Damon A. Myers v. Melissa Ann Gagen

* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See F ED. R. APP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 2, 2008 *
Decided October 3, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐1063
DAMON A. MYERS,
Plaintiff‐Appellant,
v.
MELISSA ANN GAGEN,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:07‐cv‐1589‐JDT‐TAB
John Daniel Tinder,
Judge.
O R D E R
Damon Myers is an Indiana inmate who was convicted of child molesting.
Claiming that Melissa Gagen, the prosecutor who tried the case against him, committed
misconduct amounting to a constitutional violation, Myers brought a civil‐rights complaint
against her under 42 U.S.C. § 1983. The district court screened the complaint, see 28 U.S.C.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1063 Page 2
§ 1915A, and dismissed it for failure to state a claim upon which relief can be granted. The
district court read the complaint to allege that Gagen represented Myers, but the court’s
confusion is understandable. In his complaint Myers identifies Gagen only as an “attorney
at law” and refers to her as “Attorney Gagen.” The court dismissed based on the rule that a
defense lawyer, even if paid by the state, does not act under color of state law unless she
conspires with state officials to violate the rights of another. See Tower v. Glover, 467 U.S.
914, 923 (1984); Polk County v. Dodson, 454 U.S. 312, 325 (1981).
On appeal Myers has clarified that Gagen’s role was that of prosecutor and not
defense counsel, but the clarification does not help his cause. Although prosecutors act
under color of state law, they are absolutely immune from suits under § 1983 challenging
conduct that is “intimately associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Redwood v. Dobson, 476 F.3d 462, 466 (7th
Cir. 2007). Because Myers’s suit challenges Gagen’s conduct at trial—undoubtedly part of
the judicial phase of the criminal process—the dismissal of Myers’s suit is
AFFIRMED.

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