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Fontanez v. State

January 18, 2007

FERNANDO FONTANEZ, PLAINTIFF,
v.
STATE OF ILLINOIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

Plaintiff's application to proceed in forma pauperis ("IFP") is denied. The complaint is dismissed without prejudice pursuant to Fed. R. Civ. P. 12(h)(3) and 28 U.S.C. § 1915(e)(2)(B). Plaintiff is granted leave to file an amended complaint in conformity with this opinion by March 2, 2007.

BACKGROUND

On January 24, 2006, plaintiff Fernando Fontanez ("plaintiff") was released from Pickneyville Correctional Center subject to a release agreement with the Illinois Department of Corrections ("IDOC").*fn1 (Complt., Ex. 1 (IDOC Report # B112, dated July 12, 2006).) The complaint does not identify the specific basis for plaintiff's incarceration, although an IDOC report attached to the complaint indicates that plaintiff is a "past offender" with "two Retail Theft offenses." (Id.) Plaintiff's release agreement imposed a number of conditions on his release, including his participation in anger-management counseling and his ceasing all communication with government officials. (Id.)

IDOC maintains that plaintiff did not comply with the terms of his release agreement. On July 12, 2006, an IDOC officer filed a parole violation report ("PVR") alleging that plaintiff, while on supervised release, violated a criminal statute and corresponded with various government officials. (Id.) Specifically, the July 12, 2006 PVR alleged that plaintiff had sent a number of harassing letters to the Hon. Joan Lefkow and that plaintiff possessed threatening letters addressed to federal and state judges, Vice President Cheney, and Illinois Governor Rod Blagojevich. (Id.) IDOC also documented in the report plaintiffs' alleged threats to Justice Christa Jaffe of the Washington Supreme Court in early July 2006. (Id.) Justice Jaffe informed IDOC in early July 2006 that plaintiff had mailed her a letter stating that he had "brutally murdered individuals in the past" and that two toy machine guns were enclosed in the envelope. (Id.) IDOC ultimately recommended that plaintiff be remanded to its custody. (Id.)

On or about October 10, 2006, plaintiff went to the Office of the Executive Inspector General for the Agencies of the Illinois Governor ("OEIG") to file a complaint. (Complt., Ex. 2 (IDOC Report B305 dated Oct. 18, 2006).) After plaintiff was told that his grievance could not be handled by the OEIG, plaintiff allegedly threatened a female staff member at the office, stating that he "knew where she lived." (Id.) Plaintiff was subsequently arrested by the Chicago Police Department for criminal trespass to land. (Id.) Plaintiff maintains that the charges against him were fabricated to prevent him from exercising his rights and pursuing his investigation of racketeering activity. (Complt. at 5-6.)

On October 18, 2006, an IDOC officer filed another PVR documenting plaintiff's alleged harassment of female members of the U.S. Congress by way of written correspondence, including an alleged admission by plaintiff that he had written a number of letters. (Complt., Ex. 2 (IDOC Report B305 dated Oct. 18, 2006).) The October 18, 2006 PVR also documents plaintiff's September 15, 2006 arrest for battery/bodily harm and his October 10, 2006 arrest for criminal trespass. (Id.) Plaintiff disputes the veracity of these claims, making extensive handwritten notes in the margins next to several factual allegations in the report. (Id.)

On November 14, 2006, the Parole Review Board of the State of Illinois ("PRB") issued a written finding that plaintiff had violated at least two conditions of his release ("PRB Order"). (Complt., Ex. 7 (PRB Order dated November 14, 2006).) The PRB Order stated that plaintiff's violation date was October 10, 2006 (the date he was arrested for criminal trespass) and calculated plaintiff's discharge date as December 5, 2006. (Id.) The pleadings are ambiguous with respect to plaintiff's current status. Plaintiff may have served his sentence in its entirety or IDOC may have permitted him to resume supervised release.

Plaintiff filed the instant action on December 19, 2006. The named defendants are the State of Illinois, Illinois Governor Rod Blagojevich ("Governor Blagojevich"), Mrs. Patti Blagojevich ("Mrs. Blagojevich"), the Illinois Department of Corrections ("IDOC"), the Executive Inspector General for the Agencies of the Illinois Governor ("EIG"), and Arthur Look, a supervisory investigator employed by the EIG ("Inspector Look").

The complaint suffers from a lack of clarity. As best the court can determine, plaintiff alleges violations of his constitutional rights because: (1) he was falsely arrested on October 10, 2006 ("false arrest" claim); and (2) his supervised release was terminated to prevent him from investigating alleged racketeering crimes ("false violation" claim). (Complt. at 3-5.) The court's construction of the complaint is necessarily speculative; as discussed in greater detail below, the bulk of the complaint runs afoul of Fed. R. Civ. P. 8.

ANALYSIS

The federal IFP statute, codified at 28 U.S.C. § 1915, is designed to provide indigent litigants meaningful access to the courts. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Under the statute, an IFP petitioner must submit an affidavit that demonstrates an inability to pay the requisite costs of filing an action. 28 U.S.C. § 1915(a)(1). Plaintiff states in his financial affidavit that he has no assets, his monthly income is $155 in food stamps, and that he has not been gainfully employed since 1992. (Pl. Fin. Aff. at 1-2.) On these facts, plaintiff has demonstrated his inability to pay court costs.

Our inquiry, however, does not end with a finding of indigency. To prevent abuse of the IFP statute, we must review the complaint and dismiss the action if we determine that it (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(b)(i)-(iii). The complaint is defective in a number of respects such that the court must dismiss the complaint without prejudice pursuant to Fed. R. Civ. P. 12(h)(3) and § 1915(e)(2)(B). Frederickson v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (Rule 12(h)(3) dismissal for ...


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