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Bennie Ellison v. the Illinois Department of Illinois

January 28, 2011

BENNIE ELLISON
v.
THE ILLINOIS DEPARTMENT OF ILLINOIS



Name of Assigned Judge Matthew F. Kennelly Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

(#R-00575)

DOCKET ENTRY TEXT

Plaintiff is directed to submit a renewed i.f.p. petition that is certified by a trust fund officer; he must also attach copies of his prison trust fund ledgers showing his income for the six months preceding the filing of this action, that is, from 6/8/2010 through 12/8/2010. Failure to comply within thirty days of the date of this order will result in denial of leave to proceed in forma pauperis and summary dismissal of this case. The Clerk is directed to provide Plaintiff with a blank i.f.p. petition and an amended complaint form and instructions for filing, along with a copy of this order. To the extent Plaintiff submits an acceptable amended complaint in this case, his motion for a jury trial [#5] is granted. Plaintiff is reminded that he must provide the Court with the original plus a judge's copy of every document filed.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff has filed this cause of action pursuant to 28 U.S.C. § 1983, alleging that the Defendants violated his rights in a variety of ways, including being deliberately indifferent to a serious medical condition, utilizing excessive force, retaliating against him for filing grievances, restricting his access to the law library, and subjecting him to unconstitutional conditions of confinement. Plaintiff has failed either to pay the $350.00 filing fee or file a properly completed application to proceed in forma pauperis.

An incarcerated person seeking leave to proceed in forma pauperis must obtain a certificate from a prison official stating the amount of money the prisoner has on deposit in his or her prison or jail trust fund account. The certification attached to Plaintiff's i.f.p. application is dated August 10, 2010, and consequently, contains stale financial information. It actually appears that the certification included in Plaintiff's i.f.p. application in this case is the same one submitted with his suit filed on September 10, 2010, Ellison v. Illinois Department of Corrections, (Case No. 10 C 5772) (N.D. Ill.) (Kennelly, J.)

Additionally, for the Court to make the necessary assessment of an initial partial filing fee, the prisoner must "submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2). In the case at bar, Plaintiff's i.f.p. petition is not properly certified by an authorized jail official because it is out-dated, and Plaintiff has failed to include copies of his prison trust fund ledgers from the past six months.

In short, if Plaintiff wants to proceed with this lawsuit, he must submit a properly certified i.f.p. petition by an authorized jail official, along with copies of trust fund ledgers showing his income for the six months preceding the filing of this lawsuit [that is, from June 8, 2010, through December 8, 2010]. The Clerk will provide Plaintiff with a blank i.f.p. application. The Clerk shall also forward a copy of this order to the trust fund officer at the Cook County Jail to facilitate compliance. Failure to comply [or, in the alternative, to submit the statutory filing fee of $350.00] will result in summary dismissal of this suit. See Zaun v. Dobbin, 628 F.2d 990 (7th Cir. 1980).

Plaintiff must also submit an amended complaint, as the complaint is flawed in multiple ways. The complaint names the Illinois Department of Corrections as a Defendant in the caption, which is an improper party. A suit against the Illinois Department of Corrections is a suit against the State of Illinois. Unless a state has consented to be sued, it is immune from suit in federal court under the Eleventh Amendment to the United States Constitution. See Pennhurst v. Haldeman, 465 U.S. 89, 100-101 (1984).The State of Illinois has not consented to be sued, and the immunity has been directly applied to the Illinois Department of Corrections. Trotter v. Klincar, 748 F.2d 1177, 1181 (7th Cir. 1984), see also Walker v. Rowe, 791 F.2d 507, 508 (7th Cir. 1986). While there is an exception in suits seeking prospective injunctive relief against state officials in their official capacities, (see Ex Parte Young,209 U.S. 123 (1908)), such suits may not be brought against the States or their agencies directly. Id. As Plaintiff has brought suit against the Illinois Department of Corrections, the immunity applies, and the Illinois Department of Corrections is dismissed from this action. Plaintiff should not include the Illinois Department of Corrections as a Defendant in his amended complaint.

Additionally, Plaintiff should follow the requirements of Fed. R. Civ. P. 8(a)(2), which provides that Plaintiff's complaint should contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Plaintiff's narrative style renders ineffective any notice to Defendants of the claims being made against them.

Further, it appears that Plaintiff may be alleging unrelated claims against unrelated Defendants, which is not allowed. See George v. Smith, 507 F.3d 605, 607-08 (7th Cir. 2007) ("Unrelated claims against different defendants belong in different suits)" Id. at 607. In George, the U.S. Court of Appeals for the Seventh ...


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