Manning v. State of Arizona et al

Filing 7

MEMORANDUM Opinion and Order signed by the Honorable Marvin E. Aspen on 4/9/2012. Mailed notice (tlm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAAIYAH MANNING,
Plaintiff,
v.
STATE OF ARIZONA; MARICOPA COUNTY
ADULT PROBATION,
Defendants.

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No. 12-CV-1019

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us is Plaintiff Daaiyah Manning’s application to proceed in forma
pauperis and motion for appointment of counsel. Manning brings the underlying action against
the State of Arizona and the Maricopa Country Adult Probation (“MCAP”).
ANALYSIS
I. Application to Proceed in Forma Pauperis
Before granting leave to file in forma pauperis, we must first determine whether or not
Manning is indigent. 28 U.S.C. § 1915(a)(1). We must also conduct an initial review of her
complaint and dismiss the action if we find that: (1) it is frivolous or malicious; (2) it fails to
state a claim on which relief may be granted; or (3) it seeks damages from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(I)-(iii). As to the second factor, failure to
state a claim, we apply the test for dismissal under Rule 12(b)(6), which requires “that a
complaint contain ‘enough facts to state a claim that is plausible on its face.’” Moore v. F.B.I.,
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No. 07-1294, 2008 WL 2521089, at *1 (7th Cir. June 25, 2008) (quoting Bell Atlantic v.
Twombly, 127 S. Ct. 1955, 1974 (2007)); see also George v. Smith, 507 F.3d 605, 608 (7th Cir.
2007).
In support of her allegation of poverty, Manning submitted the required financial
affidavit. She states that she is not currently employed and has not been employed since 2008.
(Aff. ¶ 2.) She states that she receives $4,000 per year in Social Security and through a pension.
(Id. ¶ 4.) She further declares that she has no additional sources of income, no assets, and no
bank accounts containing more than $200. (Id. ¶¶ 4–7.) Manning indicates that she leases a
vehicle, in which she has no equity, for $485 per month. (Id. ¶ 8.) She further claims that she is
responsible for the care of her daughter and three grandchildren. (Id. ¶ 10.) The federal poverty
guidelines establish different thresholds for indigency based on family size. The threshold for a
family of five living in the continental United States is $26,000. See Health & Human Services
2011 Poverty Guidelines, available at http://aspe.hhs.gov/poverty/11poverty.shtml.
Accordingly, Manning’s annual income is under the poverty guideline, and we assume her
allegation of poverty to be true.
However, we deny Manning’s application and dismiss her complaint for two reasons.
First, the claims against the State of Arizona fail because they seek damages from a defendant
who is entitled to immunity. The Supreme Court and the Seventh Circuit have held that the
Eleventh Amendment bars an action in federal court against a state, unless the state consents to
suit in federal court. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.
Ct. 900, 908 (1984); Scott v. O’Grady, 975 F.2d 366, 369 (7th Cir. 1992). The State of Arizona
has not waived its immunity by consenting to suit in federal court and Congress has not

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expressly abrogated Arizona’s immunity through its own action. Id. Moreover, while Manning
is seeking to “enjoin Defendants from further retaliating,” she does not seek prospective
equitable relief pursuant to Ex Parte Young, 209 U.S. 123, 159–60, 28 S. Ct. 441, 454 (1908).
Accordingly, all claims against the state are dismissed.1
Second, Manning alleges that MCAP deprived her of her liberty in violation of her rights
protected by the First Amendment. (Compl. ¶ 140.) She brings these claims pursuant to §§ 1983
and 1985. Because Manning is proceeding pro se, we have a responsibility to construe her
complaint liberally. Donald v. Cook City Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996).
Nonetheless, the § 1983 claim fails. Even assuming MCAP is a proper defendant in a § 1983
action, to succeed in this claim Manning must show that MCAP’s official policy or custom lead
to the violation of her constitutional rights. See Monell v. Dep’t of Social Security, 436 U.S. 658,
690, 98 S. Ct. 2018, 2036 (1978) (“[T]he touchstone of the § 1983 action against a government
body is an allegation that official policy is responsible for a deprivation of rights protected by the
Constitution.”) Manning fails to allege any facts that could allow us to find that MCAP had an
official custom or policy that lead to the deprivation of her rights.
Similarly, the conspiracy claim fails. “A complaint must contain more than mere
conclusory allegations of conspiracy; a factual basis for such allegations must be provided.”
Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992); see Ryan v. Mary Immac.
Queen Ctr., 188 F.3d 857 (7th Cir. 1999) (affirming dismissal of conspiracy charges because
bare allegations did not satisfy Rule 8). After carefully reviewing the complaint, we hold that

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In addition, to the extent that Manning alleges claims pursuant to § 1983, the Supreme
Court has made clear that the state is a not a “person” under the statute. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989).
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Manning’s conspiracy allegation is too vague and conclusory to state a claim. Manning
summarily states that the defendants “did conspire to deprive Plaintiff of her liberty.” (Compl.
¶ 140.) However, there are no factual allegations tying MCAP’s conduct to conduct by the state.
Rather, Manning claims that MCAP “consistently changed the terms of the plea in an attempt to
imprison her,” and “did not take into consideration Plaintiff’s physical or mental condition at the
time of sentencing.” (Id. ¶¶ 140–42.) The remaining factual allegations do not shed any more
light on a plausible connection between MCAP and the State of Arizona. (See id. ¶¶ 74, 83,
86–103.) Thus the conspiracy claim must be dismissed. Accordingly, we dismiss the complaint
and instruct Manning to file an amended complaint by May 15, 2012.
II. Motion for Appointment of Counsel
We also deny Manning’s motion for appointment of counsel. The motion does not
demonstrate that she exhausted the search for counsel. For us to grant a motion for appointment
of counsel, the litigant must: (1) make a reasonable attempt to obtain private counsel, Zarnes v.
Rhodes, 64 F.3d 285, 288 (7th Cir. 1995), and (2) appear incapable of proceeding without
representation, Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). See also Pruitt v. Mote, 503
F.3d 647, 655–58 (7th Cir. 2007); Johnson v. Doughty, 433 F.3d 1001, 1006–09 (7th Cir. 2006).
As part of this showing, we typically require a litigant to submit documentation that
demonstrates the refusal of various attorneys to accept the case. Manning, however, did not
support her motion by attaching copies of any solicitation letters or other documentation. See
Benford v. Cahill-Masching, No. 03 C 2643, 2003 WL 22669036, at *1 (N.D. Ill. Nov. 10,
2003). While Manning claims that she contacted three attorneys and Pre-Paid Legal of Illinois,
we do not believe this meager effort is reasonable under the circumstances. Even if she can later

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assert a claim upon which relief can be granted, Manning must make a serious effort to obtain
private counsel before we will consider appointing her a lawyer.
CONCLUSION
For the reasons set forth above, we deny Manning’s application to proceed in forma
pauperis and motion for appointment of counsel, without prejudice. It is so ordered.

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Marvin E. Aspen
United States District Judge
Dated: Chicago, Illinois
April 9, 2012

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