UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

TRAVIS CUNNINGHAM, )

)

Plaintiff, )

) Case No. 3:12-CV-002 JD

v. )

)

RICHARD MAUGHMER, et al., )

)

Defendants. )

OPINION AND ORDER

Travis Cunningham, a pro se prisoner, filed an amended complaint under 42 U.S.C. § 1983

[ECF No. 9]. 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. Courts apply the same standard under Section 1915A

as when deciding a motion under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6). Lagerstrom v.

Kingston, 463 F.3d 621, 624 (7th Cir. 2006). 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

(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. To state a claim under 42 U.S.C. § 1983, the 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). Nevertheless, “[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). 
This lawsuit stems from a Cass County criminal case in which Cunningham was convicted

of drug offenses. Cunningham claims that Judge Richard Maughmer “promised” that if he completed

a particular program while in prison, his sentence would be modified to time served. Cunningham

claims that he completed the program in October 2011, but the judge subsequently denied his

motions to modify his sentence. He sues the judge, the prosecutor, his public defender, the court

reporter, the court clerk, and the Indiana Attorney General seeking damages for false imprisonment

and other claims [ECF No. 9 at 2.] 

Cunningham filed another suit against the judge and prosecutor based on these same facts.

Cunningham v. Maughmer, et al., No. 3:11-CV-483-TS (N.D. Ind. filed Dec. 7, 2011). That case

was recently dismissed under 28 U.S.C. § 1915A, but was still pending at the time Cunningham filed

this action. It is malicious for Cunningham to file multiple suits based on the same set of facts. See

28 U.S.C. § 1915A; see also Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (suit is

“malicious” for purposes of 28 U.S.C. § 1915A if it is intended to harass or is otherwise abusive of

the judicial process); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993) (it is malicious for a

plaintiff with in forma pauperis status to file a lawsuit that duplicates allegations of another pending

lawsuit). This alone provides grounds for dismissal. 28 U.S.C. § 1915A(b)(1).

Even if the suit were not malicious, it could not proceed for other reasons. Cunningham’s

claim against the judge is barred by absolute judicial immunity. Stump v. Sparkman, 435 U.S. 349,

359 (1978) (a judge is entitled to absolute immunity for judicial acts regarding matters within his

jurisdiction, even if the judge’s “exercise of authority is flawed by the commission of grave

procedural errors.”). This is true even if Cunningham believes the judge erred in denying his

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motions. Dawson v. Newman, 419 F.3d 656, 660-61 (7th Cir. 2005). His remedy was through state

appellate process, not a federal civil rights suit seeking damages. Id. at 661.

Cunningham’s claim against the prosecutor, based on her decision not to support his motions

to modify his sentence, is similarly barred. The prosecutor is entitled to immunity for her actions

taken as an advocate for the state in Cunningham’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.”). Cunningham also names the Indiana Attorney General

as a defendant, without explaining the involvement of that office in these events. It appears he may

be trying to hold the Attorney General liable as the prosecutor’s employer; however, there is no

indication that the county prosecutor named in the complaint was employed by the state Attorney

General’s Office. A claim against that office based on a theory of supervisory liability cannot

proceed in any event because there is no general respondeat superior liability under 42 U.S.C.

§ 1983. Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). To the extent the Indiana

Attorney General took some role in the decision not to support Cunningham’s requests for

modification of his sentence, he would be entitled to prosecutorial immunity as well. See Imbler, 424

U.S. at 431.

Cunningham also sues his public defender for providing ineffective assistance, but his

allegations fail to state a claim for relief. The Constitution only protects against defendants acting

under color of state law, Savory, 469 F.3d at 670, and the Supreme Court has held that “a public

defender does not act under color of state law when performing a lawyer’s traditional functions as

counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981).

Furthermore, to the extent Cunningham is seeking some type of order declaring that his Sixth

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Amendment rights were violated in the criminal case such that he is being wrongfully imprisoned,

he can only seek this type of relief in a habeas petition brought under 28 U.S.C. § 2254. Preiser v.

Rodriguez, 411 U.S. 475, 488 (1973) (habeas corpus is the exclusive remedy for a state prisoner who

challenges the fact or duration of his confinement).

Cunningham also sues the court reporter and clerk assigned to Judge Maughmer’s courtroom,

alleging that they failed to adequately document the “agreement” he made with the judge in

accordance with state law [see ECF No. 9 at 4-5]. These judicial employees are entitled to absolute

immunity for administrative acts taken at the direction of the judge. See Snyder v. Nolen, 380 F.3d

279, 287-88 (7th Cir. 2004). Even if they did not have immunity, their alleged violation of state law

would not create a cause of action under 42 U.S.C. § 1983.1 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.”) (internal citation omitted); 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 laws”). Finally, to the extent Cunningham is

asking this court to “correct” his sentence [ECF No. 9 at 6] to reflect his recollection of what

occurred, such relief can only be pursued in a habeas action filed under 28 U.S.C. § 2254. See

Preiser, 411 U.S. at 488. 

For the reasons set forth above, this action is DISMISSED pursuant to 28 U.S.C. § 1915A.

1 It is not entirely clear, but Cunningham also appears to be trying to obtain a transcript and other

documents from his criminal case [ECF No. 9 at 3-4]. Although Cunningham has not stated a claim for a

constitutional violation under 42 U.S.C.§ 1983, this order does not purport to adjudicate any right he may have under

state law to access to these documents.

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SO ORDERED.

ENTERED: January 23, 2012

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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