criminal conviction. (/d. at 459.) As set forth above, the Severith Circuit confirmed that a delay in
processing an appeal may constitute a denial of due process; fc’ example, the court suggested that
denial of a free transcript to an indigent defendant, or refusing to permit or to decide an appeal,
might well violate due process. (/d. at 459-60.) The Allen cou't ultimately agreed with the district
court's conclusion that the habeas petition in question was rendered moot when, soon after the
petitioner filed it, the state court rendered its decision affirming petitioner's conviction. (/d.)

In this case, the facts demonstrate that Plaintiff's claim must be dismissed for the same
reason. Documents filed in connection with the pending criminal appeal reflect that the complete
record on appeal has now been filed. In his opposing brief, Plaintiff conceded that the State’s
Attorney had submitted the complete record by November 1, 2002. (Plaintiff's Reply to Defendant’s
Motion to Dismiss, at 1.) In fact, contrary to the allegations of the complaint, the complete record
on appeal, including transcripts of the trial court proceedings, had been prepared and filed months
before Plaintiff initiated this lawsuit on February 1, 2002. As in Allen, Plaintiff's complaints about
delay in processing his appeal have been rendered moot by the ‘iling of the documents necessary
to move the case forward. Certainly there is no basis for injunctive relief.

Nor does the court believe the circumstances presented liere support a claim for damages.
First, as noted earlier, court clerks have quasi-judicial immunity f-om suits for damages when they
are being sued for performing ministerial acts. See Minute Orde* of February 14, 2002, (Doc. No.
4), citing Richman v. Sheahan, 270 F.3d 430, 437 (7th Cir. 2001), cert. denied, 122 S.Ct. 1439
(Apr. 1, 2002). This court also observed that, although a violation of the state court's schedule for
filing the record might, under circumstances more compelling than these, support a mandamus
action or a motion in the appellate court, a violation of state law is not, in and of itself, an actionable
constitutional tort. See Minute Order of February 14, 2002 (Doc. No. 4), citing Rowe v. DeBruyn,

17 F.3d 1047, 1051 (7th Cir. 1994).


damages from Defendant or any other state actor on accouni of the relatively brief delays in the
appeal process. The record fails to support an inference that Plaintiff has been denied meaningful
access to the courts. Plaintiff's allegations do not justify federal intervention in Plaintiff's pending
state criminal prosecution.

For the foregoing reasons, this suit is dismissed for failure to state a claim upon which relief
may be granted. Plaintiff is warned that if a prisoner has had a total of three federal cases or
appeals dismissed as frivolous, malicious, or failing to state a claim, he may not file suit in federal
court without prepaying the filing fee unless he is in imminent danger of serious physical injury. 28
U.S.C. § 1915(g).

If Plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this court
within thirty days of the entry of judgment. Fed. R. App. P. 4(a1(4). A motion for leave to appeal
in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See Fed. R. App.
P. 24(a)(1)(C).

Defendant's motion to dismiss (Doc. No. 20) is granted. The complaint is dismissed with
prejudice pursuant to FED. R. Civ. P. 12(b)(6). The case is termiriated. The parties are to bear their
own costs.

ENTER:

Dated: August 26, 2002
REBECCA &. PAY
United States District



extension of time to file the Record on Appeal. (Unmarked Exhibit to Plaintiff's Supplemental Brief
Opposing Dismissal.) The basis for the request was that the State had ordered transcripts from
the court reporter and that the transcripts had not yet been received. (/d. at 2.) The State filed a
second motion for an extension of time because it still had not received the transcripts, but itis not
clear on what date this second motion was filed because the file stamp is too faint to determine the
date. (Exhibit D to Plaintiff's Supplementary Brief Opposing Dis nissal.) Nevertheless, by October
29, 2001, Defendant supplemented the record with the Report of Proceedings, the transcripts of
court proceedings. (Certificate of Filing, Exhibit 3 to Defendant's Motion to Dismiss.)

On January 8, 2002, the State sought leave to file the Certificate in Lieu of the Record
instanter, (Exhibit F to Plaintiff's Supplementary Brief Opposing Dismissal.) As the court
understands this filing, the Certificate demonstrates that the record is complete and available for
review. The Illinois Appellate Court granted the State’s motior on January 17, 2002.

The Clerk of the Illinois Appellate Court for the First District confirmed that the appeal is still
pending as of the date of this order. Plaintiff's motion for condilional release pending disposition
of the appeal, his motion to expedite the appeal, and his motion for leave to file a reply brief have
been taken under advisement by the appellate court.

DISCUSSION

Plaintiff brought this case as a challenge to an allegec| delay in processing the State’s
appeal in his criminal prosecution. As the Seventh Circuit has observed,

excessive delay in the processing of a criminal defendant's state appeal can be a

denial of due process of law. The defendant has no federal constitutional right to an

appeal, but a state is not permitted with one hand to grant such a right and with

the other to take it away in an arbitrary fashion.

Allen v. Duckworth, 6 F.3d 458 , 459-60 (7th Cir. 1993). At issue in Alen was a habeas petition,

filed by a prisoner after four and a half years had passed without a ruling on his appeal from his


Allen recognized that “excessive” delay might be a denial of due process. Allen, 6 F.3d at
459. This court is not prepared to decide what delay is excess ve, but is certain that the test is not
met in this case. The matter has been pending for just over a year, is currently at the briefing
stage, and presumably can be decided promptly. Defendant ray have been a few weeks late in
filing the record; but such a brief delay does not rise to the level of a constitutional violation. In any
event, a plaintiff alleging interference with his First Amendment right of access to the courts must
show that the deprivation was intentional. Harrell v. Cook, 159 F.3d 428, 431 (7th Cir. 1999);
Kincaid v. Vail, 969 F.2d 594, 602 (7th Cir. 1992).

Plaintiff cites Curry v. Pucinski, 864 F.Supp, 839 (N.D. Ill. 1994), in which an Illinois prisoner
sued the Cook County Clerk for failing to include numerous clocuments in the record of appeal
prepared in his case. The court there concluded that, where :he Clerk prepared the record but
never included certain critical record materials (including jury questions and verdict forms), the
Clerk was not entitled to summary judgment on plaintiff's due process claims. fd. at 844, The court
noted that due process requires that “the handling of those important [court] records be free from
arbitrary interference and unreasonable delay.” /d. The district court observed, however, that
where the constitutional violation is "minor and incidental," an inmate must show prejudice in order
to proceed in a denial of access claim. /d. Unlike Curry, where plaintiff was deprived for years of
records that were necessary for a meaningful and timely appeal, here it is uncontested that
Defendant has prepared the cornplete Record on Appeal, albeit with a slight delay. Again, in this
case, the court discerns no unreasonably long delays, no “substantial retardation” of the appellate
process, no ongoing problem, and no substantive prejudice to the appeal. See Curry, 864 F. Supp
at 844. These circumstances do not establish a constitutional viclation; indeed, they may not even
establish a violation of state procedural rules: Supreme Court ru es specifically permit motions for
extensions of time to file the Record on Appeal, where the movant can show “necessity.” ILL. S.
CT. RULE 608(d). The record fails to support an inference either that Defendant has unreasonably

5


Minus Order Form (06/97)

SS ( ainitea States District Court, Northern District of Illinois

itting Judge if Other

Name of Assigned Judge | REBEG@A R, PALLMEYER

lagistrate Judge than Assigned Judge
CASE NUMBER 02 C 0820 DATE | august 26, 2002
CASE Robert Potts a/k/a Steven Jenson, #2000-0098811 vs. Dorothy Brown, et al.
TITLE

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

of the motion being presented.]

MOTION:

: |

DOCKET ENTRY:

r

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

(2) oO Brief in support of motion due

GB) Qo Answer brief to motion due_ . Reply to answer brief due.

(4) a] Ruling/Hearingon set for at.

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

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on sek for at

(7) Qo Trial{set for/re-set forlon_ at

(8) 0 [Bench/Jury trial] [Hearing] held/continued to al.

(9) Qa This case is dismissed [with/without] prejudice and without costs{|>y/agreement’pursuant to]
CUFRCP4(m) (General Rule 21 CIFRCP41(a)(1) OD FROP41(a)(2).

(0) =< {Other docket entry} For the reasons set forth in the accorapanying Memorandum Opinion and

(11) [See attached Memorandum Opinion and Order.]

Order, Defendant's motion to dismiss [#20] is granted. The complaint is dismissed with prejudice
pursuant to FED. R. Civ. P. 12(b)(6). The case is terminated. The parties are to bear their own costs.

No notices required, advised in open court.

No notices required

umber of notices

Document
Number

Notices mailed by judge’s stat

Notified counsel by telephone. |AUG 27 2002

dime dockered

Docketing to mail notices

Mail AO 450 form.

SIS

Lunoo Joy rsia” sn

Copy to judge/magistrate judge. wn
courtroom sryy 92-509
i cura hl rllHy 92 97K 20
tial —|
tnd TEE |
reentral Cleck"s bite mailing deputy initials



delayed or otherwise prejudiced Plaintiff's appeal, or even that most of the delays in the appeal are
attributable to the named Defendant.

The court notes, finally, that it appears that when he filed his lawsuit, Plaintiff lacked a clear
understanding of the procedure for filing the record of potential causes for any delay. He now
appears to comprehend that once the Circuit Clerk prepares: the appeal record, she generally
provides it to the parties for their use in drafting their appellate briefs and the parties themselves
file the record with the appellate court after they have finished reviewing it. Plaintiff appears now
to recognize that Defendant did fulfill her obligation; in his briefs 11 opposition to Defendant’s motion
to dismiss, Plaintiff now faults the State’s Attorney for what Plaintiff believes was the State's
Attorney's failure to comport with Supreme Court requirements regarding prompt briefing filing of
the certificate in lieu of record.

As this court previously advised Plaintiff, however, amendment of the complaint to name
the State's Attorney or other parties allegedly responsible for delays would be futile. See Minute
Orders of Aprit 25, 2002 and June 5. 2002. “[I]n initiating a prosecution and in presenting the
State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” /mbler v.
Pachtman, 424 U.S. 409, 431 (1976); see also Hunt v. Jaglowsk/, 926 F.2d 689, 692 (7th Cir.
1991). Even absent this immunity, any clairn against the State’s Attorney, or any other state actor,
would fail where Plaintiff cannot establish that such a defendant intentionally hampered or
obstructed the appeal process. Plaintiffis dissatisfied with the slow pace of the appeal; he may well
expect that a decision affirming the trial court will result in his release from custody. The record
does not, however, establish a claim of intentional denial of access to the courts.

CONCLUSION
Even accepting Plaintiffs factual allegations as true, the court finds that he has no

actionable federal claim. Plaintiff's request for injunctive relief s moot, and he is not entitled to


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

ROBERT POTTS A/K/A STEVEN JENSON,

Plaintiff,
No, 02 C 0820

U.S. District Judge

Rebecca R. Pallmeyer

)
)
)
)
v. )
)
DOROTHY BROWN, et al., )

)

)

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Robert Potts, an inmate at the Cook County Jail, has brought this pro se civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff claims that officials of the Cook County Circuit Clerk's
Office interfered with his right of access to the courts. Specifically, Plaintiff alleges that the State
has appealed an order suppressing evidence in the criminal case against him, and that the Clerk’s
failure to comply with state law requirements governing transmission of the appeal record has
unduly delayed an appellate rulirig and forced him to rernain in jail. This matter is before the court
for consideration of Defendant's motion to dismiss. For the reasons stated in this order, the motion
will be granted.

It is well established that pro se complaints are tc be liberally construed. Haines v. Kerner,
404 U.S. 519, 520 (1972); see also McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir.
2000). They can be dismissed for faifure to state a claim only if it appears “beyond doubt that the
plaintiff can prove no set of facts in support of his claim which wauld entitle him to relief.” Haines,
404 U.S. at 521; Zimmerman v. Tribble, 226 F.3d 568, 71 (7th Cir. 2000).

When considering whether to dismiss a complaint for failure to state a claim upon which
relief can be granted, the court takes the allegations in the complaint as true, viewing all facts--as
well as any inferences reasonably drawn therefrom--in the light most favorable to Plaintiff. Autry

v. Northwest Premium Services, Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). In ruling on a 12(b)(6)

105 2 > any


motion, however, a district court may properly take judicial notice of matters of public record without
converting the 12(b)(6) motion into a motion for summary judgment. Anderson v. Simon, 217 F.3d
472, 474-75 (7th Cir. 2000)
FACTS

Plaintiff is a pretrial detainee, currently in the custody of the Cook County Department of
Corrections. (Complaint at 2.) Defendant, Dorothy Brown, is the Clerk of the Cook County Circuit
Court. (id.)'

Plaintiff's complaint, deemed true for purposes of the motion to dismiss, alleges as follows:
On June 4, 2001, the trial judge in Plaintiff's pending state criminal case granted an order to
suppress evidence. (/d. at 6.) The State filed a notice of appeal on July 25, 2001. (/d.) According
to Plaintiff, the record on appeal was due to be filed in the Illinois Appellate Court by September
26, 2001. (Id.; see also Unmarked Exhibit to Plaintiff's “Supplementary Answer to Defendant's
Motion to Dismiss,” captioned, “Motion for Leave to File Docketing Statement Instanter;” cf. lll. S.
Ct. Rule 608(c): “The record . . . shall be filed in the reviewing court within 63 days from the date
the notice of appeal is filed in the trial court... .”) Plaintiff alleges that Defendant failed to meet
that deadline. In fact, on August 22, 2001, Defendant filed an “Appeal Certificate,” indicating that
a partial record on appeal had been prepared, consisting of only the documents in the court file.
(August 22, 2001 Appeal Certificate, Exhibits 1 and 2 to Defendant's Motion to Dismiss.)* On

October 2, 2001, the State’s Attorney (who is not a party to this action) filed a motion for an

' By Minute Order of February 14, 2002, the court disrnissed the complaint as to John
Stroger, the President of the Coak County Board, for lack of personal involvement. Plaintiff has
never identified or served “John Doe Assistant Clerk of Court." The court rejected subsequent
amendments to the complaint attempting to name additional Defendants. See Minute Orders of
April 25, 2002; June 5, 2002.

As noted, the court is permitted to take judicial notice of such official records without
converting the motion to dismiss to a motion for summary judgment

2