As noted above, private actors may be found to act under color of state law when the
defendants have conspired or acted in concert with state officials to deprive a person of his civil
rights. Case, supra, citing Adickes v. S.H. Kress and Company, 398 U.S. 144, 152 (1970). But
“{iJn order to establish a conspiracy, the plaintiff must demonstrate that the state officials and the
private party somehow reached an understanding to deny the plaintiffs their constitutional rights.”
Case, 327 F.3d at 567 (citations omitted). It may be that TTeune’s friends violated the law in
stealing mail belonging to the plaintiff's brother [they apparently explained that the mail arrived
at their house after the brother had moved away]. The plaintiff may also prevail on a motion to
suppress or obtain a reversal of his conviction on the basis that illegally obtained evidence was
used against him. However, there is no allegation that law enforcement officials induced the
defendants to intercept the mail or otherwise acted in concert with the private actors to commit an
unconstitutional act. Count II is accordingly dismissed, as are the defendants Paiva, Rainey and
Marion.

Count IV, the plaintiff's “conspiracy” claim against Lake County, Indiana, public
defender Noah Holcomb, must be dismissed pursuant to Heck v. Humphrey, 512 U.S. 487 (1994).
“(When a state prisoner seeks damages in a § 1983 suit, the district court must consider whether
a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate the
conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487. Until the sentence
has been invalidated, the cause of action for damages simply “does not accrue.” Jd. at 490.

The plaintiff specifically states that he is not challenging his conviction. Nevertheless, the

plaintiff's accusations against Holcomb would necessarily call into question the validity of his



represented by counsel; (4) the capability of the indigent litigant to present the case; and (5) the
complexity of the legal issues raised. Swofford v. Maxwell, 969 F.2d 547, 551 (7" Cir. 1992),
relying on Merritt v. Faulkner, 697 F.2d 761, 764 (7 Cir. 1983); see also Maclin v. Freake, 650
F.2d 885, 887-89 (7 Cir. 1981) (inter alia). “{OJnly when the cases are colorable, the facts may
be difficult to assemble, and the law is complex” will judges request an attorney to assist the
litigant. DiAngelo v. Hlinois Dept. of Public Aid, 891 F.2d 1260, 1262 (7" Cir. 1989). Asan
additional threshold consideration, a litigant seeking appointment of pro bono counsel] must show
that he has made a reasonable attempt to retain private counsel, or that he is effectively precluded
from making such efforts. Jackson, 953 F.2d at 1072.

After considering the above factors, the court concludes that appointment of counsel is
not warranted in this case. First, there is no indication that the plaintiff has attempted on his own
to retain counsel, as required by Jackson, supra. In any case, although the plaintiff has articulated
colorable claims, he has alleged no physical or mental disability that might preclude him from
adequately investigating the facts giving rise to his complaint. See Merritt, 697 F.2d at 765.
Neither the legal issues raised in the complaint nor the evidence that might support the plaintiff's
claims are so complex or intricate that a trained attorney is necessary. Notwithstanding his
limited formal education, the plaintiff appears more than capable of presenting his case. It should
additionally be noted that the court grants pro se litigants wide latitude in the handling of their
lawsuits. Therefore, the plaintiff's motion for appointment of counsel will be denied.

IT IS THEREFORE ORDERED that the plaintiff is granted leave to proceed against the
defendants Tatgenhorst, Kirby, Dorian and Vandenburgh on Counts I and II, but only insofar as

the plaintiff complains of illegal searches and seizures. Counts III and IV, the plaintiff's


which the two were arrested, Teune was neither acting under color of state law nor violating the
plaintiff's constitutional rights.

Even if Teune was lying, the mere fact that he talked to police cannot be fairly
characterized as part of a “conspiracy.” While private parties who conspire with state actors to
deprive an individual of his or her constitutional rights may be sued under 42 U.S.C. § 1983, see
Case v. Milewski, 327 F.3d 564, 567 (7* Cir. 2001), Teune's cooperation with the police is
insufficient to support an inference that he reached an understanding with them to violate the
plaintiff's constitutional rights. If the court were to hold otherwise, every informant or co-
defendant who made a deal with prosecutors could be liable under the Civil Rights Act.

Turning to Count I, accepting plaintiff's allegations as true, the court finds that the
complaint states a viable constitutional claim against the three Illinois police officers named
above as well as the defendant Vandenburgh, a Schererville, Indiana, police sergeant. The
plaintiff's claims that the defendants conducted a search of the plaintiff's room without probable
cause or a search warrant is actionable under 42 U.S.C. § 1983. While a more fully developed
record may belie the plaintiff's claims~indeed, it strikes the court as inconsistent for the plaintiff
to claim both that the police had no search warrant and that Vandenburgh lied on his affidavit of
probable cause-the defendants must respond to his allegations.

Count II is dismissed in its entirety. The plaintiff claims that letters he wrote to his
brother concerning a criminal case were intercepted by his brother’s landlords (the defendants
Paiva and Rainey), who tumed the letters over to Teuene’s fiancée (the defendant Marion), who
gave them to Teune, who passed them to the police. The plaintiff contends that in doing so, the

defendants “openly and tacitly conspired to violate plaintiff s civil rights.” The court disagrees.



criminal conviction. The plaintiff maintains that Holcomb was biased against him because the
plaintiff had called Holcomb a racist name; he further alleges that Holcomb held retaliatory
animus against the plaintiff for making verbal and written complaints about him. The plaintiff
asserts that Holcomb intentionally sabotaged his defense, refused to file a motion to suppress the
letters seized by Teune’s friends, and even told the jury in closing arguments that the plaintiff was
guilty of theft. [The amended complaint discusses at least two separate criminal proceedings; it is
unclear what charges were pursued, which criminal proceedings relate to the four counts of the
amended complaint, and what crimes the plaintiff was eventually convicted of having
committed.] In short, the plaintiff's claim that Holcomb deliberately botched the plaintiff's
defense and effectively contributed to his conviction is barred by Heck, without regard to whether
Holcomb could be considered a state actor or co-conspirator with state actors.

The plaintiff's motion for service of summons is granted. The clerk shall issue
summonses forthwith, but only for the defendants Kirby, Dorian, Tatgenhorst and Vandenburgh.
The clerk shall further send the plaintiff a Notice of Availability of a Magistrate Judge and
Instructions for Submitting Documents along with a copy of this order.

The United States Marshal’s Service is appointed to serve the defendants. The U.S.
Marshal is directed to make all reasonable efforts to serve the defendants. With respect to any
former police officers who no longer can be found at the work address provided by the plaintiff,
the Lynwood, Illinois, and Schererville, Indiana, Police Departments shall furnish the Marshal
with the defendant’s last-known address. The information shall be used only for purposes of
effectuating service [or for proof of service, should a dispute arise] and any documentation of the

address shall be retained only by the Marshal. Address information shall not be maintained in the



conspiracy claims, and the defendants Paiva, Rainey, Marion, Teune and Holcomb are all
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that the plaintiff's motion for service of summons [docket
#8) is granted.

IT IS FURTHER ORDERED that the plaintiff's motion for appointment of counsel
[docket #4] is denied.

Enter:

ZZ o
Ronald A. Guzman
United States District Judge

Date: L Veh oO <



Minute Order Form (06/97)

* United States District Court, Northern District of Iinois
Name of Assigned Jud; ALD «IZMAN Sitting Judge If Other
aoe Magistrate Judge RON. A. GU: than Assigned Judge
CASE NUMBER 03 C 5172 DATE VW ARLOL
CASE David D. Ercoli (#952813) vs. Willie Paiva, et al. ;
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly he nature
MOTION: of the motion being presented.) | }
i |
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@) o Answer brief to motion due . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at .
(5) dD Status hearing[held/continued to] [set for/re-set for] on set for at
(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) a Trial[set for/re-set for] on at
~@ a [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to] . i
OOFRCP4(m) (ClGeneral Rule 21 COFRCP41(a)(1) (FRCP41(a)(2). ab
do «x [Other docket entry] For the reasons set forth in the accompanying Memorandum Opinion and Order, the
plaintiff's motion for service of summons [#8] is granted. The plaintiff may proceed on Counts I and II of the amendelt
complaint insofar as he alleges illegal searches and seizures; however, both counts are dismissed as to all other claims
and as to the defendant Teune pursuant to 28 U.S.C. § 1915(e)(2)(B). Counts III and IV, along with the defendants,
Paiva, Rainey, Marion and Holcomb, are likewise dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). The cletk is
directed to issue summonses for service only on the defendants Kirby, Dorian, Tatgenhorst, and Vandenburgh. The clerk!
is further directed to send the plaintiff a Notice of Availability of a Magistrate Judge and Instructions for Submitting’
Documents along with a copy of this order. The plaintiff's motion for appointment of counsel if denied. ‘|
ai) @ (For further details, see attached Memorandum Opinion and Order, i

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom

deputy’s
initials

mjm

number of notices

WAN 23.2006
fy Ws ta

date mailed notice

ne received in-+
rk’s Office

mailing depuny initisla



court file, nor disclosed by the Marshal. The Marshal is authorized to mail a request for waiver
of service to the defendants in the manner prescribed by Fed. R. Civ. P. 4(d)(2) before attempting
personal service.

Pursuant to Fed. R. Civ. P. 30(a)(2), the defendants are granted leave to depose the
plaintiff at his place of confinement.

The plaintiff is instructed to file all future papers concerning this action with the clerk of
court in care of the Prisoner Correspondent. The plaintiff must provide the original plus a judge’s
copy of every document filed. In addition, the plaintiff must send an exact copy of any filing to
the defendants [or to defense counsel, once an attorney has entered an appearance on their
behalf]. Every document filed must include a certificate of service stating to whom exact copies
were mailed and the date of mailing. Any paper that is sent directly to the judge or that otherwise
fails to comply with these instructions may be disregarded by the court or returned to the plaintiff.

Finally, the plaintiff's motion for appointment is denied. Indigent parties in civil rights
actions who are unable to obtain an attorney may apply to the court for appointment of counsel
under 28 U.S.C. § 1915(e){1). See McKeever v, Israel, 689 F.2d 1315, 1318 (7" Cir. 1982).
However, civil litigants have no constitutional or statutory right to be represented by counsel in
federal court. See Merritt v. Faulkner, 697 F.2d 761, 763 (7" Cir. 1983); Zarnes v. Rhodes, 64
F.3d 285, 288 (7" Cir. 1995). The decision to appoint counsel lies within the broad discretion of
the court. Jackson v. County of McLean, 953 F.2d 1070, 1071 (7" Cir. 1992).

In exercising its discretion, a district court is guided by several factors: (1) the merit of
the indigent plaintiff's claims; (2) the plaintiff's ability to investigate crucial facts; (3) whether

the nature of the evidence indicates that the truth will more likely be exposed if both sides are



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DAVID ERCOLI, )
)
Plaintiff, )
)
Vv. ) NO.03 C 5172
) .
WILLIE PAIVA, et al. ) HON. RONALD A. GUZMAN Ly,
) My OMe,
Defendants. ) a) r/]
0)

Mi OPINI ORDE

The plaintiff, an Indiana state prisoner, has brought this pro se civil rights action pursuant
to 42 U.S.C. § 1983. The plaintiff claims that the defendants, law enforcement officials, private
citizens, and the plaintiff's public defender, all conspired against the plaintiff in multiple criminal
proceedings against him. By Minute Order of October 31, 2003, the court granted the plaintiff's
motion for leave to proceed in forma pauperis but directed him to file an amended complaint.
This matter is before the court for consideration of the amended complaint.

Under 28 U.S.C. § 1915A, the court is required to conduct a prompt threshold review of
the amended complaint. Here, accepting the plaintiff's allegations as true, the court finds that
Count I states a colorable federal cause of action against the three Lynwood, Illinois, police
officers (Kirby, Dorian, Tatgenhorst) who allegedly “kidnapped” the plaintiff and searched and
seized his car, all without the plaintiff's permission, a search or arrest warrant, or probable cause.

However, even though the related criminal charges against the plaintiff were ultimately
dismissed, he has no cognizable cause of action against the officers under 42 U.S.C. § 1983 for
malicious prosecution. Malicious prosecution claims are not actionable in federal court. Because

the plaintiff has a state-law remedy, there is no constitutional tort for malicious prosecution.



Newsome v. McCabe, 256 F.3d 747, 751 (7* Cit.), rehearing and rehearing en banc denied, 260
F.3d 824 (7" Cir. 2001). [Newsome does recognize that police who deliberately withhold
exculpatory evidence, and thus prevent the prosecutors from complying with Brady v. Maryland,
373 U.S. 83 (1963), violate the Due Process Clause. Newsome, 256 F.3d at 751, citing Jean v.
Collins, 221 F.3d 656 (4" Cir, 2000) (en banc), cert. denied, 531 U.S. 1076 (2001). However,
there is no such allegation in the case at bar.]

Nor can the plaintiff sue the defendants in federal court for auctioning off his vintage car,
An unauthorized, intentional deprivation of property by a state actor does not constitute a due
process violation if the State provides a meaningful post-deprivation remedy. Doherty v. City of
Chicago, 75 F.3d 318, 323 (7" Cir. 1996). The Hlinois Court of Claims provides the plaintiff
with an adequate remedy to redress his property loss. The plaintiff may also file an action in the
state circuit court for the tort of conversion. See Cirrincione v. Johnson, 703 N.E.2d 67, 70 (Ill.
1998). Because the State has provided an adequate post-deprivation remedy, the loss of the
plaintiff's property does not provide for recovery under § 1983. See Gable v. City of Chicago,
296 F.3d 531, 540 (7" Cir. 2002).

The complaint must also be dismissed as to the defendant Teune, a co-defendant in that
case, who ( the plaintiff claims) wrongfully implicated him in the charges that were dismissed in
October 2002. In order to be liable under 42 U.S.C. § 1983, a defendant must have both (a) acted
under color of state law and (b) violated a constitutional right. Papapetropoulous v. Milwaukee
Transport Services, Inc., 795 F.2d 591, 595 (7" Cir. 1986); Reichenberger v. Pritchard, 660 F.2d

280, 284 (7" Cir. 1981). In telling the police about the plaintiffs involvement in the crime for