Holmes v. Williamson et al
Filing
5
OPINION (See Written Opinion): IT IS THEREFORE ORDERED: 1. Plaintiff's complaint is dismissed with prejudice for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. This case is closed. 2. This dismissal s hall count as one of Plaintiff's three "strikes" pursuant to 28 U.S.C. § 1915(g). The Clerk of the Court is directed to record Plaintiff's strike in the three-strike log.3.Plaintiff's in forma pauperis petition is grant ed (d/e 3) for the purpose of collecting the filing fee in installments. The agency having custody of Plaintiff is directed to make monthly payments of twenty percent of the preceding month's income credited to Plaintiff's account to the C lerk of Court. These payments shall be forwarded each time Plaintiff's account exceeds $10, until the filing fee of $350 is paid in full. The Clerk is directed to mail a copy of this order to the Jail, to the attention of the trust fun d office. 4.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 should set forth the issues Plai ntiff 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 $455 appellate filing fee regardless of the outcome of the appeal. Plaintiff may also be assessed another "strike" by the Court of Appeals if his appeal is dismissed for one of the reasons stated in § 1915(g). Entered by Judge Sue E. Myerscough on 8/24/2011. (VM, ilcd)
E-FILED
Wednesday, 24 August, 2011 01:16:15 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LARRY M. HOLMES
Plaintiff,
v.
NEIL WILLIAMSON,
JIM MINOR, WILLIAM STRAYER
TERRY DURR, SCOTT LOFTUS,
and GREGORY CLEMONDS,
Defendants,
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11-CV-3308
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff Larry Holmes, proceeding pro se and currently detained in the
Sangamon County Jail (“Jail”), has filed this case challenging the amounts charged
at the Jail’s commissary. The case is before the Court for a merit review pursuant
to 28 U.S.C. § 1915A.
As Plaintiff admits in his Complaint, he already filed a case on this subject
matter which was dismissed by this Court on August 2, 2011, for failure to state a
claim. Holmes v. Williamson, 11-CV-3256 (C.D. Ill., 2011). In the prior case,
Plaintiff alleged that the Jail was swindling inmates by overcharging them on
commissary items. This Court concluded that it could not
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discern a constitutional violation from the alleged overcharging. The
Court knows of no constitutional right to be able to purchase
commissary items at a certain price. If the Jail is violating some sort
of contractual or state law pricing obligation, that would be a state law
claim, not a federal claim. A violation of state law is not, by itself, a
violation of federal law. . . . Likewise, a breach of contract action,
even imagining one might exist which Plaintiff has standing to
enforce, would be a state law claim belonging in state court.
This Court assessed a “strike” for the prior case and warned Plaintiff that he should
take care to avoid incurring additional strikes.
This case involves the same alleged overcharging with small variations on
the theme. As with the prior case, Plaintiff asserts that the overcharging violates a
contract between the Jail and Keefe Commissary. As the Court already ruled, this
does not state a federal claim. Plaintiff also contends that the Jail is violating state
laws or regulations by not using the commissary proceeds to help inmates, but that
claim also states no federal claim. As the Court has already informed Plaintiff, a
violation of state law is not, by itself, a violation of federal law. Osteen v. Henley,
13 F.3d 221, 225 (7th Cir.1993). Plaintiff further contends that the overcharging
violates the Racketeer Influenced and Corrupt Organizations Act,18 U.S.C. § 1961
et seq. (“RICO”). He apparently grounds this conclusion on alleged collusion
between the Jail and Keefe Commissary to overcharge the inmates. Yet no
plausible inference arises that the overcharging amounts to “racketeering activity”
as defined under 18 U.S.C. § 1961(1).
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Plaintiff next alleges that inmates do not receive the commissary items that
they pay for, and that the Jail “steal[s] money” from inmates’ accounts. Plaintiff
cannot sue on behalf of other inmates. If he is alleging that the Jail has stolen his
money, that is an unauthorized deprivation of property not actionable in federal
court. The intentional, unauthorized deprivation of personal property does not
amount to a constitutional violation if there is an adequate state post-deprivation
remedy available. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Murdock v.
Washington, 193 F.3d 510, 513 (7th Cir. 1999), cert. denied, 529 U.S. 1134
(2000). The State of Illinois provides an adequate post-deprivation remedy in the
Illinois Court of Claims. See Stewart v. McGinnis, 5 F.3d 1031, 1035-36 (7th Cir.
1993).
In sum, Plaintiff still states no federal claim and he has incurred an
additional strike in bringing this action.
IT IS THEREFORE ORDERED:
1.
Plaintiff's complaint is dismissed with prejudice for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. This case is
closed.
2.
This dismissal shall count as one of Plaintiff's three “strikes” pursuant to 28
U.S.C. § 1915(g). The Clerk of the Court is directed to record Plaintiff's
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strike in the three-strike log.
3.
Plaintiff’s in forma pauperis petition is granted (d/e 3) for the purpose of
collecting the filing fee in installments. The agency having custody of
Plaintiff is directed to make monthly payments of twenty percent of the
preceding month's income credited to Plaintiff's account to the Clerk of
Court. These payments shall be forwarded each time Plaintiff's account
exceeds $10, until the filing fee of $350 is paid in full. The Clerk is directed
to mail a copy of this order to the Jail, to the attention of the trust fund
office.
4.
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 should 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 $455 appellate
filing fee regardless of the outcome of the appeal. Plaintiff may also be
assessed another “strike” by the Court of Appeals if his appeal is dismissed
for one of the reasons stated in § 1915(g).
ENTERED: August 24, 2011
FOR THE COURT:
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s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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