1:23-cv-01293-JES-JEH # 5 Filed: 09/06/23 Page 1 of 6
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`
`JOHNNIE L. SIMS,
`
`Plaintiff,
`
`v.
`
`WILLIAM P. ADKINS, et al.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. 23-1293-JES-JEH
`
`ORDER AND OPINION
`
`Plaintiff, a non-prisoner proceeding pro se, has filed a complaint and accompanying
`
`memorandum under 42 U.S.C. § 1983. The memorandum (Doc. 2) was filed with and referred to
`
`in the complaint, and also provides some necessary detail, and was duly considered by the
`
`Court.1 Plaintiff also filed a petition to proceed in forma pauperis (“IFP”) (Doc. 3); and a motion
`
`for recruitment of pro bono counsel (Doc. 4). For the reasons set forth below, Plaintiff is denied
`
`IFP status, and the complaint is dismissed as frivolous as barred by the statute of limitations and
`
`the application of Heck v. Humphrey, 512 U.S. 477 (1994).
`
`BACKGROUND
`
`Petitioner seeks to proceed under the IFP statute, 28 U.S.C. §1915(a)(1), which is
`
`designed to ensure indigent litigants’ meaningful access to the federal courts. Neitzke v. Williams,
`
`490 U.S. 319, 327 (1989). When a plaintiff seeks to proceed without paying the filing fee, the
`
`district court is to “screen the case before granting the privilege to proceed without prepayment
`
`of fees.” United States v. Durham, 922 F.3d 845, 846 (7th Cir. 2019). The IFP statute at 28
`
`1 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002) (stating that in a Rule 12(b)(6) motion to dismiss,
`
`the standard applied here, a court may consider documents that are “referred to in the plaintiff's complaint and are
`
`central to his claim.”).
`
`1
`
`

`

`1:23-cv-01293-JES-JEH # 5 Filed: 09/06/23 Page 2 of 6
`
`U.S.C. § 1915(e)(2)) provides that in conducting the screening, the court is to review the
`
`sufficiency of the complaint and deny IFP status if: (1) the allegation of poverty is untrue; (2) the
`
`action is frivolous; (3) the action fails to state a claim; or (4) the action seeks monetary relief
`
`against an immune defendant.
`
`When evaluating whether a pro se plaintiff has stated a claim under § 1915(e)(2)(B),
`
`courts use the same standards that apply to Federal Rule of Civil Procedure 12(b)(6) motions.
`
`Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). The court will take as true
`
`“all well-pleaded allegations of the complaint” and view them “in the light most favorable to the
`
`plaintiff.” Id. (citing Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)). The complaint must
`
`describe the claim in sufficient detail to put defendants on notice as to the nature of the claim and
`
`its bases, and it must plausibly suggest that the plaintiff has a right to relief. Bell Atlantic
`
`Corporation v. Twombly, 550 U.S. 544, 555 (2007). A complaint need not allege specific facts,
`
`but it may not rest entirely on conclusory statements or empty recitations of the elements of the
`
`cause of action. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations “must be
`
`enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
`
`PRIOR LITIGATION HISTORY
`
`In the current case, Plaintiff names his prior criminal defense attorney, William Adkins;
`
`Police Officer David Buss; forensic scientists Dustin Johnson and Ann Marie Yeagle; and
`
`Assistant State’s Attorney Donna Cruz. Plaintiff complains of acts that occurred “in September
`
`2015 and January 2017.” (Doc. 2 at 1). These events surround Plaintiff’s December 13, 2016
`
`trial in Peoria County Case No. 15-CF-726, where he was convicted as being a felon in
`
`possession of a weapon in violation of 720 ILCS 5/24-1.1(a). Plaintiff alleges that Mr. Adkins
`
`breached his fiduciary duty to Plaintiff and fraudulently asserted expenses for expert witnesses.
`
`
`
`2
`
`

`

`1:23-cv-01293-JES-JEH # 5 Filed: 09/06/23 Page 3 of 6
`
`He asserts that Defendants Buss, Johnson, and Yeagle, falsified forensic evidence and committed
`
`perjury. He claims that Assistant State’s Attorney, Donna Cruz, presented false forensic evidence
`
`and suborned perjury. Plaintiff was convicted of the offense, served a term of imprisonment, and
`
`has been released. He requests $2,057,000 in compensatory damages.
`
`This is not Plaintiff’s first attempt to raise these claims. On March 30, 2017, while
`
`imprisoned, Plaintiff filed a federal complaint before this same Court captioned Sims v. Adkins
`
`(“Sims #1”), No. 17-1133 (C.D. Ill. Mar. 30, 2017). The Court conducted a review of that case as
`
`Plaintiff sought IFP status there as well. The Court determined that Plaintiff had alleged a § 1983
`
`violation against Defendants Adkins, Frederick Johnson, and Johnson, Bunce, and Noble, P.C.,
`
`for “constitutionally deficient representation at a December 2016 criminal trial in the Peoria
`
`County Circuit Court.” See Order (Doc. 6 at 1). The Court noted, however, that all named
`
`Defendants were private attorneys not acting under color of state law, so were not amenable to
`
`suit under § 1983. It explained that the conduct of private counsel, even while acting as a public
`
`defender, did not rise to the level of state action for purposes of §1983 liability. The court cited
`
`this, and the bar of Heck v. Humphrey, which will be discussed later. The Court denied the IFP
`
`petition and dismissed the complaint without prejudice. Plaintiff had an opportunity to amend but
`
`did not do so.
`
`On September 9, 2019, while incarcerated, Plaintiff filed a §2241 habeas petition in Sims
`
`v. Clark, No. 19-1313 (C.D. Ill Sept. 9, 2019). There, he asserted ineffective assistance of
`
`appellate and trial counsel; tampered evidence; and that the State presented improper instructions
`
`to the jury. The court noted that, as Plaintiff had been convicted in state court, his appropriate
`
`remedy was under §2254 “which ‘is the exclusive remedy for a state prisoner who challenges the
`
`fact or duration of his confinement . . . .’” Sims, No. 19-1313 (Doc. 7 at 3-4) (citing Barnes v.
`
`
`
`3
`
`

`

`1:23-cv-01293-JES-JEH # 5 Filed: 09/06/23 Page 4 of 6
`
`Baldwin, No. 19-635, 2019 WL 3975176, at *2 (S.D. Ill. Aug. 22, 2019)). The Court noted that,
`
`while it could recharacterize Plaintiff’s petition as one asserted under §2254, this would limit his
`
`ability to file a subsequent §2254 petition. The court determined that the better practice was to
`
`dismiss the case without prejudice, advising “Should he wish to further pursue relief, Petitioner
`
`would need to file a petition under § 2254 . . .” Id. at 5. Plaintiff did not do so.
`
`In the current August 8, 2023 complaint, Plaintiff asserts violations of § 1983,
`
`complaining of the conduct of defense counsel, an officer, expert witnesses, and an Assistant
`
`State’s Attorney, related to his December 13, 2016 trial and conviction. These claims, however,
`
`are now time-barred as beyond the two-year statute of limitations. As there is no federal statute
`
`of limitations provided in § 1983, the courts apply the personal injury statute of limitations of the
`
`state where the alleged injury occurred. Wallace v. Kato, 549 U.S. 384, 387 (2007). The statute of
`
`limitations for personal injury claims in Illinois is two years. Draper v. Martin, 664 F.3d 1110,
`
`1113 (7th Cir. 2011) (citing 735 ILCS 5/13-202); Woods v. Illinois Dept. of Children and Family
`
`Services, 710 F.3d 762, 766 (7th Cir. 2013).
`
`DISCUSSION
`
`
`
`
`
`In his pleading, Plaintiff acknowledges that a two-year statute of limitations applies in
`
`§ 1983 cases. Despite this, he asserts that the claims from 2015, 2016, and January 2017 “must
`
`have been filed by December 13, 2018” (Doc. 2 at 2), apparently using the December 13, 2016
`
`trial as the date the statute began to run. Plaintiff provides no detail as to the 2015 conduct of
`
`which he complains and there is nothing to support that events which occurred in 2015 would
`
`have been timely if filed on December 13, 2018. All that aside, Plaintiff identifies the December
`
`2018 date as the last date for filing, but did not file until August 8, 2023, well beyond the
`
`timeframe he, himself, identifies. Perhaps Plaintiff is under the mistaken impression that his Sims
`
`
`
`4
`
`

`

`1:23-cv-01293-JES-JEH # 5 Filed: 09/06/23 Page 5 of 6
`
`#1 claim, filed in March 2017 and dismissed in April 2017, tolled the statute of limitations. It did
`
`not. That case was dismissed with leave to amend. Plaintiff did not amend and did not preserve
`
`his rights as to that claim.
`
`Generally, a court is not to dismiss a complaint based on an affirmative defense such as a
`
`statute of limitations. However, a court may dismiss if the complaint sets forth the necessary
`
`information to show that the case is time-barred due to the expiration of the statute of limitations.
`
`See Bray v. Gary Police Dept. Chief, No. 10-229, 2010 WL 2674531 (N.D. Ind. June 28, 2010)
`
`(“[t]he statute of limitations is an affirmative defense, but if a plaintiff ‘pleads facts that show his
`
`suit is time-barred or otherwise without merit, he has pleaded himself out of court.’”) Brooks v.
`
`Ross, 578 F.3d 574, 579 (7th Cir. 2009) (“We find it appropriate here to consider the statute of
`
`limitations because the relevant dates are set forth unambiguously in the complaint.”).
`
`Plaintiff’s complaint cannot stand for the additional reason that it is barred under Heck v.
`
`Humphrey, something explained to Plaintiff in Sims #1. “Heck v. Humphrey, 512 U.S. 477
`
`(1994), holds that a federal court may not award damages under §1983 when that calls into
`
`question the validity of a state conviction.” Wells v. Caudill, 967 F. 3d 598, 602 (7th Cir. 2020).
`
`See also Ortega v. Ford, No. 20-36, 2023 WL 2648524, at *5 (S.D. Ill. Mar. 27, 2023) (“‘when a
`
`state prisoner seeks damages in a [Section] 1983 suit, the district court must consider whether a
`
`judgment in [his] favor . . .would necessarily imply the invalidity of his conviction or sentence; if
`
`it would, the complaint must be dismissed unless the plaintiff can demonstrate that the
`
`conviction or sentence has already been invalidated.’” (citing Heck, 512 U.S. at 487). The Heck-
`
`bar applies even when the individual is no longer in custody. Savory v. Cannon, 947 F.3d 409
`
`(7th Cir. 2020) (en banc).
`
`
`
`5
`
`

`

`1:23-cv-01293-JES-JEH # 5 Filed: 09/06/23 Page 6 of 6
`
`Here, Plaintiff claims that he was convicted based on false and perjured testimony. If he
`
`were to prevail in the § 1983 claim it would, of necessity, call into question the validity of the
`
`conviction. As a result, Plaintiff cannot maintain a § 1983 claim for damages unless the
`
`conviction has been overturned or otherwise discredited.
`
`Plaintiff’s IFP petition is denied, and the complaint is dismissed for the reasons
`
`identified. This case is dismissed without prejudice as Plaintiff could reassert in the event his
`
`conviction is overturned or otherwise called into question. In such a case, Plaintiff’s § 1983
`
`claim would accrue as of that date. See Savory, 947 F.3d at 417–18 (finding that the statute of
`
`limitations began to run when the former prisoner “received a favorable termination of his
`
`conviction, which occurred when the governor issued a pardon for the subject conviction.”).
`
`CONCLUSION
`
` The Court finds that Plaintiff’s complaint fails to state a claim. As a result, the complaint
`
`is dismissed and the IFP petition and motion for recruitment of pro bono counsel are denied.
`
`Plaintiff will not be allowed to amend as his claim is currently barred under the applicable statute
`
`of limitations and Heck v. Humphrey. If Plaintiff wishes to appeal this dismissal, he must file a
`
`notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). 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). If Plaintiff does choose to appeal, he will be liable for
`
`the appellate filing fee regardless of the outcome of the appeal.
`
`
`
`Signed on this 6th day of September 2023.
`
`
`
`
`
`s/James E. Shadid
` James E. Shadid
` United States District Judge
`
`6
`
`