United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DISMISSING COMPLAINT, AND DIRECTING FURTHER
J. McKINNEY, JUDGE United States District Court
David Ison's motion to proceed in forma
pauperis, dkt. , is granted. He shall have through
July 17, 2017, to pay an initial partial filing fee of
an inmate at the Wabash Valley Correctional Facility, serving
a term of imprisonment for his murder convictions. Ison now
sues those involved in the murder prosecution for their
conduct in the course of those proceedings. Specifically, he
alleges that his rights under Boykin v. Alabama, 395
U.S. 238 (1969) - the right to be informed of the privilege
against compulsory self-incrimination, right to trial by
jury, and the right to confront ones accusers - were
violated. He sues Judge Steven Cox, prosecutor Melvin
Wilhelm, deputy prosecutor Christopher Huerkamp, and his
attorney Hubert Branstetter for their roles in the alleged
violation. He seeks relief in the form of monetary damages,
for him to be “discharged, ” and for the
defendants to be disbarred, among other things.
Ison is a “prisoner” as defined by 28 U.S.C.
§ 1915(h), 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 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
Ison, 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).
on this screening, the complaint must be dismissed. First,
Judge Cox is entitled to judicial immunity for actions taken
in the course of court proceedings even if Ison believes he
acted improperly. See Stump v. Sparkman, 435 U.S.
349, 359 (1978). The prosecutors, Wilhelm and Huerkamp, are
similarly entitled to immunity. Imbler v. Pachtman,
424 U.S. 409, 431 (1976).
claims against Branstetter for his actions in the course of
representing Ison must also be dismissed. The legal basis for
the claim against Branstetter is unclear. To the extent that
Ison brings his claims pursuant to 42 U.S.C. § 1983 for
violation of his federal rights, he cannot state a claim
against Branstetter. 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). Acting as
Ison's attorney, Branstetter was not acting under color
of state law; this is true whether Branstetter acted as a
private attorney or a public defender. 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). Even if Ison had a viable federal claim
against Branstetter, because Ison's conviction has not
been overturned, the time would not be ripe to bring such a
claim. This is because the settled law in these circumstances
is that when a prisoner makes a claim that, if successful,
could shorten his term of imprisonment, the claim must be
brought as a habeas petition, not as a § 1983 claim.
See Heck v. Humphrey, 512 U.S. 477 (1994); see
also Levine v. Kling, 123 F.3d 580, 583 (7th Cir. 1997)
(plaintiff who had not made successful collateral attack on
his conviction could not maintain an action for legal
malpractice). Put another way, any challenge in federal court
to unlawful custody must be brought in a habeas action,
rather than a civil rights action. See Muhammad v.
Close, 540 U.S. 749, 750 (2004) (per curiam)
(“Challenges to the validity of any confinement or to
particulars affecting its duration are the province of habeas
corpus; requests for relief turning on circumstances of
confinement may be presented in a § 1983
action.”). Once his state court postconviction
proceedings have concluded, Ison may consider filing a
federal habeas challenge. In the meantime, he should pursue
any remedies he has regarding his state court proceedings in
state court, through an appeal or otherwise.
foregoing reasons, the complaint is dismissed. Ison shall
have through July 17, 2017, to show cause why judgment
consistent with this Entry should not issue. See Luevano
v. Wal-Mart Stores, Inc.,722 F.3d 1014, 1022 (7th Cir.
2013) (“Without at least an opportunity to amend or to
respond to an order to show cause, an IFP applicant's
case could be tossed out of court without giving the