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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
FILED JAN 11, 1994
NO. 94-2001
JAMES F. OSTERBUR
PLAINTIFF
V.
STATE OF ILL
DEFENDANT
ORDER
The plaintiff, James Osterbur, has filed this federal action, apparently seeking review of a small claims court decision. The plaintiff claims that his rights to due process and to "democratic change" were denied in the state proceedings. The plaintiff asserts that jurisdiction exists in this court under the removal statute 28 USC 1443 (1) and because he has raised a federal question see 28 USC 1331. The plaintiff has filed a petition for leave to proceed in forma pauperis pursuant to 28 USC 1915. However, the pleadings on file are unacceptable.
The documents the plaintiff has submitted do not conform to the court's filing requirements or with the federal rules of civil procedure. First, the plaintiff has not submitted a proper complaint. Rule 8 (a) requires a "short and plain" statement of the grounds upon which jurisdiction exists, a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the pleader seeks. Although the plaintiff has submitted four volumes of miscellaneous documents, the court cannot determine the nature of this action or even identify the defendant without a basic complaint.
The clerk shall provide the plaintiff with civil rights complaint forms. Although the plaintiff is not required to use the court's pre-printed forms, he may find them useful in drafting his complaint. The plaintiff must submit an original complaint setting forth his allegations against each defendant, along with a carbon copy or photocopy of the complaint and a completed Marshal's service form for service upon each defendant.
In addition, the plaintiff must submit a memorandum of law in support of his claims, as this action appears to be completely groundless. The court is aware of no basis for federal review of a small claims court decision.
The plaintiff evidently had a de novo trial in the circuit court, as reflected by the trial transcripts he has submitted. In addition, the plaintiff appealed the outcome of his case to the appellate and supreme courts of Ill; he has exhausted the appeal process. Notwithstanding the plaintiffs dissatisfaction with court rulings, he appears to have been afforded full due process. The court finds no authority authorizing reevaluation in the district court.
Furthermore, removal is inappropriate and untimely; according to the federal rules of civil procedure, "the notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant...."28 USC 1446 (b). The plaintiff cannot avail himself of removal procedures in this terminated action dating back at least to 1992.
Finally broadly construing this lawsuit as a civil rights action, the court notes that the eleventh amendment bars the plaintiff from suing the State of Il for damages, see Will v. Michigan dept of state police. 491 US 45 )1989). Moreover, judicial officials are entitled to absolute immunity. The supreme court repeatedly has held ed that a judge may not be held to answer in civil damages for those judicial acts committed in the exercise of his judicial capacity. Forrester v. white 484 US 219, 228 (1988); stump v sparkman 435 US 349 362-63 (1978); Pierson V. Ray, 386 US 547 (1967). Changes marked in on the various individual copies are not acceptable.
It IS THEREFORE ORDERED that the plaintiff, within twenty one (21z0 days of the date of this order, submit a proper complaint (plus copies for the defendants), a separate memorandum of law in support of his claims, and completed US marshals service forms, all subject to rule 11's provisions for sanctions for frivolous pleadings. The clerk is directed to mail the plaintiff a blank civil rights complaint form, three USM 285 forms and a copy of CDIL rule 2.12, "pretrial procedures in prisoner cases".
IT IS FURTHER ORDERED that failure to comply with the courts directives will result in denial of leave to proceed in
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILL
FILED FEB 8, 94
NO. 94-2001
JAMES F. OSTERBUR
PLAINTIFF
V.
STATE OF IL
DEFENDANT
ORDER
The plaintiff, James Osterbur, has filed this federal action, apparently seeking review of a small claims court decision. The plaintiff claims that his rights to due process and "to democratic change" were denied in the state proceedings. By order of January 11, 94, the court directed the plaintiff to submit an amended complaint, copies and completed marshal's service forms for service on the defendants, and a memorandum of law in support of his claims.
The plaintiff's response does not satisfy the courts requirements. The plaintiff's so-called "writ of right", apparently intended as an amended complaint, does not comply with Fed. r. civ. p. 8 (a) requires a "short & plain" statement of the grounds upon which jurisdiction exists, a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the pleader seeks. The amended complaint does not list the parties, does not state any of the facts giving rise to the complaint, and does not indicate what relief the plaintiff seeks. After reviewing the rambling documents submitted, the court still cannot determine either the legal or factual basis for this lawsuit.
In addition, the plaintiff has failed to submit copies of the complaint and completed marshal's service forms for the defendant, as instructed. Furthermore, the court notes that the plaintiffs memorandum of law is unsigned. The court requires the plaintiff' original signature on every document filed.
The plaintiff will be given one, final opportunity to submit a basic, coherent complaint. The complaint should contain only the relevant facts underlying this lawsuit; no legal arguments or citation are necessary or will be permitted. The plaintiff is reminded that there is no appeal to the federal courts from an adverse decision in state small claims court, and that removal is not appropriate (or timely) in this case. Furthermore, judges are immune from liability for their official acts.
The plaintiff has requested counsel to assist him in pursuing this litigation. The motion will be denied. The plaintiff in a civil rights action has no absolute right to counsel. See Merritt v. Faulkner 697 F. 2d 761, 763 (7th circuit 1983). A litigant must show that he has made a reasonable attempt to retain private counsel. Jackson v. County of McLean, 953 F. 2d 1070, 1072 (7th circuit 1992). Indigent parties in civil rights actions who are unable to obtain counsel may apply for the appointment of counsel under 28 USC 1915 (d) See Mckeever v. Israel 689 F. 2d 1315, 1318 (7th circuit 1982). The decision to appoint counsel under this section lies within the broad discretion of the court. IF. see also Caruth v. Pinknev 683 F.2d 1044, 1948 (7th circuit 1982) cert. denied, 459 US 1214 (1983).
In exercising its discretion a district court is guided by several factors: (1) whether the merits of the indigents claims are colorable; (2) the ability of the indigent plaintiff to investigate crucial facts; (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel; (4) the capability of the indigent litigant to present the case; and (5) the complexity of the legal issues raised by the plaintiff. Merritt, 697 F. 2d at 764, citing Maclin v. Freake, 650 F. 2d 885, 887-89 (7th circuit 1981). "only when the cases are colorable, the facts may be difficult to assemble, and the law is complex" will judges request an attorney to assist the litigant5. Diangelo v. Ill dept of public aid. 891 F. 2d 1260, 1262 (7th cir. 1989).
After considering the above factors, the court concludes that appointment of counsel is not warranted in this civil rights action. As discussed in the courts order of Jan 11, 94, the plaintiff appears to have no basis whatsoever for an action in federal court. Regardless, the plaintiff has alleged no physical or mental disability that might preclude him from adequately investigating the facts giving rise to his complaint. See Merritt 697 F. 2d 765. Furthermore, neither the legal issues raised in the complaint, nor the evidence that might support the plaintiffs claims, appear so complex or intricate that a trained attorney is necessary. The plaintiff appears more than capable of presenting his case; additionally, the court grants pro se litigants wide latitude in the handling of their lawsuits. Therefore the plaintiffs motion for appointment of counsel will be denied.
It is THEREFORE ORDERED that the plaintiff, within fourteen (14) days of the date of this order, submit a proper complaint (plus copies for the defendants) and completed US marshals service forms, all subject to rule 11's provisions for sanctions for frivolous pleadings.
IT IS FURTHER ORDERED that failure to comply with the courts directives will result in denial of leave to proceed in forma pauperis and summary dismissal of this action, with prejudice.
Enter this 8 day of fed 1994
Harold A . Baker
United states district judge
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
FILED MAR 25, 1994
NO. 94-2001
JAMES F. OSTERBUR
PLAINTIFF
V.
STATE OF ILL
DEFENDANT
ORDER
The plaintiff, James Osterbur, has brought this federal action, apparently seeking review of a small claims court decision. In his original complaint, the plaintiff claimed that his rights to due process and "to democratic change" had been denied in the state court proceedings. The plaintiff asserted that jurisdiction exists in this court under the removal statute, 28 USC 1443 (1), and because he had raised a federal question, see 28 USC 1331.
By order of jan 11, 94, the court rejected the complaint, finding no basis for jurisdiction. In its order, the court noted that the plaintiff could not remove a closed case, and that this court has no authority to review the small claims and circuit court proceedings. Nevertheless, the court gave the plaintiff the opportunity to submit an amended complaint and a memorandum of law in support of his claims.
The plaintiff's "writ of right", submitted in response to the court's order, likewise was rejected as the court still could not determine the legal or factual basis for this lawsuit after reading the plaintiff's rambling documents. However the court granted the plaintiff one, final opportunity to submit a "basic coherent complaint." The court cautioned the plaintiff to set forth only the relevant facts underlying this lawsuit and not to make legal arguments. see order of feb 8, 94.
In response, the plaintiff has submitted a class action complaint on behalf of the "common public citizen". The complaint consists of a series of legal citation and invectives against judicial corruption, "mock justice" and "unconstitutional piracy". The complaint contains no facts whatsoever in support of the plaintiffs claims. Although the plaintiff has submitted three statements of his claims, the court remains completely at a loss as to what the factual basis for this lawsuit is, or what federal cause of action the plaintiff might have.
It is well established that pro se complaints are to be liberally construed. Haines v. Kerner, 404 US 945 (1972), reh'q denied, 405 US 945 (1972). A district court judge should deny leave to proceed in forma pauperis if an action is frivolous or malicious." Wartman v. Branch 7, civil division, county court, Milwaukee county, state of WI. 510 F. 2d 130 134 (7th cir. 1975), principle reaffirmed in Bryan v. Johnson, 821 F. 2d 455, 458 (7th cir. 1987)
A frivolous complaint is one in which "the petitioner can make no rational argument in law or facts to support his or her claims for relief." Williams V. Faulkner, 837 F. 2d 304, 306 (7th cir 1988) Aff'd sub nom Neitzke v. Williams, 490 US 319 (1989). Because the plaintiff is unable to articulate a colorable claim for relief in federal court, the complaint will be dismissed.
IT IS THEREFORE ORDERED that the plaintiff's petition for leave to proceed in forma pauperis is denied pursuant to 28 USC 1915. The case is dismissed, without prejudice.
Enter this 25 day of Mar 1994
Harold A. Baker
United states district judge
RETYPED
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF IL
NO. 94-2001
JAMES F. OSTERBUR
V
STATE OF ILL
DATED APR 19,1994
decision by court
IT IS ORDERED AND ADJUDGED that this case is dismissed, without prejudice, pursuant to order entered mar 25, 94 by judge Harold a Baker denying plaintiffs petition for leave to proceed in forma pauperis.
John M. Waters Clerk