SWEENEY v. MULL et al

Filing 65

Order on Various Motions - Mull's Motion to Dismiss, ECF No. 32 , is granted. The Court now dismisses Sweeney's claim against Mull for damages with prejudice. Sweeney is ordered to show cause as to whether he intends to pursue a claim for declaratory relief against Mull. Sweeney shall have until February 18, 2022, to do so; Mull's response is due by March 4, 2022. Sweeney's Motion to Strike, ECF No. 41 , Motion for Hearing, ECF No. 57 , and Motion to Dismiss, ECF No. 64 , are denied. His Motion for Judicial Notice, ECF No. 43 , is denied as moot. The Motion to Correct Discrepancies, ECF No. 56 , is granted. The Clerk is directed to update docket entry 38 to reflect that it is in response to docket entry 32, not entry 36. (SEE ORDER) Signed by Judge James R. Sweeney II on 1/11/2022. (KAA)

Case 2:20-cv-00145-JRS-DLP Document 65 Filed 01/11/22 Page 1 of 7 PageID #: 286

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CHARLES E. SWEENEY, JR.,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
JEREMY T. MULL,
SUSAN POPP,
Defendants.

No. 2:20-cv-00145-JRS-DLP

Order on Various Motions
Pro se Plaintiff Charles Sweeney is an inmate at Wabash Valley Correctional
Facility. He sued Clark County Prosecutor Jeremy Mull, Clark County Clerk Susan
Popp, and Clark County itself, alleging that his Fourteenth Amendment rights were
violated by Defendants' failure to serve him with copies of the State's objections to
his motions for post-conviction relief. (Am. Compl. ¶ 10, ECF No. 7.) The County was
previously dismissed. (ECF No. 44.) Presently before the Court are Mull's Motion to
Dismiss, (ECF No. 32), and various Motions filed by Sweeney, (ECF Nos. 41, 43, 55,
56, 57, 63, 64). The Court grants the Motion to Dismiss, (ECF No. 32), and addresses
Sweeney's motions in turn.
Discussion
Sweeney alleges that Mull failed to serve him with copies of the State's objections
to three of Sweeney's motions for post-conviction relief: (1) Motion to Reopen Criminal
Proceedings Under Trial Rule 60(b)(7), (2) Motion to Correct Erroneous Sentence, and
(3) Motion for Credit Time. (Am. Compl. ¶ 10, ECF No. 7.) Sweeney further alleges
1

Case 2:20-cv-00145-JRS-DLP Document 65 Filed 01/11/22 Page 2 of 7 PageID #: 287

that Mull falsely certified that copies of these documents were served. (Id. at ¶ 11.)
The Court accepts these allegations as true. Smith v. Power, 346 F.3d 740, 741 (7th
Cir. 2003). However, Mull is entitled to absolute immunity for these acts.
"[P]rosecutors are absolutely immune from liability under [42 U.S.C.] § 1983 for
their conduct in 'initiating a prosecution and in presenting the State's case,' insofar
as that conduct is 'intimately associated with the judicial phase of the criminal
process.'" Burns v. Reed, 500 U.S. 478, 486 (1991) (citations omitted) (quoting Imbler
v. Pachtman, 424 U.S. 409, 430–31 (1976)). "A prosecutor is shielded by absolute
immunity when he acts 'as an advocate for the State' but not when his acts are
investigative and unrelated to the preparation and initiation of judicial proceedings."
Smith, 346 F.3d at 742 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)).
Mull's conduct in preparing and serving—or failing to serve—the State's
objections to Sweeney's motions for post-conviction relief was done in Mull's role "as
an advocate for the State" and is "intimately associated with the judicial phase of the
criminal process." Id.; Imbler, 424 U.S. at 430–31. In opposing Sweeney's motions,
Mull was representing the State's position as to whether Sweeney's case should be
reopened or his sentence should be adjusted. "The state's attorney is performing a
prosecutorial duty when she helps the court ascertain the appropriate sentence for a
particular defendant, and she continues to do so when defending that sentence if it is
challenged." Lucien v. Preiner, 967 F.2d 1166, 1167 (7th Cir. 1992) (holding that
prosecutor was entitled to absolute immunity in arguing against granting a
defendant executive clemency). And "the preparation and filing of" documents are

2

Case 2:20-cv-00145-JRS-DLP Document 65 Filed 01/11/22 Page 3 of 7 PageID #: 288

"part of the advocate's function as well," so long as the prosecutor is performing the
traditional functions of an advocate when doing so, as Mull was. Kalina v. Fletcher,
522 U.S. 118, 129–31 (1997) (prosecutor entitled to absolute immunity for preparing
and filing documents, but not for personally swearing to the truth of facts establishing
probable cause, which was the function of a witness, not a lawyer).
Sweeney is correct that prosecutors are not entitled to absolute immunity when
performing administrative duties. (Pl.'s Resp. 3–4, ECF No. 38); see, e.g., Van de
Kamp v. Goldstein, 555 U.S. 335, 342–44 (2009). But the courts have made clear that
Mull's actions as alleged here were not administrative. Goldstein, 555 U.S. at 344
(distinguishing between administrative obligations that are "directly connected with
the conduct of a trial" and require "legal knowledge and the exercise of related
discretion" and those administrative duties concerning "workplace hiring, payroll
administration, the maintenance of physical facilities, and the like"); Smith, 346 F.3d
at 743 (concluding prosecutor was entitled to absolute immunity for "preparing,
signing, and sending" notice that property was uninhabitable and would be
demolished); Kalina, 522 U.S. at 129–31 (absolute immunity for "preparation and
filing" of documents). And other courts have found absolute immunity in situations
nearly identical to the one here. See, e.g., Pusey v. City of Youngstown, 11 F.3d 652,
658 (6th Cir. 1993) (prosecutor entitled to absolute immunity for failure to notify
plaintiff of a hearing date, in violation of state law; rejecting argument that "the duty
to notify was an investigative or administrative duty"); Brooks v. George Cnty., 84
F.3d 157, 167–68 (5th Cir. 1996) (prosecutor entitled to absolute immunity for failure

3

Case 2:20-cv-00145-JRS-DLP Document 65 Filed 01/11/22 Page 4 of 7 PageID #: 289

to provide plaintiff's counsel with motion dropping charges; "the prosecutor's acts
through his assistant of requesting that the court enter an order of nolle prosequi of
[the plaintiff's] criminal charges, of having an order prepared for the court that
memorialized the same, and the forwarding of such order to the clerk for filing are all
prosecutorial activities 'intimately associated with the judicial phase of the criminal
process.'"). Mull's role was that of an advocate, not an investigator or administrator,
so he is entitled to absolute immunity.
Further, dismissal of Sweeney's claim against Mull at the motion-to-dismiss stage
is appropriate. (See Pl.'s Resp. 2, ECF No. 38.) Courts frequently grant Rule 12(b)(6)
motions on such grounds, and the contrary cases Sweeney cites are inapposite. See,
e.g., Smith, 346 F.3d at 741–43 (affirming dismissal of complaint with prejudice on
absolute immunity grounds); cf. Alvarado v. Litscher, 267 F.3d 648, 651–52 (7th Cir.
2001) (dismissal at pleading stage on qualified immunity grounds is often
inappropriate because qualified immunity "usually depends" on the facts of the case).
Next, the Court addresses the several motions Sweeney has filed. First, Sweeney
filed a Motion to Strike, (ECF No. 41), requesting that the Court strike a portion of
Mull's brief and the copy of the state court docket Mull attached as an exhibit to the
Motion to Dismiss, (ECF No. 32-1). Sweeney claims that these items are "immaterial
to the question" of whether Mull has absolute immunity, (Mot. Strike 2, ECF No. 41),
but Mull uses them to argue that Sweeney's complaint is factually insufficient and to
show "why service of a pleading is precisely the type of action that absolute immunity
seeks to immunize," (Mull's Mem. 5, ECF No. 33).

4

Thus, these items are not

Case 2:20-cv-00145-JRS-DLP Document 65 Filed 01/11/22 Page 5 of 7 PageID #: 290

immaterial. Sweeney's Motion to Strike, (ECF No. 41), is denied.
Sweeney also filed a Motion for Judicial Notice, (ECF No. 43), asking the Court to
take judicial notice of the fact that Mull has not completed any of Sweeney's discovery
requests. Because the Court later stayed discovery as to Mull, (ECF No. 52), the
Motion is denied as moot.
Sweeney also filed a Motion to Correct Discrepancies, (ECF No. 56), pointing out
that docket entry 38, Sweeney's Response in Opposition to Mull's Motion to Dismiss,
indicates that it is in response to docket entry 36, when it is actually in response to
docket entry 32. This Motion is granted. The Clerk shall update docket entry 38 to
reflect that it is in response to docket entry 32, not entry 36. Sweeney is assured that
despite this clerical error, the Court considered his Response in Opposition, (ECF No.
38), when granting Mull's Motion to Dismiss.
Sweeney also filed a Motion for Hearing, (ECF No. 57), requesting that the Court
schedule a hearing on Mull's Motion to Dismiss. The Court considered this Motion
and concluded that a hearing would not aid its decision making. This Motion is
denied.
Sweeney's Motion to Amend Complaint, (ECF No. 55), and Motion to Compel,
(ECF No. 63), pertain to his claims against Defendant Susan Popp. These Motions
are still under the Court's consideration and will be addressed by separate order.
Finally, Sweeney filed a Motion to Deny Defendant's Motion to Dismiss. (ECF No.
64.) The Court understands this as a response in opposition to Mull's Motion to
Dismiss, rather than a separate Motion, and considered it as such. The Motion is

5

Case 2:20-cv-00145-JRS-DLP Document 65 Filed 01/11/22 Page 6 of 7 PageID #: 291

denied.
Conclusion
Mull's Motion to Dismiss, (ECF No. 32), is granted.

The Court previously

dismissed Sweeney's claim for injunctive relief without prejudice. (ECF No. 10.) The
Court now dismisses Sweeney's claim against Mull for damages with prejudice.
See Bogie v. Rosenberg, 705 F.3d 603, 616 (7th Cir. 2013) (dismissal with prejudice is
appropriate when amendment would be futile). However, Sweeney's Complaint also
requests declaratory relief, (Am. Compl. ¶¶ 4, 15, ECF No. 7), but it is unclear
whether Sweeney wishes to pursue that claim against Mull, or if he intended to do so
solely against Clark County, which has been dismissed. Neither Party has addressed
the issue. Sweeney is ordered to show cause as to whether he intends to pursue a
claim for declaratory relief against Mull, and, if so, why such a claim should not be
dismissed, particularly in light of this Court's previous Order dismissing Sweeney's
claims for injunctive relief, (ECF No. 10). See Milchtein v. Chisholm, 880 F.3d 895,
898–99 (7th Cir. 2018) (citation omitted) ("[W]e know from Samuels v. Mackell, 401
U.S. 66, 69–73 (1971), that Younger applies to requests for declaratory judgments as
well as to requests for injunctions."). Sweeney shall have until February 18, 2022,
to do so; Mull's response is due by March 4, 2022.
Sweeney's Motion to Strike, (ECF No. 41), Motion for Hearing, (ECF No. 57), and
Motion to Dismiss, (ECF No. 64), are denied. His Motion for Judicial Notice, (ECF
No. 43), is denied as moot. The Motion to Correct Discrepancies, (ECF No. 56), is
granted. The Clerk is directed to update docket entry 38 to reflect that it is in

6

Case 2:20-cv-00145-JRS-DLP Document 65 Filed 01/11/22 Page 7 of 7 PageID #: 292

response to docket entry 32, not entry 36.
SO ORDERED.
Date: 1/11/2022

Distribution:
CHARLES E. SWEENEY, JR.
957595
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
R. Jeffrey Lowe
KIGHTLINGER & GRAY, LLP (New Albany)
[e-mail]
Eric Antonio Pagnamenta
INDIANA ATTORNEY GENERAL
[e-mail]

7