Smith v. Maloney et al

Filing 9

MERIT REVIEW OPINION Entered by Judge Sue E. Myerscough on 11/9/2017. SEE MERIT REVIEW OPINION. Plaintiff's complaint is dismissed without prejudice to filing an amended complaint by December 8, 2017. If Plaintiff does not file an amended complaint, then this case will be dismissed, without prejudice, and closed. Plaintiff's motions for appointed counsel are denied. (d/e's 4 , 7 ). Plaintiff's motion for a hearing is denied. (d/e 8 ). (DM, ilcd)

E-FILED

Thursday, 09 November, 2017 01:45:56 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ADAM C. SMITH,
Plaintiff,
v.
COREY MALONEY, et al.,
Defendants.

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17-CV-1475

MERIT REVIEW OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in
Pinckneyville Correctional Center. His Complaint is before the Court
for a merit review pursuant to 28 U.S.C. § 1915A. This section
requires the Court to identify cognizable claims stated by the
Complaint or dismiss claims that are not cognizable.1 In reviewing
the complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor and taking Plaintiff’s
pro se status into account. Turley v. Rednour, 729 F.3d 645, 649
(7th Cir. 2013). However, conclusory statements and labels are

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis unless the prisoner is under “imminent danger of serious physical injury.”  28 
U.S.C. § 1915(g). 

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insufficient. Enough facts must be provided to "'state a claim for
relief that is plausible on its face.'" Alexander v. U.S., 721 F.3d
418, 422 (7th Cir. 2013)(quoted cite omitted).
Plaintiff sues 47 defendants regarding unrelated incidents
reaching back to the year 2009. These defendants and claims are
not properly joined in one action. Wheeler v. Wexford Health
Sources, Inc., 689 F.3d 680, 683 (7th Cir. 2012)(“A litigant cannot
throw all of his grievances, against dozens of different parties, into
one stewpot. Joinder that requires the inclusion of extra parties is
limited to claims arising from the same transaction or series of
related transactions.”); George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007)(“Unrelated claims against different defendants belong in
different suits . . .”). If Plaintiff files an amended complaint, he must
confine his claims to claims arising from the same set of
transactions or occurrences. Listing every adverse incident back to
2009 and adding the word conspiracy is not enough to state a
federal claim or join unrelated claims.
Additionally, a two year statute of limitations applies to
constitutional claims. Liberty v. City of Chicago (7th Cir. 2017)(two
year statute of limitation for 42 U.S.C. § 1983 actions starts to run
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when plaintiff knew of injury and knew that defendant acting within
scope of government employment caused injury.) In general, then,
claims arising from adverse government actions which were
completed more than two years ago are barred by the statute of
limitations. For example, Plaintiff’s claims about what happened to
him in 2009, such as illegal searches and seizures would be barred
by the statute of limitations.
Plaintiff also cannot challenge his standing convictions in this
action. Any challenge to Plaintiff’s convictions belongs in Plaintiff’s
state criminal proceedings and appeals. Heck v. Humphrey, 512
U.S. 477 (1994)(“[A] district court must dismiss a § 1983 action if a
judgment in favor of the plaintiff in that § 1983 action would
necessarily imply the invalidity of his criminal conviction or
sentence.”) The judges and prosecutors are absolutely immune
from damages for actions taken in Plaintiff’s criminal proceedings.
Forrester v. White, 484 U.S. 219, 229-30 (1988)(judges immune
from lawsuit based on their actions in court); Imbler v. Pachtman,
424 U.S. 409, 431 (1976)("in initiating a prosecution and in
presenting the State's case, the prosecutor is immune from a civil
suit for damages under section 1983."). Public defenders are not
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considered government actors and therefore cannot be sued for
constitutional violations. Polk County v. Dodson, 454 U.S. 312
(1981)(“a public defender does not act under color of state law when
performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding”).
Plaintiff has filed a motion for the appointment of counsel,
asserting that he is mentally disabled and needs counsel to help
him file an amended complaint. The Court does not have the
authority to order an attorney to accept pro bono appointment on a
civil case such as this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007). In determining whether the Court should attempt to find an
attorney to voluntarily take the case, the question is “given the
difficulty of the case, does the plaintiff appear competent to litigate
it himself?" Pruitt, 503 F.3d at 654-55 (7th Cir. 2007).
At this point, Plaintiff appears competent to proceed pro se to
the extent that he should be able to file an amended complaint
limited to one connected set of transactions with government
employees within the last two years that do not involve the
propriety of his criminal convictions. Though containing unrelated
claims, Plaintiff’s current complaint is factually detailed,
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demonstrating an ability to remember and explain what happened
to Plaintiff that Plaintiff believes was wrong. That is all that is
necessary for the Court to determine whether a viable claim can
proceed.
IT IS THEREFORE ORDERED:
1)

Plaintiff’s complaint is dismissed without prejudice to

filing an amended complaint by December 8, 2017. If Plaintiff does
not file an amended complaint, then this case will be dismissed,
without prejudice, and closed.
2)

Plaintiff’s motions for appointed counsel are denied.

(d/e’s 4, 7.)
3)

Plaintiff’s motion for a hearing is denied. (d/e 8.)

ENTERED: November 9, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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