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Rogers v. PSI Officer

United States District Court, S.D. Indiana, Indianapolis Division

July 12, 2017

PSI OFFICER (name unknown), WILLIAM L. MCCOSKEY AUSA, U.S. ATT'S OFFICE Indianapolis Division, CIRCUIT COURT PUBLISHER (name unknown) et al., Defendants.



         I. Filing Fee

         Plaintiff Duryea Rogers (“Rogers”) shall have through August 15, 2017, to pay the $400 filing fee to the clerk of the district court or demonstrate his financial inability to do so.

         II. The Complaint

         A. Plaintiff's Contentions

         Rogers was one of three men who attempted to rob an Indiana bank in June 2013. The three were arrested shortly afterward. Rogers and a co-defendant plead guilty, with the third, Armour, taking his case to jury trial. The other co-defendant - not Rogers - testified against Armour. Unfortunately, when the Seventh Circuit Court of Appeals (“Circuit Court”) decided Armour's appeal, the published opinion erroneously reported that both of Armour's co-defendants had testified against him. See United States v. Armour, 840 F.3d 904, 906 (7th Cir. 2016). When Rogers became aware of the Circuit Court's error, he was horrified at being “depicted and castigated” as a “rat, snitch, informant or stole [sic] pigeon” on his prison yard. Until then he had been a “respectable inmate on the compound” at his prison, but now he suffered “great pain . . . humiliation, threats to his life, embarrassment, a soiled reputation, [and] mental and emotional distress.” Dkt. 1 at 3. Rogers reports that his “life in prison was turned upside down and inside out.” Id.

         To remedy the error, Rogers filed a motion in Armour's criminal appeal case with the Circuit Court asking it to correct the clerical error. The United States filed a response in which it acknowledged the error and expressed no opposition to it being corrected. The Seventh Circuit filed an order amending its opinion to reflect that it was the other co-defendant who testified against Armour, not both of them.

         Proceeding under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Rogers brings a defamation action against four defendants: (1) an unkown PSI Officer; (2) a Circuit Court Publisher; (3) the United States Attorney's Office; and (4) William L. McCoskey (“McCoskey”), an Assistant United States Attorney (“AUSA”) involved with the prosecution of the bank robbery case. He contends the defamation violated his rights under the Fifth and Eighth Amendments.

         Rogers makes specific allegations against only one defendant, AUSA McCoskey. He contends that AUSA McCoskey must have known about the Seventh Circuit opinion's error and failed to have it immediately corrected. When the Circuit Court called for a response to Rogers's motion to correct the opinion, AUSA McCoskey responded that the United States did not notice the error until reading about it in Rogers's motion. Rogers believes that assertion to be “deceptive” and somehow evident of an “insouciant attitude” to Rogers's safety and well-being. Therefore, he contends, a jury could find that AUSA McCoskey and/or the other defendants “set in motion the chain of events that led to the inflammatory and inaccurate error in” the Appellate opinion.

         B. Screening Standard

         Rogers is incarcerated at the Federal Correctional Institution in Pekin, Illinois. Because he is a prisoner as defined by 28 U.S.C. § 1915(h), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint. Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. In determining whether the complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006).

         To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a claim for 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, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by Rogers are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Obriecht v. Raemisch, ...

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