Sims v. Kernan, 3:98-CV-0539 AS.

• Decision Date: 02 August 1999
• Docket Number: No. 3:98-CV-0539 AS.,3:98-CV-0539 AS.
• Citation: 72 F.Supp.2d 944
• Parties: Mario L. SIMS, Sr., Plaintiff, v. Joseph E. KERNAN, individually and in his official capacity of Lieutenant Governor of the State of Indiana, Frank O'Bannon, individually and in his official capacity, Michael P. Barnes, individually and in his official capacity as the elected prosecutor of St. Joseph County, John Marnocha, individually and in his official capacity as the chief deputy prosecutor of St. Joseph County, H. John Okeson, individually and in his official capacity as the Clerk of the Indiana Supreme Court, Linda Scopelitis, individually and in her official capacity as the Clerk of St. Joseph County, Chief Judge Randall Shepard, in his official capacity as Chief Judge of the Indiana Supreme Court and as a member of the judicial nominating commission, the County of St. Joseph, and the State of Indiana, for purposes of injunctive relief, and damages where appropriate by law, Judge Sanford Brook, individually, and in his official capacity as Judge, St. Joseph Superior Court, Captain Clark, Lieutenant Dave Shock, and Lieutenant Tim Corbett, Defendants.
• Court: U.S. District Court — Northern District of Indiana

72 F.Supp.2d 944

Mario L. SIMS, Sr., Plaintiff, v. Joseph E. KERNAN, individually and in his official capacity of Lieutenant Governor of the State of Indiana, Frank O'Bannon, individually and in his official capacity, Michael P. Barnes, individually and in his official capacity as the elected prosecutor of St. Joseph County, John Marnocha, individually and in his official capacity as the chief deputy prosecutor of St. Joseph County, H. John Okeson, individually and in his official capacity as the Clerk of the Indiana Supreme Court, Linda Scopelitis, individually and in her official capacity as the Clerk of St. Joseph County, Chief Judge Randall Shepard, in his official capacity as Chief Judge of the Indiana Supreme Court and as a member of the judicial nominating commission, the County of St. Joseph, and the State of Indiana, for purposes of injunctive relief, and damages where appropriate by law, Judge Sanford Brook, individually, and in his official capacity as Judge, St. Joseph Superior Court, Captain Clark, Lieutenant Dave Shock, and Lieutenant Tim Corbett, Defendants.

No. 3:98-CV-0539 AS.

United States District Court, N.D. Indiana, South Bend Division.

August 2, 1999.

Mario L. Sims, SCU-Westville, Westville, IN, plaintiff pro se.

Richard A. Nussbaum, II, Cheryl A. Greene, Sopko and Firth, South Bend, IN, for Michael P. Barnes, Prosecutor St. Joseph County, John Marnocha, Linda Scopelitis, Sanford Brook, defendants.

Robert C. Rosenfeld, South Bend, IN, for Capt Clark, Dave Shock, Tim Corbett, defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

Plaintiff Mario Sims filed this pro se action pursuant to 42 U.S.C. §§ 1981, 1983, and 1985(3), alleging the violation of his federally protected rights by numerous persons and entities. When it conducted the screening mandated by 28 U.S.C. § 1915A, the court dismissed most of the defendants and claims, leaving only claims against Judge Sanford Brook and St. Joseph Clerk of Courts Linda Scopelitis. Judge Brook currently is a judge for the Indiana Court of Appeals; at the time he dealt with Mr. Sims, he was a St. Joseph Superior Court judge. Mr. Sims has amended his complaint four times, most recently to add claims against three South Bend police officials. This case is now before the court on the plaintiff's motion for leave to file a supplemental complaint, a motion by former prosecutor Michael Barnes and former deputy prosecutor John Marnocha to strike the motion for leave to file a supplemental complaint, and a motion for summary judgment filed by defendants Brook and Scopelitis pursuant to Fed.R.Civ.P. 56.

Mr. Sims essentially seeks to amend his complaint a fifth time by means of a motion for leave to file a supplemental complaint. The proposed supplemental complaint asserts that after losing his re-election bid in November 1998, Prosecutor Barnes "in conspiracy" with his chief deputy, Mr. Marnocha, "destroyed exculpatory evidence and evidence of prosecutorial misconduct and police misconduct used to convict the plaintiff." Mr. Sims further suggests that counsel for defendants Brook and Scopelitis was a co-conspirator with Messrs. Barnes and Marnocha, and witnessed their destruction of documents.

Fed.R.Civ.P. 15(d) provides that if a defendant engages in actionable conduct after a lawsuit is commenced, the plaintiff may seek leave to file a supplemental pleading to assert a claim based on the subsequent conduct. See S.E.C. v. First Jersey Securities, Inc., 101 F.3d 1450, 1464 (2d Cir.1996), cert. denied, 522 U.S. 812, 118 S.Ct. 57, 139 L.Ed.2d 21 (1997). Messrs. Barnes and Marnocha were dismissed from this case at the screening stage, and Mr. Nussbaum has never been a defendant in this case. Because the claims against two of the proposed defendants in the supplemental complaint have been dismissed and the remaining alleged conspirator has never been a defendant, the court has not acquired jurisdiction over any of them. Accordingly, the court will deny Mr. Sims motion for leave to supplement his complaint, without prejudice to his right to bring these claims in a separate case.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Although the moving party must initially identify the basis for its contention that no genuine issue of material fact exists, the nonmoving party cannot rest on his pleadings, but must produce his own evidence. Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir.1991). Rule 56(e) requires that the nonmoving party who bears the burden of proof on an issue for trial allege specific facts showing that there is a genuine issue for trial by his own affidavits or by the depositions, answers to interrogatories, and admissions on file. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

... In considering whether any genuine issues of material fact exist, we view the record and extract all reasonable inferences from the evidence in the light most favorable to the nonmoving party. However, the nonmoving party "must do more than simply show that there exists some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Only disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.

McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir.1996).

Mr. Sims, an African-American, is a prisoner confined at the Indiana Department of Correction's Westville Correctional Facility pursuant to a 1994 conviction for breaking into the home of his estranged wife and sexually assaulting her at the point of a heroin-filled syringe and a pistol. The parties' submissions establish that Mr. Sims was convicted in the St. Joseph Superior Court and that on July 1, 1994, Judge Jeanne Jordan, who presided over his trial, sentenced him to a term of twenty-seven years of imprisonment. Mr. Sims pursued an appeal, but terminated his appeal in order to pursue post conviction remedies. Judge Jordan recused herself from presiding over Mr. Sims' post conviction efforts and a series of special judges have been appointed, many of whom also recused themselves. Special Judge Donald Jones eventually assumed jurisdiction, and denied Mr. Sims' petition for post conviction relief on August 2, 1996, a decision that was upheld on appeal. Mr. Sims' case was most recently before Special Judge Michael Cook.¹ Judge Brook was appointed as special judge in Mr. Sims' case on March 3, 1996, and almost immediately recused himself. According to Judge Brook's submissions, after he recused himself from Mr. Sims' case, he merely acted as a conduit to receive materials filed in the case and transfer them to his successors as special judge. The chronological summary of filings and proceedings in Mr. Sims' case establishes that Judge Brook's name appears several times in the chronological summary of filings and proceedings after he recused himself, but with one exception, each entry merely shows that the court had received a document or that a document had been filed. The sole exception, which Mr. Sims cites in support of his claim against Judge Brook, is an entry dated January 27, 1998, which reads as follows:

JUDGE BROOK

Defendant files Motion for Default Judgment. State is given 30 days to file a written response. Court takes motion under advisement.

According to plaintiff's exhibit seven, the motion for default judgment was filed in front of Judge Jones, who had been special judge in the case. Judge Jones entered an order stating that he "no longer has any jurisdiction having completed the petition for post conviction relief." Judge Jones ordered that all documents relating to the case, including the motion for default judgment be "transferred to St. Joseph Superior Court, Honorable Stanford Brooks, South Bend, IN, to be acted on as deemed appropriate." It is unclear why Judge Jones ordered that these materials be sent to Judge Brook, though it may be because of Judge Brook's activities as a conduit to receive materials filed in the case and transfer them to his successors as special judge.² The record establishes that Judge Brook never entered a substantive ruling on the motion for default judgment.

In his complaint, Mr. Sims alleged that Judge Brook acted outside his jurisdiction when he ruled adversely to Mr. Sims on unspecified matters in his post conviction proceedings. At the screening stage mandated by § 1915A, the court allowed this claim to proceed because Mr. Sims alleged that Judge Brook acted outside his jurisdiction to Mr. Sims' detriment, which prevented the court from dismissing the claims against him at the pleadings stage based on the doctrine of judicial immunity. Mr. Sims alleged that Clerk Scopelitis intentionally failed to file his motion for default judgment on the date it was mailed by certified mail and that the clerk's office failed to timely serve a copy of an order signed by Judge Brook on the plaintiff, in furtherance of the conspiracy against him, thereby prejudicing him. He further alleged that since 1994, Clerk Scopelitis "has failed to notify the plaintiff of several ruling[s], failed to file motions filed by the plaintiff, and given false or misleading information to those attempting to assist the plaintiff to obtain documents or file motions or pleadings in his behalf."

The defendants assert that the claims against them him are barred by the statute of limitations, that they are entitled to either absolute judicial immunity or qualified immunity, that court should abstain from exercising authority over this case pursuant to the abstention doctrine, and...