United States District Court, N.D. Illinois, Western Division
Earl Gene Ross, Jr. M-54752, Plaintiff,
Andrew Claps, Defendant.
Frederick J. Kapala Judge
application for leave to proceed in forma pauperis
 is granted. The initial filing fee is waived. The Clerk
of Court shall send a copy of this order to the trust fund
officer at the Pontiac Correctional Center. Summons, however,
shall not issue. Plaintiff's complaint  is dismissed
without prejudice to Plaintiff pursuing an appropriate action
against proper defendants in the proper venue. This case is
Earl Gene Ross, Jr., who is currently incarcerated at the
Pontiac Correctional Center, brings this pro se
civil rights action pursuant to 42 U.S.C. § 1983 against
Judge Claps, a Cook County Judge. Plaintiff alleges as
follows. In March 2011, he and two codefendants were charged
with armed robbery. (Dkt. 1, pg. 5.) The other two offenders
pleaded guilty and received sentences of six years “at
50%”. (Id.) Plaintiff sought the same, but
Judge Claps denied that request due to videotape evidence
showing that Plaintiff was the offender with the gun.
(Id.) Based on a law that passed in 2012 - despite
that the crime occurred in 2011 - Judge Claps determined that
Plaintiff's mandatory minimum sentence was 21 years
because Plaintiff had possessed the gun. (Id, pg.
5-6.) Plaintiff's attorney then cross examined
two police officers who gave conflicting descriptions of the
gunman. (Id, pg. 6.) Plaintiff's
attorney brought a motion (seemingly not to apply a gun
enhancement to Plaintiff's sentence) based on these
discrepancies, but Judge Claps denied it. (Id.)
Plaintiff's lawyer then advised him that he could get 15
years at 50% if he pleaded guilty. (Id.) He also
told Plaintiff that it was unconstitutional for a gun
enhancement to be applied to his sentence because he was
charged in 2011 before the applicable provision went into
effect. (Id.) According to Plaintiff, this means he
should have received the same six year sentence as his
codefendants. (Id.) In 2015, Judge Claps instead
sentenced him to nine years on the armed robbery, so he is
currently serving three years that he should not be.
(Id.) Plaintiff seeks monetary damages from Judge
Claps and to be released from prison. (Id, pg.
7.) Before the Court are Plaintiff's renewed
application to proceed in forma pauperis and his
complaint for initial review under 28 U.S.C. § 1915A.
renewed application for leave to proceed in forma
pauperis demonstrates he cannot prepay the filing fee
and is thus granted. Because Plaintiff has established that
he does not have funds to pay an initial partial filing fee,
the initial fee is waived. See 28 U.S.C. §
1915(b)(4). However, the trust fund officer at
Plaintiff's place of incarceration is authorized and
ordered to begin collecting monthly payments from
Plaintiff's trust fund account in an amount equal to 20%
of the preceding month's income credited to the account.
See 28 U.S.C. § 1915(b)(2). Monthly payments
collected from Plaintiff's trust fund account 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 South Dearborn Street, Chicago, Illinois
60604, attn: Cashier's Desk, 20th Floor, and shall
clearly identify Plaintiff's name and this case number.
This payment obligation will follow Plaintiff wherever he may
28 U.S.C. §§ 1915(e)(2) and 1915A(a), the Court is
required to screen pro se prisoners' complaints,
including amendments, and dismiss the complaint, or any
claims therein, if the Court determines that the complaint or
claim is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief. See Jones v.
Bock, 549 U.S. 199, 214 (2007); Turley v.
Rednour, 729 F.3d 645, 649 (7th Cir. 2013).
screen prisoner litigation claims in the same manner as
ordinary Federal Rule of Civil Procedure 12(b)(6) motions to
dismiss. See Maddox v. Love, 655 F.3d 709, 718 (7th
Cir. 2011). A motion under Rule 12(b)(6) challenges the
sufficiency of the complaint. See Hallinan v. Fraternal
Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820
(7th Cir. 2009). Under Rule 8(a)(2), a complaint must include
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The short and plain statement under Rule 8(a)(2)
must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). Under the federal notice pleading
standards, a plaintiff's “[f]actual allegations
must be enough to raise a right to relief above the
speculative level.” Id.Put differently, a
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
reviewing the sufficiency of a complaint under the
plausibility standard, [courts] accept the well-pleaded facts
in the complaint as true.” Alam v. Miller Brewing
Co., 709 F.3d 662, 665-66 (7th Cir. 2013). Courts also
construe pro se complaints liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Plaintiff's claims cannot proceed in this Court.
even if Plaintiff could identify a basis for a claim under
Section 1983, he may not obtain the relief he seeks against
the sole-named Defendant, Judge Claps. Judges are absolutely
immune from claims for monetary damages related to their
judicial rulings. See Coleman v. Dunlap, 695 F.3d
650, 652 (7th Cir. 2012); Pierson v. Ray, 386 U.S.
547 (1967). “[A] judge will not be deprived of immunity
because the action he took was in error, was done
maliciously, or was in excess of his authority; rather he
will be subject to liability only when he has acted in the
clear absence of all jurisdiction.” Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978) (internal
quotation marks omitted).
the crux of Plaintiff s complaint is that he is being
unlawfully imprisoned because his sentence was calculated
improperly. Plaintiff may not use Section 1983 to challenge
his sentence in this manner. See Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973) (explaining that a
writ of habeas corpus is a prisoner's sole federal remedy
for challenging the fact or duration of his physical
imprisonment). It appears that Plaintiff must take further
steps to have his custody invalidated-either in state
proceedings or through a federal habeas corpus action-before
he can pursue a civil claim for damages stemming from his
continued confinement. See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994) (holding that a prisoner cannot bring
a claim for civil damages for an allegedly unconstitutional
conviction or imprisonment unless or until “the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such a determination, or called
into question by a federal court's issuance of a writ of
habeas corpus.”). For example, in Clemente v.
Allen, 120 F.3d 703, 705 (7th Cir. 1997), the Seventh
Circuit affirmed dismissal of a prisoner's lawsuit
seeking damages for the alleged miscalculation of his
sentence where the prisoner maintained that, based on his
understanding of his plea agreement, his state and federal
sentences were to run concurrently. The Seventh Circuit
explained that a civil action “may accrue if [the
prisoner] eventually succeeds in his habeas petition
challenging the computation and duration of his sentence,
” but because his sentence had not been declared
invalid or expunged, the civil action was
this case is dismissed without prejudice. The Court is not
opining that Plaintiff has a viable claim or that he should
file a habeas action. But if Plaintiff wishes to pursue the
claims in his complaint, he should do so in an appropriate
action in state court or in a federal petition for writ of
habeas corpus after exhausting state ...