counsel.

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