Rausei v. Gregg et al, No. 3:2018cv00755 - Document 6 (N.D. Ind. 2018)

Court Description: OPINION AND ORDER, this case is DISMISSED pursuant to 28 U.S.C. § 1915A becausethis complaint does not state a claim. ***Civil Case Terminated. Signed by Judge Philip P Simon on 9/18/18. (Copy mailed to pro se party)(mlc)

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Rausei v. Gregg et al Doc. 6 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION ADAM C. RAUSEI, Plaintiff, v. CAUSE NO.: 3:18-CV-755-PPS-MGG TAMMY GREGG and NICHOLAS A. BARNES, Defendants. OPINION AND ORDER Adam C. Rausei, a prisoner without a lawyer, is suing the State court defense attorney and State court deputy prosecuting attorney who negotiated his plea agreement. “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). However, pursuant to 28 U.S.C. § 1915A, I must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Rausei alleges that at his sentencing hearing on September 6, 2016, Tammy Gregg, the deputy prosecuting attorney, changed the previously agreed terms of his plea agreement. However, “in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” Imbler v. Dockets.Justia.com Pachtman, 424 U.S. 409, 431 (1976). See also Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003) (“Absolute immunity shields prosecutors even if they act maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence.” (quotation marks and citation omitted)). Therefore the claims against Tammy Gregg must be dismissed. Rausei also alleges that Nicholas A. Barnes, his defense attorney, fraudulently misrepresented the terms of the new plea agreement and coerced him into agreeing to it. “In order to state a claim under [42 U.S.C.] § 1983 a plaintiff must allege: (1) that defendants deprived him of a federal constitutional right; and (2) that the defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). While the conduct of private actors can transform them into state actors for § 1983 purposes, the facts must permit an inference that defendant’s actions are “fairly attributable to the state.” L.P. v. Marian Catholic High Sch., 852 F.3d 690, 696 (7th Cir. 2017) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). However, a criminal defense attorney, even an appointed public defender, does not act under color of state law. Polk County v. Dodson, 454 U.S. 312 (1981). Therefore the claims against Nicholas A. Barnes must also be dismissed. Though it is usually necessary to permit a plaintiff the opportunity to file an amended complaint when a case is dismissed sua sponte, see Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013), that is unnecessary where the amendment would be futile. Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad 2 discretion to deny leave to amend where . . . the amendment would be futile.”). Such is the case here. For these reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A because this complaint does not state a claim. So ORDERED on September 18, 2018. /s/ Philip P. Simon PHILIP P. SIMON, JUDGE UNITED STATES DISTRICT COURT 3

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