Beatty v. Arnett et al

Filing 6

ORDER DISMISSING CASE with prejudice for failing to state a claim upon which relief can be granted under the applicable statute of limitations. This dismissal shall count as one of Plaintiff's allotted strikes under 28 U.S.C. § 1915(g). Signed by Chief Judge Michael J. Reagan on 10/7/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CURTIS BEATTY,
Plaintiff,
vs.
JOHN ARNETT, and
WRIGHT INDUSTRIES,
Defendants.

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Case No. 14-cv-00965-MJR-PMF

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff Curtis Beatty, who is currently incarcerated at Big Muddy River Correctional
Center brings suit, pursuant to 42 U.S.C. § 1983 for injuries sustained in a December 31, 2009,
automobile accident. Plaintiff was rear-ended by a pickup truck owned by Defendant Wright
Industries and driven by Defendant John Arnett. Arnett was driving on a suspended license.
Plaintiff contends that he remains in excruciating pain to this day. He seeks $10 million in
compensatory damages.
Plaintiff is proceeding pro se. He seeks pauper status under 28 U.S.C. § 1915 (Doc. 2),
and requests service of process at government expense (Doc. 4). Plaintiff also asks the Court to
recruit counsel to represent him in this case (Doc. 3).
As a preliminary matter, Plaintiff qualifies as a “prisoner” for purposes of 28 U.S.C. §
1915, relative to his motion for leave to proceed in forma pauperis. The Court finds that
Plaintiff, who has $1.59 balance in his prison trust fund account and no other reported income or
other assets, is indigent and unable to pay the filing fee or cost of service of summons and the
complaint. However, that does not end the Court’s preliminary inquiry.
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The complaint must undergo a preliminary review pursuant to 28 U.S.C. § 1915(e)(2)(B),
which requires dismissal of any portion of the complaint that is frivolous, malicious, or fails to
state a claim on which relief may be granted, or which seeks monetary relief from a defendant
who is immune from such relief. 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). 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).
First, Plaintiff has brought suit pursuant to 42 U.S.C. § 1983. “Section 1983 creates a
federal remedy against anyone who, under color of state law, deprives ‘any citizen of the United
States ... of any rights, privileges, or immunities secured by the Constitution and laws.’ ”
Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dept. Health, 699 F.3d
962, 972 (7th Cir. 2012) (quoting 42 U.S.C. § 1983).

There is nothing to suggest that

Defendants Arnett and Wright Industries are state actors or that they were acting under state law.
Rather, this appears to be a negligence action between private citizens.

Dismissal of the

complaint is warranted on that basis alone.
Moreover, even if the pro se complaint were construed as a negligence action under
Illinois law, and the Court had diversity jurisdiction (which is not clear), the case could not
proceed. The complaint reveals that Plaintiff previously brought suit in the Circuit Court in
Madison County, Illinois, in 2009. His case was dismissed without prejudice on July 12, 2013,
after Plaintiff’s attorney of record was permitted to withdraw (see Doc. 1, pp. 2, 5, 8-11).
Planitiff apparently moved to reinstate his case, to no avail (see Doc. 1, pp. 12-13 (motion to
reinstate)). Although the particular circumstances of the dismissal are not known, under Illinois
law an action that is dismissed without prejudice can be refiled within one year, or within the

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time remaining under the applicable statute of limitations, whichever is longer. See 735 ILCS
5/13-217. Under either calculation this action is untimely.
Plaintiff’s state case was dismissed without prejudice on July 12, 2013 (see Doc. 1, p. 2).
This present action was not filed until September 4, 2014—more than one year later. The statute
of limitations period for bringing suit in a personal injury case such as this is two years after the
cause of action accrued. See 735 ILCS 5/13-202. The accident at issue occurred on December
31, 2009, almost five years ago. Consequently, it would be futile to dismiss the complaint
without prejudice to allow Plaintiff to properly plead a negligence or personal injury claim and
assert diversity jurisdiction.

Under these circumstances, the action will be dismissed with

prejudice. This dismissal shall count as one of Plaintiff’s allotted “strikes” under 28 U.S.C. §
1915(g).
Having concluded that dismissal under Section 1915(e)(2)(B) is warranted, Plaintiff’s
motion for leave to proceed in forma pauperis (Doc. 2) must 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
remains due and payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998). Plaintiff, who is in prison, must pay the $400 filing fee under the procedures
outlined in Newlin v. Helman, 123 F.3d 429 (7th Cir. 1997). A separate order will issue directing
funds be withdrawn from Plaintiff’s prison trust fund account.
Because this action is being dismissed with prejudice, Plaintiff’s motion for service of
process at government expense (Doc. 4) and motion for recruitment of counsel (Doc. 3) are now
moot.

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Disposition
IT IS HEREBY ORDERED that, for the reasons stated, this action is DISMISSED
with prejudice for failing to state a claim upon which relief can be granted under the applicable
statute of limitations. This dismissal shall count as one of Plaintiff’s allotted “strikes” under 28
U.S.C. § 1915(g). Judgment shall enter accordingly.
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Doc. 2) is DENIED. A separate order shall issue directing that the $400 filing fee be
collected from Plaintiff’s prison trust fund account pursuant to Newlin v. Helman, 123 F.3d 429
(7th Cir. 1997).
IT IS FURTHER ORDERED that Plaintiff’s motion for service of process at
government expense (Doc. 4) and motion for recruitment of counsel (Doc. 3) are DENIED AS
MOOT.
IT IS SO ORDERED.
DATED: October 7, 2014
s/ Michael J. Reagan
MICHAEL J. REAGAN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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