Powers v. Dimas et al
Filing
8
OPINION: Plaintiff's petition to proceed in forma pauperis is granted on the grounds of indigency 3 , but this case is dismissed, without prejudice, because Plaintiff fails to state a federal claim. This case is closed. Plaintiff's motio n for relief to appeal in forma pauperis is denied as premature 6 . 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 2/22/2017. (GL, ilcd)
E-FILED
Page 1 of 6 Wednesday, 22 February, 2017 09:46:05 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
THOMAS POWERS,
Plaintiff,
v.
JAMES T. DIMAS, et al.,
Defendants.
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16-CV-4278
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis.
The “privilege to proceed without posting security for costs and
fees is reserved to the many truly impoverished litigants who,
within the District Court's sound discretion, would remain without
legal remedy if such privilege were not afforded to them.” Brewster
v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
Additionally, a court must dismiss cases proceeding in forma
pauperis “at any time” if the action is frivolous, malicious, or fails to
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state a claim, even if part of the filing fee is paid. 28 U.S.C. §
1915(d)(2). Accordingly, the Court sends cases proceeding in forma
pauperis for service only if the allegations state a federal claim for
relief.
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)(citation
omitted).
Plaintiff alleges that he is being denied access to the court
because the lack of legal resources at Rushville have prevented him
from filing a state petition for coram nobis to challenge the
constitutionality of his conviction.
In Powers v. Clayton, 14-cv-3306, one of Plaintiff’s 20 cases he
has pursued in this District, the Court recently granted summary
judgment to Defendants on a substantially similar claim by
Plaintiff. This Court explained in that order that
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The constitutional right to access the court is not “an
abstract freestanding right to a law library or legal
assistance.” Lewis v. Casey, 518 U.S. 343, 351 (1996).
The right to access the courts means the right to pursue
nonfrivolous claims, not the right to various legal
resources. See Ortloff v. United States, 335 F.3d 652,
656 (7th Cir. 2003)(“[A] right to access-to-courts claim
exists only if a prisoner is unreasonably prevented from
presenting legitimate grievances to a court; various
resources, documents, and supplies merely provide the
instruments for reasonable access and are not protected
in and of themselves.”)(abrogated on other grounds as
recognized in Parrott v. U.S., 536 F.3d 629, 635 (7th Cir.
2008)). Thus, an access claim is viable only if a plaintiff
suffered an “actual injury” from the inability to pursue a
nonfrivolous claim. Lewis, 518 U.S. at 351; In re Maxy,
674 F.3d 658, 660 (7th Cir. 2012); May v. Sheahan, 226
F.3d 876, 883 (7th Cir. 2000). There must be a
“connection between the alleged denial of access to legal
materials and an inability to pursue a legitimate
challenge to a conviction, sentence, or prison conditions.”
Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir.2009)
(internal quotation and citation omitted). “Without a
tenable argument to pursue . . . , [a plaintiff] cannot
show actual prejudice resulting from denial of access to
the law library.” McCree v. Grissom, 657 F.3d 623, 624
(7th Cir. 2011).
(14-cv-3306, 1/27/17 Order.)
As in 14-cv-3306, Plaintiff has not identified any legitimate
legal challenge he has been unable to pursue because of Rushville’s
alleged inadequate legal resources. Plaintiff has already pursued
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his post-conviction challenges and a federal habeas action. See,
e.g., People v. Powers, 2011 IL App (2d) 090292, 961 N.E.2d 906
(recounting procedural history of Plaintiff’s challenges to his
conviction and rejecting ineffective assistance of counsel
argument)(Plaintiff represented by State Appellate Defender); U.S.
ex rel. Powers v. Anglin, 2012 WL 1161510 (N.D. Ill)(denying
Plaintiff’s habeas corpus petition). Plaintiff does not explain what
further constitutional challenge he might be able to pursue. In
People v. Moore, 2012 IL App (4th) 100746-U, 2012 WL 7008829,
the Illinois Appellate Court explained:
The writ of error coram nobis has been abolished and
incorporated into section 2–1401 of the Code of Civil
Procedure (735 ILCS 5/2–1401 (West 2010)). “Section 2–
1401 is intended to correct errors of fact, unknown to the
petitioner and the court at the time of the judgment,
which would have prevented the rendition of the
judgment had they been known.” People v. Muniz, 386
Ill.App.3d 890, 893, 899 N.E.2d 428, 431 (2008). To
obtain relief under section 2–1401 a defendant must file
a petition no later than two years after the entry of
judgment or order. 735 ILCS 5/2–1401(c) (West 2010).
Plaintiff does not explain why he might have a plausible claim
under this section to vacate his conviction or how that pursuit
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would be timely at this point. No plausible inference arises that
Plaintiff has been denied access to the court.
IT IS ORDERED:
1.
Plaintiff’s petition to proceed in forma pauperis is granted
on the grounds of indigency (3), but this case is
dismissed, without prejudice, because Plaintiff fails to
state a federal claim. This case is closed.
2.
Plaintiff’s motion for relief to appeal in forma pauperis is
denied as premature (6).
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 should set forth the
issues Plaintiff plans to present on appeal. See Fed. R.
App. P. 24(a)(1)(C).
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ENTERED: February 22, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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