United States District Court, C.D. Illinois
MERIT REVIEW OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
case was transferred from the Northern District of Illinois
to the Central District of Illinois because Plaintiff,
proceeding pro se from his detention in the Kane County Jail,
challenges actions in criminal proceedings against him in
Henry County, which is in the Central District of Illinois.
case is before the Court for a merit review pursuant to 28
U.S.C. § 1915A. This statute requires the Court to review
a complaint filed by a prisoner to identify the cognizable
claims and to dismiss part or all of the complaint if no
claim is stated.
reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in
Plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2013). However, conclusory
statements and labels are insufficient. Enough facts must be
provided to "'state a claim for relief that is
plausible on its face.'" Alexander v. U.S.,
721 F.3d 418, 422 (7th Cir. 2013)(quoted cite
alleges that he was arrested pursuant to a warrant in
February 2016 for charges of domestic battery. Plaintiff
alleges that the arrest warrant was issued on false
statements of Plaintiff's ex-girlfriend, who
“immediately dropped the charges.” (Compl. p. 4.)
Defendant Robert Hogue, an assistant state's attorney for
Henry County chose to go ahead with Plaintiff's
prosecution, allegedly despite knowing that the ex-girlfriend
had recanted. On May 24, 2016, two days before the scheduled
trial, the State's Attorney dismissed the charges with
prejudice. Despite the dismissal, two days later Plaintiff
was arrested on a parole violation based on the dismissed
case. The parole board released Plaintiff on July 6, 2016,
finding that no parole violation had occurred, Plaintiff
asserts because Plaintiff's criminal case had been
dismissed with prejudice. Plaintiff is currently in the Kane
County Jail. A search of Kane County records shows that in
February 2017 a complaint was filed charging Plaintiff with
domestic battery. Illinois v. Malone, 17-CF-276
(Kane County). Plaintiff seeks compensation for losing his
job and housing and being incarcerated on the parole
Robert Hogue is immune from a lawsuit for damages based on
his decision to continue with Plaintiff's prosecution
until just before the trial date. "[I]n initiating a
prosecution and in presenting the State's case, the
prosecutor is immune from a civil suit for damages under
section 1983." Imbler v. Pachtman, 424 U.S.
409, 431 (1976).
Plaintiff's incarceration on parole violations, “in
the case of persons arrested for violating parole, a
preliminary hearing to determine probable cause must be
conducted ‘as promptly as convenient after arrest while
information is fresh and sources are available, ' and a
plenary hearing must be held within a ‘reasonable time
after the parolee is taken into custody'-normally two
months.” Atkins v. City of Chicago, 631 F.3d
823, 827 (7th Cir. 2011). Plaintiff does not say
whether he had a preliminary hearing, but he was released by
the parole board within two months of his incarceration.
Plaintiff does not explain what Defendant Robert Hogue, who
does not work for the Illinois Department of Corrections, had
to do with the parole hold. Plaintiff also does not say who
placed the parole hold; what, specifically, were the parole
violation charges; whether he received a preliminary hearing,
and, if so, when the preliminary hearing was held and the
findings of that hearing. Additionally, the decision to place
a parole hold could be protected by absolute immunity.
Smith v. Gomez, 550 F.3d 613, 619 (7th
Cir. 2008)(parole agent's supervisor entitled to absolute
immunity for directing parole agent to place parole hold).
Plaintiff states no claim that may proceed against Defendant
Hogue or the Henry County Jail, which is not a suable entity.
Plaintiff's complaint will be dismissed without prejudice
to filing an amended complaint providing more factual detail
with regard to his parole hold.
Plaintiff's complaint is dismissed without prejudice for
failure to state a claim pursuant to 28 U.S.C. § 1915A.
Plaintiff may file an amended complaint by March 31, 2017. If
Plaintiff does not file an amended complaint or
Plaintiff's amended complaint still fails to state a
claim, then this action will be dismissed without prejudice
Plaintiff's motions for the appointment of counsel are
denied (4, 8). The Court does not have the authority to
require an attorney to accept pro bono appointment on a civil
case such as this. Pruitt v. Mote, 503 F.3d 647, 653
(7th Cir. 2007). The most the Court can do is ask for
volunteer counsel. In determining whether the Court should
attempt to find an attorney to voluntarily take the case
without pay, the question is “given the difficulty of
the case, does the plaintiff appear competent to litigate it
himself?" Pruitt, 503 F.3d at 654-55 (7th Cir.
2007). On this record, Plaintiff appears competent to proceed
pro se. He is a high school graduate and he already has
personal knowledge of the relevant facts underlying his
claims. Plaintiff may renew his motion on a more developed
factual record, any jobs he has had inside or outside of
prison, any classes he has taken in prison, and his
litigation experience in state and federal court.