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Bester v. Carlson

United States District Court, N.D. Illinois, Eastern Division

October 13, 2016

GUS BESTER JR., Plaintiff,
v.
ROB CARLSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Milton I. Shadur, Senior United States District Judge.

         Pro se prisoner plaintiff Gus Bester Jr. ("Bester") has utilized the Clerk's-Office-supplied form of "Complaint Under the Civil Rights Act, Title 42 Section 1983"[1] ("Complaint") to sue three defendants in connection with the handling of a state criminal case, asserting that he was improperly convicted and sentenced on a charge that stemmed from a claimed revocation of probation -- his Complaint ¶ IV Statement of Claim alleges that the conviction was reversed by the Illinois Appellate Court "due to the fact that I was not up for a Petition to revoke my probation in case 10 CF 587." Because Bester had served 15 or 16 months on that ultimately reversed conviction, the Statement of Claim goes on to state:

I would like to file a claim of legal malpractice / and negligence against Rob Carlson who is a licensed attorney who represented me on this case.
I would like to bring a claim of negligence against Robbin Stuckert the judge who presided over the proceedings and sentencing.
I would also like to bring forth a claim of negligence against the prosecutor / states attorney who filed a Pettition [sic] to Revoke Probation "Jessica Finley."

         To comply with our Court of Appeals' directive in such prisoner lawsuits, this Court must first address the Application. That requires it to make the determination called for by 28 U.S.C. § 1915 ("Section 1915"), for which purpose the date of the Complaint's "filing" is determined in terms of the "mailbox rule" articulated in Houston v. Lack, 487 U.S. 266 (1988). In this instance that "filing" date is October 4 or 5.

         This Court has calculated the average monthly deposits to Bester's account during the entire six-month period ending October 4 or 5, 2016 (see Section 1915(b)(1)(A)) as having amounted to $65.83, 20% of which (id.) comes to $13.17. Accordingly (1) the Application [Dkt. No. 3] is granted in Section 1915(b) terms, (2) Bester is assessed an initial filing fee of $13.17 and (3) the trust fund officer at the Kane County Jail, which Complaint ¶ I.D. identifies as Bester's "place of present confinement, " is ordered to collect that amount from Bester's trust fund account there and to pay it directly to the Clerk of Court ("Clerk"):

Office of the Clerk
United States District Court
219 South Dearborn Street
Chicago IL 60604
Attention: Fiscal Department.

         After such payment the trust fund officer at the Kane County Jail (or at any other correctional facility where Bester may hereafter be confined) is authorized 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 collected from the trust fund account shall be forwarded to the Clerk each time the amount in the account exceeds $10 until the full $350 filing fee is paid. Both the initial payment and all future payments shall clearly identify Bester's name and the 16 C 9629 case number assigned to this action. To implement these requirements, the Clerk shall send a copy of this order to the Kane County Jail trust fund officer.

         To turn to Bester's claims, each of them fails as a matter of law, although each calls for a separate -- though brief -- analysis. Bester's three targeted defendants will be dealt with ...


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