WEATHERSPOON v. KHOURY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MICHELLE WEATHERSPOON, )

)

Plaintiff, )

)

v. ) Case No. 1:20-cv-02077-TWP-MJD

)

ROSEMARY KHOURY, )

)

Defendant. )

ENTRY GRANTING DEFENDANT'S MOTION TO DISMISS

This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rule of

Civil Procedure 12(b)(6) by Defendant Rosemary Khoury ("Khoury") (Filing No. 8). Pro se

Plaintiff Michelle Weatherspoon ("Weatherspoon") initiated this action under 42 U.S.C. § 1983

("Section 1983"), arguing that Khoury deprived her "right to due process and equal protection of

the laws" when she "wanted to dispute a traffic violation." (Filing No. 1 at 2.) Khoury, a deputy

prosecutor, moves to dismiss, arguing that she is shielded from suit by both the Eleventh

Amendment and absolute prosecutorial immunity (see Filing No. 9 at 3, 5). For the following

reasons, Khoury's Motion is granted.

I. BACKGROUND

The following facts are not necessarily objectively true, but, as required when reviewing a

motion to dismiss, the Court accepts as true all factual allegations in the Complaint and draws all

inferences in favor of Weatherspoon as the non-moving party. See Bielanski v. County of Kane,

550 F.3d 632, 633 (7th Cir. 2008).

On an evening in either October or November 2018, Weatherspoon was stopped for

speeding in Ingalls, Indiana, and told by the patrolling officer that she could dispute the allegation

in court (Filing No. 1 at 5). Though Weatherspoon attended two hearings on the matter at the

Edgewood Town Court, the officer failed to appear either time. Id. After the second hearing,

Weatherspoon approached a court staff member and then deputy prosecutor Khoury about her

continued desire to dispute the citation. Khoury told Weatherspoon that "the officer was not there,"

that "she would notify him and get his side of the story," and that Weatherspoon "could go." Id.

Another hearing was later set, but Weatherspoon was not notified and was subsequently required

"to pay the fine." Id. On August 7, 2020, Weatherspoon filed this action against Khoury, arguing

that Khoury violated her civil rights and seeking $25,000.00 as "punitive damages for the

emotional distress and the impact all this has caused [her] with the BMV and [her] business and

job opportunities." Id. at 1, 6. Khoury, in turn, timely moved to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6) on October 9, 2020 (Filing No. 8). Weatherspoon filed a Response in

Opposition (Filing No. 11) and later a surreply titled "Responses and Objections to the Defendant's

Reply in Support of Motion to Dismiss." (Filing No. 14.) However, neither filing provided cogent

argument.

II. LEGAL STANDARD

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the

Court accepts as true all factual allegations in the complaint and draws all inferences in favor of

the plaintiff. Bielanski, 550 F.3d at 633. The allegations, however, must "give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests," and the "[f]actual allegations

must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (internal citations and quotation marks omitted). Stated differently, the

complaint must include "enough facts to state a claim to relief that is plausible on its face." Hecker

v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal citation and quotation marks omitted).

To be facially plausible, the complaint must allow "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).

Weatherspoon is proceeding without counsel. Pro se complaints like that filed by

Weatherspoon are construed liberally and held to a less stringent standard than formal pleadings

drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008). Liberal

construction means that if the court can reasonably read the pleadings to state a valid claim on

which the party could prevail, it should do so. Despite this liberal construction, the court will not

invent legal arguments for litigants and is not obliged to accept as true legal conclusions or

unsupported conclusions of fact. County of McHenry v. Insurance Co. of the West, 438 F.3d 813,

818 (7th Cir. 2006) (internal quotations and citations omitted).

III. DISCUSSION

In this action, Weatherspoon—bringing her claims pursuant to Section 1983—asserts that

Khoury, in her official capacity, deprived her of her "right to due process and equal protection of

the laws." (Filing No. 1 at 2.) Khoury asserts that (1) these claims are barred by the Eleventh

Amendment and (2) her actions are shielded under absolute prosecutorial immunity. (Filing No. 9

at 3, 5.)

Weatherspoon fails to meaningfully respond to Khoury's arguments in her "Objection to

Memorandum in Support of Motion to Dismiss". (See generally Filing No. 12.)1, The Court will

1 As noted above, Weatherspoon also filed an "Objection to the Motion to Dismiss for Misleading Unrelated Exhibit

1." (Filing No. 11.) This filing centers on Weatherspoon's assertions that (1) she was uncertain whether a proposed

entry granting the motion to dismiss attached by Khoury was "an official one or just one that was typed by the

defendant's [counsel] and mailed in hopes to secure the order in [her] favor" and (2) an attached exhibit from an

unrelated case indicating that "Rosemary Khoury" was a "Prosecuting Attorney, 50th Indiana Judicial Circuit" was "a

fraudulent attempt to prejudice [her] claim." (Filing No. 11 at 2, 3.) As for this first contention, submitting proposed

entries with a motion is regular practice in this Court, and Khoury merely submitted the proposed entry for the Court's

convenience (see Filing No. 13 at 2). Regarding the second contention, Khoury made clear that this exhibit was

attached "for the limited purpose of establishing that Defendant is a state official acting as a deputy prosecutor before

the Edgewood Town Court." Id. The Court will view it only as such.

first consider Khoury's latter contention—that her actions are shielded by absolute prosecutorial

immunity—with the aim of avoiding unnecessarily passing upon a constitutional question. See

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575

(1988) ("[C]onstitutional issues [should] not be needlessly confronted.").

In an "official-capacity action, [personal] defenses are unavailable. The only immunities

that can be claimed in an official-capacity action are forms of sovereign immunity that the entity,

qua entity, may possess, such as the Eleventh Amendment." Kentucky v. Graham, 473 U.S. 159,

167 (1985) (citations omitted). Accordingly, Khoury, sued in her official capacity, cannot assert

the personal defense of absolute prosecutorial immunity. See Lewis v. Clarke, 137 S. Ct. 1285,

1291 (2017) ("An officer in an individual-capacity action, on the other hand, may be able to assert

personal immunity defenses, such as, for example, absolute prosecutorial immunity in certain

circumstances."). But even if she could, this protection would not safeguard her. When

"determining whether actions taken by government officials enjoy absolute immunity or qualified

immunity, [courts apply] a 'functional approach . . . which looks to the nature of the function

performed, not the identity of the actor who performed it.'" Jones v. Cummings, No. 20-1898,

2021 WL 2134298, at *4 (7th Cir. May 26, 2021) (quoting Buckley v. Fitzsimmons, 509 U.S. 259,

269 (1993)). Courts should hold "prosecutors absolutely immune in civil suits for damages under

section 1983 for activities 'intimately associated with the judicial phase of the criminal process.'"

Id. (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). On the other hand, "prosecutors

acting in the role of administrator or investigator are entitled only to qualified immunity." Id.

(citing Burns v. Reed, 500 U.S. 478, 495–96 (1991)). "A prosecutor's 'motives are irrelevant to

the absolute immunity question when the actions she is accused of taking are intimately associated

with the quasi-judicial phase of the criminal process.'" Id. (citing Tobey v. Chibucos, 890 F.3d

634, 649–50 (7th Cir. 2018)). In short, the Court need only assess whether a prosecutor was

engaging in any "core prosecutorial functions." Id.

Khoury was not engaged in a core prosecutorial function—entitling her to absolute

prosecutorial immunity—when she told Weatherspoon that "the officer was not there," that "she

would notify him and get his side of the story," and that Weatherspoon "could go." (See Filing

No. 1 at 5.) These actions comprise "administrative tasks" not protected by absolute immunity.

See Auriemma v. Montgomery, 860 F.2d 273, 277 (7th Cir. 1988) (noting that "administrative

tasks . . . are not intimately associated with the judicial process"). In other words, this conduct

was not closely tied to "the court-related duties of government attorneys," id. at 278 (citing Imbler,

424 U.S. at 430), such as "the decision to prosecute," Hartman v. Moore, 547 U.S. 250, 262 (2006)

(citing Imbler, 424 U.S. at 431).

Though the Seventh Circuit has noted "that absolute immunity covers 'what goes on in the

courtroom,'" Katz-Crank v. Haskett, 843 F.3d 641, 647 (7th Cir. 2016) (quoting Bianchi v.

McQueen, 818 F.3d 309, 318 (7th Cir. 2016)), Khoury's "courtroom" conduct here is not of the

presumed type where "the overriding public policy justification of freeing the judicial process from

intimidation and harassment [justifies] the costs imposed upon society by absolute immunity,"

Auriemma, 860 F.2d at 277.

Without absolute prosecutorial immunity barring these claims against Khoury, the Court

will turn to the Eleventh Amendment. Khoury fares better there. Under the Eleventh Amendment,

"a federal court generally may not hear a suit brought by any person against a nonconsenting State."

Allen v. Cooper, 140 S. Ct. 994, 1000 (2020). For its part, Section 1983 imposes liability on

"[e]very person who, under color of any . . . State [law]," violates the federal rights of another.

(Emphasis added). In tandem, the Eleventh Amendment bars Section 1983 suits that seek damages

against states and individual state officials acting in their official capacities. Will v. Michigan

Department of State Police, 491 U.S. 58, 71 (1989) (holding "that neither a State nor its officials

acting in their official capacities are 'persons' under § 1983," and thus are shielded by the Eleventh

Amendment).2

The suit against Khoury—as a deputy prosecutor in her official capacity (see Filing No. 1

at 3)—is functionally against the State of Indiana. See Katz-Crank, 843 F.3d at 647 (holding that

claims brought against Indiana deputy prosecutors in their official capacities were "the equivalent

of claims against the state"). Weatherspoons claims for damages against Khoury in her official

capacity fail because the State of Indiana is entitled to the protection of the Eleventh Amendment.

Id. (holding that "all claims against [Indiana deputy prosecutors] in their official capacities were

properly dismissed on Eleventh Amendment grounds").3 Accordingly, the Court grants Khoury's

Motion to Dismiss based upon Eleventh Amendment sovereign immunity.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS Khoury's Motion to Dismiss (Filing No.

8). All claims against Khoury are dismissed without prejudice.4 Weatherspoon has until June

25, 2021 to file an Amended Complaint, if such a filing is not an exercise in futility. Because

Weatherspoon is proceeding in forma pauperis under 28 U.S.C. § 1915, if an Amended Complaint

2 Though Congress may abrogate a state's Eleventh Amendment immunity from suit if it unequivocally expresses its

intent to abrogate and it acts pursuant to a valid grant of constitutional authority, Tennessee v. Lane, 541 U.S. 509,

517 (2004), no waiver exists with respect to the official capacity claim against deputy prosecuting attorney Khoury.

3 The Court notes that Weatherspoon's relief sought—a request for "punitive damages" (see Filing No. 1 at 6)—is

ordinarily pursued in actions against defendants acting in their personal capacities. See Holly v. City of Naperville,

571 F. Supp. 668, 673 (N.D. Ill. 1983) ("We grant the motion to dismiss the punitive damages claim under § 1983

against . . . the individual defendants to the extent the individual defendants are sued in their official capacities. If

plaintiff intends to sue the City officials in their individual capacities, he should amend his complaint to reflect this.");

see also Filing No. 14 at 2 (arguing that "the Defendant acted outside [her] official capacity").

4 "When a complaint fails to state a claim, the plaintiff ordinarily should receive at least one opportunity to amend it,

unless an amendment would be futile." Olrich v. Kenosha Cty., 825 F. App'x 397, 400 (7th Cir. 2020) (citing Runnion

ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 520 (7th Cir. 2015)).

is filed, the Court will screen that complaint. If nothing is filed, final judgment will issue upon

expiration of the deadline.

SO ORDERED.

Date: 6/11/2021 Daten

Hon. Tanya Walton Pratt, Chief Judge

United States District Court

Southern District of Indiana

DISTRIBUTION:

Michelle Weatherspoon

309 South White Avenue

Sheridan, Indiana 46069

Archer Riddick Randall Rose

INDIANA ATTORNEY GENERAL'S OFFICE

archer.rose @ atg.in.gov