Order Form (01/2005) Q C

United States District Court, Northern District of Illinois

Assi Sitting Judge if Other

Sams fame ate |____John W. Darra nese oe | Mae ae.

CASE NUMBER 12. C4155 DATE bdl-/2
CASE Darryl Conway (#M-01100) v. State of Illinois, et al.
TITLE

DOCKET ENTRY TEXT:

Plaintiff's motion for leave to file in forma pauperis [#3] is granted. The Court authorizes and orders the trust fund officer
at Plaintiff's place of incarceration to deduct $11.00 from Plaintiff's account for payment to the Clerk of Court as an initial
filing fee, and to continue making monthly deductions in accordance with this order. The Clerk is directed to forward a
copy of this order to the Inmate Trust Office at Menard Correctional Center. However, pursuant to 28 U.S.C. § 1915A,
the Court dismisses the complaint. This case is terminated. Plaintiff remains responsible for the filing fee. The dismissal
of this case counts as a strike under 28 U.S.C. § 1915(g). Plaintiff's motion for miscellaneous relief [#4] is denied as moot.

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

STATEMENT

Plaintiff, Darryl Conway, presently in custody at Menard Correctional Center, has brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983 against the State of Illinois, WGN News, Channel 7 News, and Tribune
Media. Plaintiff alleges that he was arrested for murder on December 15, 2004, and that because of libelous
media coverage he was wrongfully prosecuted and convicted. Plaintiff further alleges that because of the
prejudicial coverage of the crime and his prosecution, he has lost out on business opportunities in the music
industry, and has been targeted by inmates and correctional officers. (See Plaintiff's complaint).

Plaintiffs motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1),
Plaintiff is assessed an initial partial filing fee of $11.00. The inmate trust fund officer at Menard Correctional
Center is authorized and ordered to collect, when funds exist, the partial filing fee from Plaintiff's trust fund
account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, the trust fund
officer at Plaintiff's place of confinement is directed to collect monthly payments from Plaintiff's trust fund
account in an amount equal to 20% of the preceding month’s income credited to the account. 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 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall clearly
identify Plaintiff's name and the case number assigned to this action. The Menard Correctional Center inmate
trust account office shall notify transferee authorities of any outstanding balance in the event Plaintiff is
transferred from the jail to another correctional facility.

However, under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a suit brought in forma pauperis
at any time if the Court determines that it 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. Here, even accepting
Plaintiff's factual allegationgagtrukomhe Curt finds that the complaint fails to state a federal claim as a matter
of law. :

(CONTINUED)

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«__* STATEMENT __ |

Plaintiff's allegations fail to state a claim sufficient to survive review under 28 U.S.C. § 1915A fora variety
of reasons. Initially, as Plaintiff was instructed in the court’s order dismissing one of his prior suits, the State of
Illinois is not a proper Defendant. See Conway v. Cowell, Case No. 12-311-GPM, 2012 U.S. Dist. LEXIS 55492,
(S.D. Ill. April 20, 2012) (Murphy, J.) Unless a state has consented to be sued, it is immune from suit in federal
court under the Eleventh Amendment to the United States Constitution. See Pennhurst v. Haldeman, 465 U.S. 89,
100-101 (1984). The State of Illinois has not consented to be sued. Brooks v. Ross, 578 F.3d 574, 579 (7th Cir.
2009). Even in cases brought under 42 U.S.C. 1983 raising constitutional claims, the Eleventh Amendment bar
remains. Quern v. Jordan, 440 U.S. 332 (1979); Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985). While there
is an exception in suits seeking prospective injunctive relief against state officials in their official capacities, (see
Ex Parte Young, 209 U.S. 123 (1908)), Plaintiff does not properly seek such relief in this case, and regardless, such
suits may not be brought against the States directly. Jd. As such, the State of Illinois is not a proper Defendant.

Additionally, Plaintiff's only claim against the State of Illinois would appear to be a malicious prosecution
claim. However, malicious prosecution is not actionable in federal court. Newsome v. McCabe, 256 F.3d 747,
750-51 (7th Cir. 2001). The Court in Newsome held that malicious prosecution is not a constitutional tort so long
as state law provides a remedy. Bontkowski v. Smith, 305 F.3d 757, 760 (7th Cir.2002); Griffin v. Chicago, 406
F.Supp.2d 938, 947 (N.D.III.2005). To the extent that Plaintiff is attempting a collateral attack on his conviction,
under federal case law, a § 1983 plaintiff may not proceed with a claim, if a favorable ruling “would necessarily
imply the invalidity of his conviction or sentence” unless and 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
determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Heck v. Humphrey,
512 U.S. 477, 486-87 (1994).

With respect to Defendants WGN News, Channel 7 News, and Tribune Media, none is a state actor for
purposes of suit under § 1983, there is no discernable federal question being asserted against them, and there is no
apparent basis for diversity jurisdiction. To state a claim pursuant to 42 U.S.C. § 1983, Plaintiff must allege: (1)
the conduct complained of was committed by a person acting under color of law and (2) the conduct deprived him
of a right secured by the Constitution or laws of the United States. See Estate of Sims v. County of Bureau, 506
F.3d 509, 514 (7th Cir. 2007); Case v. Milewski, 327 F.3d 564, 567 (7th Cir. 2003). Two circumstances have been
recognized by the Court in which a Defendant may be found to act under color of state law. First, when the state
has cloaked the Defendant in some degree of authority, normally through employment or some other agency
relationship. See Case, 327 F.3d at 567. The second, when the Defendant has conspired or acted in concert with
state officials to deprive a person of his civil rights. See Case, 327 F.3d at 567.

In the instant case, Plaintiff does not allege that Defendants WGN News, Channel 7 News, and Tribune
Media were cloaked with some degree of state authority or that there was some type of conspiracy between state
officials and Defendants involving the his arrest and conviction. Nor can such a conclusion be drawn from
Plaintiff's allegations. Consequently, Plaintiff has failed to state a cause of action under § 1983 against these
Defendants, and his claims are dismissed.

While the Court is required to construe the pro se complaint liberally, the Court discerns no alternative basis
for federal jurisdiction, such as the implication of another federal statute. According to federal statute, federal
district courts have jurisdiction over civil actions arising under the Constitution, or federal statute or treaty. See
28 U.S.C. § 1331. None are implicated here. Plaintiffs claim appears to be a state law defamation claim.
Additionally, there does not appear to be diversity of citizenship between the parties as Plaintiff is incarcerated in
Illinois and these Defendants are all Chicago media outlets. See 28 U.S.C. § 1332. As the Court lacks subject
matter jurisdiction over Plaintiffs claims, this matter is dismissed, and the case is terminated. While Plaintiff;
may not pursue his claims in federal court, he may, should he choose (and there is no other matter barring them)
bring his defamation and malicious prosecution claims in state court against the appropriate parties.
(CONTINUED)

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“ + STATEMENT

For the reasons contained in this order, the Court dismisses the complaint pursuant to § 1915A. The
dismissal of this case counts as a strike under 28 U.S.C. § 1915(g). Plaintiff is warned that if a prisoner
accumulates three strikes (if he has had a three federal cases or appeals dismissed as frivolous, malicious, or for
failure to state a claim), he may not file suit in federal court without prepaying the filing fee unless he is in
imminent danger of serious physical injury. § 1915(g).

If Plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this Court within thirty days
of the entry of judgment. FED. R. APP. P. 4(a)(4). A motion for leave to appeal in forma pauperis should set forth
the issues Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal.
he will be liable for the $455 appellate filing fee irrespective of the outcome of the appeal. Evans v. Illinois Dept.
of Corrections, 150 F.3d 810, 812 (7th Cir. 1998). Furthermore, if the appeal is found to be non-meritorious,
Plaintiff may also accumulate another “strike” under 28 U.S.C. § 1915(g).

Plaintiff's motion for photocopies of his complaint and other filings is denied as moot.

Pe

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