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Gary Whitmore (#B-11545 v. Anita Alvarez

United States District Court, Northern District of Illinois


January 9, 2012

GARY WHITMORE (#B-11545)
v.
ANITA ALVAREZ

Name of Assigned Judge GARY FEINERMAN Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT:

Plaintiff's motion for leave to proceed in forma pauperis [3] is granted. The court authorizes and orders the trust fund officer at Plaintiff's place of incarceration to begin making monthly deductions in accordance with this order. The Clerk shall send a copy of this order to the trust fund officer at the Pontiac Correctional Center. The Clerk shall issue summons for service on Defendant by the U.S. Marshal. The Clerk shall send Plaintiff a Magistrate Judge Consent Form, Instructions for Submitting Documents, and this order.

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

STATEMENT

Plaintiff Gary Whitmore, an Illinois state prisoner, brought this pro se action pursuant to 42 U.S.C. § 1983. Whitemore alleges that Defendant Anita Alvarez, the State's Attorney of Cook County, violated his due process rights by wrongfully refusing to release crime scene evidence he wishes to have forensically tested.

Whitmore's motion for leave to proceed in forma pauperis is granted. Because Whitmore has a substantial negative balance in his trust account, the initial partial filing fee is waived pursuant to 28 U.S.C. § 1915(b)(4). However, the trust fund officer at Whitmore's place of incarceration is authorized and ordered to begin collecting monthly payments from his trust fund account in an amount equal to 20% of the preceding month's income credited to the account. See 28 U.S.C. § 1915(b)(2). 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. Ibid. 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 Whitmore's name and this case number. This payment obligation will follow Whitmore wherever he may be transferred. Under 28 U.S.C. § 1915A, the court must conduct a prompt threshold review of the complaint. Accepting the complaint's allegations as true, Whitmore has articulated a colorable federal cause of action. In so holding, the court notes that a prior case by plaintiff advancing similar claims was dismissed. See Whitmore v. Devine, No. 08 C 2336 (N.D. Ill.), Minute Order of February 3, 2009. Since that time, however, the Supreme Court has ruled that a convicted state prisoner may seek DNA testing of crime scene evidence by way of a civil rights action under 42 U.S.C. § 1983. See Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011). Accordingly, the complaint survives a threshold review.

The Clerk shall issue summons forthwith and send Whitmore a Magistrate Judge Consent Form, Instructions for Submitting Documents, and a copy of this order. The Marshals Service is appointed to serve Defendant. The Marshals Service shall send Whitmore the appropriate service forms, and Whitmore shall fill out those forms and return them to the Marshals Service. The Marshals Service 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.

Whitmore is instructed to file all future papers concerning this action with the Clerk of Court in care of the Prisoner Correspondent. Whitmore must provide the court with the original plus a complete judge's copy, including any exhibits, of every document filed. In addition, Whitmore must send an exact copy of any court filing to Defendant (or to defense counsel, once an attorney has entered an appearance on behalf of Defendant). 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.

20120109

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