IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

RUDELL PETTIFORD, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 1:13-CV-235

)

MARION POLICE DEPARTMENT, )

et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the complaint filed by

Rudell Pettiford, a pro se prisoner, on August 12, 2013. For the

reasons set forth below, this case is DISMISSED pursuant to 28

U.S.C. § 1915A. 

BACKGROUND

On May 20, 2013, Marion police officers searched the home of

Rudell Pettiford. He filed this lawsuit objecting to the search and

seizure as well as various proceedings in his State criminal

proceeding. 

DISCUSSION

“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) (quotation marks and

citations omitted). Nevertheless, a court must review prisoner

complaints pursuant to 28 U.S.C. § 1915A. A complaint must contain

sufficient factual matter to “state a claim that is plausible on

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). “A claim has facial plausibility when the pleaded factual

content allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

“Factual allegations must be enough to raise a right to relief

above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555 (quotation marks, citations and footnote

omitted). “[W]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the

complaint has alleged – but it has not shown – that the pleader is

entitled to relief.” Iqbal, 556 U.S. at 679 (quotation marks and

brackets omitted). Thus, “a 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) (emphasis in original). 

The first defendant listed is the Marion Police Department.

However, it is not a suable entity. See Smith v. Knox County Jail,

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666 F.3d 1037, 1040 (7th Cir. 2012). Therefore it must be

dismissed. 

Pettiford alleges that the search warrant was not based on a

probable cause affidavit. Though true, this is irrelevant.

Pettiford attached the warrant to his complaint. (DE #1 at 55.) It

shows that it was issued based on the sworn testimony of John

Kauffman. Indiana Code 35-33-5-8 authorizes issuing warrants upon

sworn testimony. There is no constitutional requirement that a

warrant can only be issued based on a written affidavit. Indeed,

Federal Rule of Criminal Procedure 4.1(a) provides that a warrant

can be issued based on an oral communication by telephone. 

Pettiford alleges that the warrant “seemed to be false and

fictitious because seal was not present and signature of Judge

Jeffrey Todd was forged by Sgt. John Kauffman.” (DE #1 at 3.) He

also argues that the warrant “seemed to be made on Officer John

Kauffman’s patrol car computer and printer.” (Id. at 4.) The

warrant was signed “Judge Jeffery Todd by John Kauffman.” (DE #1 at

56.) Though it is impossible to tell from the copy provided,

Pettiford may well be correct that it was printed in the officer’s

police car. However, even if it was, that would not invalidate the

warrant. “Well over a majority of States allow police officers or

prosecutors to apply for search warrants remotely through various

means, including telephonic or radio communication, electronic

communication such as e-mail, and video conferencing.” Missouri v.

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McNeely, 569 U.S. ___, ___; 133 S. Ct. 1552, 1562; 185 L. Ed. 2d

696, 708 (2013). 

Pettiford alleges that the judge did not sign the return form

and that the police officer’s signature is not “sealed by the clerk

either.” (DE #1 at 4.) It is unclear why Pettiford believes that

the officer’s signature needs to be under seal or what difference

it makes if it is not. Though the copy of the return provided by

Pettiford does not include a judge’s signature (DE #1 at 57), it is

unknown whether a judge ever signed the original. Nevertheless, the

absence of a judicial signature on the return form provides no

basis for believing that the warrant was invalid or that any of

these defendants are liable to Pettiford. See Junkert v. Massey,

610 F.3d 364, 369 (7th Cir. 2010) citing Malley v. Briggs, 475 U.S.

335 (1986) (Explaining that even an invalid warrant is not a basis

for liability under § 1983 unless the officer who executed it was

unreasonable to believe that it was valid.) Here, nothing about the

return form could have been known at the time that the warrant was

being executed. 

As a part of his State court criminal proceedings, Pettiford

appears to have conducted discovery and the Prosecuting Attorney’s

Office supplied him with various documents. Pettiford states that

he did not receive a copy of the transcript of the sworn testimony

from the probable cause hearing. However, the prosecutors’ failure

to produce a transcript is not a basis for liability under § 1983.

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“[I]n initiating a prosecution and in presenting the State’s case,

the prosecutor is immune from a civil suit for damages under §

1983.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Responding to

Pettiford’s discovery request is a part of presenting the State’s

case, therefore the prosecutors are immune. See Cooper v. Parrish,

203 F.3d 937, 947 (6th Cir. 2000) (“Absolute immunity shields

prosecutors even if they act maliciously, unreasonably, without

probable cause, or even on the basis of false testimony or

evidence.”(quotation marks and citation omitted)). For the same

reasons, the prosecutors are immune from Pettiford’s claims that

they did not provide him photos and that they amended his criminal

charges after the deadline for doing so. 

Finally, Pettiford attempts to sue Judge Jeffrey Todd.

Pettiford alleges that Judge Todd raised his bond too high and

permitted the filing of amended charges after the deadline.

However, a judge is entitled to absolute immunity for judicial acts

regarding matters within the court’s jurisdiction, even if the

judge’s “exercise of authority is flawed by the commission of grave

procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359 (1978).

Setting bond and presiding over criminal prosecutions are both with

the jurisdictional authority of the State court, therefore the

Judge Todd has judicial immunity. 

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CONCLUSION

For the reasons set forth above, this case is DISMISSED

pursuant to 28 U.S.C. § 1915A. 

DATED: November 15, 2013 /s/RUDY LOZANO, Judge

United State District Court

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