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Nigete Order Form (06/57)

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A J nited States District Court, Northern District of Illinois
Name oat James B. Moran Sitting Judge if Other
or Magis fr Judge than Assigned Judge
CASE NUMBER 02 € 3004 DATE 6/10/2003
CASE Robert Salerno vs. Joseph DiLeonardi etc. et al.
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
(i) Qo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) oO Answer brief to motion due___. Reply to answer briefdue____.
@ oO Ruling/Hearingon___setfor__—_at
(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—_—setfor___—_att
(6) im) Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor_———sat__—
(7) oO Trial[set for/re-set for]on at
(8) a (Bench/Jury trial] [Hearing] held/continued to__att
(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
DOFRCP4(m) ClLocal Rule 41.1 OFRCP4i(a)(1) CFRCP41(a)(2).
ao) [Other docket entry] | Enter Memorandum Opinion and Order. Defendants’ motion to dismiss is

granted. Status hearing set for June 11, 2003 at 9:15am. is stricken.

a) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. smumber of rotices,
Notices mailed by judge's staff.
. uni 4 7083
Notified counsel by telephone. jure dockered
wv | Docketing to mait notices,
VY | Mail AO 450 form. LYNG LIBLSIO SA LINN
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ROBERT SALERNO, )
Plaintiff, } OGRE
Vs. } No. 02 C 3004 JUN 11 2003
JOSEPH DI LEONARDI, United States Marshal)
for the Northern District of Iinois, et al., )
Defendants, }

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Salerno brings this action against defendants, agents of the federal
government, alleging violations of his constitutional rights leading to his conviction for murder
and conspiracy to commit murder. Defendants filed a motion to dismiss or, alternatively, for
summary judgment. For the following reasons, defendants’ motion to dismiss is granted.

BACKGROUND

Following a mistrial in 1992, plaintiff was convicted in 1995 of murder and conspiracy
to commit murder and sentenced to life in prison. He alleges that prior to the trial defendant
Timothy Mindock, and other unknown defendants, acted together to illegally tape
conversations between Salerno and his co-defendants and their attorneys at the Metropolitan
Correctional Center. He further claims that defendant Joseph DiLeonardi and others held an
ex parte meeting with the trial judge, at which time they informed her of a death threat made

against her by one of Salerno’s co-defendants. He contends that these violations of his rights

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improperly led to his conviction.


No. 02 C 3004 Page 2

DISCUSSION
In deciding a Rule 12(b)(6) motion to dismiss or strike a pleading we must assume the
truth of all well-pleaded allegations, making all inferences in the non-movant’s favor. Sidney

S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7" Cir, 1994). The court

should dismiss a claim only if it appears “beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,
45-46 (1957).

A convicted criminal may not bring a suit challenging the validity of a conviction
without first having the conviction set aside. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

This applies to federal prisoners filing Bivens actions as well as state prisoners. Clemente v.

Allen, 120 F.3d 703, 705 (7" Cir. 1997) (holding that Heck analysis applies to Bivens actions).

Plaintiff’s claims expressly challenge the validity of his criminal convictions. He claims that

defendants violated his constitutional rights and that these violations led to an improper

conviction. His conviction has not however been set aside by any court. Plaintiff is therefore

barred from using this civil action to launch a collateral attack on the conviction.
CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss is granted.

BR Were

JAMES B. MORAN

ior Judge, U. S. District Court
ne jo, 2003, :