United States District Court, S.D. Illinois
ALTUS R. KELLY, Plaintiff,
STATE OF TENNESSEE, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE
September 10, 2019, Altus R. Kelly (“Kelly”)
filed a pro se complaint naming the “State of
Tennessee” as a defendant (Doc. 2). Kelly has also
filed a motion seeking leave to proceed in forma
pauperis (“IFP”) (Doc. 3) and a motion for
recruitment of counsel (Doc. 4).
1915 is meant to ensure that indigent litigants have
meaningful access to the federal courts, and it applies to
non-prisoner plaintiffs and prisoners alike. Neitzke v.
Williams, 490 U.S. 319, 324 (1989); Floyd v. United
States Postal Serv., 105 F.3d 274, 275-77 (6th Cir.
1997) (overruled on other grounds) (“[T]he only logical
interpretation of the statute is that non-prisoners have the
option to proceed in forma pauperis under §
1915(a).”). Under Section 1915, an indigent party may
commence a federal court action, without paying required
costs and fees, upon submission of an affidavit asserting
inability “to pay such fees or give security
therefor” and stating “the nature of the action,
defense or appeal and the affiant's belief that the
person is entitled to redress.” 28 U.S.C. §
1915(a)(1). In this case, Kelly is unemployed, and his sole
source of income is supplemental security income, most of
which goes toward his monthly living expenses. Thus, the
Court finds Kelly indigent for purposes of this motion.
Court's inquiry does not end there, however, because
Section 1915(e)(2) requires careful threshold scrutiny of the
complaint filed by a plaintiff seeking to proceed IFP. A
court can dismiss a case if the court determines that the
action is clearly frivolous or malicious, fails to state a
claim, or is a claim for money damages against an immune
defendant. 28 U.S.C. § 1915(e)(2)(B); see also
Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003)
(“District judges have ample authority to dismiss
frivolous or transparently defective suits spontaneously, and
thus save everyone time and legal expense.”). Thus,
resolution of the motion for IFP requires the undersigned
District Judge to review the allegations of the complaint.
reviewing the complaint filed by Kelly, the undersigned is
cognizant of the imperative that courts construe pro
se claims generously. Buechel v. United States,
746 F.3d 753, 758 (7th Cir. 2014). The Court accepts the
factual allegations as true, liberally construing those
allegations in the plaintiff's favor. Turley v.
Rednour, 729 F.3d 645 (7th Cir. 2013). Conclusory
statements and labels are not enough. The complaint must
allege enough facts to “state a claim to relief that is
plausible on its face.” Alexander v. United
States, 721 F.3d 418, 421 (7th Cir. 2013). An 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).
first duty of this Court is to determine whether subject
matter jurisdiction exists. See Foster v. Hill, 497
F.3d 695, 696-97 (7th Cir. 2007) (“It is the
responsibility of a court to make an independent evaluation
of whether subject matter jurisdiction exists in every
case”); see also McCready v. White, 417 F.3d
700, 702 (7th Cir. 2005) (“Ensuring the existence of
subject-matter jurisdiction is the court's first duty in
every lawsuit.”). Federal Rule of Civil Procedure
8(a)(1) requires that a complaint contain “a short and
plain statement of the grounds for the court's
jurisdiction . . . .” “A pleading that fails to
contain the basis for subject-matter jurisdiction fails to
state a claim for relief under Rule 8 and, consequently,
cannot proceed under 28 U.S.C. §
1915(e)(2)(B)(ii).” Hill v. Pfizer Corp.,
Civil No. 09-894-GPM, 2010 WL 624283, at *2 (S.D. Ill. Feb.
filled out a form “Civil Complaint, ” in which he
checks the box that he is bringing his claim “pursuant
to the Federal Tort Claims Act, 28 U.S.C. § § 1346,
2671-2680, or other law.” In the body of the Complaint,
he alleges that he was found guilty in the State of Tennessee
on “three class e felonies and was sentenced to two
years on each charge, ” but the “court suspended
the sentences and placed him on two years probation.”
(Doc. 2, p. 6). He alleges that he was paroled on November 1,
2019 (Id.). He complains that his attorney Brittany
Flatt from the Rutherford County Public Defender's Office
was “ineffective assistance of counsel” because
“she advised [him] to plead guilty to forgery criminal
simulation and theft.” (Id.).
Court presumes Kelly intended to bring this claim under the
“other law” provision by checking this box of the
form Complaint, however, Kelly has failed to cite the statute
or “other law” in which he brings his claim.
Thus, he has failed to comply with Rule 8 of the Federal
Rules of Civil Procedure.
Court notes that, to the extent Kelly seeks to challenge his
state conviction or sentence, he may not do so via a civil
suit for damages if a ruling in his favor would render the
conviction or sentence invalid, unless and until the
conviction or sentence has been reversed on direct appeal,
expunged by Executive Order, declared invalid by a state
tribunal, or called into question by a federal court's
issuance of a writ of habeas corpus under 28 U.S.C. §
2254. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
the Court does not feel it necessary or appropriate to
construe Kelly's complaint as a petition pursuant to 28
U.S.C. § 2254 or 28 U.S.C. § 2255, because it
appears that venue is improper and he is challenging a state
court conviction (Doc. 2, p. 6). See Carter v.
McCann, No. 07-1222, 2008 WL 718395, at *1 (C.D. Ill.
Mar. 14, 2008) (“It is generally thought that the
proper venue for a habeas petition under § 2254 is in
the district where the petitioner was convicted); see
also Davis v. United States, 417 U.S. 333, 342-343
(1974) (Section 2255 permits a federal prisoner to
assert a claim that his confinement is ‘in violation of
the Constitution or the laws of the United States.”)
because the Court finds that Kelly's allegations fail to
state a claim for relief, the motion for leave to proceed
in forma pauperis (Doc. 3) is
DENIED, and this action is DISMISSED
without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B). The pending motion for recruitment of counsel
(Doc. 4) is DENIED as moot. The Clerk of
Court is DIRECTED to enter judgment
an abundance of caution, the Court advises Kelly as follows.
If Kelly wishes to contest this Order, he has two options. He
can ask the Seventh Circuit to review the Order, or he can
first ask the undersigned to reconsider the Order before
appealing to the Seventh Circuit.
Kelly chooses to go straight to the Seventh Circuit, he must
file a notice of appeal within 30 days from the
entry of judgment or order appealed from. Fed. R. App. P.
4(a)(1)(B). The deadline can be extended for a short time
only if Kelly files a motion showing excusable neglect or
good cause for missing the deadline and asking for an
extension of time. Fed. R. App. P. 4(a)(5)(A), (C); see
also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012)
(explaining the good cause and excusable neglect standards);
Abuelyaman v. Illinois State Univ., 667 F.3d 800,
807 (7th Cir. 2011) (explaining the excusable neglect
other hand, if Kelly wants to start with the undersigned, he
should file a motion to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e). The motion
must be filed within twenty-eight (28) days of the
entry of judgment, and the deadline cannot be
extended. Fed.R.Civ.P. 59(e); 6(b)(2). The motion must also
comply with Rule 7(b)(1) and state with sufficient
particularity the reason(s) that the Court should reconsider
the judgment. Elustra v. Mineo, 595 F.3d 699, 707
(7th Cir. 2010); Talano v. Nw. Med. Faculty Found.,
Inc., 273 F.3d 757, 760 (7th Cir. 2001); see also
Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587,
598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion
to amend judgment, a party must clearly ...