Malone v. Henry County Jail et al
Filing
17
MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 3/10/2017. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915A. Plaintiff may file an Amended Complaintby March 31, 201 7. 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 without prejudice and closed. Plaintiff's motions for appoint of counsel are denied 4 , 8 . (SEE WRITTEN MERIT REVIEW OPINION) Note: Copy of Merit Review Opinion mailed to Plaintiff Walter Paul Malone, #42599, Kane County Jail, 37 W 755 Illinois Route 38, Suite B, St Charles, IL 60175. (MAS, ilcd)
E-FILED
Friday, 10 March, 2017 03:55:08 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
WALTER PAUL MALONE,
Plaintiff,
v.
HENRY COUNTY JAIL and
ROBERT HOGUE,
et al.
Defendants.
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17-CV-4069
MERIT REVIEW OPINION
This case was transferred from the Northern District of Illinois
to the Central District of Illinois because Plaintiff, proceeding pro se
from his detention in the Kane County Jail, challenges actions in
criminal proceedings against him in Henry County, which is in the
Central District of Illinois.
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
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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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.
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 alleges that he was arrested pursuant to a warrant in
February 2016 for charges of domestic battery. Plaintiff alleges that
the arrest warrant was issued on false statements of Plaintiff’s exgirlfriend, who “immediately dropped the charges.” (Compl. p. 4.)
Defendant Robert Hogue, an assistant state’s attorney for Henry
County chose to go ahead with Plaintiff’s prosecution, allegedly
despite knowing that the ex-girlfriend had recanted. On May 24,
2016, two days before the scheduled trial, the State’s Attorney
dismissed the charges with prejudice. Despite the dismissal, two
days later Plaintiff was arrested on a parole violation based on the
dismissed case. The parole board released Plaintiff on July 6, 2016,
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finding that no parole violation had occurred, Plaintiff asserts
because Plaintiff’s criminal case had been dismissed with prejudice.
Plaintiff is currently in the Kane County Jail. A search of Kane
County records shows that in February 2017 a complaint was filed
charging Plaintiff with domestic battery. Illinois v.Malone, 17-CF276 (Kane County). Plaintiff seeks compensation for losing his job
and housing and being incarcerated on the parole violation.
Defendant Robert Hogue is immune from a lawsuit for
damages based on his decision to continue with Plaintiff’s
prosecution until just before the trial date. "[I]n initiating a
prosecution and in presenting the State's case, the prosecutor is
immune from a civil suit for damages under section 1983." Imbler
v. Pachtman, 424 U.S. 409, 431 (1976).
As for Plaintiff’s incarceration on parole violations, “in the case
of persons arrested for violating parole, a preliminary hearing to
determine probable cause must be conducted ‘as promptly as
convenient after arrest while information is fresh and sources are
available,’ and a plenary hearing must be held within a ‘reasonable
time after the parolee is taken into custody’—normally two months.”
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Atkins v. City of Chicago, 631 F.3d 823, 827 (7th Cir. 2011).
Plaintiff does not say whether he had a preliminary hearing, but he
was released by the parole board within two months of his
incarceration. Plaintiff does not explain what Defendant Robert
Hogue, who does not work for the Illinois Department of
Corrections, had to do with the parole hold. Plaintiff also does not
say who placed the parole hold; what, specifically, were the parole
violation charges; whether he received a preliminary hearing, and, if
so, when the preliminary hearing was held and the findings of that
hearing. Additionally, the decision to place a parole hold could be
protected by absolute immunity. Smith v. Gomez, 550 F.3d 613,
619 (7th Cir. 2008)(parole agent’s supervisor entitled to absolute
immunity for directing parole agent to place parole hold).
Accordingly, Plaintiff states no claim that may proceed against
Defendant Hogue or the Henry County Jail, which is not a suable
entity. Plaintiff’s complaint will be dismissed without prejudice to
filing an amended complaint providing more factual detail with
regard to his parole hold.
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IT IS ORDERED:
1)
Plaintiff's complaint is dismissed without prejudice for
failure to state a claim pursuant to 28 U.S.C. § 1915A.
2) Plaintiff may file an amended complaint by March 31,
2017. 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 without prejudice and closed.
3) Plaintiff's motions for the appointment of counsel are
denied (4, 8). The Court does not have the authority to require an
attorney to accept pro bono appointment on a civil case such as
this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). The most
the Court can do is ask for volunteer counsel. In determining
whether the Court should attempt to find an attorney to voluntarily
take the case without pay, the question is “given the difficulty of the
case, does the plaintiff appear competent to litigate it himself?"
Pruitt, 503 F.3d at 654-55 (7th Cir. 2007). On this record, Plaintiff
appears competent to proceed pro se. He is a high school graduate
and he already has personal knowledge of the relevant facts
underlying his claims. Plaintiff may renew his motion on a more
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developed factual record, any jobs he has had inside or outside of
prison, any classes he has taken in prison, and his litigation
experience in state and federal court.
ENTERED:
March 10, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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