Webb v. Murphysboro Police Department

Filing 11

IT IS HEREBY ORDERED that Defendant MURPHYSBORO POLICE DEPARTMENT is DISMISSED with prejudice. As Plaintiff has named no other defendants, the Complaint is DISMISSED without prejudice. Plaintiff is GRANTED leave to file a First Amended Complaint on or before May 17, 2017. Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. (Amended Pleadings due by 5/17/2017). Signed by Judge J. Phil Gilbert on 4/18/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES WEBB,
Plaintiff,
vs.
MURPHYSBORO POLICE
DEPARTMENT,

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Case No. 16-cv-1337-JPG

Defendant.

MEMORANDUM AND ORDER
GILBERT, District Judge:
At the time of filing, Plaintiff James Webb was an inmate in Jackson County Jail.
However, Plaintiff presently resides at the Alton Mental Health Center. Plaintiff brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff’s claim
relates to an incident involving the Murphysboro Police Department in 2014, before Plaintiff was
an inmate in Jackson County Jail. Plaintiff seeks removal from probation, disability, and a
“substantial amount of money” for pain and suffering in relation to his claim.
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).
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 Complaint
Plaintiff’s statement of claim consists of the following three sentences:

“In 2014,

Murphysboro IL, the Murphysboro Police came to my residence and thought I was breaking in.
They then tazed me 4 times, one being in the back of my head, which caused me to start fighting
for my life. I accidentally left my keys in the house and went [through] a window to get in. I had
a lease to show that me and Jennifer Maddox lived there.” (Doc. 1, p. 6).
Discussion
The Court finds it convenient to divide the pro se action into a single count. The parties
and the Court will use this designation in all future pleadings and orders, unless otherwise
directed by a judicial officer of this Court. Any other claim that is mentioned in the Complaint
but not addressed in this Order should be considered dismissed without prejudice as inadequately
pled under the Twombly pleading standard.

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Count 1 –

Excessive force claim against the Murphysboro Police Department
for tazing Plaintiff in 2014 when he was locked out of his house.

Plaintiff’s action will be dismissed without prejudice at this time because Plaintiff has
failed to name a proper defendant. The only defendant Plaintiff has named in the case caption is
“Murphysboro Police Department” (Doc. 1, p. 1). However, a police department is not a suable
entity apart from the city which operates it. See West By and Through Norris v. Waymire, 114
F.3d 646, 646–47 (7th Cir. 1997). Further, a municipality may only be sued in a civil rights
action if the constitutional deprivations were the result of an official policy, custom, or practice
of the municipality.

Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); see also

Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 765 (7th Cir.2006).
In order to proceed, Plaintiff either must sue an appropriate legal entity, see Monell v.
Department of Social Services, 436 U.S. 658, 690 (1978), or an individual or individuals who
“caused or participated in alleged constitutional deprivation.” Wolf–Lillie v. Sonquist, 699 F.2d
864, 869 (7th Cir. 1983). Therefore, the Murphysboro Police Department will be dismissed with
prejudice as a defendant. Plaintiff will be granted leave, however, to amend his Complaint to
name a proper defendant.
As a final note, the Court warns Plaintiff that his amended complaint must allege facts
sufficient to support a claim for excessive force against each named defendant. With respect to
an individual or individuals, Plaintiff must allege facts sufficient to show personal involvement
in the alleged excessive force claim.

Absent sufficient factual allegations, Plaintiff’s First

Amended Complaint will be subject to dismissal for failure to state a claim.

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Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3). The dismissal of the
complaint without prejudice raises the question of whether Plaintiff is capable of drafting a
viable amended complaint without the assistance of counsel.
Plaintiff’s Motion states that he has a grade school education and has difficulty
understanding the law. In addition, Plaintiff’s Motion indicates that he has contacted a single
law office in an attempt to obtain legal representation - the Land of Lincoln. Plaintiff’s request
was 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); see also 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

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considers such factors as the plaintiff's “literacy, communication skills, education level, and
litigation experience.” Id.
The single attached rejection letter from the Land of Lincoln indicates that Plaintiff made
only a perfunctory effort to obtain counsel on his own. Plaintiff does not describe any other
efforts he has made to seek legal representation. As to his educational level and other factors, he
states that he has completed grade school only, and that he has difficulty understanding the law.
Despite Plaintiff's educational disadvantages, the Court finds that the recruitment of counsel is
not warranted at this stage of the litigation. At this juncture, the Court is merely concerned with
whether this action can get out of the gate, so to speak. All that is required is for Plaintiff to
provide an amended complaint that includes sufficient factual content regarding the alleged
excessive force incident and to name an appropriate defendant. Plaintiff alone has knowledge of
these facts, and no legal training or knowledge is required to set them down on paper. Therefore,
the Motion for Recruitment of Counsel (Doc. 3) is DENIED without prejudice. The Court will
remain open to appointing counsel as the case progresses.
Disposition
IT

IS

HEREBY

ORDERED

that

Defendant

MURPHYSBORO

POLICE

DEPARTMENT is DISMISSED with prejudice. As Plaintiff has named no other defendants,
the Complaint is DISMISSED without prejudice.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before May 17,
2017. Should Plaintiff fail to file his First Amended Complaint within the allotted time or
consistent with the instructions set forth in this Order, the entire case shall be dismissed with
prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED.

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R. APP. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“First Amended Complaint,” and he should use the case number for this action (i.e. 16-cv-1337JPG).
To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail
Plaintiff a blank civil rights complaint form.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915(e)(2).
Plaintiff is further ADVISED that his 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,
regardless of whether Plaintiff elects to file a First Amended Complaint. 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: April 18, 2017
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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