Order Form (01/2005) 4

United States District Court, Northern District of Illinois

Name of Assigned Judi Sitting Judge if Oth
mor Magistrate Judge Charles R. Norgle than Assigned Judge
CASE NUMBER 12 C 3473 DATE Bo —_ 2 SY 2
CASE TITLE David J. Andrews (R-67531) v. Al Henry Williams
DOCKET ENTRY TEXT:

Plaintiff's in forma pauperis application [3] is incomplete and thus denied without prejudice to Plaintiff either
submitting a completed one or pre-paying the $350 filing fee. Plaintiffs complaint is dismissed without
prejudice. The clerk is directed to send to Plaintiff another in forma pauperis application and an amended
complaint form. Plaintiffs motion for appointment of counsel [4] is denied without prejudice. Plaintiffis given
30 days to comply with this order. His failure to do so will result in the summary dismissal of this case.

@ [For further details see text below.] Zag ee to mail notices,

STATEMENT

Plaintiff David J. Andrews, currently confined at Big Muddy River Correctional Center, has filed this 42
U.S.C. § 1983 suit against Dixon, Illinois Attorney Al Henry Williams, who represented Plaintiff in his criminal
case 11 CF 72. Plaintiff alleges that he paid Williams $2000 to represent him; that Williams failed to conduct or
provide Plaintiff with discovery, that Williams filed no motions as Plaintiff requested, and that Williams prepared
no defense, but instead told Plaintiff two days before trial to take a deal. Plaintiff further states that there were no
grand jury proceedings, that Williams never sought blood and urine results from the alleged victim of Plaintiff's
offense, and that Williams’ license was or is about to be taken away for embezzlement. Plaintiff seeks to file his
complaint in forma pauperis and also seeks the appointment of counsel for this case.

Plaintiff's in forma pauperis application is incomplete, as it contains neither a completed certificate from
an authorized officer stating the average balance and deposit in Plaintiff's trust fund account, nor a copy of
Plaintiff's trust fund account statement. The issue of the filing fee must be resolved before this case can proceed.

Under the Prison Litigation Reform Act (*PLRA”), an inmate must pay the $350 filing fee. If he cannot
afford to pre-pay the fee, he may seek leave to proceed in forma pauperis to pay the fee with monthly deductions
from his prison trust fund account. The in forma pauperis form requires inmates to obtain a certificate stating the
amount of money they have on deposit in their prison or jail trust fund account. Inmates must also “submit a
certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period
immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each
prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). These documents are necessary for this
court to determine whether Plaintiff qualifies as a pauper and to assess an initial partial payment of the filing fee.
Accordingly, the current application is denied without prejudice to Plaintiff submitting a completed application
within 30 days of the date of this order. His failure to comply will result in dismissal of this case. N.D. Ill. Local
Rule 3.3(e). The clerk shall forward an in forma pauperis application to Plaintiff.

(CONTINUED)

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STATEMENT

Additionally, Plaintiff's case fails to state a claim upon which this court can grant relief. Although
Plaintiff's allegations describe an unfortunate experience, there is no basis for his claims in federal court. His
claims of malpractice may state a cause of action under state law, but do not state a claim under federal law. Hays
v. Cave, 446 F.3d 712, 713 (7th Cir. 2006) (legal malpractice is claim under state law, but is not a federal claim).
To the extent Plaintiff seeks to bring a civil rights claim, the defendant attorney must have both acted under color
of state law, i.e., be a state actor, and violated a constitutional or federal right. Burrell v. City of Mattoon, 378 F.3d
642, 647 (7th Cir. 2004). Defense attorneys, whether retained or appointed, are not “state actors” and therefore
cannot be sued for damages under the Civil Rights Act. Polk County y. Dodson, 454 U.S. 312, 325 (1981); see also

Cornes v. Munoz, 724 F.2d 61, 63 (7th Cir. 1983). Lastly, because Plaintiff and Williams are Illinois citizens,
federal diversity jurisdiction does not exist. 28 U.S.C. § 1332.

Plaintiff's allegations may support an ineffective assistance of counsel claim in a federal petition for habeas
corpus relief, but Plaintiff must raise such a claim in a federal petition under 28 U.S.C. § 2254 and only after he

has exhausted state court remedies. This court may not convert the current suit into a federal habeas petition. If
Plaintiff wants to pursue his claims, he must do so in state court.

Accordingly, the complaint is dismissed. Plaintiff may seek to file an amended complaint ifhe believes he
has a federal claim to assert. However, the court warns that if Plaintiff submits the same or similar complaint, such
a complaint may not only be dismissed, but Plaintiff may incur a strike under 28 U.S.C. § 1915(g). If Plaintiff

accumulates three strikes, he will not be able to initiate a case in federal court without pre-paying the filing fee
unless he demonstrates that he is in imminent danger of serious physical injury. § 1915(g).

The court denies without prejudice Plaintiffs motion for the appointment of counsel. Plaintiff has not
demonstrated that he attempted to obtain counsel or that he has been prevented from doing so. Gil v. Reed, 381
F.3d 649, 656 (7th Cir. 2004). Also, his case does not currently involve complex issues, complex discovery, or an
evidentiary hearing, and his complaint demonstrates his ability, at least at this stage, to present his claims
competently. Accordingly, the motion for counsel is denied. Pruitt v. Mote, 503 F.3d 647, 656-59 (7th Cir. 2007).

ppranay 24 PH bE 20
U.S, DISTRICT COURT

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