Madison County man granted habeas relief can’t sue prosecutors, 7th Circuit rules

A former inmate who sued Madison County prosecutors after he was released on habeas relief cannot pursue that lawsuit under immunity principles, the 7th Circuit Court of Appeals affirmed on Wednesday.

In David Jones v. Rodney Cummings, et al., 20-1898, plaintiff-appellant David Jones was charged with battery, intimidation and being a habitual offender. Nine days after the omnibus date had passed, Madison County deputy prosecutors Steve Koester and Daniel Kopp moved to add a charge of criminal confinement, which was granted without objection. The charges against Jones were amended twice more after that.

Jones was found guilty as charged, and he was sentenced to an aggregate of 45 years – 20 years for criminal confinement enhanced by 25 years for being a habitual offender, plus shorter concurrent terms for battery and intimidation.

Jones’ appeals wound their way to the U.S. District Court for the Southern District of Indiana, which denied his petition for habeas relief. The 7th Circuit, however, reversed in 2019, finding his defense counsel was prejudicially ineffective for not objecting to the amendments of the charges.

Jones was released in May 2019 and filed an action under 42 U.S.C. § 1983 alleging Koester and Kopp, in their individual capacities, had committed abuse of process and maliciously prosecuted him when they added a new charge “for the sole purpose to increase his prison time by decades[.]” He also sued elected Madison County Prosecutor Rodney Cummings, arguing the prosecutor had adopted a policy ignoring Indiana Code § 35-34-1-5 (1982) and Haak v. State, 695 N.E.2d 944 (Ind. 1998), prohibiting substantive amendments to charging information after the omnibus date.

But the district court granted the defendants’ motions to dismiss, agreeing that Cummings, in his official capacity as elected prosecutor, was not a “person” under Section 1983. The court also agreed with Koester and Kopp that “their act of filing an amended charge sits comfortably within the scope of their prosecutorial duties and entitled them to absolute prosecutorial immunity.”

Jones appealed, arguing Cummings was a county official, not a state official, allowing him to be sued under Section 1983. As for the deputies, Jones alleged they were entitled only to qualified immunity because their conduct was “rogue.” Finally, Jones asked the 7th Circuit to create a new rule holding that prosecutors are only entitled to qualified immunity if their conduct is “unlawful,” even if it is prosecutorial in nature.

But the appellate court ruled for the prosecutors in full in a Wednesday decision, with Judge Diane Wood first holding that Cummings is a state official.

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