Carr v. Arbanal et al

Filing 17

MERIT REVIEW ORDER entered by Judge Michael M. Mihm on 1/3/2025. IT IS THEREFORE ORDERED: 1. Pursuant to its merit review of the Complaint under 28 U.S.C. Section 1915A, the Court finds Plaintiff states a claim for deprivation of property without due process against Defendants Arbanal and the City of Arcola. Clerk to add the City of Arcola as a Defendant. Plaintiff also states a claim against Arbanal for humiliating and sexualized behavior toward Plaintiff who was in custody at the time . Any additional claims shall not be included in the case, except at the Court's discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15. Clerk to terminate all parties aside from Arbanal and City of Arcola. 2. Plaintiff's Motion to Request Counsel 5 is DENIED. 3. Plaintiff's Motions for Status 11 , 12 , 15 , 16 are MOOT. SEE FULL WRITTEN ORDER.(SAG)

E-FILED

Friday, 03 January, 2025 05:36:34 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
OTIS CARR,
Plaintiff,
v.
ARBANAL, and others,
Defendants.

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2:24-cv-02081-MMM

ORDER
Plaintiff, proceeding pro se from Hill Correctional Center, pursues claims for
violations of his constitutional rights pursuant to 42 U.S.C. §1983. Plaintiff has been
granted leave to proceed without prepayment of fees.
A. Motion to Request Counsel
Plaintiff requests Court assistance in finding an attorney. The Seventh Circuit
recently summarized the legal standard for Plaintiff’s request as follows:
Under 28 U.S.C. § 1915(e)(1), a federal court “may request an attorney to
represent any person unable to afford counsel.” The statute is “entirely
permissive.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). Civil
litigants have no constitutional or statutory right to court-appointed
counsel, and § 1915(e)(1) “does not authorize the federal courts to make
coercive appointments of counsel.” Id. at 653 (quoting Mallard v. U.S. Dist.
Court for S. Dist. of Iowa, 490 U.S. 296, 310, 109 S.Ct. 1814, 104 L.Ed.2d 318
(1989)). Rather, the statute “codifies the court’s discretionary authority to
recruit a lawyer to represent an indigent civil litigant pro bono publico.” Id.
“Almost everyone would benefit from having a lawyer, but there are too
many indigent litigants and too few lawyers willing and able to volunteer
for these cases.” Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). “District
courts are thus placed in the unenviable position of identifying, among a
sea of people lacking counsel, those who need counsel the most.” Id.
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Accordingly, we have recently explained that “the decision whether to
recruit a lawyer for a particular plaintiff is made against the twofold
backdrop of a high volume of indigent, pro se litigants (particularly
incarcerated individuals) and a small pool, by comparison, of attorneys
willing and able to take those cases on pro bono.” Watts v. Kidman, 42 F.4th
755, 763 (7th Cir. 2022). Based on these and other practical considerations,
we have held that district judges should engage in a two-step inquiry when
faced with a request for pro bono counsel under § 1915(e)(1), asking first
“(1) has the indigent plaintiff made a reasonable attempt to obtain counsel
or been effectively precluded from doing so; and if so, (2) given the
difficulty of the case, does the plaintiff appear competent to litigate it
himself?” Pruitt, 503 F.3d at 654.
The first step needs no elaboration. Step two “can be complex” and involves
a pragmatic judgment about the difficulty of the case and the plaintiff’s
ability to present it to the court on his own. Watts, 42 F.4th at 760. “The
inquiries are necessarily intertwined; the difficulty of the case is considered
against the plaintiff’s litigation capabilities, and those capabilities are
examined in light of the challenges specific to the case at hand.” Pruitt, 503
F.3d at 655. A judge will normally consider “the plaintiff’s literacy,
communication skills, educational level, and litigation experience” along
with any evidence in the record “bearing on the plaintiff’s intellectual
capacity and psychological history.” Id. But these are merely factors that are
ordinarily relevant. No one factor is “necessary or conclusive.” Id. at 655
n.9. Indeed, “[t]here are no fixed requirements for determining a plaintiff’s
competence to litigate his own case.” Id. at 655. Ultimately, the “inquiry into
the plaintiff’s capacity to handle his own case is a practical one, made in
light of whatever relevant evidence is available on the question.” Id.
Finally, “the decision whether to recruit pro bono counsel is left to the
district court’s discretion.” Id. at 654. Our job is to ensure that this discretion
is exercised in accordance with appropriate legal principles. The “question
on appellate review is not whether we would have recruited a volunteer
lawyer in the circumstances, but whether the district court applied the
correct legal standard and reached a reasonable decision based on facts
supported by the record.” Id. at 658.
Jones v. Anderson, 116 F.4th 669, 675-76 (7th Cir. 2024).

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Here, first, Plaintiff has not shown a reasonable attempt to obtain counsel on his
own. This is normally demonstrated by filing documents indicating the plaintiff has
written to several attorneys asking for assistance, without success.
As to the second inquiry, Plaintiff’s claims are not factually difficult; he alleges he
was deprived of his property without due process and alleges he was subjected to
humiliation. He has personal knowledge of his claims and can testify to what he
experienced. Plaintiff will have the opportunity to request trial subpoenas if the case
progresses to that stage. Plaintiff’s claims are also not particularly legally difficult,
though all federal litigation is difficult to a degree. Plaintiff’s pleadings are clear. They
are coherent and well organized. Plaintiff has some high school education. There is no
information before the Court that indicates Plaintiff is mentally impaired to the extent
that he cannot represent himself. An attorney with a professional staff would certainly
be helpful to Plaintiff, but unfortunately, staff, office space, and running a law firm all
require that the work the lawyers and staff do is financially viable. Here, looking at
Plaintiff’s abilities compared with the many other unrepresented litigants who ask for
help finding a free lawyer, the Court finds Plaintiff can continue representing himself.
B. Merit Review Order
The Court must “screen” Plaintiff’s amended complaint, and, through such
process, identify and dismiss any legally insufficient claim. 28 U.S.C. § 1915A. A claim
is legally insufficient if it “(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or (2) seeks monetary relief from a defendant who is immune
from such relief.” Id. The Court accepts the factual allegations as true, liberally
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construing them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir.
2013). Conclusory statements and labels are insufficient—the facts alleged must “state a
claim for relief that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422
(7th Cir. 2013) (citation omitted).
1. Facts
Plaintiff alleges that on 1/20/24 he was arrested for possession of meth in Arcola
Illinois. Defendant Arcola Police Officer Arbanal seized Plaintiff’s property including a
Jeep, tools, luxury luggage, jewelry, and photos. Arbanal did not inventory Plaintiff’s
property. All of Plaintiff’s jewelry is missing, all his clothes are missing, and his Louis
Vuitton luggage is missing along with his tools and family photos. Plaintiff had four
debit cards with him at the time of arrest and all four “came up missing.” They were in
Plaintiff’s pocket at the time Arbanal arrested him, and Arbanal had the debit cards in
his possession after arresting and searching Plaintiff. Plaintiff’s debit cards were used
while Plaintiff was in custody.
While Plaintiff was being searched at the Douglas County Jail, after his arrest,
Officer Arbanal stood behind Plaintiff making sexual gestures. Arbanal also repeatedly
commented that he was going to fuck Plaintiff. Plaintiff was provided video evidence of
this to use for court, by the Jail Administrator.
Another incident occurred on 3/9/24 where Officer Wilham of Douglas County
accidentally provided Plaintiff with the wrong mental health medicine. Plaintiff
suffered symptoms and Wilham was disciplined.

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2. Analysis
The Federal Rules of Civil Procedure require that the plaintiff submit a short and
plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P.
8(a)(2). The Seventh Circuit has consistently noted that the essential function of a
complaint under the civil rules … is to put the defendant on notice of the plaintiff’s
claim. Ross Brothers Const. Co., Inc, v. International Steel Services, Inc., 283 F.3d 867, 872
(7th Cir. 2002) (quoting Davis v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001)). While
it is not necessary for a plaintiff to plead specific facts, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2007) (citing Twombly, 550 U.S. at 555) (observing that courts “are not bound to
accept as true a legal conclusion couched as a factual allegation”).
The Court finds as follows.
Plaintiff’s allegations regarding the loss of his property state a claim for
deprivation of property without due process of law. In Sorrentino v. Godinez, 777 F.3d
410, 413 (7th Cir. 2015), the Seventh Circuit affirmed dismissal of a prisoner’s lawsuit to
recover “just compensation” for certain property taken by prison officials. The Seventh
Circuit based its ruling on Williamson County Regional Planning Comm’n v. Hamilton Bank
of Johnson City, 473 U.S. 172, 194 (1985). Williamson held that “if a State provides an
adequate procedure for seeking just compensation, the property owner cannot claim a
violation of the Just Compensation Clause until it has used the procedure and been
denied just compensation.” Id. at 195. The Sorrentino court found that Illinois had a postPage 5 of 9

deprivation process to seek compensation, and, until that process was completed
unsuccessfully, the claim could not proceed in federal court. However, in 2019, the
Supreme Court overruled Williamson, finding that a “property owner has suffered a
violation of his Fifth Amendment rights when the government takes his property
without just compensation, and therefore may bring his claim in federal court under
§ 1983 at that time.” Knick v. Twp. of Scott, Pennsylvania, 588 U.S. 180, 185 (2019)
(overruling Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985)); see also Conyers v. City of Chicago, 10 F.4th 704, 711 (7th Cir.
2021) (assessing merits of takings clause claim in jail context, in light of Knick). Plaintiff
states a claim against Arbanal and the City of Arcola based on these allegations.
Plaintiff also states a claim against Arbanal for sexually humiliating actions. See
King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015) (quoting Mays v. Springborn, 575 F.3d
643, 649 (7th Cir. 2009)).
As to Plaintiff’s allegations that Defendant Wilham gave him the wrong
medication, these claims are dismissed for improper joinder. “A prisoner may join
Defendants in the same action only if the claims against each one ‘aris[e] out of the same
transaction, occurrence, or series of transactions or occurrences ….” Mitchell v. Kallas,
895 F.3d 492, 502–03 (7th Cir. 2018) (quoting Fed. R. Civ. P. 20(a)(2)). “Joinder that
requires the inclusion of extra parties is limited to claims arising from the same
transaction or series of related transactions.” Wheeler v. Wexford Health Sources, Inc., 689
F.3d 680, 683 (7th Cir. 2012). “To be precise: a plaintiff may put in one complaint every
claim of any kind against a single defendant, per Rule 18(a), but a complaint may
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present claim #1 against Defendant A, and claim #2 against Defendant B, only if both
claims arise ‘out of the same transaction, occurrence, or series of transactions or
occurrences.’” Wheeler, 689 F.3d at 683 (quoting Rule 20(a)(1)(A)). Simply occurring at
the same facility at the same general period is insufficient. The allegations instead must
be related to one another as arising from the same common core of operative facts.
“[D]istrict courts should not allow inmates to flout the rules for joining claims and
Defendants, see Fed. R. Civ. P. 18, 20, or to circumvent the Prison Litigation Reform
Act’s fee requirements by combining multiple lawsuits into a single complaint.” Owens
v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017).
The Seventh Circuit “target[s] for dismissal ‘omnibus’ complaints—often
brought by repeat players—that raise claims about unrelated conduct against unrelated
Defendants.” Mitchell, 895 F.3d at 503. “[J]udges may sever unrelated claims into
separate suits (rather than dismiss the claims) if the statute of limitations has otherwise
lapsed.” Morris v. Kulhan, 745 F. App’x 648, 649 (7th Cir. 2018). A judge acts within his
or her discretion by dismissing, instead of severing, a claim when the two-year statute
of limitations has not expired and the plaintiff is thus free to commence a new action.
Morris, 745 F. App’x at 649. Here Plaintiff’s allegations relate to occurrences in Spring
2024. The two-year statute of limitations has not elapsed. If Plaintiff wants to pursue
this claim he must do so in a separate lawsuit.
Plaintiff’s allegations do not state a claim against Defendant Douglas County or
Defendant Tuscola Police Department.

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IT IS THEREFORE ORDERED:
1. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the
Court finds Plaintiff states a claim for deprivation of property without due
process against Defendants Arbanal and the City of Arcola. Clerk to add
the City of Arcola as a Defendant. Plaintiff also states a claim against
Arbanal for humiliating and sexualized behavior toward Plaintiff who was
in custody at the time. Any additional claims shall not be included in the
case, except at the Court's discretion on motion by a party for good cause
shown or pursuant to Federal Rule of Civil Procedure 15. Clerk to terminate
all parties aside from Arbanal and City of Arcola.
2. Plaintiff's Motion to Request Counsel [5] is DENIED.
3. Plaintiff's Motions for Status [11], [12], [15], [16] are MOOT.
4. This case is now in the process of service. Plaintiff is advised to wait until
counsel has appeared for the named Defendants before filing any motions,
to give notice to said Defendants and an opportunity to respond to those
motions. Motions filed before counsel has filed an appearance on behalf of
Defendants will generally be denied as premature. Plaintiff need not
submit any evidence to the Court at this time, unless otherwise directed by
the Court.
5. The Court will attempt service on Defendants by mailing each Defendant a
waiver of service. Defendants shall file an answer within 60 days of the
date the waiver is sent by the Clerk. A motion to dismiss is not an answer.
The answer should include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings shall be to the issues and
claims stated in this opinion. In general, an answer sets forth the
Defendants’ positions. The Court does not rule on the merits of those
positions unless and until a motion is filed by the Defendants. Therefore,
no response to the answer is necessary or will be considered.
6. With respect to a named Defendant who no longer works at the address
provided by Plaintiff, the entity for whom that Defendant worked while at
that address shall provide to the clerk said Defendant's current work
address, or, if not known, said Defendant's forwarding address. This
information shall be used only for effectuating service. Documentation of
forwarding addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
7. This district uses electronic filing, which means that, after defense counsel
has filed an appearance, defense counsel will automatically receive
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electronic notice of any motion or other paper filed by Plaintiff with the
clerk. Plaintiff does not need to mail copies of motions and other papers to
defense counsel that Plaintiff has filed with the Clerk. However, this does
not apply to discovery requests and responses. Discovery requests and
responses are not filed with the clerk. Plaintiff must mail discovery
requests and responses directly to Defendants' counsel. Discovery requests
or responses sent to the Clerk will be returned unfiled unless they are
attached to and the subject of a motion to compel. Discovery does not begin
until defense counsel has filed an appearance and the Court has entered a
scheduling order, which will explain the discovery process in more detail.
8. Defense counsel is hereby granted leave to depose Plaintiff and shall
arrange the time for the deposition.
9. Plaintiff shall immediately notify the Court, in writing, of any change in
mailing address and telephone number. Plaintiff's failure to notify the
Court of a change in mailing address or phone number will result in
dismissal of this lawsuit, with prejudice.
10. The Clerk is directed to enter the standard qualified protective order
pursuant to the Health Insurance Portability and Accountability Act.
Entered this 3rd day of January, 2025.
s/Michael M. Mihm
MICHAEL M. MIHM
UNITED STATES DISTRICT JUDGE

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