Bowlby v. Saline County Sheriff's Dept.

Filing 5

IT IS HEREBY ORDERED that the complaint (Doc. 1) is DISMISSED without prejudice. This dismissal shall not count as one of Bowlby's allotted strikes under the provisions of 28 U.S.C. § 1915(g). IT IS FURTHER ORDERED that on or before Augu st 29, 2014, Plaintiff Bowlby shall file an amended complaint. Any amended complaint will be subject to review pursuant to 28 U.S.C. § 1915A. Plaintiff is ADVISED that if no amended complaint is filed, final judgment will be entered, and this case will be closed. (Amended Pleadings due by 8/29/2014). Signed by Judge Nancy J. Rosenstengel on 7/25/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN K. BOWLBY,
No. B88543,
Plaintiff,
vs.
SALINE COUNTY SHERIFF’S DEPT.,
Defendant.

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Case No. 14-cv-00773-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Brian K. Bowlby, an inmate in Lawrence Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff complains
that he was wrongfully indicted, arrested, and convicted of 18 counts of predatory criminal
sexual assault of a child and one count of criminal sexual abuse. According to the complaint,
Bowlby’s direct appeal is still pending. He seeks monetary damages from the Saline County
Sheriff’s Department.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, 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.

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An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must
cross “the line between possibility and plausibility. Id. at 557.

At this juncture, the factual

allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The complaint contains 19 virtually identical counts, all premised upon the
aforementioned assertion that Bowlby was wrongfully indicted, arrested, and convicted.
However, the role of the Saline County Sheriff’s Department is not explained. It appears that
Plaintiff mistakenly believes that the county grand jury, the State’s Attorney, and the Centralia
Police Department, perhaps even the Circuit Court for Saline County, are all part and parcel of
the Saline County Sheriff’s Department.
Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus, “to be liable under [Section] 1983, an individual defendant must have caused or
participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810
(7th Cir. 2005) (citations omitted). A unit of local government, like a Sheriff’s Department or
County Correctional Center, may be liable for its official policies and customs. See Monell v.
Department of Soc. Servs., 436 U.S. 658, 694 (1978); Estate of Sims ex rel. Sims v. County of
Bureau, 506 F.3d 509, 514-15 (7th Cir. 2007). However, merely naming a defendant in the
caption is insufficient to state a claim. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998).

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Although the aforementioned pleading deficiencies could be cured in an amended
complaint, Section 1983 claims that, if correct, would necessarily imply the invalidity of
Bowlby’s criminal convictions, cannot be brought until those convictions have been set aside.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Case v. Milewski, 327 F.3d 564, 568-69 (7th
Cir. 2003). Because Bowlby’s direct appeal is pending, his general, overarching claim that he
was wrongfully indicted, arrested, and convicted is barred under the Heck doctrine.
For these reasons, the complaint will be dismissed. Because the complaint is so vague, it
is conceivable that a claim could be pleaded that would not be barred by the Heck doctrine.
Plaintiff, therefore, will be given an opportunity to file an amended complaint.
IT IS HEREBY ORDERED that the complaint (Doc. 1) is DISMISSED without
prejudice. This dismissal shall not count as one of Bowlby’s allotted “strikes” under the
provisions of 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that on or before August 29, 2014, Plaintiff Bowlby shall
file an amended complaint. Any amended complaint will be subject to review pursuant to 28
U.S.C. § 1915A.
Plaintiff is ADVISED that if no amended complaint is filed, final judgment will be
entered, and this case will be closed. In any event, the obligation to pay the filing fee was
incurred when the complaint was filed. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d
464, 467 (7th Cir. 1998).
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

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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: July 25, 2014
Digitally signed by Nancy J
Rosenstengel
Date: 2014.07.25 10:25:45 -05'00'

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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