United States District Court, S.D. Illinois
Bean, Plaintiff, Pro Se.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, District Judge.
James Bean, an inmate in Menard Correctional Center, brings
this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. Â§ 1983, at least according to the box
he checked on his complaint form. This case is now before the
Court for a preliminary review of the complaint pursuant to
28 U.S.C. Â§ 1915A. The Court is required to dismiss any
portion of the complaint that is legally frivolous,
malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by
law is immune from such relief. 28 U.S.C. Â§ 1915A(b).
action or claim is frivolous if "it lacks an arguable
basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an
objective standard that refers to a claim that any reasonable
person would find meritless. Lee v. Clinton, 209
F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state
a claim upon which relief can be granted if it does not plead
"enough facts to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of
entitlement to relief must cross "the line between
possibility and plausibility." Id. at 557. At
this juncture, the factual allegations of the pro se
complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
821 (7th Cir. 2009).
only defendant listed by Plaintiff in the case caption is
"People of the State of Illinois." Plaintiff cannot
sue the state of Illinois, because it has not waived its
sovereign immunity. The Supreme Court has held that
"neither a State nor its officials acting in their
official capacities are persons' under Â§ 1983."
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989). See also Wynn v. Southward,
251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars
suits against states in federal court for money damages);
Billman v. Ind. Dep't of Corr., 56 F.3d 785, 788
(7th Cir. 1995) (state Department of Corrections is immune
from suit by virtue of Eleventh Amendment); Hughes v.
Joliet Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991)
(same); Santiago v. Lane, 894 F.2d 219, 220 n. 3
(7th Cir. 1990) (same).
review of the complaint reveals, however, that Plaintiff is
not seeking any relief that could be granted under Section
1983. Plaintiff's requested relief is: "this
Honorable Court help to have all charges drop [sic], vacated
in order to be release [sic] from the custody of the State to
have the mistake made against me drop [sic] and overturned
into time served, in order to be free from the Department of
Corrections or could the life be vacated..."
Plaintiff's complaint is made up of reasons why his
criminal conviction and sentence are improper and should be
overturned, vacated, or dismissed. It does not appear that
any conduct which occurred at Menard is at issue.
Court must independently evaluate the substance of
Plaintiff's claim to determine if the correct statute-in
this case 42 U.S.C. Â§ 1983-is being invoked. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973) (dismissing Â§ 1983
claims that should have been brought as petitions for writ of
habeas corpus); Godoski v. United States, 304 F.3d
761, 763 (7th Cir. 2002) (court must evaluate independently
the substance of the claim being brought, to see if correct
statute is being invoked). A petition for a writ of habeas
corpus is the proper route "[i]f the prisoner is seeking
what can fairly be described as a quantum change in the level
of custody-whether outright freedom, or freedom subject to
the limited reporting and financial constraints of bond or
parole or probation." Graham v. Broglin, 922
F.2d 379, 381 (7th Cir. 1991). If, however, the prisoner
"is seeking a different program or location or
environment, then he is challenging the conditions rather
than the fact of confinement and his remedy is under civil
rights law." Id .; see also Pischke v.
Litscher, 178 F.3d 497, 500 (7th Cir. 1999). Section
1983 jurisdiction is displaced if the habeas corpus remedy
applies. Lumbert v. Finley, 735 F.2d 239, 242 (7th
Plaintiff is clearly seeking outright freedom, and thus his
claim arises under the habeas corpus statutes. The Court
notes that Plaintiff omitted a previous habeas proceeding
that he initiated in this Court in Case No.
11-cv-0715-DRH-PMF from his litigation history. That matter
ended unfavorably for Plaintiff, which is perhaps why
Plaintiff is seeking relief under Section 1983. Nevertheless,
Plaintiff must seek relief under the appropriate statute.
This Court currently lacks jurisdiction to grant Plaintiff
the relief he seeks. For this reason, this action shall be
dismissed with leave to re-file it as a habeas corpus case,
should Plaintiff wish to pursue the matter.
is no constitutional or statutory right to counsel in federal
civil cases. Romanelli v. Suliene, 615 F.3d 847, 851
(7th Cir. 2010); Johnson v. Doughty, 433 F.3d 1001,
1006 (7th Cir. 2006). Even so, the district court has
discretion under 28 U.S.C. Â§ 1915(e)(1) to recruit counsel
for an indigent litigant. Ray v. Wexford Health Sources,
Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
pro se litigant requests the assistance of counsel,
the Court must first consider whether the indigent plaintiff
has made reasonable attempts to secure counsel on his own.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013)
(citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007)). Plaintiff left the section of the form blank that
asks about his attempts to recruit counsel. (Doc. 3). He did
not otherwise describe any attempts to recruit counsel or
attach any exhibits. Because Plaintiff has not made his
required showing that he attempted to secure counsel on his
own, his motion (Doc. 3) is DENIED.
HEREBY ORDERED that this action is DISMISSED with prejudice
pursuant to 28 U.S.C. Â§ 1915A for failure to state a claim
upon which relief may be granted. Although the dismissal is
with prejudice, should Plaintiff ...