UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MICHAEL SHENEMAN )

)

Plaintiff, )

) CAUSE NO. 3:14-CV-2086 JM 

vs. )

)

BARBARA BROOK, et al., )

)

Defendants. )

OPINION AND ORDER

Michael Sheneman, a pro se prisoner, signed and filed an amended complaint in

this case. He also signed Jeremie Sheneman’s name to the amended complaint and

attached a power of attorney purportedly giving him the right to do so. Though it is

unclear whether it is Jeremie’s intention to join this lawsuit as a co-plaintiff, it is clear

that Jeremie is pursuing nearly identical claims against these same defendants in a

separate lawsuit. See Sheneman v. United States of America, 3:15-CV-7 (N.D. Ind. filed

January 8, 2015). Because it is unnecessary for Jeremie to be a plaintiff in this lawsuit in

order to pursue those claims and because it would be malicious for Jeremie to sue the

same defendants for the same events in two separate lawsuits, Jeremie will not be

added as a plaintiff to this lawsuit based solely on Michael’s assertion that Jeremie

should be included as a co-plaintiff in this case.

In screening the original complaint in this case, the court found that Michael had

not stated a claim against Assistant United States Attorney Barbara Brook, Assistant

United States Attorney Jesse Barrett, United States Attorney David Capp, FBI Special
Agent Tim Theriault, or the United States of America based on the Federal Tort Claims

Act, 42 U.S.C. § 1983, 42 U.S.C. § 1985, or Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388, 394 (1971). (DE # 12.) Nevertheless, pursuant to 1

Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir. 2013), he was permitted the opportunity to

file an amended complaint. 

In this amended complaint, he repeats his claims based on the Federal Tort

Claims Act, 42 U.S.C. § 1983, and 42 U.S.C. § 1985. He makes no mention of Bivens.

More importantly, the factual basis provided in the amended complaint has not

meaningfully changed and it does not state a claim. As previously explained, “the

United States is the proper and exclusive defendant for his claims under the FTCA.”

King v. U.S. Dep’t of Veterans Affairs, 728 F.3d 410, 413 n.2 (5th Cir. 2013). See also Hui v.

Castaneda, 559 U.S. 799, 801-02 (2010). Therefore Michael does not state a claim against

any of the four individual defendants based on the Federal Tort Claims Act. Moreover,

he does not state a claim against the United States because his allegations that the

individual defendants gathered truthful evidence by interviewing witnesses and

conducting a handwriting analysis prior to trial were not tortious acts from which

liability can arise. Thereafter the selection of evidence, exhibits, and testimony for use

in his criminal trial and the decisions about what and when to disclose the gathered

evidence against him was a discretionary function to which the FTCA does not apply.

The court’s prior order incorrectly referred to 42 U.S.C. § 1983 as 28 U.S.C. § 1983. It also

1

incorrectly referred to 42 U.S.C. § 1985 as 28 U.S.C. § 1985. Despite the citation errors, the court’s

explanations of why Michael had not stated a claim based on those statutes was an accurate statement of

the law.

2
See 28 U.S.C. § 2680(a) and Moore v. Valder, 65 F.3d 189, 197 (D.C. Cir. 1995) (“Deciding

whether to prosecute, assessing a witness’s credibility to ensure that he is giving an

accurate and complete account of what he knows, identifying the evidence to submit to

the grand jury and determining whether information is ‘exculpatory’ and ‘material’

and therefore must be disclosed pursuant to a Brady request are actions that require the

prosecutor to exercise his professional judgment. They are therefore quintessentially

discretionary.”). Thus, Michael does not state a claim based on the Federal Tort Claims

Act. 

His claims based on 42 U.S.C. § 1983 and § 1985 fair no better. Section 1983 only

applies to persons acting under color of state law. The defendants here are federal

officers and so § 1983 is not a basis for a cause of action in this case. See Ashcroft v. Iqbal,

556 U.S. 662, 675-76 (2009) (“In the limited settings where Bivens does apply, the

implied cause of action is the federal analog to suits brought against state officials

under . . . 42 U.S.C. § 1983.”) (quotation marks and citations omitted). Section 1985

“prohibits a conspiracy . . . motivated by racial, or other class-based discriminatory

animus.” Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008). Michael has not alleged that

the defendants’ actions were motivated by discriminatory animus of any type, therefore

he does not state a claim under § 1985 either.

Moreover, even if the § 1983 claims were analyzed as Bivens claims, they would

not state a claim. Michael alleges that defendants interviewed witnesses and obtained

truthful information from those witnesses. He alleges that they conducted an analysis

of his handwriting and determined that he had not signed documents using other

3
persons’ names. Those activities do not constitute manufacturing false evidence and

they did not violate his Fifth Amendment, Sixth Amendment, or any other

constitutional rights. Though Michael alleges the evidence presented to the grand and

petit juries was false and fraudulent, those are either prosecutorial acts subject to

absolute prosecutorial immunity or witness testimony subject to witness immunity. 2 3

For these reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A. 

SO ORDERED.

Date: July 10, 2015

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT 

 “Absolute immunity shields prosecutors even if they act maliciously, unreasonably, without 2

probable cause, or even on the basis of false testimony or evidence.” Cooper v. Parrish, 203 F.3d 937, 947 (6th

Cir. 2000) (quotation marks and citation omitted). 

 Police officers, like other witnesses, are immune from suit based on their testimony. Briscoe v. 3

LaHue, 460 U.S. 325, 341-43 (1983). 

4