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Hernandez v. Dart

June 10, 2009


The opinion of the court was delivered by: Judge Marvin E. Aspen


Presently before us is Plaintiff Jaime Hernandez's application to proceed in forma pauperis (IFP) and for appointment of counsel*fn1 in his multi-count complaint against Cook County Sheriff Tom Dart and various named Cook County Sheriff Deputies ("Defendant Deputies"), former Cook County State's Attorney Dick Devine and Assistant Cook County State's Attorneys Andrea Kirsten and Sara Karr ("State's Attorney Defendants"), Attorneys David Wessel and Russell Stewart, and Cook County Circuit Judges Maria Kuriakos-Ciesil*fn2 and Thomas More Donnelly (collectively, "Defendants"). Plaintiff alleges that Defendants violated various civil rights provisions and committed various common law torts against him in connection with his arrest at the Daley Center in Chicago and his prosecution and ultimate conviction. As set forth below, we grant Plaintiff's application to proceed IFP but dismiss several counts of his Complaint. We also deny his motion for appointment of counsel.


On February 22, 2007, Plaintiff was observing courtroom procedures in Courtroom 1506 of the Daley Center. (Compl. ¶ 7.) Plaintiff apparently often spent time serving as an "unofficial court-watcher," which includes observing courtroom proceedings, sending private reports to the Chief Judge of Cook County, and writing affidavits about his observations for indigent litigants. (Id. ¶ 6.) After exiting the Courtroom, several Sheriff's deputies approached Plaintiff and instructed him to leave. (Id. ¶ 8.) Plaintiff explained to the deputies that he was not doing anything illegal, but was serving as a court-watcher and asked why they demanded his departure. (Id.) The deputies arrested Plaintiff for violation of 720 ILCS 5/21-5, criminal trespass to state supported land.*fn3 (Id. ¶ 10.) Additional charges were brought against the Plaintiff, including resisting arrest, continuing to interfere with an officer's performance of his special duties, and battery. (Id. ¶ 11.) Plaintiff alleges that the additional charges "were manufactured out of whole cloth as 'added insurance' that one or more of them would stick in criminal court." (Id.) Plaintiff was tried before a jury and was convicted, although it is unclear from the Complaint of what charge(s) he was convicted. (Id.) Plaintiff received a 30 day jail sentence. (Id.)

Plaintiff is now suing the deputies involved in his arrest, the State's Attorneys involved in his prosecution, the judge who sat on his criminal trial, his defense attorney, and another attorney who allegedly committed the tort of "false light" against him. Plaintiff filed his first petition for IFP and appointment of counsel on February 2, 2009. (Dkt. No. 4.) We denied that motion because Plaintiff did not fully complete the form and there were ambiguities in his responses. (See 3/23/09 Order.) Plaintiff filed a subsequent motion for IFP and appointment of counsel on April 6, 2009. We now consider that motion.


Before granting leave to file in forma pauperis under 28 U.S.C. § 1915, we must first determine whether Plaintiff's allegation of poverty is true. We also conduct an initial review of his claims and dismiss the action if we find that (1) it is frivolous or malicious; (2) it fails to state a claim upon which relief may be granted under Rule 12(b)(6); or (3) it seeks damages from a defendant who is immune from such relief. See 28 U.S.C. §1915(e)(2)(A), (B)(I-iii). As to the second factor, failure to state a claim, we apply the test for dismissal under Rule 12(b)(6), which requires that a complaint must only "contain enough facts to state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 522, 570, 127 S.Ct. 1955, 1974 (2007); see also George v. Smith, 507 F.3d 605, 608 (7th Cir. 2007). Because Plaintiff is proceeding pro se, we have a responsibility to construe his complaint liberally. Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996). It is the "well established duty of the trial court to ensure that claims of a pro se litigant are given a fair and meaningful consideration." Palmer v. City of Decatur, 814 F.2d 426, 428-39 (7th Cir. 1987). Furthermore, "this initial assessment of the [IFP] plaintiff's factual allegation must be weighted in favor of the plaintiff." Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733 (1992).


I. Indigence

Regarding his allegation of poverty, Plaintiff has submitted a financial affidavit, which states that he has been unemployed since November 11, 2008, and that he has received a total of $308.00 in unemployment compensation since then. (Fin. Aff. ¶¶ 2, 4.) Plaintiff is legally married, but is separated from his spouse and does not know her salary. (Id. ¶ 3.) Plaintiff states that he has two dependents, his son and his grandson.*fn4 (Id. ¶ 10.) Plaintiff further testifies that although he owns a home and a garage -- apparently related to his former business, Aztec Trucking, Inc. -- he owes close to $80,000 in back taxes on those properties. (Id. ¶ 7.) Plaintiff also owns a 2009 Honda Civic, but owes monthly loan payments for it in the amount of $350.58. (Id. 8.) Based on these facts Plaintiff's annual income is well below the $18,310 poverty threshold for a three-person household. (See Health and Human Services 2009 Poverty Guidelines). Although Plaintiff owns property, the amount he owes in taxes on that property would likely prevent him from being able to utilize the property as leverage, and we will not ask the Plaintiff to attempt to do so. Accordingly, Plaintiff has adequately alleged poverty and demonstrated that he is unable to pay the filing fee.

II. Sufficiency of Allegations under Rule 12(b)(6)

As a preliminary matter, we note that Plaintiff's thirty-page complaint asserts seventeen counts, most of which are presented in a duty/breach framework. Plaintiff consistently alleges that Defendants had a duty not to commit various acts and that they breached that duty by committing that act. (See, e.g., Compl. ¶¶ 15, 17,18 (asserting a false imprisonment claim by alleging that Plaintiff had a right to be free from being falsely imprisoned, that Defendants had a duty not to falsely imprison him, and that they breached said duty when they imprisoned and arrested him).) Nonetheless, because Plaintiff is pro se and we are determining whether he may proceed IFP, we give his allegations the most liberal interpretation possible, within reason.

A. False Imprisonment and False Arrest Claims

In counts one and two, Plaintiff alleges that, despite the fact that he was doing nothing illegal, the Defendant Deputies falsely arrested and imprisoned him. (Compl. ¶¶ 8, 13-32.)"The essential elements of a cause of action for false arrest or false imprisonment are that the plaintiff was retained or arrested by the defendant[s], and that the defendant[s] acted without having reasonable grounds to believe that an offense was committed by the plaintiff." Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 474, 564 N.E.2d 1222, 1231 (Ill. 1990); see also Schor v. Daley, 563 F. Supp. 2d 893, 900 (N.D. Ill. 2008). At this stage of initial review and drawing all inferences in favor of the Plaintiff, he has sufficiently stated claims for false arrest and false imprisonment.*fn5 See Denton, 504 U.S. at 32, 112 S.Ct. at 1733; Walker v. Taylorville Corr. Ctr., 129 F.3d 410, 414 (7th Cir. 1997).

B. Malicious Prosecution

In order to state a claim for malicious prosecution under 42 U.S.C. § 1983, a plaintiff must demonstrate that: "(1) he has satisfied the requirements of a state law cause of action for malicious prosecution; (2) the malicious prosecution was committed by state actors; and (3) he was deprived of his liberty." Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998). Under Illinois law, a plaintiff must allege that "(1) he was subjected to judicial proceedings; (2) for which there was no probable cause; (3) the defendants instituted or continued the proceedings maliciously; (4) the proceedings were terminated in the plaintiff's favor; and (5) there was an injury." Id. at 480-81 (quoting Reed v. City of Chi., 77 F.3d 1049, 1051 (7th Cir. 1996)). Plaintiff cannot satisfy the fourth ...

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