Name of Assigned Judge James B. Zagel Sitting Judge if Other or Magistrate Judge than Assigned Judge
The plaintiff's motion for leave to file in forma pauperis [#3] is granted. However, the complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. The case is terminated. Dismissal is without prejudice to the plaintiff seeking what relief may be available to him in state court. The trust fund officer at the plaintiff's place of confinement is authorized and ordered to make deductions from the plaintiff's account and payments to the Clerk of Court in accordance with this order. The Clerk is directed to mail a copy of this order to the trust fund officer at the Dixon Correctional Center. This dismissal counts as one of the plaintiff's three allotted dismissals under 28 U.S.C. § 1915(g).
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Docketing to mail notices.
The plaintiff, a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff alleges that he was a pre-trial detainee at the Cook County Jail in January of 2007 and that he was issued a paycheck that he never received. He alleges his wife was told by a Cook County Jail staff member that the check had been cashed by another individual. The plaintiff alleges that he has never received the check. The plaintiff characterizes his claim as a violation of due process, conspiracy, intentional infliction of emotional distress, and attempts to raise a respondeat superior claim against Cook County.
The plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff is assessed an initial partial filing fee of $59.54. The trust fund officer at Plaintiff's place of incarceration is authorized and ordered to collect 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, Plaintiff's trust fund officer 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 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 this case number. This payment obligation will follow Plaintiff wherever he may be transferred.
However, under 28 U.S.C. § 1915(e)(2), the court is required to dismiss a suit brought in forma pauperis at any time if the court determines that it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Here, even accepting the plaintiff's factual allegations as true, the court finds that the complaint fails to state a claim as a matter of law.
Initially, To satisfy the notice pleading requirements of FED. R. CIV. P. 8(a)(2), the plaintiff need only state his legal claim and provide "some indication . . . of time and place." Thompson v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004). It is a plaintiff's obligation to provide the grounds of his entitlement to relief which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp., 550 U.S. 544, 555 (citations omitted). While the plaintiff labels his claim as one for a violation of his right to due process, it is clearly a state law conversion claim, at best. The plaintiff's attempt to characterize the alleged theft as a federal due process claim, or a conspiracy fail to meet the pleading standard of Rule 8 and Twombly, and consequently fails to state a cause of action upon which relief can be granted.
Additionally, Plaintiff claims in his complaint, and the attachments further establish, that the alleged conversion of funds occurred in January of 2007. The Court held in Wilson v. Garcia, 471 U.S. 261 (1984), that 42 U.S.C. § 1988 requires federal courts to borrow and apply a state's personal injury statute of limitations to all Section 1983 claims. The applicable statute in this instance is 735 ILCS 5/13-202 (2006), which provides that actions for damages shall be commenced within two years after the cause of action accrued. Williams v. Lampe, 399 F.3d 867, 869-70 (7th Cir. 2005); Farrell v. McDonough, 966 F.2d 279, 280-82 (7th Cir. 1992). Illinois no longer tolls the statute of limitations for inmates. See Wilson v. Giesen, 956 F.2d 738, 741 (7th Cir. 1992). To the extent that the plaintiff's claim could be characterized as some kind of federal claim, because more than two years have elapsed since the plaintiff's claim against defendants arose, this action is time-barred. Expiration of a statute of limitations is an affirmative defense, but "when the existence of a valid affirmative defense is so plain from the face of the complaint that the suit can be regarded as frivolous, the district judge need not wait for an answer before dismissing the suit." Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002).
For the foregoing reasons, this suit is dismissed for failure to state a claim upon which relief may be granted. Dismissal is without prejudice to the plaintiff seeking what relief may be available to him in state court. The plaintiff is warned that if a prisoner has had a total of three federal cases or appeals dismissed as frivolous, malicious, or failing to state a claim, he may not file suit in federal court without prepaying the filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this court within thirty days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis should set forth the issues the plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the $455 appellate filing fee irrespective of the outcome of the appeal. Evans v. Illinois Dept. of Corrections, 150 F.3d 810, ...