United States District Court, Northern District of Illinois
October 1, 2010
ANTHONY HARRIS (#2010-0520121)
OFFICER MARTINEZ, ET AL.
Name of Assigned Judge or Magistrate Judge Elaine E. Bucklo Sitting Judge if Other than Assigned Judge
DOCKET ENTRY TEXT:
Plaintiff's motion for leave to file in forma pauperis [#3] is granted. The Court authorizes and orders the trust fund officer at the Cook County Jail to collect monthly payments from Plaintiff's trust fund account in accordance with this order. The Clerk is directed to forward a copy of this order to Supervisor of Inmate Trust Fund Accounts, Cook County Dept. of Corrections Administrative Office, Division V, 2700 S. California, Chicago, IL 60608. The Clerk is directed to issue summonses for Defendants Martinez and Mendez, and the United States Marshals Service is appointed to serve them. The Clerk shall send Plaintiff Instructions for Submitting Documents, along with a copy of this order. Plaintiff's motion for appointment of counsel [#4] is denied.
O[For further details see text below.] Docketing to mail notices.
Plaintiff, Anthony Harris, presently in custody of the Cook County Jail, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that on May 19, 2010, Defendants, City of Chicago Police Officers Jair Martinez and Jamie Mendez, subjected him to false arrest without probable cause and excessive force on arrest by beating him until his left shoulder was dislocated.
Plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $12.40. The supervisor of inmate trust accounts at the Cook County Jail is authorized and ordered to collect, when funds exist, the partial filing fee from Plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, the trust fund officer at Plaintiff's place of confinement is directed to collect monthly payments from Plaintiff's trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments collected from Plaintiff's trust fund account shall be forwarded to the Clerk of Court each time the amount in the account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier's Desk, 20th Floor, and shall clearly identify Plaintiff's name and the case number assigned to this action. The Cook County inmate trust account office shall notify transferee authorities of any outstanding balance in the event Plaintiff is transferred from the jail to another correctional facility.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt initial review of prisoner complaints against governmental entities or employees. Here, accepting Plaintiff's factual allegations as true, the Court finds that the complaint states a colorable cause of action under the Civil Rights Act as to Defendants Martinez and Mendez for false arrest. Morfin v. City of East Chicago, 349 F.3d 989, 997 (7th Cir. 2003), citing Fernandez v. Perez, 937 F.2d 368, 370 (7th Cir. 1991). The Court also finds that Plaintiff has stated a claim for excessive use of force. Acevedo v. Canterbury, 457 F.3d 721, 724 (7th Cir. 2006). While a more fully developed record may belie the Plaintiff's allegations, Defendants must respond to the complaint. However, Plaintiff is cautioned that he has represented to the Court in his complaint that his state criminal proceedings are still ongoing. The alleged "unconstitutional conduct" may continue to be litigated in state court (i.e., seeking removal of appointed counsel) and may be further litigated either on his direct appeal or in other collateral state proceedings. A federal court may not interfere with state criminal proceedings, and abstention is appropriate when a plaintiff invokes federal jurisdiction for the purpose of restraining or otherwise interfering with state criminal proceedings. See Younger v. Harris, 401 U.S. at 53; Douglas v City of Jeannette, 319 U.S. 157 (1943); Simpson v. Rowan, 73 F.3d 134, 138-9 (7th Cir. 1995). If Defendants raise the possibility of this Court's decisions interfering with the ongoing state court criminal proceedings, this Court may have to stay this matter or dismiss it with leave to reinstate at the conclusion of the state court proceedings.
The Clerk shall issue summonses for service of the complaint on Defendants Martinez and Mendez (hereinafter, "Defendants"). The Clerk shall also send Plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order.
The United States Marshals Service is appointed to serve Defendants. Any service forms necessary for Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendants with process. The U.S. Marshal is directed to make all reasonable efforts to serve Defendants. With respect to any former employee who can no longer be found at the work address provided by Plaintiff, the Village of Frankfort Police Department shall furnish the Marshal with Defendant's last-known address. The information shall be used only for purposes of effectuating service [or for proof of service, should a dispute arise] and any documentation of the address shall be retained only by the Marshal. Address information shall not be maintained in the Court file, nor disclosed by the Marshal. The Marshal is authorized to mail a request for waiver of service to Defendant in the manner prescribed by FED. R. CIV. P. 4(d)(2) before attempting personal service.
Plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of the Prisoner Correspondent. Plaintiff must provide the Court with the original plus a complete judge's copy, including any exhibits, of every document filed. In addition, Plaintiff must send an exact copy of any Court filing to Defendants [or to defense counsel, once an attorney has entered an appearance on behalf of Defendants]. Every document filed with the Court must include a certificate of service stating to whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these instructions may be disregarded by the Court or returned to Plaintiff.
The Court denies Plaintiff's motion for appointment of counsel without prejudice for failure to make a showing that he "has made reasonable efforts to retain counsel and was unsuccessful or that the indigent was effectively precluded from making such efforts." Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004), quoting Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992).
© 1992-2010 VersusLaw Inc.