Wells v. Fowler

Filing 10

IT IS HEREBY ORDERED that the Complaint (Doc. 1) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS ORDERED that Defendant RALPH FOWLER is DISMISSED without prejudice because the Complaint states no claim for relief against him. IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a "First Amended Complaint" in this case on or before May 17, 2018. Should Plaintiff fail to file his First Amended Complaint within the allotted time, dismissal of this action will become with prejudice. (Amended Pleadings due by 5/17/2018). Signed by Chief Judge Michael J. Reagan on 4/19/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LONNIE T. WELLS,
Plaintiff,
vs.
RALPH FOWLER,
Defendant.

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Case No. 18-cv-00082-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Lonnie T. Wells filed this civil rights action pursuant to 42 U.S.C. § 1983 while
he was incarcerated at Taylorville Correctional Center (“Taylorville”).

He has since been

released. (Doc. 7). Plaintiff brings the action against Ralph Fowler, the Assistant State’s
Attorney who successfully prosecuted Plaintiff for conspiracy. (Doc. 1, pp. 1-6). Plaintiff
alleges that Attorney Fowler improperly used evidence from an overturned child abuse and
neglect case to prove the State’s case against Plaintiff. (Doc. 1, pp. 4-6). The Complaint
contains no request for relief. (Doc. 1, p. 6).
This matter 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, 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
According to the allegations set forth in the Complaint, Attorney Fowler used evidence
and information from an overturned child abuse and neglect case against Dixon Turner to secure
a conviction for conspiracy against Plaintiff.

(Doc. 1, pp. 4-6).

That evidence included

information taken from a prior Department of Children and Family Services (“DCFS”) case
against Plaintiff that resulted in no finding of guilt. (Doc. 1, p. 4). Plaintiff claims that Attorney
Fowler engaged in misconduct in an effort to secure a conviction against Plaintiff in the criminal
conspiracy case. (Doc. 1, pp. 4-6).
Sometime in 2014, the Department of Human Services (“DHS”) located in Charleston,
Illinois, filed a report against Dixon Turner for child abuse and neglect (Case #2156645A).
(Doc. 1, p. 4). Following a hearing in Coles County, Turner was found guilty. Id. She filed an
appeal in May or June 2014. Id.
Attorney Fowler, who serves as the Assistant State’s Attorney in Effingham County,
Illinois, attended the hearing on appeal in Coles County. (Doc. 1, pp. 4-5). Attorney Fowler
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allegedly “helped” Turner with her appeal, by offering information from a prior case involving
Plaintiff that never resulted in a finding of guilt or a conviction. (Doc. 1, p. 4). The caseworker
involved in Plaintiff’s underlying case, Jeanie Parker, was not present and did not testify. Id.
Plaintiff and his mother, who were present at the hearing, were not allowed to testify. Id. Turner
prevailed on appeal. Id.
Attorney Fowler then introduced evidence of Turner’s overturned case in the State’s
criminal case against Plaintiff for conspiracy. (Doc. 1, p. 5). Although Plaintiff’s criminal
defense attorney subpoenaed Jeannie Parker to testify at Plaintiff’s criminal trial, she was not
allowed to do so. Id. Attorney Fowler’s “‘evidence’ against [Plaintiff] was the case he helped
cover up.” Id. At the time of doing so, Plaintiff insists that he was “out of his jurisdiction.” Id.
Attorney Fowler allegedly engaged in misconduct by interfering with Turner’s case, in order to
secure an advantage in the criminal case against Plaintiff. Id.
Discussion
There are several threshold issues that this Court must consider. First, the Court must
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). The Complaint
complicates this analysis because it includes no request for relief. (Doc. 1, p. 6).
To the extent Plaintiff now challenges his conviction and seeks release, Plaintiff should
have filed a petition for a writ of habeas corpus. “[W]hen a state prisoner is challenging the very
fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is

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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).
If Plaintiff seeks to challenge his conviction for conspiracy, he is free to file a federal
habeas petition at any time. However, Plaintiff should be aware that a federal habeas petition
cannot be filed until he exhausts his state court remedies, unless he can demonstrate cause and
prejudice. See 28 U.S.C. § 2254(b)(1). This Order does not preclude Plaintiff from pursuing this
avenue to relief.
To the extent Plaintiff seeks monetary relief against Attorney Fowler, this action is
properly brought pursuant to § 1983. With that said, the Court can discern no basis for relief at
this time. The Complaint articulates no federal constitutional claims under § 1983 against
Attorney Fowler.
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). This does not mean that a prosecutor enjoys 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).

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Given the lack of allegations in the Complaint that describe the information used by
Attorney Fowler against Plaintiff, including how it was obtained, how it was used, and why
Plaintiff believes its use was improper, the Court simply cannot evaluate the § 1983 claim
against Attorney Fowler. It is not even clear that Plaintiff seeks monetary relief against this
defendant, as opposed to habeas relief. For these reasons, the Court must dismiss the Complaint.
However, the dismissal shall be without prejudice, and Plaintiff shall have an opportunity to file
an amended complaint, in which he clearly states the basis of his claim against Attorney Fowler
and includes a request for 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

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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 his mother’s efforts to locate an
attorney on his behalf, but Plaintiff provides no documentation from those attorneys or even a list
of attorneys and dates she contacted them.

Further, he evinces an ability to litigate this

straightforward matter without the assistance of counsel, despite the fact that his education is
limited to “some college.” (Doc. 3, p. 2). He has prepared all of the necessary paperwork to
commence this action. The fact that Plaintiff excluded relevant information from the Complaint
is not determinative of his need for assistance, particularly when he possesses the relevant
information and simply needs to provide more detail about Attorney Fowler’s use of allegedly
impermissible evidence in his criminal case. No assistance is required to obtain that information,
as Plaintiff already possesses knowledge of his criminal case. The Motion is therefore DENIED.
Disposition
IT IS HEREBY ORDERED that the Complaint (Doc. 1) is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS ORDERED that Defendant RALPH FOWLER is DISMISSED without
prejudice because the Complaint states no claim for relief against him.
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a “First
Amended Complaint” in this case on or before May 17, 2018. Should Plaintiff fail to file his
First Amended Complaint within the allotted time, dismissal of this action will become with
prejudice. FED. R. CIV. 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). Further, a “strike” will be assessed.
See 28 U.S.C. § 1915(g).

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Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for use in this District for such actions. He should be careful to label the
pleading, “First Amended Complaint,” and he must list this case number (Case No. 18-00082JPG) on the first page. To enable Plaintiff to comply with this Order, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
In the amended complaint, Plaintiff must, at a minimum, describe the actions taken by
Ralph Fowler that resulted in the deprivation of Plaintiff’s federal constitutional rights. He
should attempt to include the facts of his case in chronological order, inserting the defendant’s
name where necessary to identify the actor. Plaintiff should refrain from filing unnecessary
exhibits or including any other unrelated claims in his amended complaint. Claims found to be
unrelated will be further severed into new cases, new case numbers will be assigned, and
additional filing fees will be assessed.
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g).
An amended complaint supersedes and replaces the original Complaint, rendering the
original 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. Finally, the First Amended Complaint is subject to review pursuant to 28 U.S.C.
§ 1915A.
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

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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
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 19, 2018
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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