Thomas v. Buscher et al

Filing 12

OPINION: Plaintiff's complaint is dismissed, without prejudice, for lack of subject matter jurisdiction. The hearing scheduled for June 11, 2012 is cancelled. The clerk is directed to vacate the writ and to notify Plaintiff's prison of the cancellation. All pending motions are denied as moot (d/e 4), and this case is closed. See written Opinion. Entered by Judge Sue E. Myerscough on 6/5/2012. (MJ, ilcd)

E-FILED

Tuesday, 05 June, 2012 02:02:00 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ERVIN W. THOMAS

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Plaintiff,
v.
WARDEN JERRY BUSCHER,
MARLA MARLEY, and
SUSAN G. SUGGS,

Defendants,

12-CV-3075

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and currently incarcerated in Green Bay
Correctional Institution, pursues claims arising from the alleged
destruction of his property by Taylorville Correctional Center staff. The
case is before the Court for a merit review pursuant to 28 U.S.C. §
1915A.

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LEGAL STANDARD
The Court is required by § 1915A to review a Complaint filed by a
prisoner against a governmental entity or officer and, through such
process, to identify cognizable claims, dismissing any claim that is
“frivolous, malicious, or fails to state a claim upon which relief may be
granted.” A hearing is held if necessary to assist the Court in this review,
but, in this case, the Court concludes that no hearing is necessary. The
Complaint and its attachments are clear enough on their own for this
Court to perform its merit review of Plaintiff’s Complaint.
The review standard under § 1915A is the same as the notice
pleading standard under Federal Rule of Civil Procedure 12(b)(6).
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a
claim, the allegations must set forth a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Factual allegations must give enough detail to give “‘fair notice
of what the . . . claim is and the grounds upon which it rests.’” EEOC v.
Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add’l citation
omitted). The factual “allegations must plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a ‘speculative
level.’” Id., quoting Bell Atlantic, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged . . . . Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550
U.S. at 555-56. However, pro se pleadings are liberally construed when
applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009).
ALLEGATIONS
In March, 2010, Plaintiff was incarcerated in Taylorville
Correctional Center. On June 3, 2010, Plaintiff was transported to the
temporary custody of Wisconsin authorities pursuant to an interstate
agreement. Plaintiff’s speedy trial time on the Wisconsin charges

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elapsed on September 10, 2010 with no resolution. Plaintiff therefore
wrote to Defendant Suggs at Taylorville Correctional Center, asking to
be returned to Taylorville Correctional Center. Receiving no response,
Plaintiff wrote to Suggs again, enclosing a money order and directing
that his personal property be sent to him or to his cousin. Plaintiff
received a response stating that he should have arranged for his property
to be mailed out or picked up within 30 days of his release. However,
Plaintiff had not been released from IDOC custody yet; he was only on a
temporary writ to Wisconsin. The letter also presumably informed
Plaintiff that his property had been destroyed, because he asserts that
“whether my property was destroyed intentionally or by mistake is of no
consequence, when in fact my property has been destroyed (two family
photo albums of which cannot be replaced because most of my family on
those photos are now deceased.” (Complaint, p. 7). He seeks money
damages for the loss of his property.
According to the IDOC website, Plaintiff was paroled from IDOC
custody on December 8, 2010. www.illinois.gov (last visited 6/1/12).

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He is currently in the custody of the Wisconsin Department of
Corrections. http://offender.doc.state.wi.us (last visited 6/1/12).
ANALYSIS
This Court only has jurisdiction to hear this case if the violation of
a federal right is at issue. Negligence does not amount to a violation of
the Constitution.

McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.

2010). Claims based on the negligence of state actors in the
performance of duties arising from their state jobs are claims over which
the Illinois Court of Claims would have exclusive jurisdiction. Loman v.
Freeman, 229 Ill.2d 104, 113 (2008)(“Where the alleged negligence is
the breach of a duty imposed on the employee solely by virtue of his
state employment, the Court of Claims has exclusive jurisdiction.”). The
most plausible inference from the allegations is that Plaintiff’s property
was destroyed because Defendants’ mistakenly believed that he had been
released from custody. Such a mistake would fall into the negligence
category.
Even if the destruction of Plaintiff’s property were intentional in

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the sense that Defendants knew that Plaintiff had not been released,
Plaintiff would still not state a federal claim. The intentional,
unauthorized deprivation of personal property does not amount to a
constitutional violation if adequate state post-deprivation remedies exist.
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); Davenport v. City of Chicago, 653 F.Supp.2d
885 (N.D. Ill. 2009)(“Pursuant to state law, [Plaintiff] may file a tort
claim in the Illinois Court of Claims for her property losses.”)(other
citations omitted).
In short, if Plaintiff has claims to pursue, those claims are based on
state law, not federal law. This Court therefore has no subject matter
jurisdiction to hear this case.
IT IS THEREFORE ORDERED that Plaintiff's complaint is
dismissed, without prejudice, for lack of subject matter jurisdiction. The

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hearing scheduled for June 11, 2012 is cancelled. The clerk is directed to
vacate the writ and to notify Plaintiff’s prison of the cancellation. All
pending motions are denied as moot (d/e 4), and this case is closed.
ENTERED: June 5, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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