IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

SCOTT E. MILLER, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 1:13-CV-350

)

PHILIP P. SIMON, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on a complaint filed pursuant

to 42 U.S.C. § 1983 by Scott E. Miller, a pro se prisoner. (DE #2.)

For the reasons set forth below, this case is DISMISSED pursuant to

28 U.S.C. § 1915A. 

BACKGROUND

Scott E. Miller, a pro se prisoner, filed this action in the

U.S. District Court for the Southern District of Indiana on

November 27, 2013. (DE #2.) The case was transferred to this Court

on December 5, 2013. (DE #6.) In the complaint, Miller sues U.S.

District Judge Philip E. Simon, alleging that he mishandled a civil

rights suit Miller filed in 2007.1 Specifically, he alleges that

1 He appears to be referring to Miller v. LaGrange County Sheriff, et al.,

No. 1:07-CV-27-PS (N.D. Ind. filed Jan. 26, 2007.) That case was originally filed

in state court but was removed by the defendants. (DE #1, #2.) In February 2007,

Judge Simon determined that Miller’s federal claims were untimely, dismissed the

claims pursuant to 28 U.S.C. § 1915A, and remanded the case for further

proceedings on the state law claims. Miller, No. 1:07-CV-27-PS (N.D. Ind. order

dated Feb. 27, 2007.) Miller appealed, but his appeal was later dismissed for
Judge Simon erred in dismissing his claims as time-barred, as well

as in issuing certain fee orders. He seeks compensatory and

punitive damages, among other relief. 

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). In determining whether the

complaint states a claim, the court applies the same standard as

when deciding a motion to dismiss 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. The

court must bear in mind, however, that “[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

failure to pay the filing fee. Id. (DE #16.) 

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formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.

89, 94 (2007). 

Upon review, Miller’s claims cannot proceed. To the extent

Miller has alleged any cognizable constitutional claim in

connection with these events, Judge Simon is entitled to absolute

immunity for acts performed within his judicial capacity, including

the rulings he made in Miller’s case. See Dawson v. Newman, 419

F.3d 656, 660-61 (7th Cir. 2005). Immunity applies even if, as

Miller alleges, Judge Simon’s orders were erroneous. Id. at 661. If

Miller felt that Judge Simon erred in connection with this case,

his remedy was to pursue an appeal, not to initiate a new lawsuit

against the Judge.2 Id.

Even if Miller could somehow overcome this barrier, his claims

would be time-barred. Although Miller purports to bring this case

under 42 U.S.C. § 1983, since he is suing a federal government

actor, any cause of action he might have for a constitutional tort

would arise under Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388, 389 (1971). A Bivens action (like an

action under 42 U.S.C. § 1983) is subject to Indiana’s two-year

statute of limitations applicable to personal injury suits. King v.

One Unknown Federal Correctional Officer, 201 F.3d 910, 913 (7th

Cir. 2000). Here, it is apparent that Miller is complaining about

2

 To the extent Miller is trying to obtain relief from an order issued by

the U.S. Court of Appeals for the Seventh Circuit, he must seek such relief in

that court. 

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events occurring in 2007, which was nearly seven years ago.

Accordingly, this action must be dismissed.

CONCLUSION

For the reasons set forth above, this case is DISMISSED

pursuant to 28 U.S.C. § 1915A. 

DATED: December 12, 2013 /s/RUDY LOZANO, Judge

United States District Court

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