Thompson v. Standifer et al
Filing
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OPINION entered by Judge Colin Stirling Bruce on 3/6/2014. Plaintiff's motions 40 , 41 and 42 are DENIED for the reasons stated in this opinion. The scheduling order in this case 39 remains in full force and effect. See written opinion. Copy to the plaintiff by way of e-filing project. (JMW, ilcd) Modified on 3/6/2014 to show the document as an opinion. (JMW, ilcd)
E-FILED
Thursday, 06 March, 2014 11:39:14 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
____________________________________________________________________________
DONTRELL L. THOMPSON
Plaintiff,
v.
SHANE STANDIFER, JOHN McALLISTER,
and CITY OF CHAMPAIGN,
Defendants.
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Case No. 13-CV-2033
OPINION
This case is before the court for ruling on various pro se Motions filed by Plaintiff,
Dontrell L. Thompson. Following a careful review of Plaintiff’s Motions, and Defendants’
Response (#43) to one of the Motions: (1) Plaintiff’s Motion for Appointment of Counsel
(#40) is DENIED; (2) Plaintiff’s Motion for Hearing (#41) is DENIED; and (3) Plaintiff’s
Motion for DNA testing (#42) is DENIED.
BACKGROUND
On February 4, 2013, Plaintiff filed a pro se Complaint (#1) against Defendants,
Shane Standifer, John McAllister and the Champaign Police Department. Plaintiff alleged
that Standifer and McAllister used excessive force when they shot Plaintiff at Market Place
Mall on May 1, 2011. Plaintiff also filed a Petition to Proceed in Forma Pauperis (#2), his
prisoner trust fund ledger (#3) and a Motion to Appoint Counsel (#4). On February 4, 2013,
Petitioner’s Petition to Proceed in forma pauperis was granted. On April 10, 2013, Plaintiff
filed a pro se Amended Complaint (#7) and alleged that the Champaign Police Department
failed to adequately train Standifer and McAllister. On May 13, 2013, United States District
Judge Michael P. McCuskey entered a text order denying Plaintiff’s Motion to Appoint
Counsel. On June 11, 2013, Defendants Standifer and McAllister filed an Answer to
Complaint and Affirmative Defenses (#15). They also filed a Motion to Dismiss (#16) and
Memorandum in Support (#17). They asked this court to dismiss any allegation that they
were liable in their official capacity for any constitutional violation. On July 17, 2013,
Plaintiff filed a Motion for Appointment of Counsel (#22).
Judge McCuskey held a status conference on July 31, 2013 and granted in part and
denied in part the Motion to Dismiss (#16). Judge McCuskey stated that the case would
proceed against Defendants Standifer and McAllister in their personal capacities. Judge
McCuskey terminated the Champaign Police Department as a Defendant and added the City
of Champaign as a Defendant. Another status conference was held on September 13, 2013,
and Judge McCuskey ordered that the City of Champaign was to be served with the
Amended Complaint. Judge McCuskey also denied Petitioner’s Motion for Appointment of
Counsel (#22). On November 7, 2013, Defendant City of Champaign filed its Answer to
Amended Complaint (#35). On December 11, 2013, Plaintiff’s deposition was taken
pursuant to video writ.
On December 13, 2013, this case was assigned to this court. On January 29, 2014,
this court entered a Scheduling Order (#39) which set a discovery deadline of August 15,
2014 and a dispositive motion deadline of October 1, 2014.
PENDING MOTIONS
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I. MOTION FOR APPOINTMENT OF COUNSEL
On February 14, 2014, Plaintiff filed a pro se Motion for Appointment of Counsel
(#40). Plaintiff stated that he had made attempts to retain counsel to represent him in this
proceeding and had previously filed an application to proceed in forma pauperis which was
a true and correct representation of his financial status. Plaintiff stated that he does not have
the ability to represent himself in this case.
“There is no constitutional or statutory right to counsel in federal civil cases.”
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010), citing Pruitt v. Mote, 503 F.3d 647,
656 (7th Cir. 2007). Nevertheless, a district court does have discretion under 28 U.S.C. §
1915(e)(1) to request counsel for an indigent litigant. Pruitt, 503 F.3d at 654. “When a pro
se litigant submits a request for court-appointed counsel, the district court must first consider
whether the indigent plaintiff has made reasonable attempts to secure counsel on his own,
or conversely, if he has been precluded from doing so.” Romanelli, 615 F.3d at 851, citing
Pruitt, 503 F.3d at 654. “Next, the district court must evaluate the complexity of the case and
whether the plaintiff appears competent to litigate it on his own.” Romanelli, 615 F.3d at
851-52, citing Pruitt, 503 F.3d at 654-55.
This court initially notes that, while Plaintiff has stated that he has made attempts to
retain counsel, he has not attached any documentation, such as letters from attorneys
declining to represent him, to demonstrate that this is true. This court therefore concludes
that Plaintiff has not adequately shown that he has made reasonable attempts to secure
counsel on his own. This court also concludes that Plaintiff’s filings in this case show that
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he has an understanding of the issues and an ability to represent himself. Moreover, this
court concludes that it is too early to make a determination whether Plaintiff’s claims are
sufficiently meritorious such that appointing counsel would make a difference in the case.
Lawyers who accept appointments to represent pro se plaintiffs in civil cases are not
guaranteed any compensation. Thus, before this court takes the significant step of seeking
out a lawyer willing to take the case, the court has an obligation to insure that the issues
raised in a particular case are both substantial and meritorious. The number of lawyers able
to take court appointments is very limited.
Therefore, it is simply impossible to
accommodate all of the requests of pro se plaintiffs, mostly prisoners, who request a lawyer.
For all of the reasons stated, Plaintiff’s Motion for Appointment of Counsel (#40) is
DENIED at this time.
II. MOTION FOR HEARING
On February 18, 2014, Plaintiff filed a document which appears to be a letter to this
court but which was docketed as a Motion for Hearing (#41). Plaintiff stated that there have
been delays in mail service at the prison where he is housed which is impacting his ability
to get information and proceed with this case. Plaintiff also stated that he does not really
understand discovery and how to use expert testimony. Plaintiff stated that he really needs
counsel and asked for this court’s assistance.
This court cannot give Plaintiff legal assistance and advice. In addition, this court has
already concluded that Plaintiff has not shown, at this stage of the proceedings, that counsel
should be appointed to represent him. Accordingly, Plaintiff’s Motion for Hearing (#41) is
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DENIED.
III. MOTION FOR DNA TESTING
On February 24, 2014, Plaintiff filed a pro se Motion for DNA Testing (#42).
Plaintiff stated that, on May 1, 2011, a gun was recovered from the crime scene and is in the
custody of the state. Plaintiff stated that he is asking for a DNA test because it can prove that
the gun officers say he had was never in his possession. On February 25, 2014, Defendants
filed their Response to Motion for DNA Testing (#43). Defendants objected to the Motion
and stated that none of the Defendants are in possession of the items requested to be tested
by Plaintiff.
This court notes that a review of public records shows that, on March 1, 2012,
Plaintiff was convicted following a jury trial of attempted first degree murder. The jury
found that Plaintiff shot and injured Tony Brock on May 1, 2011, at Market Place Mall.
People v. Thompson, 2013 WL 467397, at *1 (Ill.. App. Ct. 2013) (unpublished order). The
jury signed a special verdict form finding the Plaintiff, while committing the offense of
attempted first degree murder, personally discharged a firearm that proximately caused great
bodily harm to another person. Thompson, 2013 WL 467397, at *1. On April 5, 2012,
Plaintiff was sentenced to 55 years in the Illinois Department of Corrections. His conviction
and sentence were affirmed by the Illinois Appellate Court, Fourth District, on August 26,
2013. The Illinois Supreme Court denied Plaintiff’s petition for leave to appeal on
November 27, 2013.
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held that
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“the plaintiff in an action under 42 U.S.C. § 1983 may not pursue a claim for relief that
implies the invalidity of a criminal conviction, unless that conviction has been set aside by
appeal, collateral review, or pardon.” Gilbert v. Cook, 512 F.3d 899, 900 (7th Cir. 2008),
citing Heck, 512 U.S. at 486-87. Heck “forbids a prisoner in his civil rights case to challenge
a finding in his criminal . . . case that was essential to the decision in that case; if he insists
on doing that, the civil rights case must be dismissed.” Moore v. Mahone, 652 F.3d 722, 723
(7th Cir. 2011). However, “[o]nly a claim that ‘necessarily’ implies the invalidity of a
conviction . . . comes within the scope of Heck.” Gilbert, 512 F.3d at 902.
In this case, Plaintiff’s conviction of attempted first degree murder does not preclude
him from claiming that the arresting officers used excessive force against him. However, if
Plaintiff’s claim is that the officers used excessive force because he was not in possession
of a gun, that claim is precluded by Heck. Plaintiff is precluded from claiming that he never
had possession of the gun because that claim would imply the invalidity of his conviction of
attempted first degree murder and his conviction clearly has not been set aside by appeal,
collateral review or pardon. See Heck, 512 U.S. at 486-87.
In any case, this court does not have authority to order testing of the gun, which is not
in Defendants’ possession. Accordingly, Plaintiff’s Motion for DNA testing (#42) is
DENIED.
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff’s Motion for Appointment of Counsel (#40) is DENIED.
(2) Plaintiff’s Motion for Hearing (#41) is DENIED.
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(3) Plaintiff’s Motion for DNA testing (#42) is DENIED.
(4) The Scheduling Order (#39) entered in this case remains in full force and effect.
ENTERED this 6th day of March, 2014.
s/COLIN S. BRUCE
U.S. DISTRICT JUDGE
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