UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANDRE DEMETRIC PAYNE, )

)

Plaintiff, )

) Case No. 3:15-CV-457 JD

v. )

)

KENNETH COTTER, et al., )

)

Defendants. )

OPINION AND ORDER

Andre Demetric Payne, a pro se prisoner, filed this case against two deputy prosecuting

attorneys and the City of South Bend. He alleges that the deputy prosecutors used perjured testimony

against him during his State criminal trial in 2009. He alleges that they were employed by the City

of South Bend when they did. “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, pursuant to 28 U.S.C. § 1915A, the court must review the merits of 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. 

Here, the deputy prosecutors must be dismissed because they are immune from civil suit.

“[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). “[A]bsolute

immunity shields prosecutors even if they act maliciously, unreasonably, without probable cause,

or even on the basis of false testimony or evidence.” Smith v. Power, 346 F.3d 740, 742 (7th Cir.
2003) (quotation marks and citation omitted). Giving opening statements and examining witnesses

is a part of the presenting the State’s case, therefore the two deputy prosecutors are immune from

suit. 

The City of South Bend must be dismissed because it did not employ the deputy prosecutors.

Though they worked in the City, they worked for the St. Joseph County Prosecutor’s Office. See

Indiana Code 33-39-6-2 (deputy prosecutors appointed by prosecuting attorney) and Indiana

Constitution Art. 7, § 16 (prosecutors are an independently elected office). Moreover, even if they

had been employed by the City of South Bend, there is no general respondeat superior liability under

42 U.S.C. § 1983. George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). “[P]ublic employees are

responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 596

(7th Cir. 2009). 

Though it is usually necessary to permit a plaintiff the opportunity to file an amended

complaint when a case is dismissed sua sponte, see Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir.

2013), that is unnecessary where the amendment would be futile. Hukic v. Aurora Loan Servs., 588

F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad discretion to deny leave to amend where . . . the

amendment would be futile.”) Such is the case here. No amendment could overcome the immunity

of the deputy prosecutors or the fact that they were not employed by the City of South Bend. 

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

SO ORDERED.

ENTERED: October 6, 2015

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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