Bernard Williams v. Randy Davis , 609 F. App'x 865 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 18, 2015*
Decided July 23, 2015
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14-2709
BERNARD WILLIAMS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 13-cv-0495-MJR-SCW
RANDY DAVIS and SEAN FURLOW, Michael J. Reagan,
Defendants-Appellees. Chief Judge.
ORDER
Bernard Williams, an Illinois prisoner, appeals from the dismissal of his suit
under 42 U.S.C. § 1983 alleging that two prison officials retaliated against him when they
referred him for criminal prosecution after he fought with a guard. We affirm.
As alleged in his complaint, Williams was punched in the head while waiting in
line for lunch at the Pinckneyville Correctional Center. When an officer approached him,
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 14-2709 Page 2
he “inadverte[nt]ly hip checked” the officer “to the ground three times,” a maneuver
that Williams describes as a Jiu-Jitsu judo throw. Williams was charged with assaulting
the officer and disobeying the officer’s order to stop fighting. He was found guilty of the
charges after a prison disciplinary hearing.
A month later Williams told Sean Furlow, an internal affairs officer at the prison,
that he intended to sue the officer who had conducted his disciplinary hearing for
denying him due process. Furlow responded by threatening to refer Williams for
criminal prosecution for his altercation with the officer. One month later Williams told
Randy Davis, then the warden of Pinckneyville, of his intent to sue, and Davis in turn
threatened to have Williams prosecuted. Davis then sent a letter to the Perry County
state’s attorney referring Williams’s case for possible criminal prosecution of aggravated
battery. One year later Williams was charged in state court with aggravated battery and
resisting a peace officer, both charges relating to the lunchroom fight.
Williams sued Furlow and Davis for malicious prosecution and retaliation,
among other claims. At screening, see 28 U.S.C. § 1915A, the district court dismissed
Williams’s malicious-prosecution claim as barred by Heck v. Humphrey, 512 U.S. 477
(1994), because, the court explained, the criminal proceedings had not been resolved in
Williams’s favor. The court permitted Williams to proceed on a claim of retaliation.
Williams twice asked the court to recruit counsel based on the complexity of his claim
but the court denied both requests because he did not provide any evidence that he had
attempted to hire counsel.
The district court dismissed Williams’s complaint for failure to state a claim.
See 28 U.S.C. § 1915(e)(2). The court explained that it had initially construed Williams’s
claim as one of “straight retaliation,” but now understood him to be alleging retaliatory
prosecution, which requires plaintiffs to allege the absence of probable cause. Relying on
Hartman v. Moore, 547 U.S. 250 (2006), the court concluded that Williams could not state a
claim of retaliatory prosecution because his allegation of hip checking an officer
“unequivocally” reflected that the prosecutor had probable cause to bring charges based
on this incident.
A month later Williams filed a “Motion to Reinstate,” maintaining that he had
stated a viable claim by suing prison officials (not the prosecutor) for prompting a
criminal prosecution against him. He also attached a state-court judgment reflecting that
he was convicted only of resisting a police officer and not, as also charged, aggravated
battery. The court construed the submission as a Rule 59(e) motion and denied it,
No. 14-2709 Page 3
repeating that Williams had not pleaded the lack of probable cause for the battery charge
against him. The court also denied Williams’s third motion to appoint counsel.
On appeal Williams argues that the district court erred in dismissing his
malicious-prosecution claim at screening because, he maintains, the state-court
judgment shows that the aggravated battery charge was dropped. Nevertheless, because
Illinois law provides an adequate remedy, his malicious-prosecution claim is foreclosed.
See Avila v. Pappas, 591 F.3d 552, 553–54 (7th Cir. 2010); Parish v. City of Chicago, 594 F.3d
551, 553 (7th Cir. 2009); Newsome v. McCabe, 256 F.3d 747, 750–51 (7th Cir. 2001).
Next, Williams contends that the district court improperly dismissed his
retaliatory prosecution claim because the fact that he was not convicted of aggravated
battery proves that probable cause was lacking. But this misapprehends the basis of
retaliatory prosecution. Whether a person is convicted of a crime is irrelevant to the
inquiry; to state a retaliatory prosecution claim, a plaintiff must allege that probable
cause did not support the underlying charge. See Reichle v. Howards, 132 S. Ct. 2088, 2095
(2012); Hartman, 547 U.S. at 265–66 (plaintiff asserting a Bivens or § 1983 claim that he
was prosecuted for exercising First Amendment rights must plead and prove absence of
probable cause for underlying charge to sustain retaliatory prosecution claim); Williams
v. City of Carl Junction, Mo., 480 F.3d 871, 877 n.4 (8th Cir. 2007) (“Application of Hartman
to defeat a plaintiff’s claim does not require that a charge lead to a conviction, but merely
that the charge be supported by probable cause.”). As the district court pointed out,
Williams’s admission in his complaint that he slammed a guard to the ground three
times supported a reasonable belief that an aggravated battery had been committed.
See 720 ILCS 5/12-3 (2012) (defining battery as knowingly or intentionally causing bodily
harm or making insulting physical contact); 720 ILCS 5/12-4(b)(18) (2012) (elevating to
aggravated status a battery committed against Illinois official); Chelios v. Heavener, 520
F.3d 678, 686 (7th Cir. 2008) (probable cause to arrest for aggravated battery if plaintiff
made contact with police officer). Furthermore, as shown by the state-court judgment
attached to the postjudgment motion, Williams’s conviction for resisting a peace officer
forecloses any allegation that that charge was not supported by probable cause.
See Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012); Purvis v. Oest, 614 F.3d 713, 723
(7th Cir. 2010).
Williams also argues that the district court erred by denying his requests for
recruitment of counsel because, he says, he did not understand the legal complexities of
his claim, and few resources were available to him at the prison library. But the court did
not abuse its discretion in denying his requests, given that he did not provide evidence
No. 14-2709 Page 4
that he tried to hire counsel until after the suit had been dismissed. See Bracey v. Grondin,
712 F.3d 1012, 1016 (7th Cir. 2013); Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)
(en banc).
AFFIRMED.