Brumfield v. Vargas et al
Filing
7
MERIT REVIEW OPINION: Plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. This case is therefore closed and all motions are denied.[2, counsel]. The Clerk of the Cou rt is directed to enter a judgment pursuant to Fed. R. Civ. P. 58. This dismissal shall count as one of the Plaintiff's three allotted "strikes" pursuant to 28 U.S.C. Section 1915(g). If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 5/3/2016. (GL, ilcd)
E-FILED
Tuesday, 03 May, 2016 01:18:45 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
JONATHAN E. BRUMFIELD,
Plaintiff,
v.
GEORGE VARGAS
and DAN CLIFTON,
Defendants.
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16-CV-2024
MERIT REVIEW OPINION
This cause is before the Court for merit review of the pro se
Plaintiff’s complaint pursuant to 28 U.S.C. §1915A. In reviewing
the Complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 649 (7th Cir. 2103). However, conclusory statements and
labels are 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).
The pro se Plaintiff, a state prisoner, claims Champaign
County Public Defender George Vargas and States Attorney Dan
Clifton violated his due process rights and the Illinois constitution.
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The Plaintiff says on June 29, 2009, his public defender advised
him to take a plea agreement. Apparently, Plaintiff believed he was
pleading to a Class 3 felony, but his agreement was for a Class 2
felony. “By them not sentencing me under the right class both
parties violated by 14th amendment.” (Comp., p. 5). Consequently,
Plaintiff says he would have “received a lighter sentence, been
released earlier and may have altered my future…” (Comp., p. 5).
The Plaintiff has not articulated a violation of his Fourteenth
Amendment rights or any claim pursuant to 42 U.S.C. §1983. For
instance, it is not clear what relief Plaintiff is seeking since he
states only “[a]s the Judge deems necessary” in his complaint.
(Comp., p. 6). To the extent Plaintiff wishes to challenge his
conviction, he will have to pursue a petition for writ of habeas
corpus under § 2254, which first requires that he exhaust available
remedies in state court. 28 U.S.C. § 2254(b). See Preiser v
Rodriguez, 411 U.S. 475, 500 (1973). Plaintiff has not indicated
whether he filed a motion to withdraw his plea in state court. In
addition, a §1983 suit for damages which would necessarily imply
the invalidity of “an inmate's conviction, or necessarily imply the
invalidity of the length of an inmate's sentence, is not cognizable
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under § 1983 unless and until the inmate obtains favorable
termination of a state, or federal habeas, challenge to his conviction
or sentence.” Nelson v Campbell, 541 U.S. 637, 646 (2004) citing
Heck v Humphrey, 512 U.S. 477, 487 (1994): see also Burd v.
Sessler, 702 F.3d 429 (7th Cir. 2012)(Heck bars access to courts
claim based on inability to file a motion to withdraw plea since it
would imply invalidity of the underlying conviction).
Furthermore, even if the Plaintiff had articulated a claim, his
allegations are barred by the two year statute of limitations period.
See Wilson v Giesen, 956 F.2d 738, 740 (7th Cir. 1992); Farrell v.
McDonough, 966 F.2d 279, 280-82 (7th Cir. 1992). Finally, the
Court declines to exercise supplemental jurisdiction over any
potential state law claims. See 28 U.S.C. §1367(c). See also City of
Chicago v. Intern. College of Surgeons, 522 U.S. 156 (1997) (stating
that pendent jurisdiction is a matter of discretion); Van Harken v.
City of Chicago, 103 F.3d 1346, 1354 (7th Cir. 1997) (noting
presumption against retention of supplemental state law claims).
IT IS THEREFORE ORDERED:
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1)
Plaintiff's complaint is dismissed for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A.
This case is therefore closed and all motions are denied.[2, counsel].
The Clerk of the Court is directed to enter a judgment pursuant to
Fed. R. Civ. P. 58.
2)
This dismissal shall count as one of the Plaintiff's three
allotted “strikes” pursuant to 28 U.S.C. Section 1915(g). The Clerk
is directed to record Plaintiff’s strike in the three-strike log.
3)
If Plaintiff wishes to appeal this dismissal, he must file a
notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in
forma pauperis MUST set forth the issues Plaintiff plans to present
on appeal. See Fed. R. App. P. 24(a)(1)(C). If Plaintiff does choose
to appeal, he will be liable for the $505 appellate filing fee
irrespective of the outcome of the appeal.
ENTERED: May 3, 2016
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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