Young v. Epplin

Filing 11

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. The Clerk of Court shall prepare for Defendant EPPLIN: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge Michael J. Reagan on 8/17/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS J. YOUNG,
Plaintiff,
vs.
KELLY J. EPPLIN,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 11-CV-0709-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Thomas J. Young, currently incarcerated at Pinckneyville Correctional
Center, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims
that Defendant Kelly J. Epplin, the court reporter who transcribed his criminal trial in the state
Circuit Court, 20th Judicial Circuit, Randolph County, Illinois (People v. Thomas J. Young, 2008CF-132), deliberately filed an inaccurate, incomplete transcript and has refused to release the
electronic recordings of trial.

Plaintiff asserts that Defendant has denied him due process in

violation of the Fourteenth Amendment by filing an inaccurate transcript, regardless of whether
an accurate transcript (or release of any tape recordings) would ultimately overturn his
conviction and sentence.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold
review of the complaint. Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff
has articulated a colorable federal cause of action against Defendant Epplin. A claim that a court
reporter deliberately altered a transcript is actionable under Section 1983. See Loubser v.
Thacker, 440 F.3d 439 (7th Cir. 2006). Although Heck v. Humphrey, 512 U.S. 477 (1994),
dictates that arguments that attack the validity of a conviction cannot be advanced under Section
1

1983 unless the conviction has been invalidated, Heck is not jurisdictional. Polzin v. Gage, 636
F.3d 834, 837(7th Cir. 2010). Therefore, this action shall proceed.
The Clerk of Court shall prepare for Defendant EPPLIN: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and this
Memorandum and Order to Defendant’s place of employment as identified by Plaintiff. If
Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk
within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect
formal service on Defendant, and the Court will require Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
If Defendant no longer can be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with Defendant’s current work address, or, if not known,
Defendant’s last-known address. This information shall be used only for sending the forms as
directed above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the court file or
disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance
is entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendant or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.

2

Defendants are ORDERED to timely file an appropriate responsive pleading to
the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge
Stephen C. Williams for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), should all the parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under Section 1915, Plaintiff will be required to pay the full amount of the costs,
notwithstanding that his application to proceed in forma pauperis has been granted. See 28
U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. §
1915 for leave to commence this civil action without being required to prepay fees and costs or
give security for the same, the applicant and his or her attorney were deemed to have entered into
a stipulation that the recovery, if any, secured in the action shall be paid to the Clerk of the
Court, who shall pay therefrom all unpaid costs taxed against plaintiff and remit the balance to
plaintiff. Local Rule 3.1(c)(1)
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will

3

cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 17, 2012
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

4