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Levan v. George

September 24, 2007

MICHAEL LEVAN, PLAINTIFF,
v.
STEVEN GEORGE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDADE United States District Judge

OPINION AND ORDER

Before the Court is Plaintiff's Objections to the Magistrate Judge's May 22, 2007 Report and Recommendation, filed on June 14, 2007 [Doc. 34]. Plaintiff objects to Magistrate Judge Byron G. Cudmore's Report and Recommendation denying in part and granting in part Defendants' Rule 12(b)(6) Motions to Dismiss Plaintiff's First Amended Complaint. [Docs. 22, 24]. Specifically, Plaintiff objects to Judge Cudmore's recommendation to dismiss, with leave to replead, Plaintiff's access to the courts claim.

BACKGROUND

Judge Cudmore accurately described the facts before the Court as follows:

On February 5, 2004, Plaintiff appeared in Judge Kouri's courtroom in the Peoria County Courthouse, for a hearing on Plaintiff's motion to reconsider a default judgment that had been entered against him in a traffic court case. (Amended Complaint, ¶ 12.) Defendant Williams, an attorney for the City of Peoria, was in the courtroom and had Plaintiff's court file on the counsel table, behind the bar. (Amended Complaint, ¶ 13.)

Plaintiff needed to look at the court file to prepare for the hearing, but Defendant Williams denied Plaintiff's attempts to access the file, instead informing Plaintiff that she intended to present a petition to show cause why Plaintiff should not be arrested. (Amended Complaint, ¶¶ 13-14.) Defendant Williams also directed Defendant Westerfield, a Peoria County Jail Officer, to arrest Plaintiff if he should traverse in front of the bar. (Amended Complaint, ¶ 15.) Judge Kouri was not present during the exchange. (Amended Complaint, 16.)

Despite Defendant Williams' admonition, Plaintiff proceeded beyond the bar to look at the court file. (Amended Complaint, ¶ 17.) Defendant Williams again refused to allow Plaintiff access to the court file and directed Defendant Westerfield to arrest Plaintiff. (Amended Complaint, ¶ 18.)

Defendant Westerfield arrested Plaintiff, despite lacking probable cause to believe Plaintiff had committed any crime, and despite Defendant Williams' lack of authority to order an arrest. (Amended Complaint, ¶ 19.) Defendant George, another Peoria County Jail Officer, took "off [P]laintiff's glasses and release[ed] pepper spray into [P]laintiff's face and eyes while he was in the custody of Officer Westerfield." (Amended Complaint ¶ 20.) Defendants Westerfield and George then placed Plaintiff in a jail cell adjoining the courtroom. (Amended Complaint, ¶ 21.)

While Plaintiff was in the jail cell, Defendant Weber, yet another Peoria County Jail Officer, came in and "kicked [P]laintiff in the face...and pulled his hair upwards and again pepper sprayed the face of [P]laintiff. Officer Weber also slammed [P]laintiff's face into the corner of the elevator when transporting him...to the Peoria County Jail." (Amended Complaint ¶ 22.)

Criminal proceedings were instituted against Plaintiff based on Defendants' false account of Plaintiff's behavior in the courtroom. Plaintiff was charged with disorderly conduct, resisting a peace officer, and aggravated battery. Plaintiff was ultimately acquitted of the charges in a criminal trial in July 2006. (Amended Complaint, ¶ 23.)

In February 2006, Plaintiff initiated this lawsuit and pursued three claims in his amended complaint filed November 28, 2006: (1) false arrest; (2) excessive force; and (3) denial of access to the courts. (Amended Complaint ¶¶ 26-30.) Defendants brought Motions to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) [Docs. 22, 24]. Judge Cudmore issued a Report and Recommendation ("R&R") on May 22, 2007, denying in part and granting in part Defendants' Motions to Dismiss Plaintiff's Complaint. Specifically, Judge Cudmore recommended dismissal of Plaintiff's access to courts claim, with leave to replead, and recommended the dismissal of any claim by Plaintiff for malicious prosecution claim based on the Fifth Amendment, "to the extent he makes one." [Doc. 29, p. 1] Judge Cudmore then recommended that the Motions otherwise be denied. [Doc. 29, p. 1]

Plaintiff now objects to Judge Cudmore's recommendation for the dismissal of Plaintiff's access to courts claim.

LEGAL STANDARD

The standard of review of an order or recommendation made by a magistrate judge is governed by 28 U.S.C. ยง 636(b)(1), and Federal Rule of Civil Procedure 72. A district court reviews de novo any portion of a magistrate judge's report and recommendation to which written objections have been made. Id. "The district judge may accept, reject, or modify the recommended decision, receive ...


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