Carr v. Towles

Filing 9

WRITTEN Opinion entered by the Honorable Harry D. Leinenweber on 11/5/2012:The plaintiff's renewed motion for leave to file in forma pauperis # 8 is granted. The court authorizes and orders prison officials to begin making monthly deductions toward payment of the filing fee in accordance with this order. The clerk shall send a copy of this order to the trust fund supervisor at the Western Illinois Correctional Center. However, the complaint is summarily dismissed on initial review pu rsuant to 28 U.S.C. § 1915A for failure to state an actionable federal claim. The case is terminated. The plaintiff's motions for appointment of counsel # 4 and for service of process at government expense # 5 are denied as moot. This dismissal counts as one of the plaintiff's three allotted dismissals under 28 U.S.C. § 1915(g). [For further details see written opinion.] mailed notice (tg, )

Order Form (01/2005)

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

HARRY D. LEINENWEBER

CASE NUMBER

12 C 7684

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

11/5/2012

Heggie Carr (#B-52906) vs. Howard Towles

DOCKET ENTRY TEXT:

The plaintiff’s renewed motion for leave to file in forma pauperis [#8] is granted. The court authorizes and
orders prison officials to begin making monthly deductions toward payment of the filing fee in accordance with
this order. The clerk shall send a copy of this order to the trust fund supervisor at the Western Illinois
Correctional Center. However, the complaint is summarily dismissed on initial review pursuant to 28
U.S.C. § 1915A for failure to state an actionable federal claim. The case is terminated. The plaintiff’s motions
for appointment of counsel [#4] and for service of process at government expense [#5] are denied as moot. This
dismissal counts as one of the plaintiff’s three allotted dismissals under 28 U.S.C. § 1915(g).
O

[For further details see text below.]

Docketing to mail notices.
Mailed AO 450 form.

STATEMENT
The plaintiff, an Illinois state prisoner, has brought this pro se civil rights action purportedly pursuant to
42 U.S.C. § 1983. The plaintiff claims that the defendant, an area defense attorney, violated the plaintiff’s
constitutional rights by providing ineffective representation in state criminal proceedings. The plaintiff further
alleges that because the defendant was under investigation by the Attorney Registration and Disciplinary
Commission during this time period, he violated professional regulations in taking the plaintiff’s case.
The court finds that the plaintiff is unable to prepay the filing fee. Accordingly, the court grants the
plaintiff’s motion to proceed in forma pauperis and assesses an initial partial filing fee of $107.65 pursuant to
28 U.S.C. § 1915(b)(1). The trust fund officer at the plaintiff’s place of incarceration is authorized and ordered
to collect, when funds exist, the partial filing fee from the plaintiff’s trust fund account and pay it directly to the
clerk of court. Thereafter, the trust fund officer at the plaintiff’s place of confinement is directed to collect
monthly payments from the plaintiff’s trust fund account in the amount of 20% of the preceding month’s income
credited to the account. Monthly payments shall be forwarded to the clerk of court each time the account balance
exceeds $10 until the full $350 filing fee is paid. Separate deductions and payments shall be made with respect
to each action or appeal filed by the plaintiff. All payments shall be sent to the Clerk, United States District
(CONTINUED)
mjm

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STATEMENT (continued)
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.
Nevertheless, under 28 U.S.C. § 1915A, the court is required to dismiss a suit brought by a prisoner against
government officials at any time if the court determines that it 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. Here,
even accepting the plaintiff’s factual allegations as true, the court finds that the complaint fails to state an actionable
civil rights claim as a matter of law under the facts alleged.
It is most regrettable if the plaintiff received inadequate representation from an attorney who should not
even have been practicing. However, the plaintiff has articulated no basis for federal jurisdiction. Defense
attorneys, whether privately retained or public defenders, are not “state actors” and therefore cannot be sued for
damages under the Civil Rights Act. Polk County v. Dodson, 454 U.S. 312, 325 (1981); see also Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 824 (7th Cir. 2009). The court discerns no alternative basis for federal
jurisdiction, such as the implication of another federal statute or diversity of citizenship between the parties. If the
plaintiff wishes to sue Mr. Towles for legal malpractice, conversion, or any other state tort, he must do so in state
court.
To the extent the plaintiff may be seeking to assert ineffective assistance of counsel as a challenge to a
criminal conviction, the federal court can consider such a claim only in the context of a petition for a writ of habeas
corpus, and only after the petitioner has exhausted state court remedies. See 28 U.S.C. § 2254. A prisoner may
not contest his criminal conviction by way of a civil rights action. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). Nor may the court convert a civil complaint into a habeas petition. Copus v. City of Edgerton, 96 F.3d
1038, 1039 (7th Cir. 1996).
For the foregoing reasons, this suit is dismissed for failure to state a claim upon which relief may be granted
in a federal civil action. The plaintiff’s motions for appointment of counsel and for service of process are denied
as moot. The plaintiff is warned that if a prisoner has had a total of three federal cases or appeals dismissed as
frivolous, malicious, or failing to state a claim, he 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).
If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this court within thirty
days of the entry of judgment. Fed. R. App. P. 4(a)(4). If the plaintiff does choose to appeal, he will be liable for
the $455 appellate filing fee irrespective of the outcome of the appeal. Evans v. Illinois Dept. of Corrections, 150
F.3d 810, 812 (7th Cir. 1998).

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