Cooper v. Russell et al

Filing 5

IT IS ORDERED that Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2 ) is DENIED, Plaintiff's motion for recruitment of counsel (Doc. 3 ) is DENIED, and the complaint (Doc. 1 ) is DISMISSED without prejudice. IT IS FURTHE R ORDERED that, pursuant to 28 U.S.C. § 1915(g), Plaintiff SHALL PAY the full filing fee of $350.00 for this action. Leave to amend the complaint is GRANTED. Plaintiff SHALL FILE an amended complaint within thirty (30) days of the date of entry of this Order, on or before May 2, 2013. (Action due by 5/2/2013). Signed by Judge Michael J. Reagan on 4/1/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDY L. COOPER, No. C63527,
Plaintiff,
vs.
ERIC RUSSELL,
RONALD K. ATCHISON, and
RANDY S. VALDEZ,
Defendants.

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CIVIL NO. 13-cv-00221-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Andy L. Cooper, an inmate in Big Muddy River Correctional Center,
brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.
Plaintiff is a civilly committed sexually dangerous person, serving an indefinite sentence. This
case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C.
§ 1915A 1, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.

1

Section 1915A is part of Prison Litigation Reform Act of 1996 (“PLRA”), Pub.L. 104-134,
Title VIII, 110 Stat. 1321, which is equally applicable to civilly committed sex offenders.
Kalinowski v. Bond, 358 F.3d 978, 978-79 (7th Cir. 2004).
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Plaintiff has moved to proceed in forma pauperis (Doc. 2) The PLRA provides:
“In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section [proceedings in forma
pauperis] if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical
injury.”
28 U.S.C. § 1915(g).
Prior to filing this action, Plaintiff had “struck out” by having more than three
lawsuits dismissed as frivolous, malicious, or for failure to state a claim: Cooper v. McNamarra,
No. 93-cv-904-JLF (S.D.Ill. dismissed as frivolous Feb. 16, 1995); Cooper v. Hall, No. 94-cv0010-JLF (S.D.Ill. dismissed as frivolous Mar. 16, 1995); and Cooper v. Reinhard, No. 96-cv50293 (N.D.Ill. dismissed with a strike Dec. 23, 1996). Consequently, this Court must determine
whether Plaintiff is “under imminent danger of serious physical injury,” such that this action
should be allowed to proceed without full pre-payment of the filing fee, despite the fact that
Plaintiff has “struck out.”
The United States Court of Appeals for the Seventh Circuit has explained that
“imminent danger” within the meaning of 28 U.S.C. § 1915(g) requires a “real and proximate”
threat of serious physical injury to a prisoner. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.
2003) (citing Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)). In general, courts “deny
leave to proceed IFP when a prisoner’s claims of imminent danger are conclusory or ridiculous.”
Id. at 331 (citing Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003)). Additionally,
“[a]llegations of past harm do not suffice” to show imminent danger; rather, “the harm must be
imminent or occurring at the time the complaint is filed,” and when prisoners “allege only a past

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injury that has not recurred, courts deny them leave to proceed IFP.” Id. at 330 (citing AbdulWadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).
From what little of the complaint the Court can decipher, Plaintiff is not “under imminent
danger of serious physical injury.” Plaintiff appears to be claiming that his personal property
was stolen, and that he is harassed and treated unfairly by prison staff. At worst, Plaintiff claims
aspirin for his heart regimen, support hose and hemorrhoid ointment were stolen—meaning that
Plaintiff had to purchase those items anew with his own funds. 2 Plaintiff makes no allegations of
imminent harm from not having those items. Therefore, he does not qualify to proceed IFP and
he must pay the full $350.00 filing fee before this case may proceed. Therefore, Plaintiff’s
motion for pauper status (Doc. 3) shall be denied. Plaintiff’s obligation to pay the filing fee for
this action was incurred at the time the action was filed, thus the filing fee of $350.00 remains
due and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th
Cir.1998).
Consistent with Section 1915A, and in the interest of judicial economy, the Court
will address a second hurdle Plaintiff must overcome: the inadequacy of the complaint itself. If
Plaintiff opts to pay the filing fee and proceed, he must also submit an amended complaint
2

Plaintiff’s claim regarding stolen property conceivably implicates Plaintiff's right under the
Fourteenth Amendment to be free from deprivations of his property by state actors without due
process of law. However, if the state provides an adequate remedy, Plaintiff has no civil rights
claim. Hudson v. Palmer, 468 U.S. 517, 530–36 (1984) (availability of damages remedy in state
claims court is an adequate post-deprivation remedy). The Seventh Circuit has found that Illinois
provides an adequate post-deprivation remedy in an action for damages in the Illinois Court of
Claims. Murdock v. Washington, 193 F.3d 510, 513 (7th Cir.1999); Stewart v. McGinnis, 5 F.3d
1031, 1036 (7th Cir.1993); 705 ILL. COMP. STAT. 505/8.

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because the original complaint is virtually indecipherable. The Court cannot discern new claims
from historic claims (see Doc. 1, pp. 4-6), or “who did what to whom, and when.”
Federal Rule of Civil Procedure 8(a)(2) requires a “short and plain statement of
the claim showing that the pleader is entitled to relief.” In addition, Rule 8(e)(1)1 states that
“[e]ach averment of a pleading shall be simple, concise, and direct.” The primary purpose of
these provisions is rooted in fair notice: Under Rule 8, a complaint “‘must be presented with
intelligibility sufficient for a court or opposing party to understand whether a valid claim is
alleged and if so what it is.’” Wade v. Hopper, 993 F.2d 1246, 1249 (7th Cir.) (citations omitted),
cert. denied, 510 U.S. 868 (1993). See also Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d
771, 775-76 (7th Cir. 1994); Conley v. Gibson, 355 U.S. 41, 48 (1957); Dausch v. Rykse, 52 F.3d
1425, 1430 (7th Cir.1994); Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir. 1990). Therefore,
the complaint (Doc. 1) shall be dismissed without prejudice, and with leave to amend.
Lastly, in light of the complaints shortcomings, the Court will consider Plaintiff’s
motion for appointment of counsel (Doc. 2). Plaintiff submits documentation reflecting that his
attempts to secure counsel have been fruitless. He indicates that he has “some college,” but also
that he has “brain disease.” Plaintiff does not have an absolute right to court-appointed counsel
in his civil suit. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010) (citing Pruitt v. Mote,
503 F.3d 647, 655 (7th Cir. 2007) (en banc)). See also Johnson v. Doughty, 433 F.3d 1001, 1006
(7th Cir. 2006). However, pursuant to 28 U.S.C. § 1915(e)(1), the Court “may request an
attorney to represent any person unable to afford counsel.” In determining whether to make such
a request, the Court must consider: (1) whether Plaintiff has made a reasonable attempt to obtain
counsel or been effectively precluded from doing so (which he has); and if so, (2) given the
difficulty of the case, whether Plaintiff appears competent to litigate the case himself. Pruitt v.

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Mote, 503 F.3d 647, 654 (7th Cir. 2007) (citing Farmer v. Haas, 990 F.2d 319, 321–22 (7th Cir.
1993)). Although Plaintiff does not detail the impact of his “brain disease,” his pleadings
suggests that he is capable of drafting a viable complaint, and fully litigating the relatively
simplistic claims suggested in the original complaint. Plaintiff’s principal problem appears to be
organization of his arguments and failing to adhere to the format of the civil rights complaint
form (which, while not required, would likely prevent a muddled complaint). Therefore, at this
time Plaintiff’s motion for recruitment of counsel (Doc. 3) will be denied.
IT IS THEREFORE ORDERED, for the reasons stated:
1. Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) is
DENIED;
2. Plaintiff’s motion for recruitment of counsel (Doc. 3) is DENIED; and
3. The complaint (Doc. 1) is DISMISSED without prejudice.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(g), Plaintiff
SHALL PAY the full filing fee of $350.00 for this action. Leave to amend the complaint is
GRANTED. Plaintiff SHALL FILE an amended complaint within thirty (30) days of the date
of entry of this Order, on or before May 2, 2013.
It is strongly recommended that Plaintiff use the form designed for use in this
District for such actions. To enable Plaintiff to comply with this order, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form and instructions. The “First Amended
Complaint” shall present each claim in a separate count, and each count shall specify, by name,
each Defendant alleged to be liable under the count, as well as the actions alleged to have been
taken by that Defendant.

Plaintiff should attempt to include the facts of his case in

chronological order, inserting Defendants’ names where necessary to identify the actors.
Plaintiff is ADVISED to include only related claims in his new complaint. Claims found to be
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unrelated will be severed into new cases, new case numbers will be assigned, and additional
filing fees will be assessed. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see generally
FED. R. CIV. P. 20(a)(2). In addition, at this stage of the litigation, exhibits and affidavits from
third parties are unnecessary. See FED. R. CIV. P. 26-37. Therefore, Plaintiff should refrain
from filing unnecessary exhibits or affidavits with the First Amended Complaint.
Plaintiff is ADVISED that if he fails to file a First Amended Complaint by the
prescribed deadline and in strict compliance with this Order, this case will be closed pursuant to
Federal Rule of Civil Procedure 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th
Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994).
Plaintiff is ADVISED that, because his obligation to pay the $350.00 filing fee
for this action was incurred at the time the action was filed, if he elects not to proceed with this
action, he still must pay the filing fee within 30 days from the date of this Order. If Plaintiff fails
to pay the fee by the deadline, Plaintiff will likely be barred from filing any new papers in this
Court until such time as he has paid to the Clerk of Court the full filing fee for this action. See
Ammons v. Gerlinger, 547 F.3d 724, 726 (7th Cir. 2008) (citing Newlin v. Helman, 123 F.3d 429,
436–37 (7th Cir.1997)); United States ex rel. Ferdone v. Circuit Ct. for Taylor County, 73 F.3d
669, 674–75 (7th Cir. 1995); Support Sys. Int'l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1985).
Furthermore, failure to timely pay the full filing fee will likely result in the Court ordering the
prison to make deductions from Plaintiff’s prison trust fund account, pursuant to Newlin v.
Helman, 123 F.3d 429 434 (7th Cir.1997).
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

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days after a transfer or other change in address occurs. Failure to comply with this order will
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: April 1, 2013
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE

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