COMER v. SCHNEDIER et al

Filing 4

ENTRY Discussing Complaint, Dismissing Certain Claims, and Directing Further Proceedings - 2 Motion for Leave to Proceed in forma pauperis is GRANTED. Attorney Gary W. Sorge is DISMISSED. Claims against Det. Nicholas Beetz and Sgt. Kendle Davis are DISMISSED. Any claim for relief based on the theory that a defendant committed perjury is DISMISSED. This action shall proceed as to the Fourth Amendment claims alleged against Det. David Schnedier. Specifically, Comer's claim that Det. Sc hnedier subjected him to false arrest and confinement and conducted an illegal search and seizure shall proceed as submitted. The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and serve process on the defendants in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist of the complaint, applicable forms and this Entry. See Entry for details. Signed by Judge Tanya Walton Pratt on 8/25/2014 (copy mailed to plaintiff). (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

JOSHUA E. COMER,

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Plaintiff,
vs.
DAVID SCHNEDIER Detective,
NICHOLAS BEETZ Detective,
GARY W. SORGE Attorney,
KENDLE DAVIS Sergeant,
Defendants.

Case No. 4:14-cv-00095-TWP-DML

Entry Discussing Complaint, Dismissing Certain Claims,
and Directing Further Proceedings
I.
The plaintiff’s motion for leave to proceed without prepaying fees or costs [dkt. 2] is
granted.
II.
A.
Plaintiff Joshua E. Comer an inmate at the Dearborn County Jail filed this civil action
against Det. David Schneider, Det. Nicholas Beetz, Sgt. Kendle Davis and Attorney Gary W.
Sorge. The complaint is subject to the screening requirement of 28 U.S.C. § 1915A(b). Pursuant
to this statute, “[a] complaint is subject to dismissal for failure to state a claim if the allegations,
taken as true, show that plaintiff is not entitled to relief.” Jones v. Bock, 127 S. Ct. 910, 921 (2007).
To satisfy the notice-pleading standard of Rule 8 of the Federal Rules of Civil Procedure,
a complaint must provide a “short and plain statement of the claim showing that the pleader is

entitled to relief,” which is sufficient to provide the defendant with “fair notice” of the claim and
its basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) and quoting Fed. R. Civ. P. 8(a)(2)). To survive a motion to
dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to
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, 129 S.Ct. 1937, 1949 (2009) (quotations omitted).
Pro se complaints such as that filed by Comer, are construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers. Erickson, 551 U.S. at 94; Obriecht v. Raemisch,
517 F.3d 489, 491 n.2 (7th Cir. 2008). Nonetheless, “[p]ro se litigants are masters of their own
complaints and may choose who to sue-or not to sue,” Myles v. United States, 416 F.3d 551, 552
(7th Cir. 2005), and the court may not rewrite a complaint to include claims that were not
presented. Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999); Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the Constitution or laws of the United States and must show that the alleged deprivation
was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
“The color of state law element is a threshold issue; there is no liability under [Section] 1983 for
those not acting under color of law.” Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.
1995). A person acts under color of state law only when exercising power “possessed by virtue of
state law and made possible only because the wrongdoer is clothed with the authority of state law.”
United States v. Classic, 313 U.S. 299, 326 (1941).

B.
Applying the standard set forth above certain claims must be dismissed.
First, Attorney Gary W. Sorge is dismissed. Under authority established for more than
a generation, Attorney Sorge did not act under color of state law when representing Comer in the
criminal proceeding, even if paid by public funds. See 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); Russell v. Millsap, 781 F.2d
381, 383 (5th Cir. 1985) (retained counsel does not act under color of state law). Because there
was no action “under color of state law” when Attorney Sorge represented Comer in an Indiana
state court, there is no viable claim for relief pursuant to § 1983. In addition, any claim based on a
theory of ineffective assistance of counsel is dismissed.
Second, claims against Det. Nicholas Beetz and Sgt. Kendle Davis are dismissed
because there is no allegation of wrongdoing on their part. Potter v. Clark, 497 F.2d 1206, 1207
(7th Cir. 1974)(“Where a complaint alleges no specific act or conduct on the part of the defendant
and the complaint is silent as to the defendant except for his name appearing in the caption, the
complaint is properly dismissed.”). The complaint fails to identify a viable claim for relief against
these defendants. The complaint “must actually suggest that the plaintiff has a right to relief, by
providing allegations that raise a right to relief above the speculative level.” Windy City Metal
Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting
Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)). As presented, the complaint lacks
facts which could support any claim against Detectives Beetz or Davis based on the violation of
the United States Constitution or federal law.

Third, any claim for relief based on the theory that a defendant committed perjury is
dismissed. Generally, no civil action lies for damages resulting from false statements under oath
constituting perjury. “It is quite settled law that false swearing in one court cannot be the predicate
for civil liability in another. The integrity of the judicial process requires that witnesses be assured
that their testimony, which in all events will be subject to cross examination and possibly criminal
sanction if knowingly false, cannot be the subject of a later attack through civil litigation.” Shearin
v. E.F. Hutton Group, Inc., 652 A.2d 578, 595 (Del. Ch. 1994).
III.
This action shall proceed as to the Fourth Amendment claims alleged against Det. David
Schnedier. Specifically, Comer’s claim that Det. Schnedier subjected him to false arrest and
confinement and conducted an illegal search and seizure shall proceed as submitted.
The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(3), to issue and serve process on
the defendants in the manner specified by Fed. R. Civ. P. 4(d)(1). Process shall consist of the
complaint, applicable forms and this Entry.
IT IS SO ORDERED.

Date: 8/25/2014

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
JOSHUA E. COMER
DEARBORN CO. LAW ENFORCEMENT CENTER
301 West High Street
Lawrenceburg, IN 47025
Detective David Schnedier
Lawrenceburg Police Department
349 Walnut St.
Lawrenceburg, IN 47025