McGhee v. Khoury et al
Filing
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MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 8/14/2017. See written Order. The plaintiff's complaint is dismissed for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6) and 28 U.S.C. Section 1915A. This case is closed. (LN, ilcd)
E-FILED
Monday, 14 August, 2017 03:12:48 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ANTONIO McGHEE,
Plaintiff,
v.
Hany Khoury, et al.,
Defendants.
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17-CV-4157
MERIT REVIEW ORDER
The plaintiff, proceeding pro se, and currently detained in the
Rock Island County Jail, was granted leave to proceed in forma
pauperis. The case is now before the court for a merit review of
plaintiff’s claims. The court is required by 28 U.S.C. § 1915A to
“screen” the plaintiff’s complaint, and through such process to
identify and dismiss any legally insufficient claim, or the entire
action if warranted. A claim is legally insufficient if it “(1) is
frivolous, malicious, or fails to state a claim upon which relief may
be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A.
In reviewing the complaint, the court accepts the factual
allegations as true, liberally construing them in the 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)(citation
omitted). The court has reviewed the complaint and has also held a
merit review hearing in order to give the plaintiff a chance to
personally explain his claims to the court.
Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983
alleging he was wrongfully convicted after Defendant Umlah, the
prosecuting attorney, admitted false evidence and suborned
perjury. Plaintiff alleges Defendant Kauzlarich, the presiding judge,
improperly admitted evidence without the proper foundation, and
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that Defendant Khoury, his appointed public defender, failed to
represent him properly and was wholly ineffective.
The defendants plaintiff seeks to sue are immune from suit.
See Lewis v. Mills, 677 F.3d 324, 330 (7th Cir. 2012) (“Prosecutors
are entitled to absolute immunity when they are performing
functions—such as determining whether charges should be brought
and initiating a prosecution—‘intimately associated with the judicial
phase of the criminal process.’” (quoting Buckley v. Fitzsimmons,
509 U.S. 259, 270 (1993)); Polzin, 636 F.3d at 838 (“A judge has
absolute immunity for any judicial actions….”). Defendant Khoury,
as a public defender, is not a state actor for purposes of § 1983
when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding. Polk Cnty. v. Dodson, 454 U.S.
312, 325 (1981).
In addition, Heck v. Humphrey, 512 U.S. 477 (1994), bars a
plaintiff from challenging the facts underlying his criminal
conviction in a § 1983 action until the criminal conviction is
successfully vacated or overturned. Plaintiff’s remedy at this point
lies in a habeas corpus proceeding. Accordingly, plaintiff’s claims
are dismissed.
IT IS THEREFORE ORDERED:
1.
The plaintiff’s complaint is dismissed for failure to state a
claim pursuant to Fed. R. Civ. Proc. 12(b)(6) and 28 U.S.C.
Section 1915A. This case is closed.
2.
This dismissal shall count as one of the plaintiff’s three
allotted strikes pursuant to 28 U.S.C. Section 1915(g). The
clerk of the court is directed to record the plaintiff’s strike in
the three-strike log.
3.
The plaintiff must still pay the full docketing fee of $350
even though his case has been dismissed. The agency having
custody of the plaintiff shall continue to make monthly
payments to the Clerk of Court, as directed in the Court's
prior order.
4.
If the plaintiff wishes to appeal this dismissal, he may file
a notice of appeal with this court within 30 days of the entry of
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judgment. Fed. R. App. P. 4(a). A motion for leave to appeal in
forma pauperis MUST set forth the issues the plaintiff plans to
present on appeal. See Fed. R. App. P. 24(a)(1)(C). If the
plaintiff does choose to appeal, he will be liable for the $505
appellate filing fee irrespective of the outcome of the appeal.
5.
In light of this order, plaintiff’s motion for status [5] is
MOOT.
Entered this 14th day of August, 2017
/s/Harold A. Baker
___________________________________________
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE
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