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Edward Franco (#B-75001 v. Marcus Hardy

United States District Court, Northern District of Illinois

June 6, 2012


Name of Assigned Judge Sitting Judge if Other or Magistrate Judge JAMES F. HOLDERMAN than Assigned Judge



The plaintiff's motion for leave to proceed in forma pauperis [#3] is granted. The court authorizes and orders the trust fund officer at the plaintiff's place of incarceration to deduct $21.91 from the plaintiff's account for payment to the Clerk of Court as an initial partial filing fee, 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 Stateville Correctional Center. The clerk is directed to issue summonses for service on defendants Hardy and Bass by the U.S. Marshal. All other defendants are dismissed on preliminary review pursuant to 28 U.S.C. § 1915A and/or Fed. R. Civ. P. 18. The clerk is directed to send the plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order. The plaintiff's motion for appointment of counsel [#4] is denied, without prejudice.

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


The plaintiff, a Rhode Island state prisoner incarcerated in Illinois under an interstate compact, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, correctional officials in Illinois and Rhode Island, have violated the plaintiff's constitutional rights by denying him equal protection. More specifically, the plaintiff alleges that Illinois prison officials are denying him access to educational, rehabilitational, and vocational opportunities because he is white and because he is from another state; he additionally contends that he is being denied "good time" credits for which other, in-state Rhode Island inmates are eligible for prison employment.

The plaintiff's motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $21.91. 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.

Under 28 U.S.C. § 1915A, the court is required to conduct a prompt threshold review of the complaint. Here, accepting the plaintiff's allegations as true, the court finds that the plaintiff has articulated colorable federal causes of action against defendants Hardy and Bass. To state an equal protection violation, a plaintiff need only allege that he is a member of a protected class, and that state actors have treated members of his class differently than people not in the class but who are similarly situated. See, e.g., Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005). Warden Hardy and Counselor Bass (who is purportedly responsible for inmate job assignments) must respond to the plaintiff's allegations.

However, the complaint is dismissed on initial review as to all other defendants. With respect to Illinois grievance officials, the state's statutory grievance procedures do not create a protected interest. Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Any right to a grievance is a procedural one, not substantive. Id. Therefore, the defendants' failure to rule favorably on the plaintiff's grievances is not actionable under Section 1983. The plaintiff cannot attribute any perceived discrimination on the part of those who simply noted, in denying his grievance, that he was on various job waiting lists.

The defendants' limited role in reviewing and denying the plaintiff's grievances is insufficient to support an inference of involvement. Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, "to be liable under § 1983, an individual defendant must have caused or participated in a constitutional deprivation." Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted). Defendants Thompson and Benton lack direct, personal involvement in the alleged denial of equal protection. They are not personally responsible for making inmate job assignments; rather, they simply relied on what Stateville officials told them. Only Hardy and Bass have any conceivable involvement in the delegation of inmate job opportunities.

Defendants Wall and Dinitto, the Director and Associate Director, respectively, of the Rhode Island Department of Corrections, are likewise dismissed on preliminary review. If the plaintiff wishes to sue Rhode Island officials over his transfer to Illinois, to sue them over program eligibility, or to bring a habeas action challenging the calculation of his good conduct credits, he must do so in a separate action. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007):

The controlling principle appears in Fed. R. Civ. P. 18(a): "A party asserting a claim to relief . . . may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party." Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant

Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass that this 50-claim, 24-defendant suit produced but also to ensure that prisoners pay the required filing fees--for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).

In short, the plaintiff may sue only Stateville officials in this lawsuit, and only to the extent that he is claiming to be the victim of discrimination with respect to program opportunities. Any other claims against any other individuals must be pursued in separate actions.

The clerk shall issue summonses forthwith for service on defendants Hardy and Bass. The United States Marshals Service is appointed to serve the defendants. Any service forms necessary for the plaintiff to complete will be sent by the Marshal as appropriate to serve the defendants with process. The U.S. Marshal is directed to make all reasonable efforts to serve the defendants. If either defendant can no longer be found at the work address provided by the plaintiff, the Illinois Department of Corrections shall furnish the Marshal with the defendant's last-known address. The information shall be used only for purposes of effectuating service [or for proof of service, should a dispute arise] and any documentation of the address shall be retained only by the Marshal. Address information shall not be maintained in the court file, nor disclosed by the Marshal. The Marshal is authorized to mail a request for waiver of service to the defendants in the manner prescribed by Fed. R. Civ. P. 4(d)(2) before attempting personal service.

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

Finally, the plaintiff's motion for appointment of counsel is denied. There is no constitutional or statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1) to request counsel for an indigent litigant. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007), citing Johnson, 433 F.3d at 1006. When a pro se litigant submits a request for appointment of counsel, the court must first consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his own, or conversely, if he has been precluded from doing so. Pruitt, 503 F.3d at 654. Next, the court must evaluate the complexity of the case and whether the plaintiff appears competent to litigate it on his own. Id. at 654-55. Another consideration is whether the assistance of counsel would provide a substantial benefit to the court or the parties, potentially affecting the outcome of the case. Id. at 654; Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004); see also Local Rule 83.36(c) (N.D. Ill.) (listing the factors to be taken into account in determining whether to appoint counsel).

After considering the above factors, the court concludes that appointment of counsel is not warranted in this case. First, the plaintiff has failed to show either that he has made reasonable efforts to retain private counsel or that he has been effectively precluded from making such efforts. In any event, although the complaint sets forth cognizable claims, the plaintiff has alleged no physical or mental disability that might preclude him from adequately investigating the facts giving rise to his complaint. Neither the legal issues raised in the complaint nor the evidence that might support the plaintiff's claims are so complex or intricate that a trained attorney is necessary. The plaintiff, whose initial submissions are coherent and articulate, appears more than capable of presenting his case. It should additionally be noted that the court grants pro se litigants wide latitude in the handling of their lawsuits. Therefore, the plaintiff's motion for appointment of counsel is denied at this time. Should the case proceed to a point that assistance of counsel is appropriate, the court may revisit this request.


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