IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

GERALD CLARK, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:13-CV-209

)

STATE OF INDIANA, et al., )

)

Defendants. )

OPINION AND ORDER

Gerald Clark, a pro se prisoner, filed an amended complaint

pursuant to 42 U.S.C. § 1983. (DE # 3.) For the reasons set forth

below, this action is DISMISSED pursuant to 28 U.S.C. § 1915A.

BACKGROUND

Clark filed this action on March 15, 2013. (DE # 1.) His

original complaint was stricken due to numerous deficiencies. (DE

# 2.) On April 17, 2013, he filed an amended complaint. (DE # 3.)

DISCUSSION

Pursuant to 28 U.S.C. § 1915A, the Court must review 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(a), (b). To survive dismissal, a

complaint must state a claim for relief that is plausible on its

face. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03

case 3:13-cv-00209-RL-CAN document 8 filed 05/06/13 page 1 of 5
(7th Cir. 2009). “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.” Id. at 603. Nevertheless, a pro se complaint

must be liberally construed, “however inartfully pleaded.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007). 

The amended complaint, like the original, is not a model of

clarity, but it is clear that Clark is complaining about a state

criminal case in which he was convicted of criminal recklessness

and other offenses. He sues four different attorneys appointed to

represent him during the course of the criminal proceedings,

claiming that their failure to provide effective assistance

resulted in his wrongful conviction. He also sues the prosecutor,

asserting that he improperly charged him with offenses based on

items found during a search of a residence where Clark claims he

was only visiting. He also sues the State of Indiana, as well as an

attorney from the Indiana Supreme Court Disciplinary Commission,

who allegedly mishandled his complaints about the attorneys

involved in his criminal case.

These claims cannot proceed. Clark cannot sue his appointed

attorneys for constitutional violations, because they are not state

actors. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“[A]

public defender does not act under color of state law when

performing a lawyer’s traditional functions as counsel to a

2

case 3:13-cv-00209-RL-CAN document 8 filed 05/06/13 page 2 of 5
defendant in a criminal proceeding.”). To the extent Clark is

seeking an order declaring that his Sixth Amendment rights were

violated in the criminal case, such that his conviction was

unlawful, he can only pursue this relief in a habeas petition. See

Preiser v. Rodriguez, 411 U.S. 475, 488 (1973). 

The prosecutor cannot be sued for damages based on his

decision to pursue charges against Clark, or to present certain

evidence in support of the government’s case. Imbler v. Pachtman,

424 U.S. 409, 431 (1976). (“[I]n initiating a prosecution and in

presenting the State’s case, the prosecutor is immune from a civil

suit for damages under § 1983.”). To the extent there is any claim

against the prosecutor that survives prosecutorial immunity, it

would be barred by Heck v. Humphrey, 512 U.S. 477 (1994) in any

event. In Heck, the Supreme Court held:

[I]n 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 habeas corpus.

Id. at 486-87. Therefore, unless Clark’s conviction is vacated, set

aside, or otherwise called into question, he cannot pursue a claim

for damages for wrongful prosecution.

The State of Indiana is entitled to Eleventh Amendment

immunity, as is the Indiana Supreme Court Disciplinary Commission

3

case 3:13-cv-00209-RL-CAN document 8 filed 05/06/13 page 3 of 5
and its employee, Michael Witte, to the extent Clark is suing him

in his official capacity. Crenshaw v. Supreme Court of Indiana, 170

F.3d 725, 727 (7th Cir. 1999); Kashani v. Purdue University, 813

F.2d. 843, 845 (7th Cir. 1987). Immunity does not block a damages

claim against Witte in his individual capacity, but Clark fails to

allege a plausible federal claim against him. Clark claims that

Witte failed to comply with the Commission’s internal policies and

procedures in processing his complaint, but the failure to comply

with state law does not give rise to a constitutional violation.

See Sobitan v. Glud, 589 F.3d 379, 389 (7th Cir. 2009) (“By

definition, federal law, not state law, provides the source of

liability for a claim alleging the deprivation of a federal

constitutional right.”); Scott v. Edinburg, 346 F.3d 752, 760 (7th

Cir. 2003) (observing that 42 U.S.C. § 1983 protects plaintiffs

from constitutional violations, not violations of state statutes or

administrative regulations).

Clark also complains that Witte’s failure to take disciplinary

action against his attorneys violated his “constitutional rights to

be free from all official misconduct.” (DE # 3 at 19.) However,

there is no such constitutional right. “The Constitution is a

charter of negative liberties; it tells the state to let people

alone; it does not require the federal government or the state to

provide services[.]” Sandage v. Bd. of Commr’s of Vanderburgh

County, 548 F.3d 595, 596 (7th Cir. 2008). Clark cannot raise a

4

case 3:13-cv-00209-RL-CAN document 8 filed 05/06/13 page 4 of 5
constitutional claim against Witte based on his failure to take

disciplinary action against his attorneys, or to otherwise protect

him from their alleged wrongdoing. Id. at 596-98. Accordingly, this

action must be dismissed.

CONCLUSION

For the reasons set forth above, this action is DISMISSED

pursuant to 28 U.S.C. § 1915A. 

DATED: May 6, 2013 /s/RUDY LOZANO, Judge

United States District Court

5

case 3:13-cv-00209-RL-CAN document 8 filed 05/06/13 page 5 of 5