UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

HERMAN THOMAS, )

)

Plaintiff, )

) 

v. ) Case No. 1:15-CV-253 JD

)

CARLA SMITH, )

)

Defendant. )

OPINION AND ORDER

Herman Thomas, a pro se plaintiff, initially filed a vague complaint under 42 U.S.C. § 1983

alleging that Grant County Probation Officer Carla Smith set an excessive bail in his state criminal

case. (DE 1.) However, because in Indiana the amount of bail is determined and established by the

court, not a probation officer, the claim as pled was implausible. Nevertheless, he was granted leave

to file an amended complaint and clarify his allegations in the spirit of Luevano v. Wal-Mart, 722

F.3d 1014 (7th Cir. 2013). (DE 7.) Thomas has now filed an amended complaint. (DE 9.) He again

names Carla Smith as a defendant and adds Grant Superior Court Judge Kenworthy.

The court must review the complaint and dismiss it if the action is frivolous or malicious,

fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from

such relief. 28 U.S.C. § 1915A. To survive dismissal, the 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. Thus,

the plaintiff “must do better than putting a few words on paper that, in the hands of an imaginative

reader, might suggest that something has happened to her that might be redressed by the law.”
Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). Nevertheless, the court must bear in

mind that “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). To state a claim under 42 U.S.C. § 1983, the plaintiff must allege

that: (1) the defendants deprived him of a federal constitutional right; and (2) the defendants acted

under color of state law. Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). 

Here, Thomas alleges:

I believe I have been violated because of an unreasonable bond $500,000 dollars is

an excessive amount just for a Class D theft. (Carla Smith & Judge Kenworthy)

(DE 9 at 3.)

Again without any supporting facts, Mr. Thomas alleges Carla Smith, a Grant County

Probation Officer, set an excessive amount for his bail, which forced him to stay incarcerated while

he was awaiting trial. Previously, the court advised Thomas that, should he file an amended

complaint, he needed to explain what Carla Smith did that resulted in his bail being excessive.

Nevertheless, Mr. Thomas failed to provide any such explanation. As the court has explained to Mr.

Thomas previously, in Indiana the amount of bail is determined and established by the court, not a

probation officer. IND.CODE § 35-33-8-4. The mere fact that Carla Smith was his assigned probation

officer is not enough to hold her liable for the court’s determined amount of bail. Thus, without

more, it is implausible to conclude that Probation Officer Carla Smith was responsible for setting

Thomas’s bail. For that reason, the complaint fails to state a plausible claim against her.

Next, Mr. Thomas sues Grant County Superior Court Judge Kenworthy for setting an

excessive bail. Though he does not explain Judge Kenworthy’s actions in much detail, it does not

matter. Thomas cannot sue the state court judge, because he is entitled to absolute immunity for acts

2
performed in his judicial capacity. See Dawson v. Newman, 419 F.3d 656, 660-61 (7th Cir. 2005).

Setting bail is a judicial act for which state court judges are immune. This is true even if Thomas

believes Judge Kenworthy acted improperly in setting his bail; Thomas’s remedy was through the

state appellate process, not a civil rights suit here. Id. at 661. 

Finally, to the extent Mr. Thomas seeks to be released from custody, he must pursue such

relief in a habeas proceeding under 28 U.S.C. § 2254, subject to the requirements of the AntiTerrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 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).

For these reasons, the court dismisses this case pursuant to 28 U.S.C. § 1915A.

SO ORDERED.

ENTERED: January 28, 2016

 /s/ JON E. DEGUILIO 

Judge

United States District Court

3