United States District Court, N.D. Indiana, South Bend Division
BRIAN K. RUBY, Plaintiff,
STATE OF INDIANA, et. al., Defendants.
OPINION AND ORDER
L. MILLER, JR. JUDGE
K. Ruby, a prisoner without a lawyer, filed a complaint (ECF
2) against the State of Indiana, Deputy Prosecuting Attorney
Ronald Byal, Attorney Gary Cook, and Deputy Public Defender
John Pinnow, because they allegedly breached a May 6, 2009,
agreed order of judgment in his criminal case. Mr. Ruby also
filed a motion seeking preliminary injunctive relief. ECF 4.
court 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. 28 U.S.C. § 1915A. Courts apply the same
standard under § 1915A as when addressing a motion under
Rule 12(b)(6), which provides for the dismissal of a
complaint, or any portion of a complaint, for failure to
state a claim upon which relief can be granted.
Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.
2006). The court must accept as true all well-pleaded facts
and draw all permissible inferences in the Plaintiff's
favor. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67
F.3d 605, 608 (7th Cir. 1995). A plaintiff can plead himself
out of court if he pleads facts that preclude relief. See
Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007);
McCready v. Ebay, Inc., 453 F.3d 882, 888 (7th Cir.
Ruby's complaint asserts that he learned in May 2019 that
the defendants had breached the agreed order in his criminal
case, which detailed the disposition of $821.00 seized by the
Kokomo Police Department. ECF 2 at 4; 2-1 at 1-2. In that
agreed order, the parties stipulated that $410.50 of the
$821.00 would be forfeited to the Howard County Law
Enforcement Fund and the other half would be returned to Mr.
Ruby or his attorney. ECF 2-1 at 1. They further stipulated
that “this agreement shall [not] be used in any manner
against the defendant in any criminal proceeding.”
Id. Mr. Ruby claims that the agreed order not only
fraudulently induced him to go to trial but was actually used
as a means by which to convict him on multiple drug charges.
Mr. Ruby seeks both monetary damages and injunctive relief
from this court.
Ruby can't sue the defendants he has named in his
complaint under 42 U.S.C. § 1983. He first names the
State of Indiana as a defendant. The Eleventh Amendment
generally precludes a citizen from suing a State or one of
its agencies or departments in federal court. Wynn v.
Southward, 251 F.3d 588, 592 (7th Cir. 2001). There are
three exceptions to Eleventh Amendment immunity: (1) suits
directly against the State based on a cause of action when
Congress has abrogated the state's immunity from suit;
(2) suits directly against the State if the State waived its
sovereign immunity; and (3) suits against a State official
seeking prospective equitable relief for ongoing violations
of federal law. MCI Telecommunications Corp. v. Ill.
Commerce Comm'n, 183 F.3d 558, 563 (7th Cir. 1999).
None of these exceptions apply here. Congress didn't
abrogate the States' immunity through the enactment of
Section 1983. Joseph v. Bd. of Regents of Univ. of Wis.
Sys., 432 F.3d 746, 748 (7th Cir. 2005). Indiana
hasn't consented to this lawsuit. The State of Indiana
must be dismissed.
Ruby has also sued Deputy Prosecuting Attorney Ronald Byal
asserting that he breached the agreed order by prosecuting
him “beyond the limits” of that agreement. ECF 2
at 4. “[I]n initiating a prosecution and in presenting
the State's case, the prosecutor is immune from a civil
suit for damages under § 1983.” Imbler v.
Pachtman, 424 U.S. 409, 431 (1976). Absolute immunity
shields prosecutors even if they act maliciously,
unreasonably, without probable cause, or even on the basis of
false testimony or evidence. Smith v. Power, 346
F.3d 740, 742 (7th Cir. 2003). Because the doctrine of
prosecutorial immunity applies, Mr. Ruby can't proceed on
a claim for damages against Deputy Prosecuting Attorney Byal.
Ruby has sued Deputy Public Defender John Pinnow and Attorney
Gary Cook. He alleges that Mr. Pinnow improperly withdrew
from his case and stated in a post conviction relief
memorandum that the State hadn't violated the agreed
order. ECF 2 at 4-5; 2-1 at 15. Mr. Ruby further asserts that
Mr. Cook, who also represented him, told him in a July 2,
2010, letter that the agreed order wouldn't be considered
on appeal. ECF 2 at 4. “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)). A criminal defense attorney, even an
appointed public defender, doesn't act under color of
state law. Polk County v. Dodson, 454 U.S. 312
(1981). Mr. Ruby's claims against Deputy Public Defender
Pinnow and Attorney Cook must also be dismissed.
extent Mr. Ruby is challenging his confinement and seeking
release from prison, “habeas corpus is the exclusive
remedy for a state prisoner who challenges the fact or
duration of his confinement . . ..” Heck v.
Humphrey, 512 U.S. 477, 481 (1994). While this court
expresses no opinion on whether Mr. Ruby should file a habeas
petition, to the extent he seeks relief only available
through a habeas petition, he must file a habeas petition in
a separate case. The clerk will send him a blank conviction
habeas form and in forma pauperis form for his use, if he
decides to file a habeas petition challenging his conviction.
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 if the amendment would
be futile. Hukic v. Aurora Loan Servs., 588 F.3d
420, 432 (7th Cir. 2009) (“[C]ourts have broad
discretion to deny leave to amend where . . . the amendment
would be futile.”). Such is the case here. No.
amendment would fix Mr. Ruby having sued the defendants that
can't be liable to him under 42 U.S.C. § 1983.
the court turns to the motion for a preliminary injunction.
Because the complaint doesn't state a claim upon which
relief can be granted, the court denies the motion for a
these reasons, the court:
(1) DENIES the motion for preliminary injunction (ECF 4);
(2) DISMISSES this case pursuant to 28 U.S.C. § 1915A
because the complaint does not state a claim; and
(3) DIRECTS the clerk to send Brian K. Ruby a blank habeas
corpus petition, AO-241 (Rev. 1/15) (Conviction, INND Rev.
8/16) and a blank ...