Killion v. Nester et al

Filing 12

MEMORANDUM AND ORDER DISMISSING CASE: IT IS HEREBY ORDERED that COUNT 1 is DISMISSED with prejudice as legally frivolous because Daley and Nester are not state actors and thus are not amenable to suit under § 1983. IT IS FURTHER ORDERED that CO UNT 2 is DISMISSED with prejudice for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that the entire action is DISMISSED with prejudice. IT IS FURTHER ORDERED that the Motion to Appoint Counsel (Doc. 3) and a Motion for Recruitment of Counsel (Doc. 9) are DENIED. Plaintiff is ADVISED that this dismissal shall count as one of his allotted strikes under the provisions of 28 U.S.C. § 1915(g). The Clerk shall CLOSE THIS CASE and enter judgment accordingly. Signed by Judge J. Phil Gilbert on 7/24/2017. (tkm)

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

ANTOINE D. KILLION,
#42054-177
Plaintiff,
vs.
GREG NESTER,
MADELYN DALEY,
OFFICER JENKS,
Defendants.

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Case No. 17-cv–322-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, Antoine D. Killion, filed this pro se civil rights action pursuant to 42 U.S.C. §
1983 while he was incarcerated at Big Muddy Correctional Center. Plaintiff has since been
released on parole. In his First Amended Complaint (Doc. 8), Plaintiff alleges Greg Nester and
Madelyn Daley, both employed by the Public Defender’s Office in St. Clair County, Illinois
provided ineffective assistance of counsel in relation to Plaintiff’s criminal case. Additionally,
Plaintiff alleges that Officer Jenks violated his constitutional rights by delaying the filing of
Plaintiff’s ineffective assistance of counsel motion. In connection with these claims, Plaintiff
seeks monetary damages.
This case is now before the Court for a preliminary review of the First Amended
Complaint (Doc. 8) 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
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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, 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).
This action does not survive preliminary review under the above standard.
First Amended Complaint
In June 2015, Plaintiff was charged with multiple counts of aggravated battery. See St.
Clair County Case No. 15–CF–736 (Illinois v. Killion). The First Amended Complaint indicates
that, after a bench trial, Plaintiff was found guilty and was sentenced on February 8, 2016. (Doc.
8, pp. 6-10).

Assistant Public Defender Nester served as Plaintiff’s counsel through the

sentencing hearing on February 8, 2016. (Doc. 8, pp. 1, 6-10). Plaintiff contends that Nester
provided him with ineffective assistance of counsel. (Doc. 8, pp. 6-10). Specifically, Plaintiff
contends Nester failed to request a hearing on a video recording used as evidence in Plaintiff’s

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case (Doc. 8, p. 8); failed to request a preliminary hearing on other matters (Doc. 8, pp. 8, 10);
forced Plaintiff to agree to a bench trial (Doc. 8, p. 10); and mishandled Plaintiff’s sentencing
hearing (Doc. 8, pp. 8, 10).
Plaintiff’s sentencing hearing was held on February 8, 2016. (Doc. 8, p. 6). Prior to the
sentencing hearing, Plaintiff gave Officer Jenks, the officer responsible for transporting Plaintiff,
an ineffective assistance of counsel motion. Id. The motion objected to Nester’s handling of
Plaintiff’s case. Id. Plaintiff expected the motion to be filed and heard before the sentencing.
Id. The motion was not filed or heard. Id. On February 11, 2016, after Plaintiff was sentenced,
Officer Jenks returned the motion to Plaintiff with a “sticky” note that read: “You want this filed
right?” Officer Jenks told Plaintiff that Nester had taken the motion off of Officer Jenks’ desk,
but the motion was never filed. Id. Plaintiff wrote a second ineffective assistance of counsel
motion and mailed the motion to the court (attaching the unfiled motion as an exhibit). Id.
On April 7, 2016, a hearing was held on Plaintiff’s ineffective assistance of counsel
motion. Id. The court concluded that Plaintiff’s claims were unfounded. Id. Nevertheless, the
court directed Nester “to tell the head public defender John O’ Gara to switch public defenders.”
Id. Thereafter, Madelyn Daley, an assistant public offender, was appointed to handle Plaintiff’s
post-trial matters, including representing Plaintiff at his motion to reconsider sentencing. Id.
Plaintiff also contends that Daley provided him with ineffective assistance of counsel.
(Doc. 8, pp. 6-9). Plaintiff contends that Daley failed to consult with him prior to his hearing on
the motion to reconsider sentencing and otherwise mishandled the hearing. (Doc. 8, pp. 6-9).

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Additionally, Plaintiff contends that Daley failed to follow Krankel procedure1 in relation to his
ineffective assistance of counsel claims directed against Nester. (Doc. 8, p. 8).
Finally, in his request for relief, Plaintiff suggests that Daley and Nester’s allegedly
ineffective counsel somehow interfered with Plaintiff’s ability to attend court hearings pertaining
to the dissolution of his marriage and prevented him from obtaining a fair result in that case.
(Doc. 8, p. 11).
In connection with these claims, Plaintiff seeks monetary damages. Id.
Discussion
The Court finds it convenient to divide the pro se action into two 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. 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.
Count 1 –

Constitutional claims against Daley and Nester arising from the ineffective
assistance of counsel in connection with Plaintiff’s St. Clair County
criminal proceeding.

Count 2 –

First and/or Fourteenth Amendment access to the courts claim against
Jenks.

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Under People v. Krankel, 102 Ill.2d 181 (1984), and its progeny, when a defendant alleges a posttrial pro se claim
of ineffective assistance of counsel, the trial court examines the factual basis underlying the defendant's claim.
People v. Demus, 47 N.E.3d 596, 603 (Ill. App. Ct. 2016). The trial court then determines whether to appoint new
counsel. Id. at 604-05. After the preliminary inquiry, “[i]f the trial court determines that the claim lacks merit or
pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se
motion. However, if the allegations show possible neglect of the case, new counsel should be appointed.” People v.
Moore, 797 N.E.2d 631, 637 (Ill. 2003). The newly appointed counsel is then responsible for representing the
defendant at the hearing on the defendant’s pro se claim of ineffective assistance. Id.

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Count 1
The Court need not evaluate Plaintiff’s constitutional claims as to Daley and Nester. This
is because, regardless of the constitutional basis for Plaintiff’s claims, no recovery may be had
against either Defendant. To state a civil rights claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). Conversely, a plaintiff cannot proceed with a federal claim under
§ 1983 against a non-state actor. See 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). In Polk County v.
Dodson, 454 U.S. 312 (1981), the Supreme Court held that a court-appointed attorney, even if
employed by the state, may not be sued under 42 U.S.C. § 1983 for legal malpractice, because
such an attorney does not act “under color of state law.” Id. at 324-25. See also Sceifers v. Trigg,
46 F.3d 701, 704 (7th Cir. 1995). While Plaintiff in the case at bar does not label his claims
against Nester and Daley as “legal malpractice” claims, the same principle applies here. Nester
and Daley, as Plaintiff's court-appointed public defenders, are not state actors who are amenable
to suit in a § 1983 civil rights case. Accordingly, Plaintiff may not maintain any claim against
either Defendant. Count 1 shall be dismissed with prejudice.
Count 2
As to Officer Jenks, the First Amended Complaint suggests that – at most – Jenks may
have contributed to a delay in filing Plaintiff’s written motion for ineffective assistance of
counsel. The First Amended Complaint does not indicate that the alleged delay caused Plaintiff
to suffer any actual or potential detriment to his ability to pursue a meritorious claim in court.
First, Plaintiff was not required to file a written motion to object to Nester’s representation of

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him. In Illinois, all that is necessary is for the defendant to bring the claim to the trial court’s
attention, and thus, Plaintiff could have raised the claim orally at the sentencing hearing.2
Second, the ineffective assistance of counsel motion was eventually heard, Plaintiff received new
counsel, and a new sentencing hearing.
Actual or threatened detriment is an essential element of a § 1983 action for denial of
access to the courts. Howland v. Kilquist, 833 F.2d 639, 642–43 (7th Cir.1987); Hossman v.
Sprandlin, 812 F.2d 1019, 1021–22 (7th Cir. 1987). An inmate has no constitutional claim
unless he can demonstrate that a non-frivolous legal claim has been frustrated or impeded. Lewis
v. Casey, 518 U.S. 343, 352–53 (1996). A delay in filing such as Plaintiff describes is not, in and
of itself, a detriment of constitutional proportions. Kincaid v. Vail, 969 F.2d 594, 603 (7th
Cir.1992), cert. denied, 506 U.S. 1062 (1993). Therefore, Plaintiff's access to the court’s claim,
Count 2, shall be dismissed with prejudice.
Pending Motions
Plaintiff has filed a Motion to Appoint Counsel (Doc. 3) and a Motion for Recruitment of
Counsel (Doc. 9). Both motions indicate that Plaintiff has not made an attempt to obtain
representation on his own.
A district court “may request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). There is no constitutional or statutory right to counsel for a
civil litigant, however.

Stroe v. Immigration and Naturalization Services, 256 F.3d 498, 500

(7th Cir. 2001); Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). Recruitment of counsel lies
within the sound discretion of the trial court. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007) (citing Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006)).

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People v. Ayres, 2017 IL 120071, ¶ 11, reh'g denied (May 22, 2017).

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In determining whether to recruit counsel, the Court is directed to make a two-fold
inquiry: “(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the
plaintiff appear competent to litigate it himself?” Pruitt, 503 F.3d at 654 (citing Farmer v. Haas,
990 F.2d 319, 321-22 (7th Cir. 1993)). The first prong of the analysis is a threshold question. If
a plaintiff has made no attempt to obtain counsel on his own, the court should deny the request.
See Pruitt, 503 F.3d at 655.
Plaintiff satisfies neither requirement. He disclosed no efforts to secure counsel on his
own before seeking the Court’s assistance in doing so.

Further, he evinces an ability to

competently litigate this straightforward matter without the assistance of counsel, despite the fact
that he alleges he does not “know what [he] is doing.” (Doc. 9, p. 2). The pending motions are
therefore DENIED.
Disposition
IT IS HEREBY ORDERED that COUNT 1 is DISMISSED with prejudice as legally
frivolous because Daley and Nester are not state actors and thus are not amenable to suit under §
1983.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED with prejudice for failure
to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that the entire action is DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Motion to Appoint Counsel (Doc. 3) and a
Motion for Recruitment of Counsel (Doc. 9) are DENIED.
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

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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).
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court
within thirty (30) days of the entry of judgment. FED. R. CIV. P. 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. 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,
133 F.3d at 467. Finally, 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 the judgment, and this 28-day
deadline cannot be extended.
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: July 24, 2017

s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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