Bittman v. People Of The State Of Illinois et al

Filing 6

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 1/8/2013: Before the Court are Plaintiff Anthony Bittman's motions for leave to proceed in forma pauperis 4 and for appointment of counsel 5 . For the reasons stated below, the Co urt grants Plaintiff leave to proceed in forma pauperis. Because his complaint fails to state a claim on which relief may be granted, however, the Court must dismiss it at this time. The dismissal is without prejudice. If Plaintiff believes he can cu re the defects identified below, he may file an amended complaint within 30 days of the date of this order. The Court denies Plaintiff's motion for appointment of counsel 5 without prejudice and with leave to renew if Plaintiff can state a claim that is cognizable in federal court. (For further details see written opinion.) Mailed notice.(ym, )

Order Form (01/2005)

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

Robert M. Dow, Jr.

CASE NUMBER

12 C 10401

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

1/8/2013

Bittman vs. People of the State of Illinois et al.

DOCKET ENTRY TEXT

Before the Court are Plaintiff Anthony Bittman’s motions for leave to proceed in forma pauperis [4] and for
appointment of counsel [5]. For the reasons stated below, the Court grants Plaintiff leave to proceed in forma
pauperis. Because his complaint fails to state a claim on which relief may be granted, however, the Court must
dismiss it at this time. The dismissal is without prejudice. If Plaintiff believes he can cure the defects identified below,
he may file an amended complaint within 30 days of the date of this order. The Court denies Plaintiff’s motion for
appointment of counsel [5] without prejudice and with leave to renew if Plaintiff can state a claim that is cognizable
in federal court.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Before the Court are Plaintiff Anthony Bittman’s motions for leave to proceed in forma pauperis [4] and for
appointment of counsel [5]. In order to file and proceed on a lawsuit in forma pauperis – that is, without paying
the filing fee – “a plaintiff’s income must be at or near the poverty level.” Bulls v. Marsh, 1989 WL 51170, at
*1 (N.D. Ill. May 5, 1989); see also Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980). To measure poverty level,
many judges in this district use the poverty guidelines promulgated by the United States Department of Health
and Human Services (available at http://aspe.hhs.gov/poverty/12poverty.shtml). The HHS poverty guidelines for
2012 for the 48 contiguous states and the District of Columbia set the poverty level for a household of one at an
annual income level of $11,170. Based on Plaintiff’s representations about his financial status, the Court
concludes that his income puts him below this threshold and grants his application to proceed in forma pauperis.
Congress has directed the courts to perform a preliminary review of a complaint that is filed along with a motion
for leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). In connection with that review
function, a case must be dismissed “if the court determines that the action or appeal fails to state a claim on which
relief may be granted.” Id. Because Plaintiff’s complaint fails to state a claim on which relief may be granted, the
Court must dismiss it at this time. The dismissal is without prejudice, however. If Plaintiff believes he can cure
the defects identified below, he may file an amended complaint within 30 days of the date of this order.
In his complaint [1], Plaintiff alleges that his substantive due process rights were violated when the Kane County
Circuit Court imposed upon him bond conditions that restricted his ability to contact his minor son. He also
alleges that his son’s Fourteenth Amendment rights were abridged by the bond conditions, and that his own
procedural due process rights were violated when a no-contact order was imposed without a “meaningful
hearing.” Plaintiff further contends that his son’s substantive due process rights were violated when Assistant
State’s Attorney Mosser offered Plaintiff a plea agreement that contained a twelve-month no-contact provision
that would have prevented him from seeing his son. (Plaintiff rejected the plea offer.) Plaintiff also asserts that
he was improperly charged with multiple crimes stemming from a single act, in violation of the “one act, one
12C10401 Bittman vs. People of the State of Illinois et al.

Page 1 of 3

STATEMENT
crime” rule articulated by the Illinois Supreme Court. His complaint also includes allegations – but not specific
claims for relief – relating to the conduct of his public defender, Brenda Wilcott; the refusal of unnamed Kane
County Jail correctional officers to return his personal possessions; medical problems he experienced upon his
release from jail; and the State’s “treatment of pre-trial detainees whom [sic] are unable to meet the stipulated
bond/bail requirement.” Plaintiff names as Defendants the People of the State of Illinois, State Attorney General
Lisa Madigan, and Kane County State’s Attorney Joseph H. McMahon, and has asked the Court to “order the
Kane County Circuit Court to amend or vacate all orders of the Court that abridge parental association” with his
son, order the Kane County Circuit Court to “dismiss the Violation of Order of Protection charge on Case
12CF1192,” and permit him to contact his ex-wife concerning the “custodial and physical care, safety and well
being of his 3-year old son.”
Even under the generous reading of complaints accorded to pro se litigants, Plaintiff’s complaint as it currently
stands fails to state a claim upon which relief can be granted for two primary reasons. First, the principal relief
Plaintiff seeks – revision or cancellation of a state court judgment – is not within this Court’s power to provide.
Pursuant to the “Rooker-Feldman doctrine,” which takes its name from Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), lower federal courts such as this one
do not have the authority to hear cases “complaining of injuries caused by state-court judgments rendered before
the district court proceedings commenced and inviting district court review and rejection of those judgments.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “[N]o matter how erroneous or
unconstitutional the state court judgment may be, the Supreme Court of the United States is the only federal court
that could have jurisdiction to review a state court judgment.” Remer v. Burlington Area Sch. Dist., 205 F.3d 990,
996 (7th Cir. 2000). If Plaintiff wishes to seek revision or reversal of orders issued by the Kane County Circuit
Court, he must seek relief from the Illinois Appellate Court. Similarly, this Court is not the appropriate forum
for Plaintiff’s challenge to the charges that the state has elected to bring against him in state court case 12CF1192.
Plaintiff should assert his “one act, one crime” argument before the court currently adjudicating case 12CF1192,
and, if need be, before the Illinois Appellate Court. See Tibor v. Kane Cnty., Ill., No. 11-3260, 2012 WL 6051528,
at *1 (7th Cir. Dec. 6, 2012) (“A request for a federal injunction to control pending state litigation encounters the
Anti-Injunction Act, 28 U.S.C. § 2283. Although suits under § 1983 are not strictly governed by § 2283, they may
proceed only to the extent allowed by the principles of Younger v. Harris, 401 U.S. 37 (1971), and its successors.
Younger requires parties to pending state cases to present their contentions, even constitutional ones, to the state
judiciary, both trial and appellate.”). The Court has no reason to doubt that the state judiciary will provide
Plaintiff with any relief to which the federal Constitution entitles him.
Second, to the extent that Plaintiff seeks to bring claims that are within the jurisdiction and purview of this Court,
he has failed to state a claim on which relief may be granted. Plaintiff purports to assert claims under 42 U.S.C.
§§ 1983, 1985, and 1986. To state a claim under 42 U.S.C. § 1985, a plaintiff must allege “(1) the existence of
a conspiracy, (2) a purpose of depriving a person or class of persons of equal protection of the laws, (3) an act
in furtherance of the alleged conspiracy, and (4) an injury to person or property or a deprivation of a right or
privilege granted to U.S. citizens.” Xiong v. Wagner, 700 F.3d 282, 297 (7th Cir. 2012). Plaintiff’s complaint
implicates (but does not name as a defendant) “the troika of the Kane County Justice System,” but does not
otherwise allege any sort of conspiratorial action. Moreover, Plaintiff does not allege that any of the actions
allegedly taken against him were “motivated by racial, or other class-based discriminatory animus.” Smith v.
Gomez, 550 F.3d 613, 617 (7th Cir. 2008). He thus fails to state a claim under § 1985. And because he has “failed
to state a § 1985 claim, his § 1986 claim fails as well,” id.; “in the absence of a viable claim under § 1985(3), a
§ 1986 claim cannot exist.” Hicks v. Resolution Trust Corp., 970 F.2d 378, 382 (7th Cir. 1992).
Plaintiff’s § 1983 claims as presently alleged must also be dismissed. To the extent that he alleges deprivation
12C10401 Bittman vs. People of the State of Illinois et al.

Page 2 of 3

STATEMENT
of his constitutional rights by the “People of the State of Illinois,” Plaintiff has not asserted a claim under § 1983.
“The People” is a term used to refer to the citizens of a state as represented by the prosecution in a criminal case.
See Black’s Law Dictionary 1171 (8th ed. 2004). Plaintiff’s complaint does not plausibly allege that every citizen
in Illinois deprived him of his constitutional rights while acting under color of state law. It therefore fails to state
a claim against “the People” under 42 U.S.C. § 1983. Cf. Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir. 1989)
(for a private party to act under color of state law, “there must be a conspiracy, an agreement on a joint course
of action in which the private party and the state have a common goal” (citation and internal quotations omitted)).
Plaintiff’s § 1983 claims against Defendants Madigan and McMahon fare no better. Plaintiff has named Madigan
and McMahon as Defendants in their official capacities. A suit against an individual in his or her official capacity
is tantamount to a suit against the entity of which the officer is an agent. Sow v. Fortville Police Dep’t, 636 F.3d
293, 300 (7th Cir. 2011) (citing Kentucky v. Graham, 473 F.3d 159, 165-66 (1985)); see also Sanders v. Sheahan,
198 F.3d 626, 629 (7th Cir. 1999) (“A claim against a government employee acting in his official capacity is the
same as a suit directed against the entity the official represents.”). Both Madigan and McMahon are agents of the
State of Illinois. See Garcia v. City of Chi., Ill., 24 F.3d 966, 969 (7th Cir. 1994) (“[T]he Illinois Supreme Court
decided in 1990 that State’s Attorneys are state officials.”). Thus, Plaintiff’s claims against them are really claims
against the State of Illinois. To the extent that Plaintiff’s claims against Madigan and McMahon – the State – arise
under 42 U.S.C. § 1983, they cannot survive because “states are not ‘persons’ within the meaning of section 1983
and so cannot be sued under that section.” Ill. Dunesland Preservation Soc’y v. Ill. Dep’t of Natural Res., 584
F.3d 719, 721 (7th Cir. 2009) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65-66 (1989)).
In theory, Plaintiff could attempt to assert claims against Madigan and/or McMahon in their individual capacities
for alleged harms that they personally inflicted upon him if he had a plausible basis for alleging their personal
involvement in a deprivation of his rights. However, if Plaintiff instead desires to recover for alleged harms
personally inflicted on him by individuals supervised by Madigan or McMahon (or their subordinates), which
appears to be the case, he will need to sue those individuals in their individual capacities because “[t]here is no
respondeat superior liability under § 1983.” Milestone v. City of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011).
Plaintiff also should be cognizant that “section 1983 does not permit injunctive relief against state officials sued
in their individual as distinct from their official capacity.” Greenawalt v. Ind. Dep’t of Corr., 397 F.3d 587, 589
(7th Cir. 2005). Finally, Plaintiff should keep in mind that prosecutors generally are absolutely immune from
liability under § 1983 for those activities that are “intimately associated with the judicial phase of the criminal
process,” including “initiating a prosecution.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
At bottom, the only courts that can grant the relief requested by Plaintiff in his complaint, see [1 at 15-16], are
the Illinois Circuit Court and/or the Illinois Appellate Court. To the extent that Plaintiff seeks an order to
“amend,” “vacate,” or “dismiss” any orders entered by the Cook or Kane County Circuit Courts, see Prayer for
Relief ¶¶ A and B, or any affirmative relief regarding the custodial arrangements relating to his ex-wife and son
that are the subject of state court orders relating to the dissolution of marriage and/or orders of protection, see
Prayer for Relief ¶ C, he would be well advised to file motions for reconsideration in the appropriate Circuit Court
or appeals in the Illinois Appellate Court. However, because Plaintiff’s complaint as currently pleaded does not
state a claim on which relief may be granted, the Court dismisses it without prejudice. Plaintiff’s motion to
appoint counsel [5] is denied without prejudice at this time with leave to renew if Plaintiff can state a claim that
is cognizable in federal court. Plaintiff may file an amended complaint within 30 days of the date of this order
if he believes that, consistent with the discussion above, he can state a claim upon which this Court has
jurisdiction and can grant relief.

12C10401 Bittman vs. People of the State of Illinois et al.

Page 3 of 3