United States District Court, N.D. Indiana, South Bend Division
MARKEL D. PALMER-TATE, Plaintiff,
UNITED STATES FEDERAL MARSHALL'S et al., Defendants.
OPINION AND ORDER
R. Leichty Judge
D. Palmer-Tate, a prisoner without a lawyer, filed a
complaint (ECF 1) against the “United States Federal
Marshall's” and “Indiana State Fort Wayne
Police Department” alleging that both his phone and
home were subject to unlawful searches on April 11, 2016.
“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). Nevertheless, pursuant to 28 U.S.C.
§ 1915A, the court must review the complaint and dismiss
it if the action is frivolous or malicious, fails to state a
claim, or seeks monetary relief against a defendant who is
immune from such relief.
Palmer-Tate alleges that, on April 11, 2016, he was detained
for questioning by the “Indiana State Fort Wayne Police
Department.” An unidentified officer ordered Mr.
Palmer-Tate to unlock his cellphone and then questioned him
about information on the phone, even though the officer
lacked a warrant. Other unidentified officers went to Mr.
Palmer-Tate's landlord, told him that Mr. Palmer-Tate was
being investigated for a crime, and reported to the landlord
that they believed that individuals not on the lease (Mr.
Palmer-Tate's girlfriend and children) were staying in
the residence. The landlord and an unidentified officer then
went to the residence and represented to the mother of Mr.
Palmer-Tate's children that Mr. Palmer-Tate had consented
to a search of the home. Mr. Palmer-Tate was released
following questioning, although officers retained custody of
some of his personal property. He was later evicted from his
residence without notice. Mr. Palmer-Tate's complaint
indicates that a criminal charge related to the allegations
in his complaint pends against him. That charge has recently
been resolved, however. See United States v.
Palmer-Tate, No. 1:16-CR-78-DRL-SLC (sentenced to 188
months of incarceration on November 8, 2019). Mr. Palmer-Tate
seeks monetary damages and the dismissal of his criminal
extent that Mr. Palmer-Tate is suing the Indiana State
Police, any claim for damages is barred by the
Constitution's Eleventh Amendment. The Eleventh Amendment
precludes monetary claims against a State and its agencies.
Kashani v. Purdue University, 813 F.2d. 843, 845
(7th Cir. 1987). To the extent that Mr. Palmer-Tate is suing
the Fort Wayne Police Department, he cannot proceed because a
municipal police department is not a suable entity under
Indiana law. Sow v. Fortville Police Department, 636
F.3d 293, 300 (7th Cir. 2011). Thus, Mr. Palmer-Tate cannot
proceed against either the Indiana State Police or the Fort
Wayne Police Department.
Mr. Palmer-Tate has named the United States Federal Marshals
as a defendant, his complaint does not mention the agency
anywhere other than in the caption. Furthermore, Mr.
Palmer-Tate has not sued any individual that is allegedly
responsible for violating his rights. “In
Bivens [v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 394 (1971)] the
Supreme Court recognized an implied cause of action for
damages against federal officers to redress a constitutional
violation.” Engel v. Buchan, 710 F.3d 698, 703
(7th Cir. 2013). But, “a defendant cannot be liable
under Bivens on the basis of respondeat
superior or supervisory liability, rather, there must be
individual participation and involvement by the defendant. .
. . [E]ach Government official, his or her title
notwithstanding, is only liable for his or her own
misconduct.” Arnett v. Webster, 658 F.3d 742,
757 (7th Cir. 2011) (internal citations omitted).
Accordingly, he cannot proceed against the United States
Federal Marshals based on this complaint.
extent that Mr. Palmer-Tate is trying to obtain an order
declaring that his rights were violated in his federal
criminal case such that he is being wrongfully incarcerated,
this type of relief cannot be obtained in a civil rights
action; instead such relief can only be pursued in the
criminal case or in a habeas corpus proceeding under 28
U.S.C. § 2255. See Preiser v. Rodriguez, 411
U.S. 475, 488 (1973) (habeas corpus is the exclusive civil
remedy for a state prisoner seeking to challenge the fact or
duration of his custody, and such relief cannot be pursued
under 42 U.S.C. § 1983); Glaus v. Anderson, 408
F.3d 382, 386 (7th Cir. 2005) (holding that rationale of
Preiser “applies just as soundly to federal
prisoners filing a claim based on Bivens”).
to the extent that a finding in Mr. Palmer-Tate's favor
in this case would undermine his federal criminal conviction,
his claim can only be brought if his federal conviction is
set aside. See Heck v. Humphrey, 512 U.S. 477,
486-87 (1994) (holding that “in order to recover
damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such a determination, or called into
question by a federal court's issuance of a writ of
this complaint does not state a claim and it seems unlikely
that Mr. Palmer-Tate will be able to state a claim, it is not
possible to say definitively that he could not do so.
Therefore, he will be permitted time to file an amended
complaint if he believes that he can add additional facts
that would state a claim. See Luevano v. Wal-Mart,
722 F.3d 1014 (7th Cir. 2013).
reasons set forth above, the court:
DIRECTS the clerk to place this cause number on a blank
Prisoner Complaint form and send it to Markel D. Palmer-Tate;
GRANTS Markel D. Palmer-Tate to and including
December 12, 2019 to file an
amended complaint; and (3) CAUTIONS him that if he does not
respond by the deadline, this case will be dismissed pursuant
to 28 U.S.C. § 1915A because the current complaint does
not state a claim for which relief can be granted.