United States District Court, Northern District of Illinois
September 27, 2012
CLEVELAND COX (#R-55410)
MATT MACKOWIAK, ET AL.
Name of Assigned Judge or Magistrate Judge JOHN A. NORDBERG Sitting Judge if Other than Assigned Judge
DOCKET ENTRY TEXT:
The plaintiff's motion for leave to proceed in forma pauperis  is granted. The court authorizes and orders the trust fund officer at the plaintiff's place of incarceration to deduct $7.22 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. On the court's own motion, the Chicago Police Department is dismissed as a defendant on preliminary review pursuant to 28 U.S.C. § 1915A. The clerk is directed to: (1) send a copy of this order to the trust fund officer at the Vandalia Correctional Center; (2) issue summons for service on defendant Mackowiak by the U.S. Marshal; and (3) 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  is denied, without prejudice.
O [For further details see text below.] Docketing to mail notices.
The plaintiff, an Illinois state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendant, a Chicago police officer, violated the plaintiff's constitutional rights by falsely arresting him, fabricating evidence against him, and using unjustified force during the course of the arrest.
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 $7.22. 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 his 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 defendant Mackowiak. An arrest without probable cause violates the arrestee's Fourth Amendment rights. See, e.g., Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006). Police officers may also be sued under 42 U.S.C. § 1983 for having fabricated evidence that resulted in a state court conviction. See, e.g., Brokaw v. Weaver, 305 F.3d 660, 665 (7th Cir. 2002). Furthermore, police officers may use only "reasonable" force when effecting an arrest. See, e.g., Padula v. Leimbach, 656 F.3d 595, 602-03 (7th Cir. 2011). While a more fully developed record may belie the plaintiff's allegations, the defendant must respond to the complaint.
However, the plaintiff's claim that Officer Mackowiak committed perjury during court proceedings is summarily dismissed on preliminary review pursuant to 28 U.S.C. § 1915A. If, as alleged, the officer lied on the stand, then he may be subject to professional discipline. However, "[w]itnesses, including police officers testifying for the prosecution in a criminal trial, have absolute immunity from a damages suit based on their testimony." Gauger v. Hendle, 349 F.3d 354, 358 (7th Cir. 2003), overruled on other grounds by Wallace v. City of Chicago, 440 F.3d 421, 423 (7th Cir. 2006).
In addition, the Chicago Police Department is dismissed as a defendant on initial review. The Chicago Police Department is not a suable entity. See, e.g., Courtney v. City of Chicago, 439 Fed. Appx. 557, 558 (7th Cir. 2011), citing Chan v. Wodnicki, 123 F.3d 1005, 1007 (7th Cir. 1997).
The clerk shall issue summonses forthwith and send the plaintiff a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order.
The United States Marshals Service is appointed to serve the defendant. Any service forms necessary for the plaintiff to complete will be sent by the Marshal as appropriate to serve the defendant with process. The U.S. Marshal is directed to make all reasonable efforts to serve the defendant. If Officer Mackowiak can no longer be found at the work address provided by the plaintiff, the Chicago Police Department 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 defendant 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 defendant [or to defense counsel, once an attorney has entered an appearance on behalf of the 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 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. 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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