Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge George W. Lindberg Sitting Judge if Otherthan Assigned Judge

CASE NUMBER 12 C 0176 DATE 1/17/12

CASE

TITLE

Hughest Gibson (B42794) vs. J. Sullivan, et al.

DOCKET ENTRY TEXT

The plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3) is granted. The Court authorizes

and orders the trust fund officer at plaintiff’s place of incarceration to deduct $39.45 from plaintiff’s account,

and to continue making monthly deductions in accordance with this order. The clerk shall send a copy of this

order to the trust fund officer at the Lawrence Correctional Center. Summonses shall not issue at this time. 

The complaint on file is dismissed without prejudice. The plaintiff is granted thirty days to submit a

proposed amended complaint (plus a judge’s copy and service copies) that complies with this order. The

clerk is directed to provide the plaintiff with an amended civil rights complaint form and instructions for

filing along with a copy of this order. Failure to submit a proposed amended complaint within thirty days

will result in summary dismissal of this case. Plaintiff’s motion for appointment of counsel (Dkt. No. 4), is

denied without prejudice.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Pro se plaintiff Hughest Gibson, an inmate at the Lawrence Correctional Center, has brought a civil

rights suit against various Chicago Police officer defendants, Cook County State’s Attorneys, and the owner

of the Lounge Café in Chicago, Illinois. Pending before the Court are plaintiff’s motion for leave to proceed

in forma pauperis (Dkt. No. 3), complaint for an initial review pursuant to 28 U.S.C. § 1915A (Dkt. No. 1),

and motion for appointment of counsel (Dkt. No. 4). 

The plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 3), is granted. Pursuant to 28

U.S.C. § 1915(b)(1), the plaintiff is assessed an initial partial filing fee of $39.45. The trust fund officer at

the plaintiff’s place of incarceration is authorized and ordered to collect the partial filing fee from the

plaintiff’s trust fund account and pay it directly to the Clerk of Court. After payment of the initial partial

filing fee, the plaintiff’s trust fund officer is directed to collect monthly payments from the plaintiff’s trust

fund account in an amount equal to 20% of the preceding month’s income credited to the account. Monthly

payments 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 S.

Dearborn St., Chicago, Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall clearly identify the

plaintiff’s name and this case number. This payment obligation will follow the plaintiff wherever he may be

transferred. 

Turning to the initial review of the complaint, the Court is required to dismiss a suit brought in forma

pauperis if it determines that the complaint 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. 28 U.S.C. §

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STATEMENT

1915A. The following facts, drawn from plaintiff’s complaint (Dkt. No. 1), are accepted as true and all

reasonable inferences are made in the light most favorable to the plaintiff. Parish v. City of Elkhart, 614 F.3d

677, 679 (7th Cir. 2010) (citing Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001)). This Court also

“construe[s] pro se complaints liberally and hold[s] them to a less stringent standard than formal pleadings

drafted by lawyers.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Erickson v. Pardus, 551

U.S 89, 94 (2007) (per curiam); Obriecht v. Raemisch, 417 F.3d 489, 492 n.2 (7th Cir. 2008)). 

“To satisfy the notice-pleading standard, a complaint must provide a ‘short and plain statement of the

claim showing that the pleader is entitled to relief,’ which is sufficient to provide the defendants with ‘fair

notice’ of the claim and its basis.” Bridges, 557 F.3d at 545 (quoting Erickson, 551 U.S at 89). “‘[A]

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir. 2010) (quoting Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “The

complaint must actually suggest that the plaintiff has a right to relief, by providing allegations that raise a

right to relief above the speculative level.” Bridges, 557 F.3d at 546 (internal quotation marks and citations

omitted) (emphasis in original). 

Plaintiff alleges that he was walking with his fiancee Ora Price in the 1100 Block of West Wilson

Avenue in Chicago on the evening of September 9, 2009 when two men asked them to change a five dollar

bill. Plaintiff provided them with five singles and then defendant Chicago Police Officers Patel, Dominguez

and Bennett confronted him suspecting plaintiff had just bought drugs from the men. The officers allegedly

used excessive force during the arrest badly twisting plaintiff’s arms and slamming his face on the trunk of

their car. 

The officers refused plaintiff’s request for medical attention and took him to the police station. He

would not receive care until he was transferred to the Cook County Jail. By September 14, 2009, plaintiff

was charged with distributing drugs and assaulting the police officers. He believes that he was falsely

charged and wrongfully convicted of the aggravated battery charge in October 2010. He was acquitted of the

drug charge. The wrongful conviction is the alleged result of the destruction of the surveillance videotape

from the Lounge Café by defendant prosecutors Jennings and Brown. Plaintiff claims the tape would have

been exculpatory, so it was destroyed to cover up the police officers’ misconduct. 

Plaintiff raises federal excessive force, false arrest, false imprisonment, denial of medical treatment,

Brady, and conspiracy claims. He also raises associated state law battery, negligence, intentional infliction of

emotional distress, and malicious prosecution claims. A number of plaintiff’s claims are barred by the statute

of limitations. It is appropriate to dismiss these untimely claims because the statute of limitations defense is

clear from the face of the complaint. Best v. City of Portland, 554 F.3d 698, 700 (7th Cir. 2009); Walker v.

Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002). 

Plaintiff faces the same two-year statute of limitations for both his federal and state tort claims

because the state statute of limitations period is applied to both state and federal claims. Draper v. Martin,

__ F.3d __, Nos. 10-2837, 10-3054, 2011 WL 6880357, at *2 (7th Dec. 30, 2011) (citing 735 ILCS 5/13-202;

Jenkins v. Vill. of Maywood, 506 F.3d 622, 623 (7th Cir. 2007); Hilleman v. Maze, 367 F.3d 694, 696 (7th

Cir. 2004); Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993)). The excessive force, false arrest,

failure to provide medical care, and conspiracy claims accrued on the night of the incident of September 9,

2009, and the false imprisonment claim accrued by September 14, 2009 when plaintiff was criminally

charged. Wallace v. Kato, 549 U.S. 384, 387 (2007); Evans v. Poskon, 603 F.3d 362, 363-64 (7th Cir. 2010);

Brooks v. City of Chicago, 564 F.3d 830, 831 (7th Cir. 2009); Jenkins, 506 F.3d at 623; Delgado-Brunet v.

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STATEMENT

Clark, 93 F.3d 339, 342 (7th Cir. 1996). This same statute of limitations analysis covers the accrual of the

state battery, negligence and intentional infliction of emotional distress claims. All of the aforementioned

claims accrued in September 2009. 

Plaintiff’s proof of service states that he submitted his complaint to correctional officials for mailing

on January 5, 2012. This date is the complaint’s filing date for statute of limitations purposes under the

prison mailbox rule. Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001) (citing Houston v. Lack,

487 U.S. 266 (1988)). More than two years lapsed between the accrual of the claims in September 2009 and

the filing of the complaint in January 2012. The claims are untimely under the statute of limitations. This

statute of limitations holding applies to all claims except for the Brady and malicious prosecution claims

discussed below.

Turning to the remaining Brady and malicious prosecution claims, these claims arise from plaintiff’s

assertion that he was wrongfully charged with a drug crime and wrongfully convicted of the assault of a

police officer. Malicious prosecution is a state law claim, but the alleged destruction of evidence is a federal

due process claim under Brady v. Maryland, 373 U.S. 88 (1963). Holland v. City of Chicago, 643 F.3d 248,

255 (7th Cir. 2011); Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2011). In turn, the rule of Heck v.

Humphrey, 512 U.S. 477 (1994) — a plaintiff may not bring a Section 1983 claim when recovery on that

claim would requiring invalidating a conviction if the underlying conviction has not been overturned —

applies to a Brady due process claim. Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir. 2008). 

Plaintiff alleges that the videotape was wrongfully destroyed by the prosecutors acting in concert with

the police officers. This allegation touches upon two charges — the drug charge (resulting in an acquittal)

and the assault charge (resulting in a conviction that has not been overturned). The rule of Heck does not

apply to the acquitted drug charge, but it does apply to bar a claim regarding the presently valid assault

conviction. Plaintiff has pled himself into Heck’s prohibition as to the assault charge. He cannot bring a

Brady claim as to the assault conviction but he may proceed with a Brady claim as to the drug charge. 

In this type of situation, the Seventh Circuit instructs that the pro se plaintiff should be given a chance

to submit a proposed amended complaint that properly addresses Heck. Moore v. Mahone, 652 F.3d 722, 726

(7th Cir. 2011). Plaintiff cannot raise the Brady claim as to the assault conviction as presently presented

because he is claiming that he is wrongfully convicted due to the alleged civil rights violation and the

conviction has not been overturned. But, he can challenge the destruction of the videotape as it relates to the

filing of the drug charge. He can also assert a Brady claim regarding the destruction of the videotape in any

other context, including the assault conviction, as long as plaintiff does not pled himself into Heck’s

prohibition. Id. at 726 (explaining that the a plaintiff may avoid Heck’s prohibition at the pleading stage by

being “agnostic” to the impact the alleged civil rights violation had on his conviction); Okoro v. Callaghan,

324 F.3d 488, 490 (7th Cir. 2003) (explaining that “Heck kicks in and bars [a] civil suit” when a plaintiff

“makes allegations that are inconsistent with the conviction[] [being] valid . . . .”). Plaintiff may proceed

with a Brady claim as long as he can plausibly allege that the defendants “withheld materially favorable

evidence” from him (by destroying the video tape), if the evidence had been disclosed, the disclosure “would

have altered the decision” to bring plaintiff to trial on the drug charge, Mosley v. City of Chicago, 614 F.3d

391, 397-98 (7th Cir. 2010) (citing Bielanski v. County of Kane, 550 F.3d 632, 645 (7th Cir. 2008)), and

finally he is not seeking relief that would effectively seek to invalidate a conviction in violation of Heck.

Johnson v. Dossey, 515 F.3d at 782.

Plaintiff’s malicious prosecution claim as to the drug charge must be dismissed as untimely because

there is a one year statute of limitations for this claim, and the claim accrued when he was acquitted on the

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STATEMENT

drug charge in October 2010. Evans v. City of Chicago, 434 F.3d 916, 924 (7th Cir. 2006). He did not file

the complaint until over a year later in January 2012. Plaintiff does not have a state malicious prosecution

claim as to the assault conviction because that conviction has not been invalidated in his favor. Nat’l Cas.

Co. v. McFatridge, 604 F.3d 335, 344-45 (7th Cir. 2010); Hurlbert v. Charles, 938 N.E.2d 507, 512 (Ill.

2010); Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). 

The Court makes clear that plaintiff may bring a Brady due process claim as to the destruction of the

videotape to the extent that it allegedly resulted in the wrongful filing of the drug charge. Plaintiff may also

bring new claims not addressed in the original complaint if he believes they are appropriate, but he may not

bring claims that have already been rejected by the Court. 

The plaintiff is granted thirty days from the date of this order to submit a proposed amended

complaint on the Court’s required form in accordance with this order. The plaintiff must write both the case

number and the Judge’s name on the proposed amended complaint, sign it, and return it to the Prisoner

Correspondent. As with every document filed with the Court, the plaintiff must provide an extra copy for the

Judge; he must also submit a service copy for each defendant named in the proposed amended complaint. 

Failure to follow these instructions will result in dismissal of plaintiff’s case. 

The plaintiff is cautioned that an amended pleading supersedes the original complaint and must stand

complete on its own. Therefore, all allegations the plaintiff wishes the Court to consider must be set forth in

the proposed amended complaint, without reference to the original complaint. Any exhibits the plaintiff

wants the Court to consider in its threshold review of the amended complaint must be attached, and each

copy of the proposed amended complaint must include complete copies of any and all exhibits. 

The clerk will provide the plaintiff with an amended civil rights complaint form and instructions

along with a copy of this order. If the plaintiff fails to comply within thirty days, the case will be summarily

dismissed in its entirety.

Plaintiff’s motion for appointment of counsel (Dkt. No. 4), is denied without prejudice. “There is no

constitutional or statutory right to counsel in federal civil cases,” but this Court does have “discretion under

28 U.S.C. § 1915(e)(1) to request counsel for an indigent litigant.” Romanelli v. Suliene, 615 F.3d 847, 851

(7th Cir. 2010) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc); Johnson v. Doughty, 433

F.3d 1001, 1006 (7th Cir. 2006); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993)). In determining

whether to request counsel to represent plaintiff, the Court considers whether: (1) plaintiff “has made

reasonable attempts to secure counsel on his own;” and, if so, (2) “the complexity of the case and whether

plaintiff appears competent to litigate it on his own.” Romanelli, 615 F.3d at 851-52 (citing Pruett, 503 F.3d

at 654-55). This Court has discretion in determining whether to recruit counsel for a pro se plaintiff. 

Jackson v. Kotter, 541 F.3d 688, 700 (7th Cir. 2008) (citing Pruitt, 503 F.3d at 655). Plaintiff must first

submit a proposed amended complaint in accordance with this order. The Court concludes this task is not

beyond his abilities when measure the complexity of the case and plaintiff’s competency to litigate his case. 

Plaintiff may renew his request for counsel should he successfully submit a proper proposed complaint. 

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