Gibson v. J. Sullivan et al

Filing 6

WRITTEN Opinion entered by the Honorable George W. Lindberg on 1/17/2012: The plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 3 ) is granted. The Court authorizes and orders the trust fund officer at plaintiff's place o f incarceration to deduct $39.45 from plaintiff's account, 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 Lawrence Correctional Center. Sum monses shall not issue at this time. The complaint on file is dismissed without prejudice. The plaintiff is granted thirty days to submit a proposed amended complaint (plus a judge's copy and service copies) that complies with this order. The cl erk is directed to provide the plaintiff with an amended civil rights complaint form and instructions for filing along with a copy of this order. Failure to submit a proposed amended complaint within thirty days will result in summary dismissal of this case. Plaintiff's motion for appointment of counsel (Dkt. No. 4 ), is denied without prejudice. (For further details see written opinion.) Mailed notice (ma,)

Order Form (01/2005)

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

George W. Lindberg

CASE NUMBER

12 C 0176

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

1/17/12

Hughest Gibson (B42794) vs. J. Sullivan, et al.

DOCKET ENTRY TEXT

The plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3) is granted. The Court authorizes
and orders the trust fund officer at plaintiff’s place of incarceration to deduct $39.45 from plaintiff’s account,
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 Lawrence Correctional Center. Summonses shall not issue at this time.
The complaint on file is dismissed without prejudice. The plaintiff is granted thirty days to submit a
proposed amended complaint (plus a judge’s copy and service copies) that complies with this order. The
clerk is directed to provide the plaintiff with an amended civil rights complaint form and instructions for
filing along with a copy of this order. Failure to submit a proposed amended complaint within thirty days
will result in summary dismissal of this case. 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 Hughest Gibson, an inmate at the Lawrence Correctional Center, has brought a civil
rights suit against various Chicago Police officer defendants, Cook County State’s Attorneys, and the owner
of the Lounge Café in Chicago, Illinois. 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. 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 $39.45. 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 the complaint, 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 relief. 28 U.S.C. §
12C0176 Hughest Gibson (B42794) vs. J. Sullivan, et al.

Page 1 of 4

STATEMENT
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 defendants 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).
Plaintiff alleges that he was walking with his fiancee Ora Price in the 1100 Block of West Wilson
Avenue in Chicago on the evening of September 9, 2009 when two men asked them to change a five dollar
bill. Plaintiff provided them with five singles and then defendant Chicago Police Officers Patel, Dominguez
and Bennett confronted him suspecting plaintiff had just bought drugs from the men. The officers allegedly
used excessive force during the arrest badly twisting plaintiff’s arms and slamming his face on the trunk of
their car.
The officers refused plaintiff’s request for medical attention and took him to the police station. He
would not receive care until he was transferred to the Cook County Jail. By September 14, 2009, plaintiff
was charged with distributing drugs and assaulting the police officers. He believes that he was falsely
charged and wrongfully convicted of the aggravated battery charge in October 2010. He was acquitted of the
drug charge. The wrongful conviction is the alleged result of the destruction of the surveillance videotape
from the Lounge Café by defendant prosecutors Jennings and Brown. Plaintiff claims the tape would have
been exculpatory, so it was destroyed to cover up the police officers’ misconduct.
Plaintiff raises federal excessive force, false arrest, false imprisonment, denial of medical treatment,
Brady, and conspiracy claims. He also raises associated state law battery, negligence, intentional infliction of
emotional distress, and malicious prosecution claims. A number of plaintiff’s claims are barred by the statute
of limitations. It is appropriate to dismiss these untimely claims because the statute of limitations defense is
clear from the face of the complaint. Best v. City of Portland, 554 F.3d 698, 700 (7th Cir. 2009); Walker v.
Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002).
Plaintiff faces the same two-year statute of limitations for both his federal and state tort claims
because the state statute of limitations period is applied to both state and federal claims. Draper v. Martin,
__ F.3d __, Nos. 10-2837, 10-3054, 2011 WL 6880357, at *2 (7th Dec. 30, 2011) (citing 735 ILCS 5/13-202;
Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th Cir. 2007); Hilleman v. Maze, 367 F.3d 694, 696 (7th
Cir. 2004); Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993)). The excessive force, false arrest,
failure to provide medical care, and conspiracy claims accrued on the night of the incident of September 9,
2009, and the false imprisonment claim accrued by September 14, 2009 when plaintiff was criminally
charged. Wallace v. Kato, 549 U.S. 384, 387 (2007); Evans v. Poskon, 603 F.3d 362, 363-64 (7th Cir. 2010);
Brooks v. City of Chicago, 564 F.3d 830, 831 (7th Cir. 2009); Jenkins, 506 F.3d at 623; Delgado-Brunet v.
12C0176 Hughest Gibson (B42794) vs. J. Sullivan, et al.

Page 2 of 4

STATEMENT
Clark, 93 F.3d 339, 342 (7th Cir. 1996). This same statute of limitations analysis covers the accrual of the
state battery, negligence and intentional infliction of emotional distress claims. All of the aforementioned
claims accrued in September 2009.
Plaintiff’s proof of service states that he submitted his complaint to correctional officials for mailing
on January 5, 2012. This date is the complaint’s filing date for statute of limitations purposes under the
prison mailbox rule. Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001) (citing Houston v. Lack,
487 U.S. 266 (1988)). More than two years lapsed between the accrual of the claims in September 2009 and
the filing of the complaint in January 2012. The claims are untimely under the statute of limitations. This
statute of limitations holding applies to all claims except for the Brady and malicious prosecution claims
discussed below.
Turning to the remaining Brady and malicious prosecution claims, these claims arise from plaintiff’s
assertion that he was wrongfully charged with a drug crime and wrongfully convicted of the assault of a
police officer. Malicious prosecution is a state law claim, but the alleged destruction of evidence is a federal
due process claim under Brady v. Maryland, 373 U.S. 88 (1963). Holland v. City of Chicago, 643 F.3d 248,
255 (7th Cir. 2011); Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011). In turn, the rule of Heck v.
Humphrey, 512 U.S. 477 (1994) — a plaintiff may not bring a Section 1983 claim when recovery on that
claim would requiring invalidating a conviction if the underlying conviction has not been overturned —
applies to a Brady due process claim. Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir. 2008).
Plaintiff alleges that the videotape was wrongfully destroyed by the prosecutors acting in concert with
the police officers. This allegation touches upon two charges — the drug charge (resulting in an acquittal)
and the assault charge (resulting in a conviction that has not been overturned). The rule of Heck does not
apply to the acquitted drug charge, but it does apply to bar a claim regarding the presently valid assault
conviction. Plaintiff has pled himself into Heck’s prohibition as to the assault charge. He cannot bring a
Brady claim as to the assault conviction but he may proceed with a Brady claim as to the drug charge.
In this type of situation, the Seventh Circuit instructs that the pro se plaintiff should be given a chance
to submit a proposed amended complaint that properly addresses Heck. Moore v. Mahone, 652 F.3d 722, 726
(7th Cir. 2011). Plaintiff cannot raise the Brady claim as to the assault conviction as presently presented
because he is claiming that he is wrongfully convicted due to the alleged civil rights violation and the
conviction has not been overturned. But, he can challenge the destruction of the videotape as it relates to the
filing of the drug charge. He can also assert a Brady claim regarding the destruction of the videotape in any
other context, including the assault conviction, as long as plaintiff does not pled himself into Heck’s
prohibition. Id. at 726 (explaining that the a plaintiff may avoid Heck’s prohibition at the pleading stage by
being “agnostic” to the impact the alleged civil rights violation had on his conviction); Okoro v. Callaghan,
324 F.3d 488, 490 (7th Cir. 2003) (explaining that “Heck kicks in and bars [a] civil suit” when a plaintiff
“makes allegations that are inconsistent with the conviction[] [being] valid . . . .”). Plaintiff may proceed
with a Brady claim as long as he can plausibly allege that the defendants “withheld materially favorable
evidence” from him (by destroying the video tape), if the evidence had been disclosed, the disclosure “would
have altered the decision” to bring plaintiff to trial on the drug charge, Mosley v. City of Chicago, 614 F.3d
391, 397-98 (7th Cir. 2010) (citing Bielanski v. County of Kane, 550 F.3d 632, 645 (7th Cir. 2008)), and
finally he is not seeking relief that would effectively seek to invalidate a conviction in violation of Heck.
Johnson v. Dossey, 515 F.3d at 782.
Plaintiff’s malicious prosecution claim as to the drug charge must be dismissed as untimely because
there is a one year statute of limitations for this claim, and the claim accrued when he was acquitted on the
12C0176 Hughest Gibson (B42794) vs. J. Sullivan, et al.

Page 3 of 4

STATEMENT
drug charge in October 2010. Evans v. City of Chicago, 434 F.3d 916, 924 (7th Cir. 2006). He did not file
the complaint until over a year later in January 2012. Plaintiff does not have a state malicious prosecution
claim as to the assault conviction because that conviction has not been invalidated in his favor. Nat’l Cas.
Co. v. McFatridge, 604 F.3d 335, 344-45 (7th Cir. 2010); Hurlbert v. Charles, 938 N.E.2d 507, 512 (Ill.
2010); Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996).
The Court makes clear that plaintiff may bring a Brady due process claim as to the destruction of the
videotape to the extent that it allegedly resulted in the wrongful filing of the drug charge. Plaintiff may also
bring new claims not addressed in the original complaint if he believes they are appropriate, but he may not
bring claims that have already been rejected by the Court.
The plaintiff is granted thirty days from the date of this order to submit a proposed amended
complaint on the Court’s required form in accordance with this order. The plaintiff must write both the case
number and the Judge’s name on the proposed amended complaint, sign it, and return it to the Prisoner
Correspondent. As with every document filed with the Court, the plaintiff must provide an extra copy for the
Judge; he must also submit a service copy for each defendant named in the proposed amended complaint.
Failure to follow these instructions will result in dismissal of plaintiff’s case.
The plaintiff is cautioned that an amended pleading supersedes the original complaint and must stand
complete on its own. Therefore, all allegations the plaintiff wishes the Court to consider must be set forth in
the proposed amended complaint, without reference to the original complaint. Any exhibits the plaintiff
wants the Court to consider in its threshold review of the amended complaint must be attached, and each
copy of the proposed amended complaint must include complete copies of any and all exhibits.
The clerk will provide the plaintiff with an amended civil rights complaint form and instructions
along with a copy of this order. If the plaintiff fails to comply within thirty days, the case will be summarily
dismissed in its entirety.
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, the 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
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 must first
submit a proposed amended complaint in accordance with this order. The Court concludes this task is not
beyond his abilities when measure the complexity of the case and plaintiff’s competency to litigate his case.
Plaintiff may renew his request for counsel should he successfully submit a proper proposed complaint.

12C0176 Hughest Gibson (B42794) vs. J. Sullivan, et al.

Page 4 of 4