-4-
plaintiff (on which plaintiff was ultimately found not guilty),
(ii) a Fourteenth Amendment due process conspiracy claim for the
deprivation of Jones’ “right to a free and appropriate public
education” by the transfer of Jones from one high school to
another, (iii) a Fourteenth Amendment due process conspiracy claim
for deprivation of plaintiff’s liberty interest in the upbringing
of his child; (iv) a First Amendment retaliation claim for
defendants’ retaliatory conduct in response to plaintiff's publicly
questioning school board policies; and (v) claims for “kidnapping”
and conspiracy under 18 U.S.C. 241 and 242 (for conduct roughly
Mirroring that alleged in the other conspiracy counts). In
addition to the section 1983 claims, plaintiff asserts one
supplemental jurisdiction state law claim for intentional
infliction of emotional distress.

Even though we find it hypothetically possible (even if
improbable) for plaintiff to prove facts entitling him to relief on

at least one of his claims (and that is all a granting of in forma

Pauperis status requires), we will not allow plaint to proceed

in forma pauperis on his entire complaint. See Aiello v. Kingston,

947 F.2d 834, 836 (7th Cir. 1991) (“If the district court carves
out of a case a claim that is frivolous or malicious, the choice
between doing so before or after allowing the plaintiff to proceed
in forma pauperis does not call for reversal.”). For, in cases

such as this, where many of the proffered claims suffer from


-9-
counsel before presenting a request for appointment. ee Jackson

wv. Count of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992),

Having shown unsuccessful attempts to retain counsel from at least
four public legal aid clinics, plaintiff has met his burden on this
front. Next, we ask: given the difficulty of the case, does the
plaintiff appear competent to try the case himself and, if not
would appointment of counsel make any difference to the outcome?
See Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993). At this
early stage, we cannot say that plaintiff has shown a potentially
meritorious claim. We therefore deny plaintiff’s motion for
appointment of counsel without prejudice to renewal following
defendants’ filing of responsive pleadings so the court can then
make a proper determination whether appointed counsel is necessary.
CONCLUSION

The court grants plaintiff’s motion for leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a). The court
dismisses sua sponte all claims against the state court judges,
DCFS, and all DCFS, OPG and MFCC employees pursuant to 28 U.S.C. §
1915(e) (2). The court also dismisses sua sponte the plaintiff’s
malicious prosecution, “free and appropriate public education,”
“kidnapping,” and criminal conspiracy claims against the remaining
defendants, again pursuant to 28 U.S.C. § 1915(e) (2). The court
denies plaintiff’s motion for appointment of counsel without
prejudice. Plaintiff may have until January 23, 2004 to file an

amended complaint consistent with this opinion.


immunities.
In addition to immunities, the jurisdictional limitations
of section 1983 itself require a further scaling back of

plaintiff’s complaint. Generally, in order to violate section

1983, the defendant must be a state actor. See Fries v. Helsper,
146 F.3d 452, 457 (7th Cir. 1998). Neither Taylor nor any of the
private attorneys named as defendants - Allan Feingold, Sandra
Crawford and Ronald Samuels - are state actors. Section 1983
liability may be established against private actors, but only if a
plaintiff can show a conspiracy between them and persons who are
state actors. See Briscoe v. LaHue, 460 U.S. 325, 330 (1983). To
demonstrate a section 1983 conspiracy, a plaintiff must prove that:
“(1) a state official and private individual(s) reached an
understanding to deprive the plaintiff of his constitutional
rights, .. . and (2) those individual(s) were willful participants
in joint activity with the State or its agents.” Fries, 146 F.3d
at 457 (citations and internal quotations omitted).

Although plaintiff does make allegations of a conspiracy,
those averments amount to nothing more than inserting “conspired
to” before verbs describing defendants’ conduct. Absent any
factual allegations necessary to find the existence of a
conspiracy, plaintiff’s allegations are merely unsupported legal

conclusions. And while we must accept as true all of plaintiff's

factual allegations, the same does not hold true for conclusions of


-5-
obvious and fatal defects, we will attempt to spare prospective
defendants the inconvenience and expense of responding to such
claims that have no prospect of success.

First, it is clear that many of the defendants named in this
action are immune from suit. Judges are entitled to absolute
immunity from section 1983 suits involving actions taken in their

judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 359

(1978). “A judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in excess
of his authority; rather, he will be subject to liability only when
he has acted in the clear absence of all jurisdiction.” Id. at 356
(citation omitted). Because plaintiff’s allegations are limited to
acts performed by judges in their judicial capacities, i.e.
adverse rulings, the judges are immune.

Absolute immunity is likewise applicable to all defendants
named from the DCFS, OPG and MFCC offices. Government agency
officials performing functions analogous to those of a prosecutor
are entitled to immunity with respect to those functions, including
child service workers who initiate and prosecute proceedings for

protective orders. See Potts v, O'Malley, 1995 WL 745960, at *3

(N.D.T1l1l. Dec. 1, 1995). Since the allegations against these
agency personnel are limited to conduct taken as part of their
investigative roles or incident to judicial proceedings, the

challenged conduct falls within the scope of their prosecutorial


-8-

conspiracy pursuant to 18 U.S.C. 241 and 242 are claims sounding in

criminal law and are not properly before this court in a civil
proceeding.

This leaves us then with three claims - a Fourteenth
Amendment due process conspiracy claim for deprivation of
plaintiff’s liberty interest in the upbringing of his child, a
First Amendment retaliation claim for defendants’ retaliatory
conduct in response to plaintiff’s publicly questioning school
board policies, and an intentional infliction of emotional distress
claim under Illinois law ~- against nine parties, Cook County, the
school board, the school board employees, and the Rich Central High
School employees. We emphasize that by allowing plaintiff to
proceed in forma pauperis on these claims, we intend no comment on
their ultimate viability, or even whether they would survive a
motion to dismiss. We simply believe that an evaluation of these
facially colorable claims would be premature absent the benefit of
responsive pleadings.

We turn now to plaintiff’s motion for appointment of
counsel. Civil litigants have no constitutional or statutory right
to be represented by counsel in federal court. See Forbes v.
Edgar, 112 F.3d 262, 264 (7th Cir. 1997). District courts may, in
their discretion, appoint counsel pursuant to 28 U.S.C. § 1915(e).

In evaluating a litigant’s request for counsel, there is a

threshold requirement that he make a reasonable effort to secure



Minute Order Fora (06:97)

United States District Court, Northern District of Illinois

Name of Assigned Judi Sitting Judge if Oth
ve Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 03 C 8717 DATE January 9, 2004
CASE Mnyofu v. Bd. of Ed. Sch. Dist. 227, er 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

MOTION: nature of the motion being presented.

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) ia) Brief in support of motion due

(3) Q Answer brief to motion due___..- Reply to answer brief due_

(4) i) Ruling/Hearing on set for att

(5) is) Status hearing[held/continued to] {set for/re-set for]on set for at

(6) Q Pretrial conference[held/continued to] [set for/re-set for]on set for ak
(7) o Trial(set for/re-set for}on at

(8) o (Bench/Jury trial] [Hearing] held/continued toate

(9) Qa This case is dismissed [with/without] prejudice and without costs|by/agreement/pursuant to}

QFRCP4(m) O General Rule 21 OO FRCP41(a)(1) © FRCP41(a)(2).

(10) @ [Other docket entry] Plaintiff's motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a) [4-1] is GRANTED. Plaintiff's motion for appointment of counsel pursuant to 28 U.S.C. § 1915(e)

[5-1] is DENIED without prejudice. The court dismisses sua sponte ail claims against the state court judges, DCIS,
and all DCFS, OPG and MFCC employees pursuant to 28 U.S.C. § 1915(e)(2). The court also dismisses sua sponte
the plaintiff's malicious prosecution, “free and appropriate public education,” “kidnapping,” and criminal conspiracy
claims against the remaining defendants pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff may have until January 23, 2004
to file an amended complaint consistent with this opinion. Summonses shal] not issue at this time. ENTER
MEMORANDUM OPINION.

(IL) o [For further detail see order on the reverse side of the original minute order.)

No notices required, advised in open court Document
Number

No notices required.

jumber of novices,
V_ | Notices maited by judge's staff. JAN 1.2 7008

Notified counsel by telephone

Docketing to mail notices.

Mail AQ 450 form,

ck

‘ docketing deputy initials

| 0

Copy to judge/inagistrate judge

dave mailed notice
courtroom

deputy’s GTC.

initials

Date/time received in ;
central Clerk's Office nailing deputy initials



-10-

DATE: January 9, 2004 _

cCTM Le _

\ LL
ENTER: — _

John F, Grady, United States District Jjpdagq


-7-

law. Thus, because Taylor, Feingold, Crawford and Samuels are not
state actors, and because plaintiff has not met his burden of
pleading a section 1983 conspiracy, all claims against these
defendants are dismissed.

In addition to immune and improper defendants, the complaint
is larded with claims that are easily rejected. First, plaintiff
may not maintain a section 1983 claim for malicious prosecution
because of the availability of a parallel state-law remedy. Put
simply, the existence of a tort of malicious prosecution in
Tllinois “knocks out” any constitutional tort under due process for

the same conduct. See Newsome v. McCabe, 256 F.3d 741, 751 (7th

Cir. 2001). Second, plaintiff's claim that the removal of Jones
from Rich Central High School to Thornton Fractional North High
School (another high school in Cook County, Illinois) violated his
and Jones’s Fourteenth Amendment due process rights is not tenable.
While Illinois law guarantees a free and appropriate public
education generally, plaintiffs have no constitutionally cognizable
property or liberty interest in attending the individual school of
plaintiff’s or Jones’s choice. If defendants had denied Jones
access to any free public education, that would be a different
matter. But, without a constitutionally recognized property or
liberty interest, there is no need for further inquiry on the due

process question. See, e.g., Paul v. Davis, 424 U.S. 693, 711-12

(1976). Finally, plaintiffs’ actions for “kidnapping” and


-3-
19 (7th Cir. 1992).

Turning then to the complaint before us, it appears, at
least on the face of it, that all of plaintiff’s claims are
connected in some way (some more loosely than others) to a dispute
between him and his ex-wife, Janice Taylor, over the custody of
their minor son, Shamari Jones. And, by this suit, plaintiff has
asserted claims against seemingly everyone he has come into contact
with through the course of this prolonged and ongoing dispute:
nineteen individuals, including Cook County Circuit Court judges,
Illinois Department of Children and Family Services (“DCFS”)
investigators and attorneys, Illinois Office of Public Guardian
(“OPG”) attorneys, Marriage & Family Counseling Center of Cook
County (“MFCC”}) counselors, Rich Central Township High School
(Jones’ former high school located in Cook County, Illinois)
District Board of Education (“school board”) employees; Rich
Central High School employees (including deans, principals, nurses
and social workers), and private attorneys - both plaintiff’s own
former attorney and those representing Taylor; three institutions,
namely, the school board, the DCPS, and Cook County, Illinois; and
finally, “other unknown defendants.”

Construing the complaint charitably, we glean from it five
claims, each brought pursuant to 42 U.S.C. 1983 and asserted
against all defendants: (i) a malicious prosecution conspiracy

claim for filing false criminal domestic battery charges against


-2-

Notwithstanding plaintiff’s recent employment, the other
factors, taken together (but particularly plaintiff’s obligation of
supporting his dependents), weigh in favor of finding that he has
sufficiently shown an inability to pay court costs.

Our in forma pauperis inquiry does not end there, however.
Under 28 U.S.C. § 1915(e) (2), we conduct an initial review of
plaintiff’s complaint and dismiss the action if we determine that
it: (i) is frivolous or malicious, (ii) fails to state a claim upon
which relief may be granted, or (iii) seeks damages from a
defendant who is immune from such relief.’ Where, as here, we are
reviewing a complaint filed pro se, we are mindful of our special
responsibility to construe its allegations liberally. See Donald

v. Cook County Sheriff's Dept., 95 F.3d 548, 555 (7th Cir. 1996).

Upon completing this review, district courts typically grant
or deny leave to proceed in forma pauperis with respect to the
complaint as a whole. That is, if a district court finds even one
potentially meritorious claim, it may grant in forma pauperis
status as to all claims against all defendants. Nonetheless, we
may, in our discretion, carve out and dismiss sua sponte any
portions of the complaint which we find do not satisfy the section

1915 (e) (2) (B) criterion. ee House v. Belford, 956 F.2d 711, 718-

‘as for the second question (failure to state a claim), we
apply the same standard as we would for a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b) (6). See
Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000).



03-8717.041-TCM January 9, 2004
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KOMAA MNYOFU, on behalf of himself

and SHAMARI JONES, a minor, 72
log
Plaintiff, y
v. No. 03 C 8717

BOARD OF EDUCATION OF SCHOOL
DISTRICT 227, et al.,

Defendants.

MEMORANDUM OPINION

Before the court are plaintiff’s motions for leave to
proceed in forma pauperis and for the appointment of counsel. For
the reasons set forth below, plaintiff’s in forma pauperis motion
is granted, and his motion for appointment of counsel is denied.

DISCUSSION

Pursuant to 28 U.S.C. § 1915(a), we may authorize plaintiff
to proceed in forma pauperis if he demonstrates an inability to pay
the required court costs and fees. In his affidavit, plaintiff
states that he is not currently working. He was last employed on
October 2, 2003 as a paralegal, and earned a salary of $2,100 per
month. He has received no other income in the past year, he owns
no property, and his liquid assets (if any) do not exceed $200

Finally, plaintiff has two daughters whom he lists as dependents.

/U