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Everett v. Marks

United States District Court, D. North Dakota

October 26, 2017

Tilmer Everett, Plaintiff,
Roger Marks, III, et. al., Defendants.



         The plaintiff, Tilmer Everett, is an inmate at the North Dakota State Penitentiary. He initiated the above-entitled action pro se on July 2017 with the submission of a 48-page complaint on July 17, 2017. (Doc. No. 2). On October 2, 2017, the court received Everett's consent to the undersigned's exercise of jurisdiction over matter. (Doc. No. 18). His complaint is now before the undersigned for initial review as mandated by 28 U.S.C. § 1915A. For the reasons set forth below, the above-entitled action is ordered dismissed.

         I. BACKGROUND

         The gist of Everett's complaint is that three Bismarck police officer and a former assistant state's attorney violated his civil rights during the course of a criminal investigation and subsequent prosecution that culminated in his conviction for gross sexual imposition in 2006 and that current assistant state's attorneys are perpetuating these violations insofar as they have opposed his requests for post-conviction relief. Specifically, Everett asserts that three police officers: falsified their investigative reports; withheld and/or tampered with evidence; tampered, intimidated, and/or misled witnesses; and perjured themselves at trial. He further asserts that the State's Attorney's office: unlawfully “bounced” the state district court judge initially assigned to his criminal case; violated the state district court's discovery orders; suborned perjury; withheld evidence; obstructed justice; conspired with local law enforcement to frame him; and most recently “filed a[n] injunctive motion again [him] with the district court.” (Doc. No. 2).

         In his prayer for relief, Everett demands: the arrest and prosecution of the individual who he believes committed the offense of which he was wrongfully convicted; the appointment of special counsel to investigate the Bismarck Police Department along with the State's Attorney and his assistants; an evidentiary hearing; compensatory and punitive damages; and fees.


         Congress enacted the Prison Litigation Reform Act of 1995 (“PLRA”) to address the burden imposed by prisoner suits that are too often frivolous and without merit. Jones v. Bock, 549 U.S. 199, 203-04 (2007); Woodford v. Ngo, 548 U.S. 81, 84 (2006). One of the reforms enacted as part of the PLRA for cases in which prisoners are seeking to sue a governmental entity, officer, or employee requires courts to conduct an early screening to weed out claims that clearly lack merit. 28 U.S.C. § 1915A. In conducting the screening, the court is required to identify any cognizable claims and to dismiss the complaint, or any part of it that is frivolous, malicious, fails to state a claim, or seeks relief from an immune defendant.


         A. Prosecutorial Immunity

         As a preliminary matter, it should be noted that there exists an unsurmountable impediment to Everettt's claims against the State's Attorney and his assistants: prosecutorial immunity.

         The nature of a prosecutor's immunity depends on the capacity in which the prosecutor acts at the time of the alleged misconduct. Actions taken as an advocate enjoy absolute immunity, see Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (concluded that “a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution” had absolute immunity from under § 1983), while actions taken as an investigator enjoy only qualified immunity, see Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (prosecutors “perform[ing] the investigative functions normally performed by a detective or police officer” have qualified immunity).

         Here, Everett's claims against the State's Attorney and his assistants clearly pertain to their pursuit of his prosecution and their responses to his efforts to obtain post-conviction relief in State court. Consequently, they appear to be foreclosed by absolute prosecutorial immunity. See Kalina v. Fletcher 522 U.S. 118, 127 (1997) (“[I]n determining immunity, we examine the nature of the function performed, not the identity of the actor who performed it.” (internal quotes omitted)); Buckley, 509 U.S. at 273 (“[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.”); see also Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005) (“A prosecutor is . . . entitled to absolute immunity despite allegations of his knowing use of perjured testimony and the deliberate withholding of exculpatory information. Although such conduct would be reprehensible, it does not make the prosecutor amenable to a civil suit for damages.” (internal quotes omitted)).

         B. Police Immunity from Liability Arising From Trial Testimony

         With respect to the police officers named by Everett in his Complaint, they are absolutely immune from any civil ...

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