Garrett v. Warden or Sheriff of Illinois

Filing 4

ORDER DISMISSING CASE without prejudice. The Clerk is DIRECTED to provide Garrett with a copy of this Court's standard Civil Rights Complaint form for use in preparing and filing an action pursuant to 42 U.S.C. § 1983. Garrett stands WA RNED that this Court will not tolerate his vexatious litigation. He will be subject to sanctions, including fines and/or a filing ban, if he undertakes further efforts to file frivolous and harassing lawsuits in this District. Signed by Judge David R. Herndon on 2/10/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHNNY GARRETT,
#N-20411,
Petitioner,

–

vs.
WARDEN OR SHERIFF OF
ILLINOIS,
Respondent.
MEMORANDUM AND ORDER

On February 1, 2017, Petitioner Johnny Garrett, an inmate who is
currently incarcerated at Pinckneyville Correctional Center, filed what appears to
be a combined Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and
Civil Rights Complaint under 42 U.S.C. § 1983. (Doc. 1). He filed portions of a
standard federal habeas petition and a civil rights complaint form together as a
single action.

Id. For the reasons set forth herein, the entire action shall be

DISMISSED and this case CLOSED.
I.
On the habeas form, Garrett indicates that he was convicted of aggravated
arson in 2007 in Cook County, Illinois. (Doc. 1, pp. 1-2). He was sentenced by
the Cook County Circuit Court to a term of 25 years of imprisonment.

Id.

Garrett does not actually indicate that he is challenging his conviction or sentence.

Id. He also sets forth no grounds in support of this relief. Id.
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On the civil rights complaint form, Garrett includes no coherent allegations.
(Doc. 1, pp. 3-13). He includes a long list of numbers, which appear to be dollar
amounts, and then requests damages in the amount of $60,000,000.00 against
the “Warden or Sheriff of Illinois.” (Doc. 1, pp. 3-6). He also includes pages from
an interior design magazine depicting luxurious homes.

(Doc. 1, pp. 7-8).

Finally, he includes a copy of an Order entered by Honorable Joe Billy McDade on
January 19, 2017, warning Garrett that he will be subject to a monetary fine and
filing restriction for all further frivolous filings in the United States District Court
for the Central District of Illinois. (Doc. 1, p. 11). Noticeably absent from the civil
rights complaint form are factual allegations that describe any constitutional
violations by state officials. (Doc. 1, pp. 3-13).
On February 9, 2017, Garrett filed a pleading entitled, “Motion to Dismiss
Indictment and Writ of Habeas Corpus.” (Doc. 3). In the motion, Garrett does
not actually seek a decision vacating his conviction and sentence. Id. He also
does not seek voluntary dismissal of the instant habeas action. Id. Instead, he
again requests $60,000,000.00 in monetary relief against the “Warden or Sheriff
of Illinois” for what the warden “did or did not do” both in “the past and future.”

Id.
At the outset, this Court must independently evaluate the substance of
Garrett’s claims to determine if the correct statute - in this case 28 U.S.C. § 2254
- is being invoked. Godoski v. United States, 304 F.3d 761, 763 (7th Cir. 2002)
(court must evaluate independently the substance of the claim being brought, to

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see if correct statute is being invoked). A petition for a writ of habeas corpus is
the proper route “[i]f the prisoner is seeking what can fairly be described as a
quantum change in the level of custody-whether 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). A civil rights
complaint brought pursuant to 42 U.S.C. § 1983 is proper if the prisoner “is
challenging the conditions rather than the fact of confinement.”

Graham, 922

F.2d at 381; see also Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999).
Garrett invoked both § 2254 and § 1983. (Doc. 1). However, he cannot
proceed under both statutes in the same action.

For that matter, he cannot

proceed under either statute in this action.
This case was opened as a federal habeas action. However, Garrett cannot
proceed with a challenge to his Cook County conviction in this District. Cook
County is situated in the federal judicial district for the Northern District of
Illinois. If he intends to challenge his conviction or sentence, Garrett must do so
by filing a federal habeas petition in the United States District Court for the
Northern District of Illinois.

See Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484, 493-94 (1973) (§ 2254 petition attacking state court
conviction should generally be brought in the district where the petitioner was
convicted).
The Court declines to transfer this case to the Northern District because
Plaintiff’s combined habeas petition and civil rights complaint form include no

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request to vacate the conviction or sentence. He instead seeks monetary relief.
This remedy is not available under federal habeas law. Given this fact, the habeas
action will be dismissed and the case closed.

However, the dismissal will be

without prejudice to any separate habeas petition Garrett chooses to file in the
Northern District.
The Court shall also dismiss all claims brought pursuant to § 1983.
Plaintiff cannot pursue these claims in a federal habeas action. In the past, courts
sometimes construed a mistakenly-labeled habeas corpus petition as a civil rights
complaint, but the Court will not do so here.

Graham, 922 F.2d at 381-82

(collecting cases). The Seventh Circuit Court of Appeals has held that district
courts should not engage in this practice. Bunn v. Conley, 309 F.3d 1002, 1007
(7th Cir. 2002); Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997). Garrett
would face obstacles under the Prison Litigation Reform Act, Title VIII of Pub. L.
No. 104-134, 110 Stat. 1321 (effective April 26, 1996). See generally 28 U.S.C. §
1915. Specifically, he would be responsible for paying a much higher filing fee of
$400.00. 1

Furthermore, he could be assessed another “strike” if the Court

determined that the action was frivolous, malicious, or failed to state a claim
upon which relief may be granted. 28 U.S.C. § 1915(g). In light of this, the Court
will not re-characterize the instant habeas petition as a complaint filed pursuant
to § 1983. If Garrett would like to pursue a non-frivolous claim for monetary
1

Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the
addition of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district
court. See Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28
U.S.C. § 1914, No. 14. A litigant who is granted IFP status, however, is exempt from paying the
new $50.00 fee.
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damages against state officials whose misconduct violated his constitutional
rights, he may separately file a § 1983 complaint in the federal judicial district
where the misconduct occurred. The Clerk will be directed to provide him with
this Court’s standard civil rights complaint form.
II.
In light of Plaintiff’s litigation history and present incoherent filings, this
Court deems it appropriate to echo Judge McDade’s warning against further
frivolous litigation in this District. On January 19, 2017, Judge McDade included
the following warning against further frivolous filings in the Central District in an
Order denying Garrett (i.e., a “3-striker”) leave to proceed in forma pauperis and
also dismissing his pending § 1983 case:
. . . [T]he Court deems it necessary to order that

Alexander v. United States, 121 F.3d 312, 315
(7th Cir. 1997), where the Court warned that if the petitioner filed
any further habeas petitions he would be fined $500, face a Mack
order requiring that his fine be paid before any other civil litigation
be allowed to be filed, and any habeas action will be summarily
dismissed thirty days after filing unless otherwise ordered by the
Court. To be clear,
petitions.

Garrett v. United States, No. 16-cv-1498 (C.D. Ill. 2016) (Doc. 4) (emphasis in
original). Consistent with Federal Rule of Civil Procedure 11(b) and Alexander v.

United States, 121 F.3d 312, 315 (7th Cir. 1997) (citing Chambers v. NASCO,
Inc., 501 U.S. 32 (1991) (holding that courts have inherent powers to protect
themselves from vexatious litigation), this Court incorporates this warning by

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reference herein.
Garrett is hereby WARNED that should he continue to file frivolous papers
or actions in this District, he may be fined $500.00 and restricted from filing any
papers in furtherance of civil litigation in this District, other than a habeas action,
until he tenders payment of the full amount of the fine. See Support Sys. Int’l,

Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995) (“A prisoner who becomes ineligible
under § 1915(g) to continue litigating in forma pauperis, and who then files
additional suits or appeals yet does not pay the necessary fees, loses the ability to
file future civil suits.”), overruled on other grounds by Lee v. Clinton, 209 F.3d
1025 (7th Cir. 2000). Any new habeas action may also be deemed dismissed 30
days after filing unless otherwise ordered by this Court.

III.

Disposition

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED

to any

other federal habeas petition or civil rights action that Garrett chooses to file.
IT IS FURHTER ORDERED that the Motion to Dismiss Indictment and
Petition for Writ of Habeas Corpus (Doc. 3) is DENIED as MOOT.
The Clerk is DIRECTED to provide Garrett with a copy of this Court’s
standard Civil Rights Complaint form for use in preparing and filing an action
pursuant to 42 U.S.C. § 1983.

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Garrett stands WARNED that this Court will not tolerate his vexatious
litigation. He will be subject to sanctions, including fines and/or a filing ban, if he
undertakes further efforts to file frivolous and harassing lawsuits in this District.

See Garrett v. United States, No. 16-cv-1498 (C.D. Ill. 2016) (Doc. 4). See also
Alexander v. United States, 121 F.3d 312 (7th Cir. 1997); Support Systems
International, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995).
IT IS FURTHER ORDERED that Garrett remains obligated to pay the
$5.00 filing fee for this habeas action. The obligation to pay the fee was incurred
at the time he filed this case.
The Clerk’s Office is DIRECTED to CLOSE this case.
IT IS SO ORDERED.
Signed this 10th day of February, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.02.10
14:57:33 -06'00'

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