United States District Court, C.D. Illinois, Peoria Division
ORDER AND OPINION
Michael M. Mihm, United States District Judge
before the Court is Plaintiff Robert Wesley's
(“Plaintiff”) Motion for Leave to Proceed in
forma pauperis. (ECF No. 2). For the reasons stated
below, Plaintiff's motion is DENIED.
10, 2019, Plaintiff filed a Complaint against Defendant
Matthew Swearington (“Defendant”) and alleged
“fraud upon the court” under 42 U.S.C. §
1983. (ECF No. 1 at 1, 5). Specifically, Plaintiff alleged
that Defendant committed fraud on several occasions from
April 29, 2018 to July 4, 2019 by intentionally and willfully
lying to a state court that Plaintiff had a prior conviction
for retail theft. (ECF No. 1 at 5). As a result of that
alleged fraud, Plaintiff states that he was sentenced for a
same date, Plaintiff submitted an Application to Proceed in
District Court Without Prepaying Fees or Costs. (ECF No. 2).
Plaintiff omitted answering questions 1 - 3, and 8 on the
application. Id. at 1. Plaintiff indicated he has no
income or savings, but does have monthly expenses related to
“housing, cell phone, and transportation, ” along
with three individuals who depend on him for support.
Id. at 2.
federal in forma pauperis statute, 28 U.S.C. §
1915, is designed to ensure that indigent litigants have
meaningful access to the federal courts. Neitzke v.
Williams, 490 U.S. 319, 324 (1989). As a result, it
allows an indigent party to commence an action in federal
court, without costs and fees, upon submission of an
affidavit asserting an inability “to pay such costs or
give security therefor” and stating “the nature
of the action, defense or appeal and the affiant's belief
that he is entitled to redress.” § 1915(a).
Recognizing that some nonpaying litigants may attempt to
abuse this privilege, however, Congress also authorized the
courts to dismiss such a case “if the allegation of
poverty is untrue, or if satisfied that the action is
frivolous or malicious.” § 1915(d). A claim is
frivolous when no reasonable person could suppose it to have
any merit. Lee v. Clinton, 209 F.3d 1025, 1026 (7th
Plaintiff's application is incomplete. While Plaintiff
did not indicate whether he was incarcerated at this time,
the Court will assume he is not since the address provided is
a residential home. Plaintiff failed to answer question no. 2
and identify if he is employed, and if so, what his wages
are. Plaintiff also did not check any boxes indicating
whether he has any income from different sources in response
to question no. 3. Plaintiff stated that the amount of money
he has in cash, or a checking, or a savings account is $0,
but even so, he has monthly expenses for housing, cell phone,
and transportation, along with three dependents. Plaintiff
did not state how he pays for these obligations. Lastly,
Plaintiff failed to answer question no. 8 regarding debts.
Due to the incompleteness of the affidavit, the Court is
unable to determine if Plaintiff meets the statutory poverty
requirement under § 1915(a).
these deficiencies, the Court is still authorized to dismiss
the case if it is frivolous because Plaintiff “can make
no rational argument in law or fact to support [his] claims
for relief.” Corgain v. Miller, 708 F.2d 1241,
1247 (7th Cir. 1983). In this matter, the Court finds that
Plaintiff's Complaint is frivolous.
Court is at liberty to take judicial notice of the
Plaintiff's underlying state court criminal proceedings.
Brokaw v. Weaver, 305 F.3d 660, 668 (7th Cir. 2002).
In the case at bar, the Court has taken judicial notice of
several underlying criminal proceedings from the Peoria
County Circuit Court that occurred prior to the date alleged
in Plaintiff's Complaint. Plaintiff was sentenced to jail
in many of these proceedings. Those cases include: State
v. Wesley, No. 97-CF-106; State v. Wesley, No.
07-CM-2802; State v. Wesley, No. 08-CM-176;
State v. Wesley, No. 11-CF-287; and State v.
Wesley, No. 12-CF-618. Clearly, Plaintiff has a history
of prior convictions.
about April 29, 2019, Plaintiff was charged with the felony
crime of retail theft pursuant to 720 ILCS 5/16-25(a)(1).
While his previous convictions were not for retail theft,
they were for other felonies, including murder pursuant to
720 ILCS 5/9-1(a)(3), armed robbery pursuant to 720 ILCS
5/18-2(a), aggravated battery with a firearm pursuant to 720
ILCS 5/12-4.2(a)(1), aggravated driving while under the
influence of alcohol pursuant to 625 ILCS 5/11-501(a), and
criminal sexual abuse pursuant to 720 ILCS 5/11-1.50(a)(1).
Presumably, Defendant was referring to these prior
convictions. Moreover, whether he had been previously charged
with retail theft had no bearing on sentencing him for a
felony, because under 720 ILCS 5/16-25(a)(1), that crime is a
class 4 felony.
Plaintiff's action is considered frivolous as there is no
arguable basis for relief either in law or fact. See
Neitzke, 490 U.S. at 325.
reasons stated above, the Plaintiff's Motion for Leave to
Proceed in forma pauperis  is DENIED and his