Grigalanz v. Grigalanz

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

PHILLIP S. GRIGALANZ )

)

Plaintiff, )

)

vs. ) Case No. 19-cv-940-SMY-MAB

)

KRISTI GRIGALANZ, and )

JOHN C. WIMMERSBURG, )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Plaintiff Phillip Grigalanz filed this pro se action seeking injunctive and monetary relief

against his ex-wife Kristi Grigalanz and Indiana police officer John Wimmersburg. This is

Plaintiff's third attempt to sue Grigalanz and Wimmersburg in this court; his two previous

Complaints were dismissed for failure to state a cognizable claim. See Grigalanz v. State of

Indiana, et al., Case No. 18-cv-1445-SMY. In his latest Complaint, Plaintiff asserts claims for

obstruction of justice pursuant to 18 U.S.C. § 1506 and state law official misconduct claims

pursuant to 720 ILCS 5/33-3. This matter is now before the Court for consideration of Plaintiff's

Motion for Leave to Proceed in Forma Pauperis ("IFP") (Doc. 3). For the following reasons, the

Motion is DENIEDand Plaintiff's Complaint isDISMISSED with prejudice.

Under 28 U.S.C. § 1915, an indigent party may commence a federal court action without

paying required costs and fees upon submission of an affidavit asserting the inability “to pay

such fees or give security therefor” and stating “the nature of the action, defense or appeal and

the affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1). Section 1915

is meant to ensure that indigent litigants have meaningful access to the federal courts and applies

to non-prisoner plaintiffs and prisoners alike. Neitzke v. Williams, 490 U.S. 319, 324 (1989).

Plaintiff has sufficiently established his indigence in his Motion and accompanying

affidavit as he states that he is currently incarcerated and unemployed, has no other income and,

that his prisoner trust account has a balance of approximately $267. Based upon this

information, Plaintiff is unable to pay the costs of commencing his lawsuit. The Court’s inquiry

does not end there because § 1915(e)(2) requires careful threshold scrutiny of a Complaint filed

by a plaintiff seeking to proceed IFP. Thus, the Court can dismiss a case if it determines the

action is clearly frivolous or malicious, fails to state a claim, or is a claim for money damages

against an immune defendant. 28 U.S.C. § 1915(e)(2)(B); see also Hoskins v. Poelstra, 320 F.3d

761, 763 (7th Cir. 2003) (“District judges have ample authority to dismiss frivolous or

transparently defective suits spontaneously, and thus save everyone time and legal expense”).

The standards for deciding whether to dismiss a case for failure to state a claim under §

1915(e)(2)(B)(ii) are the same as those for reviewing claims under the Federal Rule of Civil

Procedure 12(b)(6). Dewalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000).

Here, Plaintiff is seeking damages resulting from Defendants' misconduct, including

prejudice in his Indiana state court divorce and child custody proceedings and prolonged

estrangement with his stepdaughter. He attempts to raise civil claims under two criminal

statutes, 18 U.S.C. § 1506 and 720 ILCS 5/33-3. However, neither statute authorizes a private

cause of action.

Section § 1506 provides the criminal penalties for theft or alteration of records or process

or false bail in proceedings in any court of the United States. This statute was not intended to be

used in civil litigation or as a basis for a private right of action. See Shahin v. Darling, 606 F.

Supp. 2d 525, 538 (D. Del.), aff'd, 350 F. App’x 605 (3d Cir. 2009); Hamilton v. Reed, 29

Fed.Appx. 202, 204 (6th Cir. 2002). Similarly, Plaintiff's official misconduct claim is asserted

under Illinois criminal statute 720 ILCS §5/33-3 which punishes criminal misconduct by

governmental officials as a Class 3 felony. As such, Plaintiff has no standing to bring a claim

under § 5/33-3 against the defendants herein. See Smith v. Ziegler, 2019 WL 2088462, at *4

(S.D. Ill. May 13, 2019); Agrawal v. Lambertson, 2008 WL 818503, at *6 (S.D. Ill. Mar. 24,

2008). Accordingly, Plaintiff's Complaint is DISMISSED with prejudice and his motion to

proceed in forma pauperis is DENIED.

Moreover, because Plaintiff continues to file frivolous Complaints against these

defendants, Further discussion is warranted. Specifically, Plaintiff is ADVISED that under

Alexander v. United States, 121 F.3d 312 (7th Cir. 1997) and Support Systems International, Inc.

v. Mack, 45 F.3d 185 (7th Cir. 1995), courts have inherent authority to protect themselves from

vexatious litigation by imposing fines and filing bands. In Alexander, the Court warned that if

the petitioner filed any further frivolous petitions, he would be fined $500; the fine would have

to be paid before he could commence any other civil litigation, and any action would be

summarily dismissed thirty days after filing unless otherwise ordered by the court. Plaintiff

should keep Alexander and Mack in mind before filing any additional actions related to his

Indiana state court divorce and child custody proceedings. The Clerk of Court is DIRECTED to

enter judgment accordingly.

IT IS SO ORDERED.

DATED: November 12, 2019 Now Kt fell

STACI M. YANDLE

United States District Judge

Page 3 of 3