WARD v. ROACH et al

Filing 5

Entry Granting In Forma Pauperis Status, Denying Motion for Counsel, Dismissing Complaint, and Directing Plaintiff to Show Cause - The plaintiff's motion to proceed in forma pauperis 2 is granted. The assessment of an initial partial filing fee is not feasible at this time. Notwithstanding the foregoing ruling, the plaintiff still owes the $350.00 filing fee. The plaintiff's motion for the appointment of counsel 3 is denied in light of the dismissal of the complaint for f ailure to state a claim upon which relief can be granted. The plaintiff shall have through June 15, 2016, in which to show cause why this action should not be dismissed for failure to state a claim upon which relief can be granted. (See Entry for additional information.) Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 5/12/2016.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JOHNNY WARD,
Plaintiff,
vs.
JOHN ROACH in his official capacity,
PAUL JUNGERS in his official capacity,
Defendants.

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No. 2:16-cv-00158-WTL-MJD

Entry Granting In Forma Pauperis Status, Denying Motion for Counsel,
Dismissing Complaint, and Directing Plaintiff to Show Cause
I. In Forma Pauperis and Motion for Counsel
The plaintiff’s motion to proceed in forma pauperis [dkt. 2] is granted. The assessment of
an initial partial filing fee is not feasible at this time. Notwithstanding the foregoing ruling, the
plaintiff still owes the $350.00 filing fee. “All [28 U.S.C.] § 1915 has ever done is excuse prepayment of the docket fees; a litigant remains liable for them, and for other costs, although poverty
may make collection impossible.” Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).
The plaintiff’s motion for the appointment of counsel [dkt. 3] is denied in light of the
dismissal of the complaint for failure to state a claim upon which relief can be granted.
II. Screening
A. Background
The complaint is now subject to screening pursuant to 28 U.S.C. § 1915A(b). This statute
directs that the Court dismiss a complaint or any claim within a complaint that “(1) is frivolous,
malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief

from a defendant who is immune from such relief.” Id. “A complaint is subject to dismissal for
failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief.”
Jones v. Bock, 549 U.S. 199, 215 (2007).
Plaintiff Johnny Ward (“Mr. Ward”) is currently incarcerated at the Vigo County Jail. He
brings claims against Judge John Roach and Public Defender Paul Jungers. Mr. Ward is a pretrial
detainee. On or about November 13, 2015, he was charged with offenses of battery. He alleges
that he attempted to file a pro se motion for a speedy trial, but it was rejected. The public defender
has failed to file such a motion as a matter of convenience for the court and public defender. Mr.
Ward’s motions for dismissal for failure to bring the case to trial in a timely manner have not been
granted. Mr. Ward further alleges that after he signed a plea agreement, Judge Roach rejected it
because Mr. Ward had filed a grievance against the judge. He contends that his Sixth Amendment
rights and rights under the Indiana Constitution have been violated. His claims are of necessity
brought under 42 U.S.C. § 1983. He seeks injunctive relief and dismissal of the state criminal
charges.
B. Insufficient Claims
The first deficiency in the complaint is the fact that a “judge has absolute immunity for any
judicial actions unless the judge acted in the absence of all jurisdiction.” Polzin v. Gage, 636 F.3d
834, 838 (7th Cir. 2011); see also Mireles v. Waco, 502 U.S. 9, 11 (1991) (“Judicial immunity is
an immunity from suit, not just from ultimate assessment of damages.”). There could be no
reasonable allegation that the judge lacked the authority to preside over Mr. Ward’s criminal case.
Mr. Ward disagrees with the rulings by the judge, however, Judge Roach is immune from this
lawsuit. Any claim asserted against Judge Roach is dismissed for failure to state a claim upon
which relief can be granted.

Second, Mr. Jungers, as a public defender, is not a state actor. Therefore, any constitutional
claim against Paul Jungers is dismissed for failure to state a claim upon which relief can be
granted. See e.g. Polk County v. Dodson, 454 U.S. 312, 324 (1981) (public defender does not act
under color of state law when performing a lawyer’s traditional functions as counsel to a defendant
in a criminal case).
Moreover, to the extent any state court proceedings remain pending, “federal courts [must]
abstain from taking jurisdiction over federal constitutional claims that seek to interfere with or
interrupt ongoing state proceedings.” SKS & Assocs. Inc. v. Dart, 619 F.3d 674, 677 (7th Cir.
2010). The Supreme Court has held that federal courts must “abstain when a criminal defendant
seeks a federal injunction to block his state court prosecution on federal constitutional grounds.”
Id. at 678 (citing Younger v. Harris, 401 U.S. 37, 53-54 (1971)). This Court must abstain from
interfering in the Vigo County criminal action if it is ongoing.
Finally, to the extent Mr. Ward seeks dismissal of his state charges which would ultimately
lead to his release, he must attempt to do so through a petition for writ of habeas corpus after he
has exhausted all state court remedies. A writ of habeas corpus is the exclusive remedy to challenge
the fact or duration of confinement and the Court is not at liberty to convert any portion of an
action to a claim for habeas corpus relief. Moore v. Pemberton, 110 F.3d 22 (7th Cir. 1997); Copus
v. City of Edgerton, 96 F.3d 1038 (7th Cir. 1996). Any challenge to the Vigo County proceedings
must be appealed through the appropriate appellate procedures, not by filing a civil rights action
in federal court. Accordingly, to the extent Mr. Ward seeks release from jail, such a claim in this
civil rights action is dismissed without prejudice.

For all of the reasons explained above, the complaint fails to contain a legally viable claim
over which this Court could exercise subject matter jurisdiction.
“[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 15, 2016, 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. In addition, it is the plaintiff’s obligation
to report any change of address within seven (7) days of the change.
IT IS SO ORDERED.

Date: 5/12/16

_______________________________

Distribution:

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

JOHNNY WARD
VIGO COUNTY JAIL
201 Cherry Street
Terre Haute, IN 47807