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HORTON v. MAROVICH

January 19, 1996

EUGENE HORTON, Plaintiff,
v.
GEORGE MAROVICH, et al., Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court are four motions to dismiss plaintiff Eugene Horton's ("Horton") complaint. One is brought by defendants George Marovich ("Marovich"), Saul Epton ("Epton"), and Barbara Kamm ("Kamm"); another by defendant Aurelia Pucinski ("Pucinski"); the third, by defendant Kathleen Pantle ("Pantle"); and the fourth, by defendant Richard Aztlan ("Aztlan"). For the reasons that follow, the court grants the motions to dismiss.

 I. BACKGROUND

 Horton brought an action against various defendants, including moving defendants, based on alleged violations of Horton's civil rights under 42 U.S.C. §§ 1983 and 1985(3). *fn1" In his complaint, Horton alleges generally that all defendants discriminatorily enforced the law against him because he was black. (Am. Complt. P 1.)

 Horton alleges specifically that, in 1971, Epton sentenced him to 100-150 years in prison for the murder of a white victim, and that Epton, the prosecutor, and the defense counsel, all of whom were white, have not prosecuted, defended, convicted, or sentenced a white defendant accused of committing a similar or greater offense against a black victim. Horton also alleges that Epton and the prosecutor withheld evidence regarding Horton's military record. (Am. Complt. P 10(a).)

 Horton alleges that on or about February 25, 1984, Marovich gave Horton a mandatory sentence after Horton was found guilty of committing armed robbery, with a prior offense of accessory to murder. Horton contends that this sentence was different from that given to similarly situated white Americans, and that Marovich so sentenced Horton because he was black. (Am. Complt. P 9(a).)

 Horton makes no specific allegations against Kamm or Pantle. However, Kamm, as Horton's counsel on appeal, and Pantle, as Horton's post-conviction counsel, presumably are embraced by Horton's general allegation that defendants, specifically defense counsel, have failed to provide complete legal services to Horton because of his race. (Am. Complt. PP 1(h), 5(b)(viii), 6, 8, 10(a), 16, 18(h)).

 Horton alleges that Aztlan harassed and disadvantaged prisoners by carrying out a federal criminal mail fraud scheme during a conspiracy to impersonate and harm attorney Wendy Morgan. (Am. Complt. PP 1(e), 13.)

 Horton alleges generally that the discriminatory practices and acts of all defendants have: continued for many years. (Am. Complt. P 8, 22.) Horton also alleges that each defendant "conspired with and aided and abetted" other defendants to violate his rights, privileges and immunities by carrying out their discriminatory practices and acts. (Am. Complt. P 24.)

 II. DISCUSSION

 A. Standard of review

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F. Supp. 1283, 1285 (N.D. Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the complaint. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

 B. Failure to serve certain defendants

 As a preliminary matter, the court notes that Horton still has not executed service of his summons and complaint upon defendants William Heenan and Mel Allen, who are not among the moving defendants. The court reopened Horton's case on July 17, 1995. Therefore, Horton had 120 days, until November 14, 1995, to serve all defendants named in his complaint. See FED. R. CIV. P. 4(m). Because Horton filled to effect service upon William Heenan and Mel Allen within the designated time limit, upon its own motion and pursuant to Federal Rule of Civil Procedure 4(m), the court ...


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