Pike v. Foster et al

Filing 6

WRITTEN Opinion entered by the Honorable Edmond E. Chang on 1/30/2012: As detailed in the Statement below, Plaintiff's motion for leave to proceed in forma pauperis [R. 3 ] is granted. The Court authorizes and orders the trust fund officer at P laintiff's place of incarceration to deduct $1.67 from 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 sen d a copy of this order to the trust fund officer at the Stateville Correctional Center. The Clerk is directed to issue summonses for service on the defendants by the U.S. Marshal. Plaintiff's perjury claim is summarily dismissed on preliminary r eview pursuant to 28 U.S.C. § 1915A. The Clerk is further directed to send 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 [R. 4 ] is denied without prejudice. [For further details see written opinion.] Mailed notice(ph, )

January 30, 2012Order Form (01/2005)

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

EDMOND E. CHANG

CASE NUMBER

12 C 0094

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

January 30, 2012

Rashon Markell Pike (#R-32728) vs. Detective John Foster, et al.

DOCKET ENTRY TEXT:

As detailed in the Statement below, Plaintiff’s motion for leave to proceed in forma pauperis [R. 3] is granted.
The Court authorizes and orders the trust fund officer at Plaintiff’s place of incarceration to deduct $1.67 from
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 Stateville Correctional Center. The Clerk is directed to issue summonses for service on the
defendants by the U.S. Marshal. Plaintiff’s perjury claim is summarily dismissed on preliminary review pursuant
to 28 U.S.C. § 1915A. The Clerk is further directed to send 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 [R. 4] is denied without prejudice.
O

Docketing to mail notices.

[For further details see text below.]

STATEMENT
Plaintiff is a state prisoner and brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
claims that the defendants, Chicago police officers, violated Plaintiff’s constitutional rights by illegally detaining
him, by falsely arresting him, and by fabricating evidence to bolster his prosecution.
Plaintiff’s motion for leave to proceed in forma pauperis is granted in light of his lack of financial
resources and the complaint’s survival of the screening process. Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is
assessed an initial partial filing fee of $1.67. The trust fund officer at Plaintiff’s place of incarceration is
authorized and ordered to collect the partial filing fee from Plaintiff’s trust fund account and pay it directly to the
Clerk of Court. After payment of the initial partial filing fee, Plaintiff’s trust fund officer is directed to collect
monthly payments from 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 Plaintiff’s name and this case number. This payment obligation will follow Plaintiff wherever he may
be transferred.
(CONTINUED)
mjm

Page 1 of 3

STATEMENT (continued)
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint.
Here, accepting Plaintiff’s allegations as true, the Court holds that he has set forth colorable federal causes of action
against the defendants. A police stop must be justified “by suspicion (reasonably grounded, but short of probable
cause) that criminal activity is afoot.” Arizona v. Johnson, 555 U.S. 323, 330 (2009); see also United States v.
Carlisle, 614 F.3d 750, 754 (7th Cir. 2010) (“Police officers may conduct a brief investigatory stop of a suspect
if they have reasonable suspicion based on articulable facts that a crime is about to be or has been committed.”).
Furthermore, an arrest without probable cause violates the arrestee’s Fourth Amendment rights. See, e.g., Mustafa
v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). In addition, police officers may be sued under § 1983 for
fabricating evidence that resulted in a state court conviction. See, e.g., Brokaw v. Weaver, 305 F.3d 660, 665 (7th
Cir. 2002). While a more fully developed record may belie Plaintiff’s allegations, the defendants must respond to
the complaint.
However, Plaintiff’s claim that Officer Foster committed perjury during grand jury proceedings is
summarily dismissed on preliminary review pursuant to 28 U.S.C. § 1915A. In the Seventh Circuit, a witness is
absolutely immune from a claim arising from the witness’s testimony in a grand jury. Curtis v. Bembenek, 48 F.3d
281, 284 (7th Cir. 1995) (citing Kincaid v. Eberle, 712 F.2d 1023, 1023-24 (7th Cir. 1983)). (The Court notes that
the Supreme Court has under advisement a case which might overrule this conclusion. See Rehberg v. Paulk, S.
Ct. No. 10-788 (argued November 1, 2011).)
The clerk shall issue summonses forthwith. The United States Marshals Service is appointed to serve the
defendants. Any service forms necessary for 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.
If any officer can no longer be found at the work address provided by Plaintiff, the Chicago Police Department shall
furnish the Marshal with the defendant’s last-known 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)(2) before attempting personal service.
Plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of the
Prisoner Correspondent. Plaintiff must provide the court with the original plus a complete judge’s copy, including
any exhibits, of every document filed. In addition, 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 Plaintiff.
(CONTINUED)

Page 2 of 3

STATEMENT (continued)
Finally, Plaintiff’s motion for appointment of counsel is denied without prejudice. There is no constitutional
or statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (2010); see also Johnson
v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C.
§ 1915(e)(1) to request counsel for an indigent litigant. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc)
(citing Johnson, 433 F.3d at 1006). When a pro se litigant submits a request for appointment of counsel, the Court
must first consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his own, or
conversely, if he has been precluded from doing so. Pruitt, 503 F.3d at 654. Next, the court must evaluate the
complexity of the case and whether the plaintiff appears competent to litigate it on his own. Id. at 654-55. Another
consideration is whether the assistance of counsel would provide a substantial benefit to the court or the parties,
potentially affecting the outcome of the case. Id. at 654; Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004); see also
Local Rule 83.36(c) (N.D. Ill.) (listing the factors to be taken into account in determining whether to appoint
counsel).
After considering the above factors, the court Concludes that appointment of counsel is not warranted in
this case, at least not yet. Although the complaint sets forth cognizable claims, neither the legal issues raised in the
complaint nor the factual evidence that might support the plaintiff’s claims are so complex or intricate that a trained
attorney is necessary. Plaintiff is a high school graduate, and his initial submissions are coherent and articulate. He
appears more than capable of competently presenting his case. Therefore, Plaintiff’s motion for appointment of
counsel is denied at this time. Should the case proceed to a point that assistance of counsel is appropriate, the Court
may revisit this request.

Page 3 of 3