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Sowemimo v. Frederick F. Cohn

March 21, 2007

ABIODUN SOFOLUWE SOWEMIMO, PLAINTIFF,
v.
FREDERICK F. COHN, LTD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Plaintiff Abiodun Sofoluwe Sowemimo's ("Sowemimo") complaint against Defendants "Attorney Frederick F. Cohn LTD. [("Cohn")] and John Doe's [sic]," (Compl. 1), and motion to proceed in forma pauperis. For the reasons stated below, we dismiss the instant action and deny Sowemimo's motion to proceed in forma pauperis.

BACKGROUND

Sowemimo alleges that he is a prisoner, currently housed at Hill Correctional Center in Galesburg, Illinois, and that Cohn is an attorney licensed to practice in the state of Illinois who maintains an office in Chicago, Illinois. Sowemimo contends that in September 1999, he retained Cohn for the amount of $5,000 and that Cohn's duties as Sowemimo's counsel were "to file appeals in the state court and [to file] a federal habeas corpus petition [("Petition")][,] if necessary." (Compl. 2-3). Sowemimo claims he and members of his family contacted Cohn numerous times over the course of several months to learn when Cohn would file the Petition. Sowemimo contends that in response to his inquiries, Cohn provided numerous excuses and explanations as to why the Petition had yet to be filed and as to when Cohn would file the Petition. Sowemimo further contends that even after directing Cohn to file the Petition and warning Cohn that the Petition would be time-barred if Cohn did not file the Petition expeditiously, Cohn continued to simply state that he would "do it as soon as [he] [could]." (Ex. 9); see (Ex. 5-8). Sowemimo further alleges that Cohn "purposeful[ly]" failed to timely file Sowemimo's Petition and, as a result, the Petition was dismissed by the Northern District of Illinois as untimely. (Compl. 4). Sowemimo also contends that, even after Cohn filed the Petition in an untimely manner, Cohn continued to request and receive payments from Sowemimo and his family, totaling an additional $3,000. Sowemimo claims that "[a]s a result of the attorney-client agreement reached [between] [Sowemimo] and [Cohn], [Cohn] violated" the agreement "by failing in his duty to represent [Sowemimo] in [Sowemimo's] appeals with reasonable care, skill, and diligence possesed [sic] and exercised by the ordinary attorneys in similar circumstances." (Mot. 3-4); (Ex. 16)(Letter by Cohn to Ill. Attorney Registration & Disciplinary Commission). Sowemimo also claims that Cohn "breached the agreement with [Sowemimo] by totally failed [sic] to fulfill his duty and responsibility of causing a federal habeas corpus petition to be filed timely." Id.

LEGAL STANDARD

Section 1915A of Title 28, United States Code, ("Section 1915A") requires a district court to: review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity . . . [and] dismiss the complaint [to the extent that it] is frivolous, malicious, or fails to state a claim upon which relief may be granted. . . .

28 U.S.C. § 1915A. The standard for dismissal under Section 1915A is the same as the standard for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Weiss v. Cooley, 230 F.3d 1027, 1029 (7th Cir. 2000)(holding that a claim was properly dismissed when "there was no set of facts that could be proven, consistent with [plaintiff's] allegations, that would support relief").

DISCUSSION

I. Allegations in Complaint

Sowemimo has brought the current action pursuant to "28 U.S.C. § 1335(A)1.2." (Compl. 1). Section 1335 of Title 28, United States Code, the interpleader statute, states:

(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if

(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if

(2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy.

(b) Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are ...


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