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Anthony Johnson v. Percy Butler

United States District Court, Northern District of Illinois


June 10, 2011

ANTHONY JOHNSON
v.
PERCY BUTLER, ET AL.

Name of Assigned Judge or Magistrate Judge SHARON JOHNSON COLEMAN Sitting Judge if Other than Assigned Judge

CASE TITLE

(#A-93678)

DOCKET ENTRY TEXT:

The plaintiff's motion for leave to proceed in forma pauperis [#3] is denied, with leave to renew. The plaintiff is granted thirty days in which either to file a properly completed in forma pauperis application on the enclosed form with the information required by 28 U.S.C. § 1915(a)(2) or pay the full $350 filing fee. The plaintiff must also submit a proposed amended complaint (along with a judge's copy and service copies). Failure of the plaintiff to comply with these directives within thirty days will result in summary dismissal of this case. The clerk is directed to send the plaintiff an in forma pauperis application, an amended complaint form, and instructions along with a copy of this order.

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

STATEMENT

The plaintiff, a state prisoner, has submitted a pro se civil rights complaint under 42 U.S.C. § 1983 and seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The plaintiff claims that a private individual accused him of domestic battery, that a Chicago police officer consequently arrested him, that the Cook County State's Attorney prosecuted him for the crime, and that Illinois Prisoner Review Board officials launched parole revocation proceedings on the basis of the criminal charge.

The clerk has accepted this pro se civil rights complaint for docketing pursuant to Fed. R. Civ. P. 5(e) even though it was not submitted in compliance with federal statutes and the rules of this court. The plaintiff's application to proceed in forma pauperis is not certified by a jail or prison official and does not include trust fund ledgers reflecting his income for the past six months. See 28 U.S.C. § 1915(a)(2). If the plaintiff wishes to proceed with this case in forma pauperis, he must file a signed i.f.p. application on the court's required form, together with a certified copy or copies of his trust fund statements reflecting all activity in his accounts in the six months preceding the filing of this lawsuit [that is, from December 3, 2010, through June 3, 2011]. A jail official must complete and sign the part of the form captioned "Certificate" on the back of the i.f.p. application. In the alternative, the plaintiff may pay the full $350 statutory filing fee.

The plaintiff must also submit an amended complaint, as the complaint on file alleges no constitutional violation.

The plaintiff cannot successfully sue Mr. Butler under 28 U.S.C. § 1983 for calling 911 even if his allegations of domestic battery were false. Generally, in order to be liable under 42 U.S.C. § 1983, a defendant must have both (a) acted under color of state law and (b) violated a constitutional right. Burrell v. City of Mattoon, 378 F.3d 642, 647 (7th Cir. 2004). Merely providing false information to the police does not transform a private individual into a state actor. Pepper v. Village of Oak Park, 430 F.3d 805, 811 (7th Cir. 2005); see also Kelley v. Myler, 149 F.3d 641, 649 (7th Cir. 1998) (calling the police and describing the situation to an officer does not support a charge that a conspiracy existed to arrest the plaintiff in violation of her civil rights); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir. 1985).

With regard to his arrest for domestic battery, the plaintiff does not allege either that there was no warrant for his arrest or that there was no probable cause for the arrest; he indicates only that he was arrested. A complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010) (citing Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009)). "Once a reasonably credible witness informs an officer that a suspect has committed a crime, the police have probable cause to arrest the suspect." Phillips v. Allen, No. 07 C 0666, 2010 WL 3861049, *6 (N.D. Ill. Sep. 28, 2010) (Dow, J.), citing Woods v. City of Chicago, 234 F.3d 979, 987 (7th Cir. 2000), inter alia. "When an officer has received his information from some person--normally the putative victim or an eye witness--who it seems reasonable to believe is telling the truth, he has probable cause." Grimm v. Churchill, 932 F.2d 674, 675 (7th Cir. 1991) (internal quotations omitted). The complaint suggests no basis for questioning the arrest.

The Cook County State's Attorney is absolutely immune from suits for monetary damages under § 1983 for conduct that is "intimately associated with the judicial phase of the criminal process." Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003). "[I]n initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983." Imbler v. Pachtman, 424 U.S. 409, 429-31 (1976); see also, Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003).

Finally, "[a] parole officer enjoys absolute immunity for issuing an arrest warrant against a parolee so long as she does not participate in gathering the evidence forming the basis of the warrant." Copus v. City of Edgerton, 151 F.3d 646, 649 (7th Cir. 1998), citing Walrath v. United States, 35 F.3d 277, 282 (7th Cir. 1994). Agent Rice was permitted to rely on the initiation of criminal proceedings in concluding that the plaintiff had violated the terms of his mandatory supervised release.

The plaintiff will be given the opportunity to submit an amended complaint against Detective Humphrey only. The amended complaint should indicate how Humphrey violated a constitutional right in arresting the plaintiff.

In sum, if after considering the provisions of the Prison Litigation Reform Act the plaintiff wishes to proceed with this suit, he must, within thirty days of the date of this order: (1) either file an in forma pauperis application on the enclosed form with the information required by § 1915(a)(2) or pay the full $350 filing fee; and

(2) submit an amended complaint indicating how defendant Humphrey violated a constitutional right. As with every document filed with the court, the plaintiff must provide both the original and a judge's copy; he must also include a service copy for the defendant. The clerk will provide the plaintiff with an in forma pauperis application, an amended complaint form, and instructions along with a copy of this order. If the plaintiff fails to comply with the above directives within thirty days, the court will dismiss the case, on the understanding that plaintiff does not wish to pursue this lawsuit.

20110610

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