of Appeals held: “In a case such as Heck, where the prisoner is complaining about being hindered

in his efforts to get his conviction set aside, the hindrance is of no consequence if the conviction was
valid, and so he cannot get damages until the conviction is invalidated.” Hoard, 175 F.3d at 534.

By the same token, in Nance v. Vieregge, 147 F.3d 589 (7th Cir. 1998), an inmate brought
suit against a prison property clerk for misdirecting a box containing plaintiff's legal documents.

Plaintiff blamed the loss of his legal papers for the ensuing denial of his motion to withdraw a guilty

plea. The Court of Appeals analyzed plaintiffs request for damages as follows:

[The plaintiff] does not protest an ongoing hindrance... . . Only damages are
available. But damages for what injury? If the injury in question is losing the
underlying case, then Heck... comes into play. Heck holds that a damages remedy
that necessarily implies the invalidity of a criminal conviction . . . is impermissible
while that conviction stands. Nance pleaded guilty; his motion to withdraw the plea
was denied; and although the prison’s unconstitutional hindrance of his efforts to
withdraw the plea (if that is what occurred) would be a good ground for a new
hearing onthe motion to set aside the plea, it would not establish that Nance is
entitled to damages for wrongful incarceration - not unless he went to trial and was
acquitted, or the invalidity of his incarceration was established in some other fashion.
The holding of Lewis that a claim based on deprivation of access to the courts
requires proof of concrete injury, combined with the holding of Heck, means that a
prisoner in Nance’s position must have the judgment annulled before damages are
available. ...

Nance, 147 F.3d at 591,

In short, Plaintiff would be entitled to damages for the purported infringement of his access
to the courts only if he could establish that it resulted in the loss of his underlying post-conviction
petition. However, Plaintiff cannot pursue what amounts to a collateral attack against his criminal
conviction by way of a civil rights action, Because Plaintiff's underlying conviction stands, the
Court cannot consider his request for monetary damages in connection with the alleged denial of

access to the courts.


The Court may take judicial notice of matters of public record without converting a 12(b)(6)

motion into a motion for summary judgment. Anderson v. Simon, 217 F.3d 472, 474-75 (7th Cir.
2000); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (citing United States v. Wood,

925 F.2d 1580, 1582 (7th Cir, 1991),

DIS I

As noted earlier, the only issue remaining in this action is whether Plaintiff has a claim
against Defendant in her individual capacity for damages for the delay in filing his petition for post-
conviction relief! It is well established that state officials cannot unreasonably interfere with an
inmate’s right of access to the courts. See, ag., Lewis v. Casey, 518 U.S. 343, 351 (1996).
However, a plaintiff claiming denial of access to the courts must show “actual injury” — that is, that
a state actor hindered plaintiff's efforts to pursue a nonfrivolous legal claim. /d. at 351-52; Harrell
v. Cook, 169 F.3d 428, 432 (7th Cir. 1999). In this case, Plaintiff cannot meet his burden without
showing that his criminal conviction has been reversed.

In Hoard v, Reddy, 175 F.3d 531 (7th Cir. 1999), an inmate sued correctional officials for
violating his constitutional right of access to the courts, claiming that defendants had hindered his
efforts to litigate a post-conviction petition, The Court of Appeals affirmed the district court’s
dismissal of the lawsuit on the basis of Heck v. Humphrey, 512 U.S. 477, 487 (1994), which bars

suits for damages on any theory that implies the invalidity of a non-reversed conviction. The Court

Plaintiffs request for injunctive relief was satisfied during the course of the state proceedings, and
he cannot assert a section 1983 damage claim against defendant in her official capacity because the statute
does not authorize such claims. See Will vy. Mich. Dep't of State Police, 491 U.S, 58, 71, (1989) (“We hold
that neither a State nor its officials acting in their official capacities are “persons” under § 1983,”),

4


Plaintiff argues that the delay in filing his petition for post-conviction relief prejudiced him

because he had to file the instant lawsuit in order to compel Defendant to file his petition, and this
cost him time, money, and research. It is regrettable that Plaintiff had to resort to filing this case
before his petition was filed; however, the type of prejudice envisioned in the case law is the
dismissal of a complaint or an inability to file a complaint at all. See Lewis, 518 U.S. at 351.
Plaintiff’ s petition for post-conviction relief was filed, albeit 16 months after he attempted to file it.
Moreover, mere delay without more does not establish actual injury. See Gentry v. Duckworth, 65
F.3d 555, 559 (7th Cir. 1995).

In reversing and remanding Plaintiffs petition for post-conviction relief, the Illinois
Appellate Court expressed its displeasure with the long delay in filing Plaintiff's petition, stating:

Our disposition of this appeal does not require us to address a serious issue

raised by the defendant: whether the clerk’s 16-month delay between filing the

petition and docketing it violates the spirit and purpose of the 90-day rule, requiring

us to remand the petition for second-stage review. Hopefully, we will not again be

faced with so substantial a failure by the clerk to perform her statutory duty to

“promptly” docket the petition.

Nonetheless, Plaintiff cannot recover monetary damages in this case, no matter how
egregious the delay in filing his petition for post-conviction relief, because he would have to
establish that his underlying conviction is invalid in order to show that hist post-conviction litigation
was prejudiced. Consequently, the Court finds that the complaint must be dismissed as a matter of
law. Because the Court finds that the plaintiff has no cognizable cause of action under 42 U.S.C.

§ 1983, the Court has no occasion to reach such the question of whether a court clerk is entitled to

quasi-judicial immunity. See Richman y. Sheahan, 270 F.3d 430, 437 (7th Cir. 2001).


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

HARRY McDONALD

Plaintiff, No. 03 C 4568

Judge Ronald A. Guzman

Vv.

DOROTHY BROWN

we SS ee

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Harry McDonald, currently an inmate at Dixon Correctional Center, brings this pro
se complaint pursuant to 42 U.S.C. § 1983, alleging that defendant Dorothy Brown, the Clerk of the
Circuit Court of Cook County, refused to file his petition for post-conviction relief in violation of
his First Amendment tight of access to the courts. On September 17, 2004, the Court granted
Defendant's motion to dismiss in part, determining that Plaintiff's request for an order compelling
Defendant to file his petition for post-conviction relief was moot because the document at issue had
been filed during the course of the instant proceedings. [owever, the Court denied Defendant’s
motion to dismiss Plaintitfs claim for money damages because the Court could not determine
whether the delay in filing the petition resulted in actual damage. Defendant has filed a second
motion to dismiss to which Plaintiff has responded. For the following reasons, Defendant's motion

to dismiss is granted.


CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss [doc. no. 70] is granted, and this

action is dismissed without prejudice.

SO ORDERED, ENTERED: / /8 /; 0 §

Add bea

HON, RONALD A, GUZMANY/
United States District Judge



BACKGROUND FACTS

Plaintiff alleges that on June 21, 2002, he sent his petition for post-conviction relief to
Defendant. He also sent copies to the State’s Attorney and the Clerk of the Appellate Court. For
about the next nine months, Plaintiff wrote Defendant numerous times about his petition for post-
conviction relief. The petition was never sent back to him, Defendant was allegedly never
responsive to any of his questions, and the petition was never filed.

Plaintiff filed this action on July 1, 2003, seeking an order from this Court compelling
Defendant to file his petition for post-conviction relief. He also asked for money damages.

On December 22, 2003, Defendant filed a motion to dismiss arguing, inter alia, that
Plaintiffs cause of action was moot because his petition for post-conviction relief had been filed on
October 30, 2003, and was scheduled to be heard by Judge Stanley Sacks of the Circuit Court of
Cook County, Illinois.

Judge Sacks dismissed the motion under 725 Ill. Comp. Stat. 5/122-1(d) because Plaintiff
failed to state correctly under which section he was applying for relief. (Def.’s Ex. 1.) Plaintiff
appealed this dismissal, and on May 29, 2007, the Illinois Appellate Court reversed and remanded,
holding that although the petition did not expressly cite to the section of the Post-Conviction Hearing
Act governing pleading requirements, it adequately informed the trial court that the petition was
being filed pursuant to ihe Act. See People v. McDonald, 869 N.E.2d 945 (2007). The Illinois
Appellate Court determined that the petition must be remanded for stage-two proceedings, thus
requiring the trial court to appoint legal counsel to represent an indigent defendant. Jd. at 936-37,

949-50.


Because no further information is currently available to the Court, it appears that Plaintiff's

petition for post-conviction is now pending before the trial court after remand and that Plaintiff is

represented by counsel.

LEGAL STANDARD
A motion to dismiss a complaint for failure to state a claim upon which relief may be granted
involves two considerations. First, under the notice pleading requirement, this Court must determine
whether the complaint sufficiently provides the defendants with “fair notice of what the .. . claim
is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 127 8, Ct. 1955, 1964
(2007). Federal rules follow a notice pleading, as opposed to a fact pleading, requirement. The
pleading of extensive specific facts is not required, and the complaint need only state a legal claim

and provide “some indication ... of time and place.” Thomson v. Washington, 362 F.3d 969, 970-

71 (7th Cir, 2004); see also Bell Atlantic, 127 S. Ct. at 1964-65. Second, the complaint’s
“allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility
above a speculative level.” £.£.0.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776-77 (7th
Cir. 2007) (quotation omitted).

This Court liberally construes a pro se complaint. Haines v. Kerner, 404 U.S. 519, 520
(1972); McCormick v. City of Chi, 230 F.3d 319, 325 (7th Cir. 2000). When considering a motion
to dismiss, this Court takes the allegations in the complaint as true, viewing all facts, as well as any
inferences reasonably drawn therefrom, in alight most favorable to the plaintiff. Erickson v. Pardus,
127 8. Ct. 2197, 2200 (2007); Marshall-Mosby v. Corporate Receivables, inc., 205 F.3d 323, 326

(7th Cir. 2000).