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Burdette v. McCloskey

July 24, 2006

JIMMY D. BURDETTE, PLAINTIFF,
v.
JENNIFER MCCLOSKEY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

This matter is before the Court on Burdette's motion for leave to proceed in forma pauperis (Doc. 2). The Court previously granted Burdette leave to proceedas a pauper in a related case. (Case No. 06-cv-445-JPG, Doc. 5). Nevertheless, the Court must deny his motion and dismiss this suit if his claims here are frivolous or malicious. See 28 U.S.C. § 1915(e)(2)(B)(I); Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982). For present purposes, a claim is frivolous if it lacks arguable legal merit or factual support. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983).

Burdette has sued Jennifer McCloskey, the assistant State's Attorney for Williamson County, Lisa Beatty Avery, Assistant State's Attorney for Williamson County, Tom Cundiff, the Sheriff of Williamson County, Mark Brown, Chief of Police for the City of Herrin, and all other members of the Herrin Police Department for maliciously prosecuting him in violation of the Fourth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Burdette asks the Court to quash his outstanding state warrant for stalking, to dismiss the stalking action, to appoint an attorney to represent him in the state action*fn1 , to enjoin the ongoing state proceedings against him, to expunge all orders of protection obtained by several of his ex-lovers, and to expunge a 2003 conviction and arrest for trespassing. He also prays for compensatory and punitive damages against all defendants.

BACKGROUND

The factual basis for Burdette's claims is set forth in a rambling 24-page, single spaced document attached as an exhibit to the complaint.*fn2 When drafting this document, Burdette assumed his reader would be familiar with certain facts, which makes it difficult for the uninitiated to follow his train of thought. Though he only specifically pleads two claims for relief in the complaint itself, he pleads more than thirty others that can reasonably be subsumed within the first two or stand on their own. Nevertheless, a few things are clear. On May 30, 2006, Burdette was charged by information with one count of stalking, a Class 4 Felony. (Doc. 1 at 6). According to the information, "Burdette put Linda K. Sargent under surveillance on two separate occasions . . . plac[ing her] in reasonable apprehension that she would receive future bodily injury or sexual assault." (Id.).

Burdette claims Herrin police officers encouraged Sargent to file the complaint leading to the information, knowing it had no basis in fact or law. He claims the Williamson County State's Attorney's Office pursued the case, despite its frivolity, in retaliation for Burdette's filing of numerous complaints against city and county officials. Given his pro se status and somewhat disjointed style, it is difficult to separate his federal claims from his personal attacks on the virtue of Herrin (Illinois) police officers and the women they "associate" with. But, construing his pleading in his favor, the Court has identified 31 separate alleged civil rights violations and assigned each of these claims a corresponding roman numeral for ease of disposition. To understand the basis of Burdette's claims, one must have a grasp of Burdette's turbulent history with several women and the Herrin police

I. Burdette's Relationship with Nancy Goodermote

Burdette's problems with Herrin police began in June 2003, as a result of his tempestuous relationship with a woman named Nancy Goodermote, his live-in girlfriend at the time. On June 15, 2003, Nancy told police Burdette kidnapped her; for this reason, at Nancy's request, the police removed him from her home. When Burdette came back to talk to Nancy 30 minutes later, Herrin police officers, including Sean Mocaby, arrested him. Mocaby began dating Nancy soon after arresting Burdette and encouraged her to obtain an order of protection against him.*fn3 Burdette claims this order of protection, issued in July 2003, was facially invalid; according to Burdette, it evidences a conspiracy among Herrin police officers and Williamson County judges to violate his rights (I).*fn4

Nancy "dropped" her order of protection on August 13, 2003. Nevertheless, a few days later officer Stu Ridings stopped Burdette near Nancy's house after a neighbor called to complain about his presence. Burdette told Ridings Nancy dropped the order of protection. Ridings responded by stating, "You know how it is, a black man walking in an all white area." (Id. at 10). It is unclear whether Ridings made this statement as a justification for his own actions or in explanation of the neighbor's phone call; regardless, Ridings did not arrest Burdette that day. On August 18, 2003, Burdette went to Nancy's house, and, while looking through her windows, saw her smoking marijuana in front of Mocaby. Burdette, upset at the situation*fn5 , went to both the Chief of the Herrin Police and the Mayor to complain about Mocaby's behavior. They told him that Mocaby was a good officer and refused to take any action (II).

Nancy obtained another order of protection against Burdette on September 14, 2003. (Doc. 1 at 11). He claims various infirmities in this order and a state court judge's denial of his motion to reconsider its issuance amounted to a violation of his rights under the Fourth, Eighth and Fourteenth Amendments (III). According to Burdette, the judge (unidentified in the complaint) was only interested in "protecting his white officers against a black man." (Id. at 12). Nancy had another order of protection served on Burdette on September 18, 2003. Nancy had Burdette arrested for violating the order after he came over the next night. Burdette denies going to her house that night; he claims he was singing karaoke in Marion, Illinois at the time (a town about 10 minutes away from Nancy's house), which the officers would have known if they had investigated Nancy's claims. He believes their failure to investigate was a result of their desire to get back at him for complaining about Mocaby's behavior to the chief of police and the mayor (IV).

Burdette was arrested for violating the order again on September 24, when he and Nancy were at the same bar, the Timeout Sports Bar in Herrin; this arrest got him banned from the bar. He claims this arrest was invalid because the order of protection did not say that he could not be in public places with her (VI). Burdette was arrested at Timeout again a few days later, this time for trespassing, when he went to talk to the owner about being banned. Burdette believes this arrest, his prior arrests, the state judges' unwillingness to take his calls and the judges' failures to hear his side of the story at court hearings after his arrests evidence a conspiracy among the judges, Herrin police, Nancy and the owner of the bar to violate his civil rights (VII).

In November 2003, for a reason not specified by Burdette, Williamson County Sheriff's Deputy McCabe arrested Burdette at the Ranch, a bar between Johnston City, Illinois and West Frankfort, Illinois. After taking Burdette to the Williamson County jail after this arrest, McCabe deleted Nancy's phone number from Burdette's cell phone (VIII). (Id. at 14). After deleting her number, McCabe told Burdette he wished he would "just leave town because [he was] tired of fucking with him." (Id.). When Burdette asked McCabe if this was a threat, McCabe said it was.*fn6 A few days later, Burdette filed a complaint against McCabe with Sheriff Cundiff; that day he also served a copy of the complaint on the State's Attorney. After he left the State's Attorney's office, an unnamed sheriff's deputy told Burdette he would be arrested if he went to the State's Attorney's office again. Burdette also claims the State's Attorney's office refused to allow him access to the law library at their Marion, Illinois office (IX). He was also upset that Jennifer McCoskey, the assistant prosecuting Burdette for his violations of the orders of protection, refused to talk to him, despite his status as a pro se litigant (X). (Id. at 15).

Williamson County Judge Ronald Eckiss held a hearing on Burdette's motion to reconsider the issuance of one of Nancy's orders of protection on November 26, 2003. According to Burdette, Eckiss wrongfully refused to grant the motion because Burdette admitted he violated the order of protection. Burdette vehemently denies he made such an admission; thus, he claims Eckiss's failure to grant the motion was unconstitutional (XI). Burdette also claims the Public Defender's office sabotaged this hearing because its representative, Alex Fine, who Burdette says was not his attorney, told Judge Eckiss he advised Burdette not to pursue the matter. Burdette claims Fine colluded with Judge Eckiss and the State's Attorney's office to deprive him of his civil rights (XII). Judge Eckiss further violated his rights because he refused to read a letter from Burdette's mother and did not have a court reporter present at the hearing (XIII).

Burdette sets out a litany of other civil rights violations. On January 11, 2004, an Illinois State Trooper stopped him on his way home from a night club and issued him a bogus seat belt ticket because he knew about his relationship with Williamson County law enforcement officers (XIV). (Id. at 16). Several other ...


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