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Davis v. Povaleri

United States District Court, S.D. Indiana, Terre Haute Division

May 6, 2015



WILLIAM T. LAWRENCE, District Judge.

On December 2, 2014, this Court issued an Entry dismissing the plaintiff's federal claims against the defendants. The Entry gave the plaintiff time to show cause why judgment should not issue. [dkt. 35]. After several extensions of time, the plaintiff filed his return on February 18, 2015. [dkt. 40].


As an initial matter, the plaintiff raises a claim in his return that he did not raise in the complaint filed on July 15, 2015, which is whether this action was properly transferred to this Court from the Bartholomew County, Indiana, Superior Court. The plaintiff claims that he requested in "open court" that his civil rights action be transferred to this Court on July 10, 2014. [dkt. 17]. On July 11, 2014, the Bartholomew Superior Court dismissed the plaintiff's complaint with prejudice pursuant to motions to dismiss filed by the defendants. [dkt. 10-1]. Any appeal of this dismissal is to the Indiana Court of Appeals, not to this Court. The plaintiff's "transfer request" was filed with this Court on July 15, 2014. [dkt. 3]. Thus, to the extent the plaintiff claims this action was transferred to this Court, there is no such mechanism to transfer an action by the plaintiff.[1] This Court treated the plaintiff's complaint that was filed on July 15, 2014, as a new civil rights action filed pursuant to 42 U.S.C. § 1983.


In this return, the plaintiff argues that his claims should not be dismissed. These arguments are discussed in turn.

Judge Monroe

In the screening entry, this Court dismissed the claims against Judge Monroe based on judicial immunity. [dkt. 35]. In the return, the plaintiff alleges that Judge Monroe is not entitled to the protections of judicial immunity because "the defendant's actions were administrative in nature and not covered by immunity." The plaintiff also alleges that Judge Monroe has an "administrative responsibility to ensure the integrity of the records in his Court." In other words, the plaintiff is alleging that Judge Monroe is responsible, as the supervisor, for the errors made by the court reporter. The claims against Judge Monroe must be dismissed because neither the complaint nor the return alleges that Judge Monroe personally participated in the conduct or directed it to occur. To be liable for a constitutional violation, an individual must have personally participated in the conduct or it must have occurred at his direction. Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir. 1996) ("An individual cannot be held liable in a [42 U.S.C.] § 1983 action unless he caused or participated in [the] alleged constitutional deprivation.'") ( quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)); See also West v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997) ("the doctrine of respondeat superior is not available to a plaintiff in a section 1983 suit").

Additionally, in the plaintiff's response to Judge Monroe's motion to dismiss, he requested that all claims against Judge Monroe be dismissed. [dkt. 30, ¶ 1]. As such, the claims against Judge Monroe are dismissed.

Gail Povaleri

In the screening entry, the claims against Gail Povaleri were dismissed based on the fact that his allegations against her did not implicate a protected interest and did not include a constitutional dimension. In the return, the plaintiff alleges that Povaleri committed fraud upon the court. He also alleges that the errors in the transcript deprived him of a fair opportunity to present his case to the Indiana Court of Appeals on appeal. Before errors in a transcript may be the basis for relief under 42 U.S.C. § 1983, the plaintiff must demonstrate that he was disadvantaged by the errors in the transcript. There is no constitutional right to an absolutely and totally accurate transcript. Loubser v. Pala, 497 F.Supp.2d 934, 940 (N.D. Ind. 2007). In support of this allegation, the plaintiff states "the errors in the transcript has disadvantaged him during the appellate process because the missing testimony proved the stop by Officer Roberts on September 16, 2010 was without reasonable suspicion supported by articulable facts that criminal activity may be afoot.'" [dkt. 40, p. 9].

However, this did not disadvantage the plaintiff because the Indiana Court of Appeals found that the plaintiff did not have standing to challenge the search of the vehicle. See Davis v. State, 977 N.E.2d 31 (Ind.Ct.App. 2012), trans. denied. (Unpublished decision). Moreover, any allegation of harm as a result of errors in the transcript that formed the bases of his conviction is precluded by Heck v. Humphrey, 512 U.S. 477 (1994). Heck forbids a convicted person from seeking damages on any theory that implies that his conviction was invalid unless the conviction is overturned first. Here, the plaintiff seeks money damages for errors in the transcript. He claims that an error-free transcript would have overturned his conviction on appeal. This challenges the validity of the conviction, which is not permitted. Any claims against Gail Povaleri are dismissed.

Tami Hines

In the screening entry, the claims against Tami Hines were dismissed because the plaintiff made no allegations of wrongdoing against her. In the return, the plaintiff for the first time alleges that the Bartholomew County Clerk's Office received pleadings for one case that were never filed with the Indiana Court of Appeals in another case. Construing the complaint liberally, this claim might be described as one for negligence. However, a "plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law." Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original). A claim for negligence does not support a claim under 42 U.S.C. § 1983. County of Sacramento v. Lewis, ...

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