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THOMPSON v. CLERK OF THE CIRCUIT COURT OF COOK CTY

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


November 7, 1989

OTIS THOMPSON, Plaintiff,
v.
THE CLERK OF THE CIRCUIT COURT OF COOK COUNTY, AURELIA PUCINSKI, Defendant

The opinion of the court was delivered by: BUA

ORDER

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 On May 24, 1988, plaintiff Otis Thompson's petition for post-conviction relief was denied by the state criminal court. Claiming that his constitutional rights were violated because he was never notified of the ruling, Thompson filed this case against the Clerk of the Circuit Court of Cook County. Defendant has moved to dismiss Thompson's complaint.

 At the outset, defendant asserts that this court lacks jurisdiction to hear Thompson's case. Although Thompson seeks relief pursuant to 42 U.S.C. § 1983, defendant claims that Thompson is essentially seeking habeas corpus relief, for which he must first exhaust state remedies. When a prisoner challenges the fact or duration of his confinement and seeks an immediate or more speedy release, habeas corpus is the exclusive federal remedy. Preiser v. Rodriguez, 411 U.S. 475, 500, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). Consequently, section 1983 jurisdiction is displaced if the habeas corpus remedy applies. Lumbert v. Finley, 735 F.2d 239, 242 (7th Cir. 1984). Despite the fact that Thompson has not specifically requested release, he has requested a new trial. Unfortunately for Thompson, habeas corpus is the exclusive remedy for one who seeks to attack his state court conviction. Hanson v. Circuit Court, 591 F.2d 404, 410 (7th Cir. 1979); see also Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir. 1989) ("section 1983 may not be used to mount a collateral attack on the plaintiff's criminal conviction"). While this court is without authority to grant Thompson a new trial, Thompson has also requested monetary damages. "If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, . . . [and] habeas corpus is not an appropriate or available federal remedy." Preiser, 411 U.S. at 494 (emphasis in original). Notwithstanding Thompson's demand for a new trial, which is cognizable only in a habeas action, this court can consider his claim for damages pursuant to section 1983. See id. at 499 n. 14 (the requirement that a plaintiff bring certain claims under habeas corpus "in no way precludes him from simultaneously litigating in federal court, under § 1983, his claim" that is not cognizable in habeas corpus); see also Faheem-El v. Klincar, 600 F. Supp. 1029, 1033 (N.D. Ill. 1984).

 Thompson brings this claim against Aurelia Pucinski, in her official capacity as Clerk of the Circuit Court of Cook County. Since a section 1983 action against a government official acting in her official capacity is treated as an action against the governmental entity itself, Thompson may not recover damages against defendant unless he could recover against the governmental entity. Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir. 1986). As a consequence, Thompson must show that he was deprived of his constitutional rights by an official municipal policy or custom. Monell v. Department of Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Thompson claims that he was deprived of his right to due process by defendant's failure to either notify him of the disposition of his post-conviction petition or to provide him with a transcript of the proceedings. These allegations, however, are insufficient to show that the alleged constitutional deprivation was the product of an official municipal policy or custom. The complaint does not identify a specific pattern or series of incidents which are indicative of governmental policy. Instead, Thompson points to an isolated occurrence. He does not even make a general reference to other petitioners who may have suffered the same fate -- to the contrary, Thompson admits that other inmates have been properly notified of the outcome of their petitions.

 In addition, Thompson alleges that defendant violated his sixth amendment right to counsel. But as defendant points out, the Clerk of the Court had no duty to appoint counsel for Thompson; counsel is appointed only upon an order of court. As the appointment of counsel is a judicial decision, there is no basis upon which Thompson can hold defendant liable.

 For the foregoing reasons, defendant's motion to dismiss plaintiff's complaint is granted.

19891107

© 1992-2004 VersusLaw Inc.



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