Obiazi et al v. Tran et al

Filing 5

WRITTEN Opinion entered by the Honorable Blanche M. Manning on 7/20/2011: Plaintiff's motion for leave to proceed in forma pauperis [Dkt. No. 3 ], is granted. The court orders the trust fund officer at the plaintiff's place of incarceratio n to deduct $52.77 from the plaintiff's account for payment to the Clerk of Court as an initial partial filing fee, and to continue making monthly deductions in accordance with this order. The clerk shall send a copy of this order to the tr ust fund officer at the Pontiac Correctional Center. The clerk is directed to issue summonses for service on the defendants by the U.S. Marshal. The United States Marshals Service is appointed to effectuate service on defendants. The clerk is furthe r directed to send the plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order. Plaintiff's motion for appointment of counsel [Dkt. No. 4 ], is denied without prejudice. [For further details see minute order.] Mailed notice (mjc, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Blanche M. Manning

CASE NUMBER

11 C 4532

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

July 20, 2011

Eugene I. Obiazi (K71301) vs. Officer Tran, et al.

DOCKET ENTRY TEXT

Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted. The court orders the trust
fund officer at the plaintiff’s place of incarceration to deduct $52.77 from the plaintiff’s account for payment
to the Clerk of Court as an initial partial filing fee, and to continue making monthly deductions in accordance
with this order. The clerk shall send a copy of this order to the trust fund officer at the Pontiac Correctional
Center. The clerk is directed to issue summonses for service on the defendants by the U.S. Marshal. The
United States Marshals Service is appointed to effectuate service on defendants. The clerk is further directed
to send the plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with
a copy of this order. Plaintiff’s motion for appointment of counsel (Dkt. No. 4), is denied without prejudice.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Pro se plaintiff Eugene I. Obiazi, presently an Illinois Department of Corrections inmate, has brought
a civil rights complaint pursuant to 42 U.S.C. § 1983 against three Waukegan, Illinois police officers alleging
that they used excessive force by improperly tasering him during an arrest. Pending before the Court are
plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3), complaint (Dkt. No. 1), for an initial
review pursuant to 28 U.S.C. § 1915A, and his motion for appointment of counsel. (Dkt. No. 4).
The plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted. Pursuant to 28
U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $52.77. The trust fund officer at
the plaintiff’s place of incarceration is authorized and ordered to collect the partial filing fee from the
plaintiff’s trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial
filing fee, the plaintiff’s trust fund officer is directed to collect monthly payments from the plaintiff’s trust
fund account in an amount equal to 20% of the preceding month’s income credited to the account. Monthly
payments shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the
full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S.
Dearborn St., Chicago, Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall clearly identify the
plaintiff’s name and this case number. This payment obligation will follow the plaintiff wherever he may be
transferred.
Turning to an initial review of the complaint, plaintiff has set forth a claim for the use of excessive
force by the defendant police officers. Cyrus v. Town of Mukwonago, 624 F.3d 856, 861-62 (7th Cir. 2010)
(excessive force claim involving taser); Forrest v. Prine, 620 F.3d 739 (7th Cir. 2010) (taser related claim).
The Court recognizes that plaintiff alleges that defendant officers Biegay and Tran used the taser on him
while Sergeant Navarro was on the scene. Even if Navarro was a bystander, he may still be liable if he knew
11C4532 Eugene I. Obiazi (K71301) vs. Officer Tran, et al.

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STATEMENT
that his fellow officers where going to use inappropriate force, and failed to take any actions to stop it. Lewis
v. Downey, 581 F.3d 467, 472 (7th Cir. 2009). Plaintiff’s complaint is sufficient to allege a cause of action
against all defendants. He may proceed with his complaint.
The Court notes that plaintiff includes the police reports as exhibits to his complaint and the reports
paint a different picture of the evening. Although these police reports raise the specter of a potential estoppel
defense, Allen v. McCurry, 449 U.S. 90 (1980); Brown v. City of Chicago, 599 F.3d 772 (7th Cir. 2010);
Brengettcy v. Horton, 423 F.3d 674, 683 (7th Cir. 2005), the Court will leave this point to defendants to
investigate further. Plaintiff does not allege the elements of a defense in his complaint, he has not pled
himself out of court. See U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003). This
is understandable because a complaint is not required to anticipate or otherwise plead around an affirmative
defense. Davis v. Indiana State Police, 541 F.3d 760, 763-64 (7th Cir. 2008).
Plaintiff’s motion for appointment of counsel (Dkt. No. 4), is denied without prejudice. “There is no
constitutional or statutory right to counsel in federal civil cases,” but this Court does have “discretion under
28 U.S.C. § 1915(e)(1) to request counsel for an indigent litigant.” Romanelli v. Suliene, 615 F.3d 847, 851
(7th Cir. 2010) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc); Johnson v. Doughty, 433
F.3d 1001, 1006 (7th Cir. 2006); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993)). In determining
whether to request counsel to represent plaintiff, this Court considers whether: (1) plaintiff “has made
reasonable attempts to secure counsel on his own;” and, if so, (2) “the complexity of the case and whether the
plaintiff appears competent to litigate it on his own.” Romanelli, 615 F.3d at 851-52 (citing Pruett, 503 F.3d
at 654-55). This Court has discretion in determining whether to recruit counsel for a pro se plaintiff. Jackson
v. Kotter, 541 F.3d 688, 700 (7th Cir. 2008) (citing Pruitt, 503 F.3d at 655).
Plaintiff alleges that he has attempted to obtain counsel on his own. However, the Court concludes
that the complexity of the case does not require appointment of counsel at this time. He provides a coherent
and articulate complaint that has states a plausible claim against the defendants. Neither the legal issues
raised in the complaint nor the evidence that might support his claim are so complex or intricate that a trained
attorney is necessary. The procedural posture of the case is also rather simple at this time. The next step in
the litigation will be service of the defendants. Plaintiff simply needs to complete the USM-285 form which
will be mailed to him by the Marshal Service. Plaintiff’s request for counsel is denied.
The clerk shall issue summonses for all defendants forthwith and send the plaintiff a Magistrate Judge
Consent Form and Instructions for Submitting Documents along with a copy of this order.
The United States Marshals Service is appointed to serve the defendants. Any service forms
necessary for the plaintiff to complete will be sent by the Marshal as appropriate to serve the defendants with
process. The U.S. Marshal is directed to make all reasonable efforts to serve the defendants. With respect to
former employees who no longer can be found at the work address provided by the plaintiff, the City of
Waukegan, Illinois and the Waukegan Police Department shall furnish the Marshal with the defendant’s lastknown address. The information shall be used only for purposes of effectuating service [or for proof of
service, should a dispute arise] and any documentation of the address shall be retained only by the Marshal.
Address information shall not be maintained in the court file, nor disclosed by the Marshal. The Marshal is
authorized to mail a request for waiver of service to the defendants in the manner prescribed by Fed. R. Civ.
P. 4(d) before attempting personal service.
The plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in
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STATEMENT
care of the Prisoner Correspondent. The plaintiff must provide the Court with the original plus a complete
Judge’s copy, including any exhibits, of every document filed. In addition, the plaintiff must send an exact
copy of any court filing to the defendants [or to defense counsel, once an attorney has entered an appearance
on behalf of the defendants]. Every document filed with the court must include a certificate of service stating
to whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the Judge or that
otherwise fails to comply with these instructions may be disregarded by the Court or returned to the plaintiff.
In summary, the plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted.
The court orders the trust fund officer at the plaintiff’s place of incarceration to deduct $52.77 from the
plaintiff’s account for payment to the Clerk of Court as an initial partial filing fee, and to continue making
monthly deductions in accordance with this order. The clerk shall send a copy of this order to the trust fund
officer at the Pontiac Correctional Center. The clerk is directed to issue summonses for service on the
defendants by the U.S. Marshal. The United States Marshals Service is appointed to effectuate service on
defendants. The clerk is further directed to send the plaintiff a Magistrate Judge Consent Form and
Instructions for Submitting Documents along with a copy of this order. Plaintiff’s motion for appointment of
counsel (Dkt. No. 4), is denied without prejudice.

11C4532 Eugene I. Obiazi (K71301) vs. Officer Tran, et al.

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