Leach v. Owens et al

Filing 10

ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted and on immunity grounds. Plaintiff is ADVISED that this dismissal shall count as one of his allotted strikes under the provisions of 28 U.S.C. § 1915(g). Signed by Judge Staci M. Yandle on 2/21/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JIMMY WAYNE LEACH,
# B-85974,
Plaintiff,
vs.
EVAN OWENS,
TROY WISE,
and ADAM NAGRSKI,
Defendants.

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Case No. 16-cv-01298-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Jimmy Leach, a pretrial detainee who is currently confined at Franklin County
Jail (“Jail”), brings this civil rights action pursuant to 42 U.S.C. § 1983 and Illinois tort law
against Adam Nagrski (public defender), Evan Owens (State’s Attorney) and Troy Wise (State’s
Attorney). (Doc. 1). Plaintiff claims that all three defendants violated his rights under the
Fourth and Fourteenth Amendments when they took insufficient steps to ensure his release on
bond within 48 hours of his booking at the Jail. (Doc. 1, p. 5). He also brings a malicious
prosecution claim against the two State’s Attorneys based on the same conduct. Id. In addition,
Plaintiff claims that his public defender, Attorney Nagrski, refused to file a motion for
substitution of judge in his criminal case in violation of the Sixth Amendment. Id. Plaintiff now
seeks release from Jail and monetary damages against the defendants. (Doc. 1, p. 6).
This case is now before the Court for a preliminary review of the Complaint (Doc. 1)
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
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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.
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, 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
In the Complaint, Plaintiff alleges that he was booked into Franklin County Jail on
March 18, 2016. (Doc. 1, p. 5). He was hospitalized from March 21-29, 2016. 1 Id. While still
hospitalized and in a coma, Plaintiff was issued an “OR Bond” on March 25, 2016. Id. After
regaining consciousness, he was arrested for Case No. 16-CF-109 on March 29, 2016. Id. In
addition to the “OR Bond,” Attorney Owens notified Plaintiff that he was subject to a $100,000
bond. Id. He was denied a recognizance bond despite the fact that he violated no conditions of
the “OR Bond.” Id. Plaintiff claims that he was unlawfully held for 13 days from March 18-30,
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Plaintiff is separately pursuing a suit against Jail officials who denied him medical care at the Jail,
resulting in his hospitalization. See Leach v. Shaffer, et al., No. 16-cv-0634-JPG (S.D. Ill. 2016).
He does not seek to reassert those claims in this case.

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2016. Id. On May 25, 2016, Attorney Owens took the “OR Bond” from Plaintiff without a
hearing. Id.
Additionally, Plaintiff complains that his public defender, Attorney Nagrski, refused to
file a motion for relief on Plaintiff’s behalf to address his unlawful detention. (Doc. 1, p. 5).
Attorney Nagrski later refused to file a motion for substitution of judge in Plaintiff’s criminal
case. Id.
Based on the conduct described above, Plaintiff now asserts federal constitutional claims
under the Fourth and Fourteenth Amendments and a state law claim for malicious prosecution
against Attorneys Owens and Wise (State’s Attorneys). Id. He brings claims against Attorney
Nagrski (public defender) under the Fourth, Sixth, and Fourteenth Amendments. Id. Plaintiff
seeks release from custody and monetary damages against the defendants. (Doc. 1, p. 6).
Discussion
1.

Section 1983 or Habeas
As an initial matter, this Court must independently evaluate the substance of Plaintiff’s

claims to determine if the correct statute - in this case 42 U.S.C. § 1983 - is being invoked.
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (dismissing § 1983 claims that should have been
brought as petitions for writ of habeas corpus); Godoski v. United States, 304 F.3d 761, 763 (7th
Cir. 2002) (court must evaluate independently the substance of the claim being brought, to see if
correct statute is being invoked). Plaintiff seeks both monetary damages and release from
custody because of the defendants’ alleged violations of his federal constitutional and state law
rights. Monetary relief is available under § 1983, but release from custody is not.
To the extent Plaintiff challenges the fact of his confinement and seeks release, he should
have filed a petition for a writ of habeas corpus. “[W]hen a state prisoner is challenging the very

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fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from the imprisonment, his sole federal
remedy is a writ of habeas corpus.” Preiser, 411 U.S. at 500. This is the proper route “[i]f the
prisoner is seeking what can fairly be described as a quantum change in the level of custodywhether outright freedom, or freedom subject to the limited reporting and financial
constraints of bond or parole or probation.” Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.
1991) (emphasis added). Accordingly, Plaintiff’s present challenge to his confinement and his
related request for release will be dismissed from this action. However, the dismissal does not
preclude him from filing a separate state or federal habeas action, if he wishes to pursue this
request for relief. Before doing so, however, Plaintiff must exhaust his state court remedies,
unless he can demonstrate cause and prejudice. See 28 U.S.C. § 2254(b)(1). Plaintiff’s claims
for monetary damages against the defendants based on their alleged violations of his federal
constitutional rights and Illinois tort law remain in this action. (Doc. 1, p. 6).
2.

Claims Against Public Defender
The Complaint articulates no federal constitutional claims under § 1983 against Attorney

Nagrski, the public defender who represented Plaintiff in his criminal case (i.e., Case No. 16-CF109). “[A] public defender does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding.” Polk Co. v. Dodson,
454 U.S. 312, 325 (1981). Plaintiff’s claims against this defendant arise from two motions the
public defender declined to file on behalf of Plaintiff in his criminal proceedings. The decision
whether and when to file motions is the type of traditional function that is served by counsel in a
criminal proceeding. In this context, public defenders are not “state actors” who are amenable to
a civil suit for money damages. Id. Plaintiff cannot proceed with a federal claim under § 1983

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against a non-state actor. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Gayman v.
Principal Fin. Servs., Inc., 311 F.3d 851, 852-53 (7th Cir. 2003). Therefore, Plaintiff’s federal
constitutional claims against Attorney Nagrski for money damages shall be dismissed with
prejudice. He asserts no state law claims against this defendant.
3.

Claims Against State’s Attorney
The Complaint also fails to state a claim for monetary relief under § 1983 against

Attorneys Owens and Wise, the State’s Attorneys who played a role in decisions regarding
Plaintiff’s bond. It is well-settled law that “[i]n initiating a prosecution and in presenting the
State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” Imbler v.
Pachtman, 424 U.S. 409, 431 (1976). The Seventh Circuit has recognized that a prosecutor does
not enjoy absolute immunity in all situations. See Fields v. Wharrie, 672 F.3d 505 (7th Cir.
2012); Houston v. Partee, 978 F.2d 362 (7th Cir. 1992); Whitlock v. Brueggeman, 682 F.3d 567
(7th Cir. 2012) (suit may proceed if the alleged unconstitutional action took place after the
conviction became final). The “degree of immunity” that prosecutors are afforded “depends on
their activity in a particular case.” Anderson v. Simon, 217 F.3d 472, 475 (7th Cir. 2000).
The Seventh Circuit has explained that “[p]rosecutors are absolutely immune from
liability for damages under § 1983 for conduct that is functionally prosecutorial; this immunity is
understood to broadly cover all conduct associated with the judicial phase of the criminal
process.” Bianchi v. McQueen, 818 F.3d 309, 316 (7th Cir. 2016) (citing Van de Kamp v.
Goldstein, 555 U.S. 335, 341-43 (2009); Burns v. Reed, 500 U.S. 478, 486 (1991); Imbler, 424
U.S. at 430-31). If a prosecutor’s function is “judicial or quasi-judicial, he is entitled to absolute
immunity from suit, but if the function [i]s administrative or investigatory, he is only entitled to
qualified immunity.” Id. (citation omitted). When determining the type of immunity enjoyed by

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a prosecutor, the Seventh Circuit has instructed district courts to give Imbler a broad reading and
focus its inquiry on the nature of the function performed by the prosecutor in the particular case.
See, e.g., Spiegl v. Rabinovitz, 121 F.3d 251, 256-57 (7th Cir.) cert. denied, 118 S.Ct. 565
(1997).
The Seventh Circuit has long held that the conduct of a State’s Attorney in connection
with grand jury and bail proceedings is “intimately associated with the judicial phase of the
criminal process.” Houston, 978 F.2d at 365 (citations and internal quotation marks omitted).
See also Pinaud v. County of Suffolk, 52 F.3d 1139, 1149 (2d Cir. 1995) (“[A]ctions in
connection with a bail application are best understood as components of the initiation and
presentation of a prosecution, and therefore are protected by absolute immunity.”). Here, the
Complaint focuses entirely on conduct of the two State’s Attorneys in the bond proceedings, and
this conduct is considered judicial or quasi-judicial in nature. The State’s Attorneys are therefore
entitled to absolute immunity. Thus, Plaintiff’s claims against Attorneys Owens and Wise shall
be dismissed with prejudice on these grounds.
The federal constitutional claims against the three defendants do not survive preliminary
review under § 1915A and shall be dismissed with prejudice. In light of this fact, the Court
declines to exercise jurisdiction over the supplemental Illinois state law claim(s), and those
claim(s) shall be dismissed without prejudice from this action. See 28 U.S.C. § 1367(c)(3). See
also Bianchi, 818 F.3d at n. 7 (citing Sharp Elec. Corp. v. Metro. Life Ins. Co., 578 F.3d 505,
514 (7th Cir. 2009) (“Normally, when all federal claims are dismissed before trial, the district
court should relinquish jurisdiction over pendent state-law claims. . . .”)). This § 1983 action
shall be dismissed with prejudice. However, this dismissal in no way precludes Plaintiff from
pursuing relief under state tort law or seeking state or federal habeas relief. See Dodson, 454

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U.S. 312, n. 18 (“In addition to possible relief under state tort law, an indigent prisoner retains
the right to initiate state and federal habeas corpus proceedings. For an innocent prisoner
wrongly incarcerated as the result of ineffective or malicious counsel, this normally is the most
important form of judicial relief.”).
Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3), which is hereby
DENIED. There is no constitutional or statutory right to counsel in federal civil cases.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Johnson v. Doughty, 433 F.3d 1001,
1006 (7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1)
to recruit counsel for an indigent litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864,
866–67 (7th Cir. 2013). When a pro se litigant submits a request for assistance of counsel, the
Court must first consider whether the indigent plaintiff has made reasonable attempts to secure
counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote,
503 F.3d 647, 654 (7th Cir. 2007)). If so, the Court must examine “whether the difficulty of the
case—factually and legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The
question . . . is whether the plaintiff appears competent to litigate his own claims, given their
degree of difficulty, and this includes the tasks that normally attend litigation: evidence
gathering, preparing and responding to motions and other court filings, and trial.” Pruitt, 503
F.3d at 655. The Court also considers such factors as the plaintiff’s “literacy, communication
skills, education level, and litigation experience.” Id.
Plaintiff satisfies neither requirement. He disclosed no efforts to secure counsel on his
own before seeking the Court’s assistance in doing so. (Doc. 3, p. 1). Further, he evinces an

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ability to competently litigate this straightforward matter without the assistance of counsel,
despite the fact that his education is limited to “some college.” The Complaint is clearly drafted,
well-organized, and succinct. The Motion is therefore DENIED.
Plaintiff has also filed a Motion for Service of Process at Government Expense (Doc. 4),
which is DENIED as MOOT.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s Complaint (Doc. 1) and this action are
DISMISSED with prejudice for failure to state a claim upon which relief may be granted and on
immunity grounds. This includes his federal constitutional claims under the Fourth, Sixth,
and/or Fourteenth Amendments against Defendants EVAN OWENS, TROY WISE, and
ADAM NAGRSKI. Plaintiff’s challenge to the fact of his confinement and his request for
release from custody are more appropriately addressed in a habeas action and are therefore
DISMISSED without prejudice from this action. In addition, the Court declines to exercise
jurisdiction over the supplemental state law claims set forth in the Complaint, and the state law
claims are also DISMISSED without prejudice from this action. 28 U.S.C. § 1367(c)(3). This
Order in no way precludes Plaintiff from pursuing relief under state tort law or seeking state or
federal habeas relief. See Dodson, 454 U.S. 312, n. 18.
Plaintiff is ADVISED that this dismissal shall count as one of his allotted “strikes” under
the provisions of 28 U.S.C. § 1915(g).
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.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).

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See 28 U.S.C.

If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court
within thirty days of the entry of judgment. FED. R. APP. 4(A)(4). 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. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 72526 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at
467. Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another
“strike.” 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 judgment, and this 28-day deadline cannot
be extended.
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: February 21, 2017
s/ STACI M. YANDLE
U.S. District Judge

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