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Ryburn v. Hulick

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


November 3, 2010

THOMAS V. RYBURN #B60455, PLAINTIFF,
v.
DON HULICK, ET AL., DEFENDANTS.

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

MEMORANDUM

This is one of two lawsuits that Stateville Correctional Center ("Stateville") inmate Thomas Ryburn ("Ryburn") filed on the same date, October 28, 2010. Because Ryburn has not paid the filing fee, nor has the Clerk's Office treated him as having requested in forma pauperis status (but see n.3), this Court is not in a position to address his proposed lawsuit in substantive terms. Instead this threshold memorandum is issued sua sponte to draw his attention to some obvious problems posed by his filing.

It appears that Ryburn's current Complaint, brought under 42 U.S.C. §1983 ("Section 1983"), stems from the dismissal by this Court's colleague Honorable Virginia Kendall of an earlier action brought against the Illinois Department of Corrections (Case No. 09 C 5733). That lawsuit had mistakenly been labeled by Ryburn as a habeas corpus action, but Judge Kendall's October 2, 2009 minute order (1) held that he had chosen the wrong remedy and (2) directed the transmittal to Ryburn of copies of this District Court's form developed for use by persons in custody who are suing pro se.

Inexplicably, however, Ryburn took more than a year to file the current Complaint--and as a result a great many of his allegations in Complaint ¶IV (the "Statement of Claim") are barred by the two-year statute of limitations applicable to Illinois-based Section 1983 actions.*fn1 That means that if this action goes forward Ryburn should voluntarily dismiss every named defendant whose only activity about which he complains preceded October 20, 2008.*fn2 In addition, Ryburn should be aware that claimed violations of the Illinois Administrative Code, to which he refers at numerous points in his Statement of Claim, are not directly actionable under Section 1983--it is only if such violations also implicate the violation of federal constitutional rights that they become relevant here.

This memorandum has not sought to be exhaustive, for it would be premature to engage in the in-depth screening called for by 28 U.S.C. §1915A. Instead, unless Ryburn either pays the $350 filing fee or takes the necessary steps under 28 U.S.C. §1915 on or before November 22, 2010,*fn3 this Court will be constrained to dismiss both the Complaint and this action without prejudice.


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