United States District Court, N.D. Illinois
May 5, 2004.
MOUNT OF OLIVES PARALEGALS and RABBI K.A. ISRAEL, guardian and son of the dearly departed Ms. Louise (Garth) Richardson, Plaintiffs,
GEORGE W. BUSH, JR., Defendants
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, Mount of Olives Paralegals and Rabbi K. A. Israel, filed
suit against Defendants President George W. Bush; Vice President Dick
Cheney, Speaker of the House of Representatives Dennis Hastert; Attorney
General John Ashcroft; the Director of the Office of Budget and
Management; the Director of Housing and Urban Development; the Solicitor
General of the United States; and Althea K. Welsh, Senior Counsel of the
Attorney Registration and Disciplinary Commission of the Supreme Court of
Illinois. Plaintiffs primarily allege that Welsh and the other Defendants
failed to comply with their request under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552. Presently before the Court is the Motion to
Dismiss of Althea K. Welsh or to Reconsider Grant of Plaintiffs'
Application to Proceed In Forma Pauperis. For the following reasons,
Welsh's Motion to Dismiss is granted; and Plaintiffs' Complaint is
dismissed. LEGAL STANDARD
In reviewing a motion to dismiss, the court reviews all facts alleged
in the complaint and any reasonable inferences drawn therefrom in the
light most favorable to the plaintiff. See Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A district court
may also take judicial notice of matters of public record without
converting the pending motion into a request for summary judgment. See
Doherty v. City of Chicago, 75 F.3d 318, 324 n.4 (7th Cir. 1996). A
plaintiff is not required to plead the facts or elements of a claim, with
the exceptions found in Federal Rule of Civil Procedure 9. See
Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson,
288 F.3d 1005, 1007 (7th Cir. 2002). Dismissal is warranted only if "it
appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if
it is possible to hypothesize facts, consistent with the complaint, that
would make out a claim." Graehling v. Village of Lombard, Ill.,
58 F.3d 295, 297 (7th Cir. 1995).
On January 20, 2004, Plaintiffs filed an action in the United States
District Court for the Southern District of Illinois; and the matter was
placed on the docket of the Honorable David R. Herndon. Def.'s Mot. to
Dismiss, Ex. 2. Plaintiff also filed motions to proceed in forma
pauperis and for the appointment of counsel. On January 23, 2004, the
district court presiding over that action, sua sponte, denied Plaintiffs'
motion to proceed in forma pauperis and dismissed, without prejudice,
Plaintiffs' action. Mount of Olives Paralegal v. Bush, No. 04-cv-0044-DRH (S.D. Ill. Jan. 23, 2004) (unpublished opinion) (Mount of Olives); Def.'s
Mot. to Dismiss, Ex. 3.
On January 27, 2004, Plaintiffs filed, in the United States District
Court for the Northern District of Illinois, a Complaint that is
virtually identical to the complaint Plaintiffs filed in the Southern
District of Illinois; the only difference was that Plaintiffs changed the
name of the court that the complaint was filed. Def.'s Mot. to Dismiss,
Ex. 1. Plaintiffs subsequently filed motions to proceed in forma
pauperis and for the appointment of counsel. Plaintiffs' motion to proceed
in forma pauperis was granted. Thereafter, Defendant Welsh filed the
In Plaintiffs' Complaint, Israel alleges that Defendant Welsh, Senior
Counsel for the Disciplinary Commission, and the other federal government
Defendants somehow failed to comply with a request made by Plaintiffs
under FOIA, 5 U.S.C. § 552. Plaintiffs' Complaint also raises various
unspecified allegations against Defendants and a non-Defendant, Stephen
A. Clark. No allegations were made against Defendants in their individual
Welsh essentially argues that Judge Herndon's ruling should be given
preclusive effect and this matter should not be permitted to proceed. In
the alternative, Welsh contends that other reasons exist to dismiss
Plaintiffs' Complaint. Under the Prison Litigation Reform Act of 1996, a
court must dismiss an action, even if pauper status has been granted, if
the case: (1) is frivolous, (2) fails to state a claim upon which relief
may be granted, or (3) seeks monetary remedies against a Defendant immune
from such relief. 28 U.S.C. § 1915(e)(2)(B).
According to Judge Herndon's opinion, Israel sought to use the
provisions of FOIA against the Illinois Disciplinary Commission and
members of the federal government to uncover documentation regarding the alleged wrongful death of his mother.
However, Israel failed to allege that he sent a FOIA request to the
relevant agencies and exhausted his administrative remedies. Also, Israel
could not use the federal FOIA statute against the Illinois Disciplinary
Commission, and his claims against Welsh and the other Defendants were
"null." Mount of Olives, No. 04-cv-0044-DRH, slip. op at 4.
Israel filed an identically-worded Complaint in the Northern District
of Illinois. Israel has not "avoided the problem that had caused the
dismissal of his previous suit," and re-litigation of these issues is
precluded. Okoro v. Bohman, 164 F.3d 1059, 1063 (7th Cir. 1999).
Even if this litigation is not so precluded, Israel's claims still
fail. First, the Disciplinary Commission is an agency created by the
Illinois Supreme Court under Illinois Supreme Court Rule 751; and the
federal FOIA statute may not be used against state agencies. E.g., Grand
Cent. P'ship v. Cuomo, 166 F.3d 473, 484 (2d Cir. 1999). Second, to the
extent Plaintiff is attempting to seek damages against the Disciplinary
Commission, those damages are barred by the Eleventh Amendment. Johnson
v. Supreme Court, 1140, 1140-41 (7th Cir. 1999). Third, Plaintiff has
failed to include any allegations stating that he sent FOIA requests to
the relevant agencies and exhausted FOIA's administrative procedures.
See 5 U.S.C. § 552(a)(6)(C)(i).
Even construing the Complaint liberally, it is not possible to
hypothesize facts that would state a claim against any Defendant. It is
not possible to discern what relief Plaintiff is seeking, which Plaintiff
is seeking relief, why Mount of Olives Paralegals is included as a
Plaintiff, or why various representatives of the federal government are
included as Defendants. Accordingly, the remainder of Plaintiffs'
Complaint is dismissed. CONCLUSION
For the foregoing reasons, Welsh's Motion to Dismiss is granted; and
Plaintiffs' Complaint is dismissed without prejudice.
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