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Hughest Gibson (B42794 v. J. Sullivan

January 17, 2012

HUGHEST GIBSON (B42794)
v.
J. SULLIVAN, ET AL.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge George W. Lindberg than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 3) is granted. The Court authorizes and orders the trust fund officer at plaintiff's place of incarceration to deduct $39.45 from plaintiff's account, and to continue making monthly deductions in accordance with this order. The clerk shall send a copy of this order to the trust fund officer at the Lawrence Correctional Center. Summonses shall not issue at this time. The complaint on file is dismissed without prejudice. The plaintiff is granted thirty days to submit a proposed amended complaint (plus a judge's copy and service copies) that complies with this order. The clerk is directed to provide the plaintiff with an amended civil rights complaint form and instructions for filing along with a copy of this order. Failure to submit a proposed amended complaint within thirty days will result in summary dismissal of this case. Plaintiff's motion for appointment of counsel (Dkt. No. 4), is denied without prejudice.

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

STATEMENT

Pro se plaintiff Hughest Gibson, an inmate at the Lawrence Correctional Center, has brought a civil rights suit against various Chicago Police officer defendants, Cook County State's Attorneys, and the owner of the Lounge Cafe in Chicago, Illinois. Pending before the Court are plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 3), complaint for an initial review pursuant to 28 U.S.C. § 1915A (Dkt. No. 1), and motion for appointment of counsel (Dkt. No. 4).

The plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted. Pursuant to 28 U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $39.45. The trust fund officer at the plaintiff's place of incarceration is authorized and ordered to collect the partial filing fee from the plaintiff's trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, the plaintiff's trust fund officer is directed to collect monthly payments from the 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 the plaintiff's name and this case number. This payment obligation will follow the plaintiff wherever he may be transferred.

Turning to the initial review of the complaint, the Court is required to dismiss a suit brought in forma pauperis if it determines that the complaint 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. 28 U.S.C. § 1915A. The following facts, drawn from plaintiff's complaint (Dkt. No. 1), are accepted as true and all reasonable inferences are made in the light most favorable to the plaintiff. Parish v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010) (citing Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001)). This Court also "construe[s] pro se complaints liberally and hold[s] them to a less stringent standard than formal pleadings drafted by lawyers." Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Erickson v. Pardus, 551 U.S 89, 94 (2007) (per curiam); Obriecht v. Raemisch, 417 F.3d 489, 492 n.2 (7th Cir. 2008)).

"To satisfy the notice-pleading standard, a complaint must provide a 'short and plain statement of the claim showing that the pleader is entitled to relief,' which is sufficient to provide the defendants with 'fair notice' of the claim and its basis." Bridges, 557 F.3d at 545 (quoting Erickson, 551 U.S at 89). "'[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "The complaint must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief above the speculative level." Bridges, 557 F.3d at 546 (internal quotation marks and citations omitted) (emphasis in original).

Plaintiff alleges that he was walking with his fiancee Ora Price in the 1100 Block of West Wilson Avenue in Chicago on the evening of September 9, 2009 when two men asked them to change a five dollar bill. Plaintiff provided them with five singles and then defendant Chicago Police Officers Patel, Dominguez and Bennett confronted him suspecting plaintiff had just bought drugs from the men. The officers allegedly used excessive force during the arrest badly twisting plaintiff's arms and slamming his face on the trunk of their car.

The officers refused plaintiff's request for medical attention and took him to the police station. He would not receive care until he was transferred to the Cook County Jail. By September 14, 2009, plaintiff was charged with distributing drugs and assaulting the police officers. He believes that he was falsely charged and wrongfully convicted of the aggravated battery charge in October 2010. He was acquitted of the drug charge. The wrongful conviction is the alleged result of the destruction of the surveillance videotape from the Lounge Cafe by defendant prosecutors Jennings and Brown. Plaintiff claims the tape would have been exculpatory, so it was destroyed to cover up the police officers' misconduct.

Plaintiff raises federal excessive force, false arrest, false imprisonment, denial of medical treatment, Brady, and conspiracy claims. He also raises associated state law battery, negligence, intentional infliction of emotional distress, and malicious prosecution claims. A number of plaintiff's claims are barred by the statute of limitations. It is appropriate to dismiss these untimely claims because the statute of limitations defense is clear from the face of the complaint. Best v. City of Portland, 554 F.3d 698, 700 (7th Cir. 2009); Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002).

Plaintiff faces the same two-year statute of limitations for both his federal and state tort claims because the state statute of limitations period is applied to both state and federal claims. Draper v. Martin, __ F.3d __, Nos. 10-2837, 10-3054, 2011 WL 6880357, at *2 (7th Dec. 30, 2011) (citing 735 ILCS 5/13-202; Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th Cir. 2007); Hilleman v. Maze, 367 F.3d 694, 696 (7th Cir. 2004); Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993)). The excessive force, false arrest, failure to provide medical care, and conspiracy claims accrued on the night of the incident of September 9, 2009, and the false imprisonment claim accrued by September 14, 2009 when plaintiff was criminally charged. Wallace v. Kato, 549 U.S. 384, 387 (2007); Evans v. Poskon, 603 F.3d 362, 363-64 (7th Cir. 2010); Brooks v. City of Chicago, 564 F.3d 830, 831 (7th Cir. 2009); Jenkins, 506 F.3d at 623; Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir. 1996). This same statute of limitations analysis covers the accrual of the state battery, negligence and intentional infliction of emotional distress claims. All of the aforementioned claims accrued in September 2009.

Plaintiff's proof of service states that he submitted his complaint to correctional officials for mailing on January 5, 2012. This date is the complaint's filing date for statute of limitations purposes under the prison mailbox rule. Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001) (citing Houston v. Lack, 487 U.S. 266 (1988)). More than two years lapsed between the accrual of the claims in September 2009 and the filing of the complaint in January 2012. The claims are untimely under the statute of ...


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