Cooper v. Macon County Court et al

Filing 16

ORDER DISMISSING CASE with prejudice. Plaintiff is assessed a strike pursuant to 28 U.S.C. § 1915(g). Signed by Chief Judge Michael J. Reagan on 1/23/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

STEVE L. COOPER,
Plaintiff,
vs.
MACON COUNTY COURT,
MACON COUNTY PROBATION
OFFICE, and
MACON COUNTY PUBLIC
DEFENDER’S OFFICE
Defendants.

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Case No. 16−cv–0916−MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Steve L. Cooper, an inmate in Taylorville Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. 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 any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (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).
Plaintiff originally filed this suit on August 15, 2016, but his Complaint failed to request
any relief. (Doc. 1). On September 30, 2016, the Court ordered Plaintiff to submit an amended
complaint including a request for relief. (Doc. 9). In lieu of filing a proper amended complaint,
Plaintiff merely submitted a single page requesting the relief of habeas corpus and $50,000.00.
(Doc. 10). The Court construed this document together with the original Complaint and screened
it pursuant to § 1915A on November 14, 2016. (Doc. 11). At that time, the Court determined
that Plaintiff had failed to state a claim because he had not associated any claims with any
defendants. (Doc. 11). The Court granted Plaintiff leave to amend, and Plaintiff filed the First
Amended Complaint on December 9, 2016. (Doc. 12).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; this action is subject to summary dismissal.
The First Amended Complaint
Plaintiff alleges that on January 4, 2013, Judge Lisa Holder White sentenced him to 2
years’ probation in Macon County Circuit Court for a domestic with a prior. (Doc. 12, p. 5). At
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that time, Judge White allegedly also terminated the term of probation that was currently serving
for aggravated domestic assault in case No. 12-cf-422. Id.
On January 13, 2015, Judge Griffith sentenced Plaintiff to his current term of
imprisonment for violating his probation in Case No. 12-cf-422, the aggravated domestic assault
case. (Doc. 12, p. 5; Doc. 12-1, p. 1). Plaintiff alleges that he was not on probation for the
charge, but rather for a domestic with a prior, and therefore his sentence was wrongful. (Doc.12,
p. 5).
Plaintiff has listed Macon County Court, Macon County Probation Office, and Macon
County Public Defender’s Office as Defendants.

(Doc. 1, p. 12).

Thomas Wheeler was

Plaintiff’s public defender who secured the two terms of probation. (Doc. 12-1, p. 1). Dennis
Steeves of Patel Law P.C. represented Plaintiff at 2015 sentencing. (Doc. 12-1, p.1 ).
The Court has reviewed the record sheet for Case No. 12-cf-422 on Macon County’s
website, and takes judicial notice of the following facts. On July 3, 2012, Plaintiff pleaded guilty
to aggravated domestic battery, and was sentenced to 24 months on probation. Record Sheet.
http://search.co.macon.il.us/cgibin/db2www/qsys.lib/wwwcgi.lib/macros.file/macon.mbr/output?Action=RS&Year=2012&Case
Type=CF&CaseSeq=000422&LitType=D &LitNum=001 (last accessed January 19, 2017). On
November 16, 2012, the state filed a Petition alleging that Plaintiff had violated his probation.
Id.

On January 4, 2013, Judge White terminated Plaintiff’s probation as unsuccessfully

completed, and re-sentenced him to an additional 24 months of probation on a charge of
aggravated domestic battery. Id. Plaintiff was again charged with violating his probation on
December 10, 2013.

Id.

On January 13, 2015, Plaintiff was sentenced to five years’

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incarceration in the Illinois Department of Corrections, followed by 4 years of supervised release
on a charge of aggravated domestic battery. Id.
Discussion
The Court will dismiss Plaintiff’s First Amended Complaint with prejudice at this time.
Plaintiff’s First Amended Complaint suffers from the same infirmities as the original, but reading
it broadly with Plaintiff’s cover letter makes it clear that Plaintiff is attempting to name
defendants that are immune from suit and that his claim is frivolous.
As an initial matter, the Court’s prior order dismissed Plaintiff’s claim for habeas relief
with prejudice. That is, the Court noted that § 1983 does not allow a plaintiff to request release
as his remedy. Heck v. Humphrey, 512 U.S. 477, 481 (1994); Preiser v. Rodriguez, 411 U.S.
475, 500 (1973) (dismissing § 1983 claims that should have been brought as petitions for writ of
habeas corpus); Lumbert v. Finley, 735 F.2d 239, 242 (7th Cir. 1984). Plaintiff has once again
requested that relief. If Plaintiff wishes to challenge the Court’s decision that § 1983 does not
support a habeas claim, the proper step is to file an appeal, not to file an amended complaint
repeating the claim. See Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002). The Court notes
that Plaintiff has actually filed a separate habeas case, No. 16-1367. That is the proper vehicle
for Plaintiff to make any claims that he should be released. A case pursuant to § 1983 is the
proper way for Plaintiff to request an award of money, as he has done here. To recap, the Court
will consider Plaintiff’s request for money damages in this suit, but his request for release must
be considered separately in case No. 16-1367.
Plaintiff also once again makes the same mistake he made in his first Complaint. That is,
he has listed three defendants in the case caption: Macon County Court, Macon County
Probation Office, and Macon County Public Defender’s Office. But his statement of claim does
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not mention a single one of the defendants listed in the case caption. Plaintiff must state what
the defendants listed in the case caption actually did in his statement of claims. As discussed
more fully in the Court’s prior Order, failure to associate specific claims against specific
defendants dooms the suit as to that defendant. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir.
1998) (“A plaintiff cannot state a claim against a defendant by including the defendant’s name in
the caption.”). Plaintiff has been previously warned about this error and not corrected it. That
alone would justify dismissing this suit with prejudice as to all defendants. But as Plaintiff is
proceeding pro-se and because he mentions some individuals in his statement of claim that
arguably may be part of at least some of the groups listed in the case caption, the Court will
continue with screening.
Based on the allegations of the First Amended Complaint, the Court finds it convenient to
divide the pro se action into 2 counts. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. All of
Plaintiff’s claims will be dismissed.
Count 1 – Judge Griffith violated Plaintiff’s due process rights when he sentenced him
to a term of imprisonment after Plaintiff violated his probation;
Count 2 – Dennis Steeves ineffectively represented Plaintiff at his sentencing hearing.

As to Count 1, the judge has absolute immunity for sentencing decisions. “A judge has
absolute immunity from damages liability for acts performed in his judicial capacity.” Stump v.
Sparkman, 435 U.S. 349, 359 (1978); Dellenbach v. Letsinger, 889 F.2d 755, 758 (7th Cir.
1989). Immunity applies, even if the judge acted in error or with malice or exceeded his
authority. Stump, 435 U.S. at 356-57. A judge is entitled to absolute immunity where 1) the acts
are within the judge’s jurisdiction and; 2) the acts are performed within the judge’s official
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capacity. Mireles v. Waco, 502 U.S. 9, 11-12 (1991); John v. Barron, 897 F.2d 1387, 1391 (7th
Cir. 1990). Even if Plaintiff had listed Judge Griffith in his case caption as the member of the
Macon County Court he was intending to sue, Plaintiff’s Complaint makes no allegations that
Judge Griffith was acting without jurisdiction or outside of his official capacity. Judge Griffith is
entitled to absolute immunity, and there is no suit that Plaintiff could bring against him based on
his sentencing decisions.
Count 2 fails because Plaintiff has not named a state actor. Plaintiff was represented by
the public defender’s office at various times during his state court proceedings and it is not clear
whether he draws a distinction between the public defender’s office and Steeves, a private
attorney who represented him at his 2015 sentencing. The Court cannot find a record that
Thomas Wheeler ever appeared for Plaintiff in the underlying state court case, as Plaintiff
alleges. But neither Wheeler nor Steeves nor any other member of the public defender’s office
can be sued under § 1983 in any event. When a plaintiff brings a § 1983 claim, he must show
that there was 1) an action taken under color of law; 2) which violates his federal constitutional
rights. Cunningham v. Southlake Ctr. for Mental Health, 924 F.2d 106, 107 (7th Cir. 1991).
Public defenders do not act under “color of law.” Polk County v. Dodson, 454 U.S. 312, 324-25
(1981); Logan v. Laterzo, 24 F. App’x 579, 581 (7th Cir. 2001). They cannot be sued under §
1983 unless a plaintiff alleges and ultimately proves that they conspired with state actors. Tower
v. Glover, 467 U.S. 914, 923-23; Logan, 24 F. App’x at 582. The same holds true for private
attorneys; they are not state actors. Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir. 1975).
Plaintiff has not alleged that Steeves, Wheeler, or anyone else from the public defender’s office
conspired with a state actor. None of the attorneys that represented Plaintiff in his state court

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proceedings can be said to have acted “under color of state law” under § 1983. They are immune
from suit under § 1983. Plaintiff’s Count 2 also must be dismissed with prejudice.
Plaintiff’s claim is also based on a false distinction.

Plaintiff alleges that he was

originally sentenced to two different terms of probation on two different charges, and that when
he was sentenced to his term of imprisonment, it was for violating a term of probation that had
already expired. But the Court’s review of the state court docket shows that Plaintiff’s second
term of probation was imposed because he violated the first term. His term of imprisonment was
imposed because he violated the second term of probation. He never completed either term of
probation successfully, and further punishment was imposed as a result. Plaintiff does not deny
that he violated the terms of his probation; he only argues that the imposition of prison time was
a mistake because the court looked at the wrong baseline offense. That is not what happened
here. Plaintiff recently filed a document, which the Court construed as a Motion to Amend,
alleging that the events here put him in double jeopardy. While the Court will deny the Motion
to Amend as discussed below, the Court emphasizes that sentencing a defendant to further
punishment because they did not comply with the terms of their probation is not double jeopardy.
Diehl v. McCash, 352 F. App’x 99, 100 (7th Cir. 2009) (finding that where probation is part of
the original sentence, changes to probationary status are construed as modifying the terms of the
original sentence, not double jeopardy). After reviewing the state court docket, the Court finds
nothing that would justify any kind of constitutional claim or relief.
Pending Motions
On January 19, 2017, Plaintiff filed a document captioned “request for relief,” which the
Court docketed as a Motion for leave to amend. The Court previously allowed Plaintiff to
amend his original complaint in this manner because Plaintiff had not included a request for
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relief with his original Complaint. That was a departure from this Court’s local rules and an
exercise of the Court’s discretion. The Court will not permit Plaintiff to continue to depart from
the local rules a second time. Plaintiff may not amend his Second Amended Complaint by filing
piecemeal amendments. (Doc. 15). The local rules require any plaintiff seeking to amend his
complaint to submit a proposed amended complaint with any changes from the prior complaint
underlined. SDLR 15.1. Plaintiff has not done that here. Additionally, the First Amended
Complaint contains a request for relief that is identical to the one presented here, likely making
this amendment moot. The Motion to Amend is DENIED. (Doc. 15).
As the Court will be dismissing this case with prejudice, Plaintiff’s Motion for Counsel is
DENIED as MOOT. (Doc. 13).
Disposition
As Plaintiff has attempted to bring suit against defendants who are immune and because
his claims are frivolous, this action is DISMISSED with prejudice. Plaintiff’s Motion to
Amend the Complaint is DENIED. (Doc. 15). Plaintiff’s Motion for Counsel is DENIED as
MOOT. (Doc. 13). Plaintiff is assessed a strike pursuant to 28 U.S.C. § 1915(g).
If Plaintiff wishes to appeal, his notice of appeal must be filed with this Court within
thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for leave to appeal in
forma pauperis should set forth the issues Plaintiff plans to present on appeal. See FED. R. APP.
P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $505.00 appellate
filing fee irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C.
§ 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181
F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another “strike.”
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A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the
30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than
twenty-eight (28) days after the entry of the judgment, and this 28-day deadline cannot be
extended.
IT IS SO ORDERED.

DATED: 1/23/2017

s/ MICHAEL J. REAGAN
U.S. District Judge

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