Everett v. Marks et al
ORDER dismissing this case in its entirety. By Magistrate Judge Charles S. Miller, Jr. (BG) Distributed on 10/26/2017 (cjs).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Roger Marks, III, et. al.,
Case No. 1:17-cv-136
The plaintiff, Tilmer Everett, is an inmate at the North Dakota State Penitentiary. He
initiated the above-entitled action pro se on July 2017 with the submission of a 48-page complaint
on July 17, 2017. (Doc. No. 2). On October 2, 2017, the court received Everett’s consent to the
undersigned’s exercise of jurisdiction over matter. (Doc. No. 18). His complaint is now before
the undersigned for initial review as mandated by 28 U.S.C. § 1915A. For the reasons set forth
below, the above-entitled action is ordered dismissed.
The gist of Everett’s complaint is that three Bismarck police officer and a former assistant
state’s attorney violated his civil rights during the course of a criminal investigation and subsequent
prosecution that culminated in his conviction for gross sexual imposition in 2006 and that current
assistant state’s attorneys are perpetuating these violations insofar as they have opposed his requests
for post-conviction relief. Specifically, Everett asserts that three police officers: falsified their
investigative reports; withheld and/or tampered with evidence; tampered, intimidated, and/or misled
witnesses; and perjured themselves at trial. He further asserts that the State’s Attorney’s office:
unlawfully “bounced” the state district court judge initially assigned to his criminal case; violated
the state district court’s discovery orders; suborned perjury; withheld evidence; obstructed justice;
conspired with local law enforcement to frame him; and most recently “filed a[n] injunctive motion
again [him] with the district court.” (Doc. No. 2).
In his prayer for relief, Everett demands: the arrest and prosecution of the individual who he
believes committed the offense of which he was wrongfully convicted; the appointment of special
counsel to investigate the Bismarck Police Department along with the State’s Attorney and his
assistants; an evidentiary hearing; compensatory and punitive damages; and fees.
Congress enacted the Prison Litigation Reform Act of 1995 (“PLRA”) to address the burden
imposed by prisoner suits that are too often frivolous and without merit. Jones v. Bock, 549 U.S.
199, 203-04 (2007); Woodford v. Ngo, 548 U.S. 81, 84 (2006). One of the reforms enacted as part
of the PLRA for cases in which prisoners are seeking to sue a governmental entity, officer, or
employee requires courts to conduct an early screening to weed out claims that clearly lack merit.
28 U.S.C. § 1915A. In conducting the screening, the court is required to identify any cognizable
claims and to dismiss the complaint, or any part of it that is frivolous, malicious, fails to state a
claim, or seeks relief from an immune defendant.
As a preliminary matter, it should be noted that there exists an unsurmountable impediment
to Everettt’s claims against the State’s Attorney and his assistants: prosecutorial immunity.
The nature of a prosecutor's immunity depends on the capacity in which the prosecutor acts
at the time of the alleged misconduct. Actions taken as an advocate enjoy absolute immunity, see
Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (concluded that “a state prosecuting attorney who
acted within the scope of his duties in initiating and pursuing a criminal prosecution” had absolute
immunity from under § 1983), while actions taken as an investigator enjoy only qualified immunity,
see Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (prosecutors “perform[ing] the investigative
functions normally performed by a detective or police officer” have qualified immunity).
Here, Everett’s claims against the State’s Attorney and his assistants clearly pertain to their
pursuit of his prosecution and their responses to his efforts to obtain post-conviction relief in State
court. Consequently, they appear to be foreclosed by absolute prosecutorial immunity. See Kalina
v. Fletcher 522 U.S. 118, 127 (1997) (“[I]n determining immunity, we examine the nature of the
function performed, not the identity of the actor who performed it.” (internal quotes omitted));
Buckley, 509 U.S. at 273 (“[A]cts undertaken by a prosecutor in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course of his role as an advocate for the
State, are entitled to the protections of absolute immunity.”); see also Shmueli v. City of New York,
424 F.3d 231, 237 (2d Cir. 2005) (“A prosecutor is . . . entitled to absolute immunity despite
allegations of his knowing use of perjured testimony and the deliberate withholding of exculpatory
information. Although such conduct would be reprehensible, it does not make the prosecutor
amenable to a civil suit for damages.” (internal quotes omitted)).
Police Immunity from Liability Arising From Trial Testimony
With respect to the police officers named by Everett in his Complaint, they are absolutely
immune from any civil liability arising out of their trial testimony.
It is well settled that witnesses are granted absolute immunity from any civil liability arising
out of their testimony at trial. Briscoe v. LaHue 460 U.S. 325, 331-32 (1983) (affirming that
common-law immunities granted to witnesses in judicial proceedings required giving absolute
immunity from § 1983 suit to police officer accused of giving false testimony at trial). It explained
that such immunity is granted to encourage witnesses to testify fully without fear of recrimination
for their in the proceedings. Id. at 332-33.1
When police officers testify as witnesses, they have the same protections. Id. at 340. The
import of this is that Everett cannot sustain a claim against the police officers for their alleged
perjury. Id.; see also Mill v. Glanz, 948 F.2d 1562, 1571 (10th Cir. 1991) (discussing the interests
served by granting such immunity from liability).
Finally, the court would be remiss if it did not point out that a § 1983 action cannot be used
to challenge, directly or indirectly, the length or validity of a prisoner's confinement. See Edwards
v. Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994); Wolff v. McDonnell, 418
U.S. 539 (1974); Preiser v. Rodriguez, 411 U.S. 475, 489 (1973); see also Wilkson v. Dotson, 544
U.S. 74, 78-82 (2005) (opining that the line of criminal cases from Balisok to Preiser “indicate[s]
In Briscoe, the Court acknowledged that granting police officers immunity from civil liability might lead to
occasional unjust convictions based on knowingly false testimony. Id. at 344-45. However, the court concluded that
immunity would better serve “the broader public interest.” Id. at 345. In so doing it reasoned that
[p]olice officers testify in scores of cases every year, and defendants often will transform
resentment at being convicted into allegations of perjury by the State's official witnesses.... [E]ven
the processing of a complaint that is dismissed before trial consumes a considerable amount of
time and resources.
This category of § 1983 litigation might well impose significant burdens on the judicial system and
on law enforcement resources. As this Court noted when it recognized absolute immunity for
prosecutors in Imbler, if the defendant official ‘could be made to answer in court each time [a
disgruntled defendant] charged him with wrongdoing, his energy and attention would be diverted
from the pressing duty of enforcing the criminal law.
Id. at 343-44.
that a state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief sought
(damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to
conviction or internal prison proceedings)—if success in that action would necessarily demonstrate
the invalidity of confinement or its duration.”).
In Heck v. Humphrey The United States Supreme Court held that before an inmate can
recover damages under § 1983 for an allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,
he "must prove that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination, or called
into question by a federal court's issuance of a write of habeas corpus, 28 U.S.C. § 2254." 512 U.S.
477, 486-87 (1994). It added:
A claim for damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983. Thus, when a state prisoner
seeks damages in a § 1983 suit, the district court must consider whether a judgment
in favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated. But if the
district court determines that the plaintiff's action, even if successful, will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff,
the action should be allowed proceed, in the absence of some other bar to the suit.
Id. at 48. In Edwards v. Balisok, it similarly held that a prisoner could not sustain a § 1983 claim
for malicious prosecution claim absent a showing that the criminal proceedings had terminated in
his favor. See 520 U.S. 641 (1997) (finding that a prisoner's § 1983 claim for malicious prosecution
was without merit because his claim that the hearing officer was biased and deceitful in the
disciplinary hearing, where he lost good-time credits, would have undermined the disciplinary
conviction, and he had not shown that his disciplinary conviction had been previously invalidated).
Here, Everett’s success on the merits would necessarily call the validity of his underlying
conviction. His complaint is founded upon his repeated insistence that there was conspiracy
between police and prosecutors, that his prosecution and the investigation underlying it were
improper and unlawful, and that he is actually innocent. And judging by his submissions to date,
it would appear that he is gearing up to re-litigate his criminal case. Consequently, this matter is
Everett’s claims against the State’s Attorney and his assistants are DISMISSED with
prejudice. Everett’s claims for damages arising out of the defendant police officer’s alleged perjury
are also DISMISSED with prejudice. The remainder of Everett’s claims are DISMISSED without
Dated this 26th day of October, 2017.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
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