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Tolbert v. Vonnegher

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


July 30, 2007

GEORGE TOLBERT, PLAINTIFF,
v.
JONATHAN S. VONNEGHER, DEFENDANT.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

Persistent litigant George Tolbert ("Tolbert")*fn1 has trained his sights this time on Assistant Public Defender Jonathan Vonnegher, claiming ineffective assistance of counsel. Not only has Tolbert tendered a 42 U.S.C. §1983 ("Section 1983") Complaint in this District Court, using the form provided by the Clerk's Office for that purpose, but he has written to the American Bar Association and the Illinois Attorney Registration and Disciplinary Commission to complain about counsel's handling of his criminal case.

Whatever relief Tolbert may possibly receive elsewhere (if he is entitled to any, a subject on which this Court expresses no opinion), he cannot pursue his current claim here. It was definitively established a full quarter century ago that a public defender is not a "state actor" such as to be subject to suit under Section 1983--see Polk County v. Dodson, 454 U.S. 312 (1981).

Even if Tolbert's Complaint did not possess the just-identified fatal flaw, he has abused the system by submitting it without payment of the required $350 filing fee. Earlier this year he was specifically advised in the most recent case that he himself lists, Tolbert v. Godinez, 07 C 1573, that he had accumulated three "strikes" under 28 U.S.C. §1915(g)("Section 1915(g)"), so that he could no longer seek in forma pauperis status except under limited circumstances not applicable here. Accordingly that provides a second and independent basis for not accepting this current lawsuit.

Both the Complaint and this action are therefore dismissed with prejudice. Relatedly his In Forma Pauperis Application is denied pursuant to Section 1915(g), while his Motion for Appointment of Counsel is denied as moot.


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