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CURRY v. PUCINSKI

October 5, 1994

DAN CURRY, Plaintiff,
v.
AURELIA PUCINSKI, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Pontiac Correctional Center inmate Don Curry ("Curry") brings this action under 42 U.S.C. § 1983 ("Section 1983"), contending that Cook County Circuit Court Clerk Aurelia Pucinski ("Pucinski") violated Curry's constitutional right of access to the courts by failing to provide records that were necessary for a meaningful and timely appeal. Pucinski has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, *fn1" both sides have complied with this District Court's General Rule ("GR") 12(m) and 12(n), *fn2" and the motion is now briefed and ready for decision. For the reasons stated in this memorandum opinion and order, Pucinski's motion is denied.

 Facts3

 On August 24, 1990 Curry was convicted of criminal sexual assault in the Circuit Court of Cook County, Illinois, a conviction on which he is now serving a 30-year prison term (P. 12(n)(2) PP 2-3; D. Ex. A, Att. 6). Curry then began what would become a series of appeals by hiring new counsel and filing a notice of appeal (D. Ex. A, Att. 2).

 Illinois guarantees every convicted criminal defendant the right to one appeal (Ill. Const. art. 6, §§ 4(b) and 6). It requires the clerk of the circuit court, upon the filing of a notice of appeal, to prepare and deliver the "record on appeal" to the reviewing court or, upon request, to the appellant (Ill. S. Ct. Rule ("Ill. Rule") 608). *fn4" Rule 608 lists 15 items that must be included in every criminal appellate record and provides an opportunity for the parties to designate additional materials. Among the 15 mandated items are "instructions offered and given, and the objections and rulings thereon" *fn5" and "communications from the jury during deliberations."

 On December 4, 1990 Pucinski mailed to Curry's then attorney E. Steven Yonover ("Yonover") copies of what she described in her signed cover letter as Curry's "COMMON LAW RECORD AND EXHIBITS." Yonover acknowledged receipt on December 16 (D. Ex. A, Att. 3). Identical letters (one with and one without Pucinski's signature) accompanied later mailings to Yonover of a "REPORT OF PROCEEDINGS, ONLY" and of a "SUPPLEMENTAL RECORD" on January 8 and August 2, 1991. Yonover acknowledged receipt of those mailings on January 14 and August 2 respectively (id. Att. 4 and 5).

 Curry now claims that the materials sent to his attorney failed to include a number of important papers, and he therefore accuses Pucinski of denying him access to his file and thus to the courts. For proof Curry offers a list prepared by his present attorney (not Yonover) of some 52 documents produced from Curry's file by the Clerk's office in this litigation (P. Ex. 3A). Curry has circled 33 items that he says were not included in the original record (id.). *fn6" Among those items are written jury instructions and a note from the jury foreperson to the trial judge--documents that would unquestionably be potential grist for the appellate mill.

 Pucinski responds by offering an affidavit of the Deputy Clerk and copies of the three letters acknowledged by Yonover (D. Ex. A and Att. 3-5). Those materials establish that something was sent to Curry's lawyer on three occasions. But it is the contents of the mailings that Curry disputes. Pucinski offers no proof from which this Court can properly conclude that the "COMMON LAW RECORD AND EXHIBITS," "REPORT OF PROCEEDINGS, ONLY" and "SUPPLEMENTAL RECORD" included the written jury instructions, the foreperson's note or other items circled on Curry's list. Absent such proof this Court must credit Curry's version of events. *fn7"

 On March 26, 1992 Curry's conviction and sentence were affirmed (D. Ex. A, Att. 2). Soon thereafter, and proceeding without assistance of counsel (Yonover's representation ceased in January 1992, P. Ex. 3), Curry began to seek additional records that he planned to use in bringing suit under the Illinois Post-Conviction Hearing Act ("Post-Conviction Act," 725 ILCS 5/122-1 to 122-8)(P. 12(n)(2) P 6; P. Ex. 3). That search focused on obtaining copies of police reports that Curry supposed (incorrectly) to be in his file. Thus he filed an Illinois Freedom of Information Act ("FOIA," 5 ILCS 140/1 to 140/10) request directed at Pucinski asking for "Common Law Records. . .including police reports" (P. 12(n)(2) P 5; P. Ex. 1). After the FOIA request was denied (P. 12(n)(2) P 7; P. Ex. 1), Curry petitioned the Circuit Court unsuccessfully for a writ of mandamus ordering Pucinski to turn over copies of all relevant "common law records and police reports" (P. 12(n)(2) PP 10-11; D. Ex. A, Att. 1; P. Exs. 1 and 2). That relief was denied in an April 14, 1993 order simply reading "DENIED" (P. Ex. 2). Curry also telephoned Pucinski's office and caused his parents and wife to make similar requests, all to no avail (P. 12(n)(2) P 9). Curry did not invoke procedures set out in the Post-Conviction Act for accessing records in a post-conviction proceeding. *fn8"

 On June 4, 1993 the Illinois Supreme Court denied leave to appeal from the affirmance of Curry's conviction (D. Ex. A, Att. 6). On August 24, 1993 Curry's time for filing a post-conviction petition expired (P. 12(n)(2) P 12; P. Ex. 3). On May 27, 1994 Curry nevertheless filed such a petition (D. Ex. A, Att. 6), which was denied July 6 (P. 12(n)(2) P 13).

 Procedural Background

 On September 27, 1993 Curry tendered his pro se Complaint against Pucinski in both her official and individual capacities. After this Court conducted its threshold review for non-"frivolousness" in the legal sense defined in Neitzke v. Williams, 490 U.S. 319, 324, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) and refined in Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733-34 (1992), it appointed counsel to represent Curry. That appointment generated a First Amended Complaint ("FAC"), to which Pucinski responded.

 Both Pucinski's original response and her Amended Answer failed to comply with the "clear roadmap" set out in Rule 8(b) ( Gilbert v. Johnston, 127 F.R.D. 145, 146 (N.D.Ill. 1989)), and after fair warning this Court deemed FAC PP 8-13 and 15-16 to have been admitted. That being so, this Court must credit Curry's allegation that the records he sought in his FOIA request "were needed so that [he] could prepare an effective and timely petition for post-conviction relief" (FAC P 10).

 On August 31, 1994 this Court dismissed the FAC to the extent that it sought damages against Pucinski in her official capacity (see Drury v. County of McLean, 89 Ill. 2d 417, 422-24, 433 N.E.2d 666, 668-69, 60 Ill. Dec. 624 (1982), confirming the status of county clerks as members of State government rather than of any local government, a status that automatically triggers ...


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