Grissette v. Perez et al
Filing
9
WRITTEN Opinion entered by the Honorable Harry D. Leinenweber on 10/3/2011: 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 incarc eration to make monthly deductions in accordance with thisorder. The clerk shall send a copy of this order to the trust fund officer at the Menard Correctional Center. The complaint (Dkt. No. 1 ), is dismissed on initial review pursuant to 28 U.S.C. § 1915A. The Court dismisses without prejudice any state law claim and claims that plaintiff attempts to bring on behalf of plaintiffs Douglas Postlewaite and Blanca L. Garza. The plaintiff was previously assessed a strike under § 1915(g) in Grissette v. Ramsey, No. 02 C 4325 (N.D. Ill.), and Grissette v. Hill, No. 05 C 1132 (N.D. Ill.). This case is the plaintiffs third strike. He is warned that he must comply with the requirements of 28 U.S.C. § 1915(g), and Sloan v. Lesza, 181 F.3d 858 (7th Cir. 1999). Plaintiff's motion for appointment of counsel (Dkt. No. 5 ), and any other pending motions are moot. The clerk is requested to enter a Rule 58 Judgment in favor of defendants against plaintiff. [ For further details see written opinion] Civil Case Terminated.Mailed notice(hp, )
Order Form (01/2005)
United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge
Harry D. Leinenweber
CASE NUMBER
11 C 5786
CASE
TITLE
Sitting Judge if Other
than Assigned Judge
DATE
10/3/2011
Dijon R. Grissette (B32936) vs. Pat Perez, et al.
DOCKET ENTRY TEXT
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 make monthly deductions in accordance with this
order. The clerk shall send a copy of this order to the trust fund officer at the Menard Correctional Center.
The complaint (Dkt. No. 1), is dismissed on initial review pursuant to 28 U.S.C. § 1915A. The Court
dismisses without prejudice any state law claim and claims that plaintiff attempts to bring on behalf of
plaintiffs Douglas Postlewaite and Blanca L. Garza. The plaintiff was previously assessed a strike under §
1915(g) in Grissette v. Ramsey, No. 02 C 4325 (N.D. Ill.), and Grissette v. Hill, No. 05 C 1132 (N.D. Ill.).
This case is the plaintiff’s third strike. He is warned that he must comply with the requirements of 28 U.S.C.
§ 1915(g), and Sloan v. Lesza, 181 F.3d 858 (7th Cir. 1999). Plaintiff’s motion for appointment of counsel
(Dkt. No. 5), and any other pending motions are moot. The clerk is requested to enter a Rule 58 Judgment in
favor of defendants against plaintiff. Civil Case Terminated.
O[ For further details see text below.]
Docketing to mail notices.
Mailed AO 450 form.
STATEMENT
Pro se plaintiff Dijon R. Grissette has brought suit pursuant to 42 U.S.C. § 1983. Pending before the
Court are plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3), complaint for an initial
review pursuant to 28 U.S.C. § 1915A, (Dkt. No. 1), and motion for appointment of counsel. (Dkt. No. 5).
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 $45.58. 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 the initial review of plaintiff’s complaint, (Dkt. No. 1), the Court is required to dismiss a
suit brought in forma pauperis if it determines that the complaint is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such
11C5786 Dijon R. Grissette (B32936) vs. Pat Perez, et al.
Page 1 of 4
STATEMENT
relief. 28 U.S.C. § 1915A. The following facts, drawn from plaintiff’s complaint (Dkt. No. 1), are accepted
as true and all reasonable inferences are made in the light most favorable to the plaintiff. Parish v. City of
Elkhart, 614 F.3d 677, 679 (7th Cir. 2010) (citing Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001)).
This Court also “construe[s] pro se complaints liberally and hold[s] them to a less stringent standard than
formal pleadings drafted by lawyers.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Erickson
v. Pardus, 551 U.S 89, 94 (2007) (per curiam); Obriecht v. Raemisch, 417 F.3d 489, 492 n.2 (7th Cir. 2008)).
“To satisfy the notice-pleading standard, a complaint must provide a ‘short and plain statement of the
claim showing that the pleader is entitled to relief,’ which is sufficient to provide the defendant with ‘fair
notice’ of the claim and its basis.” Bridges, 557 F.3d at 545 (quoting Erickson, 551 U.S at 89). “‘[A]
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir. 2010) (quoting Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “The
complaint must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a
right to relief above the speculative level.” Bridges, 557 F.3d at 546 (internal quotation marks and citations
omitted) (emphasis in original). “Any written instrument attached to the complaint is considered part of the
complaint.” Moranski v. Gen. Motors Corp., 433 F.3d 537, 539 (7th Cir. 2005) (citing FED . R. CIV . P. 10(c)).
Plaintiff alleges that he was the target of an ill fated criminal investigation by the Kane County
Sheriff’s Department beginning in 2007. The police wanted to make plaintiff into an informant because of
his gang activities and potential knowledge regarding a 1994 murder. They did this by falsely accusing him
of crimes in an attempt to gain his cooperation.
The defendant officers allegedly framed plaintiff on two drug charges and planted drugs at his house
in 2007 resulting in a 2008 arrest. In November 2008, the defendants also falsely framed plaintiff in a murder
for hire scheme resulting in charges in December 2008. Plaintiff was already in jail at that time so the murder
for hire charges resulted in his placement in segregation and the loss of privileges. Plaintiff was continually
harassed by the defendant police defendants while he was in jail during 2009. The drug and murder for hire
charges were dropped on August 12, 2009.
In addition to plaintiff’s own issues, plaintiff also seeks to raise the alleged unlawful conduct for
plaintiffs Douglas Postlewaite and Blanca L. Garza. Postlewaite is a Kane County correctional officer and
plaintiff’s half brother. Apparently, the police officer defendants attempted to get Postlewaite to join their
scheme. Postlewaite refused and so they retaliated against him by terminating his job. Garza is plaintiff’s
girlfriend. She too was subjected to the alleged framing scheme. Plaintiff brings suit against the police
officers, correctional officials, prosecutors and county involved in the alleged framing.
Plaintiff cannot bring suit on behalf of other plaintiffs because he is proceeding pro se and pro se
parties may only represent themselves. Hernandez v. City of Chicago, No. 10 C 7544, 2011 WL 149455, at
*2 (N.D. Ill. Jan. 14, 2011) (citing 28 U.S.C. § 1654; Nocula v. UGS Corp., 520 F.3d 719, 725 (7th Cir.
2008)). Plaintiff’s claims on behalf of Postlewaite and Garza are dismissed without prejudice.
As to plaintiff’s case, he faces a two-year statute of limitations for his claims, and the statute of
limitations traditionally begins to run once Plaintiff was detained by legal process. Wallace v. Kato, 549 U.S.
384, 387 (2007); Brooks v. City of Chicago, 564 F.3d 830, 831 (7th Cir. 2009). Plaintiff’s case is predicated
on a misunderstanding of the statute of limitations and the rule from Heck v. Humphrey, 512 U.S. 477 (1994).
Plaintiff appears to have believed that he had two years to file his complaint began upon the dropping of the
11C5786 Dijon R. Grissette (B32936) vs. Pat Perez, et al.
Page 2 of 4
STATEMENT
drug and murder charges on August 12, 2009. Plaintiff included a note with his complaint stating that he
submitted his complaint for mailing on August 12, 2011 apparently to comply with the statute of limitations
as he understood it. (Dkt. No. 4).
However, any claim for false arrest or false imprisonment would have accrued once plaintiff was
brought before a magistrate or arraigned on the charges and this would have occurred in 2008. Parish v. City
of Elkhart, 614 F.3d 677, 681 (7th Cir. 2010). This means that his statute of limitations period expired in
2010 before he filed his complaint in August 2011. Plaintiff could have a malicious prosecution claim that
would not accrue until the dropping of the charges in August 2009. Id. However, the problem with any
potential malicious prosecution claim is that this is a state law claim and the Court declines to exercise
supplemental jurisdiction over this state law claim when there is no federal claim in the case. Ray v. City of
Chicago, 629 F.3d 660, 664 (7th Cir. 2011).
Thus, it is appropriate for the Court to raise the statute of limitations defense sua sponte at this stage
in the proceedings because the elements of the statute of limitations defense appear on the face of the
complaint. Best v. City of Portland, 554 F.3d 698, 700 (7th Cir. 2009) (quoting Walker v. Thompson, 288
F.3d 1005, 1009-10 (7th Cir. 2002)) (“[A] district court can raise an affirmative defense sua sponte when a
‘valid affirmative defense is so plain from the face of the complaint that the suit can be regarded as
frivolous.’”). It is clear that plaintiff cannot set forth a valid federal claim so giving him leave to amend his
complaint would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); Bausch v. Stryker Corp., 630 F.3d
546, 562 (7th Cir. 2010) (citations omitted); Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). Plaintiff
complaint must be dismissed and a strike assessed under 28 U.S.C. § 1915(g). Turley v. Gaetz, 625 F.3d
1005, 1013 (7th Cir. 2010).
Plaintiff is warned that if a prisoner accumulates a total of three federal cases or appeals dismissed as
frivolous, malicious, or failing to state a claim, (i.e, “strikes”), that prisoner may not file suit in federal court
without prepaying the filing fee unless he is in imminent danger of serious physical injury. 28
U.S.C. § 1915(g). A prisoner with three strikes under § 1915(g) is also required to alert a federal court of this
fact when filing a new suit in that Court. See Ammons v. Gerlinger, 547 F.3d 724, 725 (7th Cir. 2008) (citing
Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999)). Failure to inform any new Court of the prior three
strikes will result in an automatic dismissal of the new case while still requiring payment of the filing fee, and
barring any future litigation (other than criminal cases and petitions challenging the terms of confinement)
until the filing fee is paid in full. Sloan, 181 F.3d at 859. Plaintiff was previously assessed a strike under §
1915(g) in both Grissette v. Ramsey, No. 02 C 4325 (N.D. Ill. June 25, 2002) (Leinenweber, J.) (failure to
state a claim), and Grissette v. Hill, No. 05 C 1132 (N.D. Ill. Mar. 8, 2005) (Leinenweber, J.) (failure to state
a claim). This case is the plaintiff’s third strike. He is warned that he must comply with the requirements of
28 U.S.C. § 1915(g), and Sloan v. Lesza, 181 F.3d 858 (7th Cir. 1999).
If plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within thirty
days of the entry of judgment. Fed. R. App. P. 4(a)(4). 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), and comply
with the requirements of 28 U.S.C. § 1915(g), and Sloan v. Lesza, 181 F.3d 858 (7th Cir. 1999), as explained
in the preceding paragraph. If the plaintiff does choose to appeal, he will be liable for the $455 appellate
filing fee irrespective of the outcome of the appeal. Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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 make monthly deductions in
11C5786 Dijon R. Grissette (B32936) vs. Pat Perez, et al.
Page 3 of 4
STATEMENT
accordance with this order. The clerk shall send a copy of this order to the trust fund officer at the Menard
Correctional Center. The complaint (Dkt. No. 1), is dismissed on initial review pursuant to 28 U.S.C. §
1915A. The Court dismisses without prejudice any state law claim and claims that plaintiff attempts to bring
on behalf of plaintiffs Douglas Postlewaite and Blanca L. Garza. The plaintiff was previously assessed a
strike under § 1915(g) in Grissette v. Ramsey, No. 02 C 4325 (N.D. Ill.), and Grissette v. Hill, No. 05 C 1132
(N.D. Ill.). This case is the plaintiff’s third strike. He is warned that he must comply with the requirements
of 28 U.S.C. § 1915(g), and Sloan v. Lesza, 181 F.3d 858 (7th Cir. 1999). Plaintiff’s motion for appointment
of counsel (Dkt. No. 5), and any other pending motions are moot. The clerk is requested to enter a Rule 58
Judgment in favor of defendants against plaintiff. Civil Case Terminated.
11C5786 Dijon R. Grissette (B32936) vs. Pat Perez, et al.
Page 4 of 4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?