Mosley v. Davis et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams, granting 3 PETITION TO PROCEED IN FORMA PAUPERIS filed by James C Mosley, Sr. Signed by Judge Michael J. Reagan on 7/29/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES C. MOSLEY, SR., # B-50254,
Plaintiff,
vs.
RANDY DAVIS,
BETH CAMPBELL,
and S.A. GODINEZ,
Defendants.

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Case No. 14-cv-775-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
On July 8, 2014, Plaintiff James C. Mosley, Sr., filed suit under 42 U.S.C. § 1983,
alleging violations of his federally secured constitutional rights. 1 Specifically, he states that his
rights to due process and equal protection under the law were violated when Defendants refused
to give him credit against his prison sentence for time he had served in pre-trial detention, as
specified in his negotiated guilty plea and the order of the sentencing court. Further, he suffered
injuries from an attack on him while he was confined at Vienna Correctional Center (“Vienna”).
Now before the Court is Plaintiff’s motion to proceed in forma pauperis (“IFP”),
i.e., without prepaying the filing fee (Doc. 2). At the time of filing the complaint, Plaintiff had
been released from Illinois Department of Corrections custody, and was housed in a personal
residence (see Doc. 2). As such, Plaintiff does not meet the statutory definition of prisoner 2 for
Plaintiff initially filed suit in the Central District of Illinois, Case No. 14-cv-02163. The case was
transferred to this District Court on July 9, 2014, after it was determined that the events giving rise to the
claims occurred at Vienna Correctional Center, which is located in the Southern District (d/e of 7/9/14).
1

The determination of a plaintiff’s status as a prisoner or non-prisoner, and thus the applicability of the
Prison Litigation Reform Act (PLRA) must be made as of the date the lawsuit is brought. Kerr v.
2

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purposes of the in forma pauperis statute, which states that “[t]he term ‘prisoner’ means any
person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h).
Under 28 U.S.C. § 1915(a)(1), a federal district court may allow a civil case to
proceed without prepayment of fees, if the movant “submits an affidavit that includes a statement
of all assets [he] possesses [showing] that the person is unable to pay such fees or give security
therefor.” Plaintiff has done so in the instant case. But the Court’s inquiry does not end there,
because 28 U.S.C. § 1915(e)(2) requires careful threshold scrutiny of the complaint filed by an
IFP plaintiff.
A court can deny a qualified plaintiff leave to file IFP or can dismiss a case if
the action is clearly frivolous or malicious, fails to state a claim or is a claim for money
damages against an immune Defendant. 28 U.S.C. § 1915(e)(2)(B). The test for determining
if an action is frivolous or without merit is whether the plaintiff can make a rational argument
on the law or facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983). An action fails to state a claim 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). When assessing a petition to proceed
IFP, a district court should inquire into the merits of the petitioner’s claims, and if the court
finds them to be frivolous, it should deny leave to proceed IFP. Lucien v. Roegner, 682 F.2d
625, 626 (7th Cir. 1982).

Puckett, 138 F.3d 321, 323 (7th Cir. 1998). Although Plaintiff has been released, his prisoner
identification number is included for reference, for the convenience of the Court and Defendants.
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The Complaint
Plaintiff alleges that on December 30, 2010, he entered into a negotiated guilty
plea to one count of unlawful possession of a controlled substance, and one count of unlawful
delivery of a controlled substance (Doc. 1, p. 5). Plaintiff claims he was sentenced to four
years on the possession charge and six years on the delivery count, with the terms to be served
consecutively. The judge ordered that Plaintiff would receive 306 days of credit for pre-trial
detention against the 4-year possession charge, and another 1,179 days of credit for time served
against the 6-year delivery count. The crux of Plaintiff’s claim is that he was never given the
306-day credit, and was instead required to serve that time before his eventual release. 3
In March 2012, Plaintiff filed a post-conviction petition seeking to have the 306
days applied to his sentence. His appeal of the circuit court’s denial of relief was ultimately
dismissed as moot after Plaintiff was released. 4
Plaintiff also explained to the Records Office at Vienna Correctional Center
(where Defendant Campbell is the records supervisor and Defendant Davis is the Warden) that
prison officials were not properly applying the Illinois statute governing consecutive sentences
and the application of sentence credit (Doc. 1, pp. 6-7). However, they would not give him
credit for the 306 days.
Finally, Plaintiff complains that while he was improperly held beyond what
should have been his release date, he was attacked (presumably by a fellow inmate). He suffered
a broken ankle that required emergency surgery and the placement of rods and screws in his leg
(Doc. 1, p. 7). He claims this would never have happened if he had been given credit for the 306
According to the website of the Illinois Department of Corrections, Plaintiff was paroled on September
21, 2012. Http://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (Last visited July 28, 2014).

3

4

People v. Mosley, No. 4-12-0545, 2013 WL 5827645 (Ill. App. Oct. 28, 2013).
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days of pre-trial detention and released at the correct time in accordance with the court’s
judgment and commitment order.
Plaintiff seeks compensation both for the excessive incarceration and for the
personal injuries he suffered as a result of the attack (Doc. 1, p. 8).
Discussion
For the convenience of the Court, Plaintiff’s claims shall be designated as
follows:
Count 1: Due process claim against Defendants Davis, Campbell, and Godinez
for keeping him in prison for 306 days longer than he should have been required
to serve, in violation of his plea agreement and the order of the sentencing court;
Count 2: Personal injury/negligence claim against Defendants for the injuries he
suffered in an attack on him in Vienna Correctional Center, at a time when
Plaintiff should not have been incarcerated had he been given proper sentence
credit.
Count 1 above survives review under § 1915(e)(2), and shall proceed for further
consideration. A wrongfully lengthened sentence does implicate a liberty interest. Plaintiff’s
claim is not a challenge to his state court conviction, and thus does not run afoul of Heck v.
Humphrey, 512 U.S. 477, 489 (1994). Instead, his claim is “an argument that the prison system
failed to implement the state courts’ decisions and thus defendants have deprived him of liberty
without due process of law.” Bey v. Schwartz, No. 12-1373, Doc. 00711806143, (7th Cir. May
29, 2012); Southern District of Illinois Case No. 11-cv-951-GPM (Doc. 29-1). Plaintiff’s due
process claim shall therefore proceed. However, his equal protection claim, which is based on
the same factual allegations, is redundant to the due process claim and need not be considered
further. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (dismissing equal protection and
Eighth Amendment claims based on same circumstances as free exercise claim because free
exercise claim “gains nothing by attracting additional constitutional labels”); Williams v. Snyder,
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150 F. App’x 549, 552-53 (7th Cir. 2005) (dismissing equal protection, access to courts, due
process, and Eighth Amendment claims as duplicative of retaliation and freedom of religion
claims).
Count 2 of the complaint shall be dismissed pursuant to 28 U.S.C. § 1915(e)(2)
for failure to state a constitutional claim upon which relief may be granted. Nothing in the
complaint remotely suggests that any of the Defendants failed to protect Plaintiff from a known
risk to his safety. To be liable under § 1983 for an Eighth Amendment violation, Defendants had
to know that there was a substantial risk that those who attacked Plaintiff would do so, yet failed
to take any action. See Sanville v. McCaughtry, 266 F.3d 724, 733-34 (7th Cir. 2001). Conduct
that amounts to negligence or inadvertence is not enough to state a claim. Pinkston v. Madry,
440 F.3d 879, 889 (7th Cir. 2006) (discussing Watts v. Laurent, 774 F.2d 168, 172 (7th Cir.
1985)). Thus, Plaintiff fails to state a claim against Defendants for subjecting him to physical
harm in violation of his civil rights.
Instead, he apparently seeks to hold Defendants liable for the injuries he suffered
based on negligence or some other theory sounding in tort. Negligence will never amount to a
civil rights violation. Daniels v. Williams, 474 U.S. 327, 328 (1986) (“[T]he Due Process Clause
is simply not implicated by a negligent act of an official causing unintended loss of or injury to
life, liberty, or property.”); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir. 1995). Moreover, the
Illinois Court of Claims has exclusive jurisdiction over claims against the state (or an agency
administrator such as Defendant Godinez in his official capacity) sounding in tort. 705 ILL.
COMP. STAT. 505/8(d). Accordingly, Count 2 shall be dismissed without prejudice to Plaintiff
bringing his claim in the proper forum, should he wish to do so.

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Pending Motions
Plaintiff’s sworn IFP motion establishes that he is indigent for purposes of IFP
review. Count 1 states a cognizable constitutional claim. The named Defendants are not
immune from relief.

Accordingly, Plaintiff’s motion (Doc. 4) for leave to proceed IFP is

GRANTED. Plaintiff will be allowed to proceed in the action without payment of any fees. See
28 U.S.C. § 1915(a)(1); Haynes v. Scott, 116 F.3d 137, 140 (5th Cir. 1997) (fee requirement of
§ 1915(a)(1) and (b) applies only to prisoners; non-prisoners granted leave to proceed in forma
pauperis are not responsible for paying filing fee at all).
Plaintiff’s motion for recruitment of counsel (Doc. 4) shall be referred to the
United States Magistrate Judge for further consideration.
Disposition
COUNT 2 of the action is DISMISSED without prejudice for failure to state a
constitutional claim upon which relief may be granted.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants DAVIS,
CAMPBELL, and GODINEZ (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 each
Defendant’s place of employment as identified by Plaintiff. If a 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 that
Defendant, and the Court will require that Defendant to pay the full costs of formal service, to
the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address

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provided by Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work
address, or, if not known, the 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 Defendants (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 Defendants 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.
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, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 4).
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment
of costs under § 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).

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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
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 29, 2014
s/ MICHAEL J. REAGAN
United States District Judge

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