Banks v. People Of The State Of Illinois et al

Filing 12

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 3/18/2013: Plaintiff may proceed on his second amended complaint. The Clerk is directed to: (1) file the second amended complaint; terminate Anita Alvarez, Christa Bowden, and Joy Repel la as Defendants pursuant to the second amended complaint and Fed. R. Civ. P. 15; (3) terminate "People of the State of Illinois" pursuant to 28 U.S.C. § 1915A; (4) issue summonses for service of the second amended complaint on Defe ndants Varolla and Campbell; and (5) mail Plaintiff a magistrate judge consent form and filing instructions along with a copy of this order. Plaintiff's motion for a subpoena # 10 and motion for an order compelling discovery # 11 are denied. [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

ROBERT M. DOW

CASE NUMBER

12 C 9874

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

3/18/13

Larry Banks (#B-42423) vs. People of the State of Illinois, et al.

DOCKET ENTRY TEXT:

Plaintiff may proceed on his second amended complaint. The Clerk is directed to: (1) file the second amended
complaint; terminate Anita Alvarez, Christa Bowden, and Joy Repella as Defendants pursuant to the second
amended complaint and Fed. R. Civ. P. 15; (3) terminate “People of the State of Illinois” pursuant to 28 U.S.C.
§ 1915A; (4) issue summonses for service of the second amended complaint on Defendants Varolla and
Campbell; and (5) mail Plaintiff a magistrate judge consent form and filing instructions along with a copy of this
order. Plaintiff’s motion for a subpoena [#10] and motion for an order compelling discovery [#11] are denied.
O [For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff, an Illinois state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims that Defendants, two Chicago police officers violated Plaintiff’s constitutional rights by falsely
arresting him. More specifically, Plaintiff alleges that Defendants arrested him without probable cause or a
warrant as he was simply riding his bicycle one day.
Plaintiff has submitted a second amended complaint limited to a single, core claim as directed. See
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Minute Order of February 5, 2013. Under 28 U.S.C. §
1915A, the Court is required to conduct a prompt initial review of prisoner complaints against governmental
entities or employees. Here, accepting Plaintiff’s factual allegations as true, the Court finds that the second
amended complaint states a colorable cause of action against the arresting officers. 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). While a more fully developed record may belie Plaintiff’s claims, Defendants Varolla and
Campbell must respond to the allegations in the second amended complaint.
(CONTINUED)

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STATEMENT (continued)
However, on the Court’s own motion, the “People of the State of Illinois” are dismissed as a Defendant on
preliminary review pursuant to 28 U.S.C. § 1915A. The Eleventh Amendment bars private litigants’ suits for
damages against the State of Illinois in federal court. See, e.g., Turpin v. Koropchak, 567 F.3d 880, 883 n.4 (7th
Cir. 2009). Additionally, states and state agencies are not “persons” within the meaning of 42 U.S.C. § 1983.
Joseph v. Board of Regents of University of Wisconsin System, 432 F.3d 746, 748 (7th Cir. 2005). Plaintiff may
proceed only against the officers themselves.
The Clerk shall issue summonses for service of the second amended complaint on Defendants Varolla and
Campbell. The United States Marshals Service is appointed to serve Defendants. Any service forms necessary for
Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendants with process. The U.S. Marshal
is directed to make all reasonable efforts to serve Defendants. If either Defendant 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
send a request for waiver of service to 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. On this single occasion, the Court has made service copies; however, Plaintiff is once
again admonished that he is required to 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 Defendants [or to defense counsel, once an attorney has entered an appearance on behalf of 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.
Finally, Plaintiff’s motions for a subpoena and for an order compelling discovery are denied as premature.
Counsel has not yet entered an appearance for Defendants. The parties will meet and discuss discovery once
Defendants have been served and the Court holds an initial status conference pursuant to Fed. R. Civ. P. 16.

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