Bey v. Roberts et al

Filing 3

MERIT REVIEW OPINION: Plaintiff's complaint is dismissed without prejudice asfrivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915A. By November 6, 2017, Plaintiff may file an amended complaint regarding his claim that he is being refused toothpaste, soap, and a toothbrush. If Plaintiff does not file an amended complaint or Plaintiff's amended complaint still fails to state a claim, then this action will be dismissed for failure to state a claimand a strike will be assessed against Plaintiff pursuant to 28 U.S.C. 1915(g). If Plaintiff files an amended complaint, the amended complaint will replace the original complaint. Piecemeal amendments are not permitted. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 10/17/2017. (SKN, ilcd)

E-FILED

Tuesday, 17 October, 2017 03:08:18 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ELIJAH PARKER BEY,

)
)
)
Plaintiff,
)
)
v.
)
)
PEOPLES OF THE STATE OF
)
ILLINOIS, A.K.A. JUDGE ROBERTS, )
et al.,
)
)
Defendants.
)

17-CV-3224

MERIT REVIEW OPINION
Plaintiff filed this case pro se from his detention in the
Montgomery County Jail. The case is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A.1 This statute requires the
Court to review a complaint filed by a prisoner to identify the
cognizable claims and to dismiss part or all of the complaint if no
claim is stated.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.

1

 A prisoner  who has had three prior actions dismissed for failure to state a claim or as frivolous or malicious can 
no longer proceed in forma pauperis (without prepaying the filing fee in full) unless the prisoner is under 
“imminent danger of serious physical injury.”  28 U.S.C. § 1915(g). 

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Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). 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).
Plaintiff appears to challenge actions taken in Plaintiff’s
pending criminal case in Montgomery County, 2017CF118.
(www.judicid.com, last visited 10/13/17.) He appears to argue that
the Montgomery County Circuit Court has no jurisdiction over him
because he is a citizen of Morocco. Judge Roberts allegedly told
Plaintiff that the case would be dismissed if Plaintiff brought
someone with him from the Moroccan embassy. See also
2017CF118, 5/8/17 docket entry (court advised that Plaintiff may
contact Moroccan embassy for assistance if he believes he is being
unlawfully detained.) Plaintiff was apparently released on bond in
the pending case but then arrested on a warrant for failure to
appear at a drug screen. 2017CF118, 7/10/17 docket entry.
Plaintiff asks that this Court declare as unconstitutional the refusal
of Judge Roberts to dismiss the criminal charges against Plaintiff
and to award damages to Plaintiff.
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These allegations allow no plausible inference that Plaintiff’s
constitutional rights were or are being violated in his criminal
proceedings. Even if Plaintiff’s constitutional rights are being
violated in his criminal proceedings, that argument belongs first in
Plaintiff’s criminal case and then in appeals to the Illinois Appellate
Court and Illinois Supreme Court. In any event, Judge Roberts and
the State’s Attorney are immune from damages for their actions
taken in court, and officers executing warrants issued by judges do
not violate the Constitution.  Polzin v. Gage, 636 F.3d 834, 838 (7th
Cir. 2011)(“A judge has absolute immunity for any judicial actions
unless the judge acted in the absence of all jurisdiction.”); Imbler v.
Pachtman, 424 U.S. 409, 431 (1976)("in initiating a prosecution
and in presenting the State's case, the prosecutor is immune from a
civil suit for damages under section 1983."); Branson v. Murray (7th
Cir. 2017)(“A police officer who receives a facially valid arrest
warrant is ordinarily expected to act upon it, not to second-guess
the court's decision to issue it. The officer does not personally
violate the Constitution by making the arrest the court has
authorized.”).

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There is one set of allegations that might state a claim.
Plaintiff alleges that he has no toothbrush, toothpaste, or soap and
is unable to buy these items from the commissary. However, he
does not set forth his attempts to obtain these items and the
responses he received. For example, Plaintiff does not say if certain
individuals refused his requests or if a Jail policy prohibited giving
Plaintiff these items. Plaintiff will be given an opportunity to file an
amended complaint about these allegations. Plaintiff is advised
that he must first pursue the Jail’s internal grievance procedure
before filing a lawsuit in federal court. 42 U.S.C. § 1997e(a). If
Plaintiff did not pursue the Jail grievance procedure before filing
this case, then this case must be dismissed, without prejudice,
upon motion of Defendants.
IT IS ORDERED:
1)

Plaintiff's complaint is dismissed without prejudice as

frivolous and for failure to state a claim pursuant to 28 U.S.C. §
1915A.
2) By November 6, 2017, Plaintiff may file an amended
complaint regarding his claim that he is being refused toothpaste,
Page 4 of 5 

soap, and a toothbrush. If Plaintiff does not file an amended
complaint or Plaintiff’s amended complaint still fails to state a
claim, then this action will be dismissed for failure to state a claim
and a strike will be assessed against Plaintiff pursuant to 28 U.S.C.
1915(g). If Plaintiff files an amended complaint, the amended
complaint will replace the original complaint. Piecemeal
amendments are not permitted.
ENTERED: 10/17/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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