Rose

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

TINA ROSE,

Plaintiff,

v. Case No. 3:25-CV-1207-NJR

STATE OF ILLINOIS, by and through

its Judicial Branch, including the Second

Judicial Circuit and the Franklin County

Circuit Court,1

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Tina Rose, proceeding pro se, filed this action against the State of Illinois.

(Doc. 2). She brings two claims under the Americans with Disabilities Act (ADA),

42 U.S.C. § 12101 et seq., alleging discrimination in the provision of public services and

retaliation; one claim under 42 U.S.C. § 1983 alleging a violation of her First and

Fourteenth Amendment rights; and one claim alleging civil violations of the Racketeer

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (Doc. 2). The

case is now before the Court on Rose’s Application to Proceed in District Court Without

Prepaying Fees or Costs (Doc. 4), and her Motion for Recruitment of Counsel (Doc. 8).

1 In the caption of Plaintiff Rose’s initial complaint, the Franklin County Circuit Court is referred to as the

Franklin County Courthouse. (Doc. 1). Rose has moved to correct the case caption to reflect that the entity

is referred to as the Franklin County Circuit Court. (Doc. 9). The Court GRANTS this motion and DIRECTS

the Clerk’s Office to correct Defendant’s name to State of Illinois, by and through its Judicial Branch,

including the Second Judicial Circuit and the Franklin County Circuit Court, as reflected in the above

caption.

APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS

Normally, the fee for filing a complaint and opening a civil case is $405.00. Under

28 U.S.C. § 1915(a)(1), however, a federal district court may allow a civil case to proceed

in forma pauperis (that is, without prepayment) if the plaintiff “submits an affidavit that

includes a statement of all assets such [person] possesses that the person is unable to pay

such fees or give security therefor.” Section 1915(e)(2) then requires careful threshold

scrutiny of the complaint filed by such a plaintiff. The Court must dismiss the complaint

if the allegation of poverty is untrue or if the action is frivolous or malicious, fails to state

a claim upon which relief can be granted, or seeks monetary relief against a defendant

who is immune from such relief. Id.; 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 applicable to reviewing claims under § 1915(e)(2)(B)(ii) are the same

as those for reviewing claims under Federal Rule of Civil Procedure 12(b)(6). Dewalt v.

Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). Specifically, the plaintiff only must allege

enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A plaintiff need not plead detailed factual allegations,

but must provide “more than labels and conclusions, and a formulaic recitation of the

elements.” Id. at 555.

Here, the Court is satisfied from Rose’s affidavit that she is indigent. Rose states

that her income comes from disability payments and occasional part time work, which

she has been unable to do recently. (Doc. 4, at 1). Her monthly income is approximately

$1,038, and the majority of that goes to recurring expenses. See id. at 1–2. She alleges that

her friends have helped pay her bills when she has not been able to do so. Id. at 1.

As Rose is unable to pay the filing fee, and because nothing in the file indicates

this action is clearly frivolous or malicious, the next step is to determine whether Rose’s

complaint fails to state a claim on which relief can be granted or seeks monetary relief

against a defendant who is immune from such relief. The Court concludes that two of

Rose’s four claims should be dismissed with prejudice under § 1915(e)(2).

Rose’s complaint contains four claims:

Count I: a claim seeking monetary, declaratory, and injunctive relief

and alleging that the State of Illinois violated Title II of the

ADA by denying her reasonable accommodations;

Count II: a claim under 42 U.S.C. § 1983 seeking monetary, declaratory,

and injunctive relief and alleging that the State of Illinois

violated her First and Fourteenth Amendment due process

and equal protection rights by denying her equal access to the

courts;

Count III: a claim seeking monetary, declaratory, and injunctive relief

and alleging that the State of Illinois violated Title V of the

ADA by retaliating against her for exercising her ADA rights;

and

Count IV: a claim seeking monetary, declaratory, and injunctive relief

and alleging that the State of Illinois violated RICO by

engaging in “judicial obstruction.”

(Doc. 2, at 6–9). Each of these claims is brought directly against the State of Illinois, “by

and through” its judicial branch. Id. at 1; see Arnold v. Cir. Ct., 741 F. App’x 337, 338 (7th

Cir. 2018) (suits against units of the Illinois justice system are suits against the State of

Illinois). Absent an exception, “a suit in which the State or one of its agencies or

departments is named as the defendant is proscribed by the Eleventh Amendment.”

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).

Rose’s claims are thus barred unless covered by one of the three exceptions to

Eleventh Amendment sovereign immunity: “(1) where Congress . . . abrogates a state’s

immunity from suit; (2) where the state itself consents to being sued in federal court; and

(3) under the doctrine articulated by the Supreme Court in Ex parte Young.” Council 31 of

the Am. Fed’n of State, Cnty. and Mun. Emps. v. Quinn, 680 F.3d 875, 882 (7th Cir. 2012)

(citing Ex parte Young, 209 U.S. 123 (1908)). As Ex parte Young involves suits against state

officers, not suits against the state itself, that exception is inapplicable here. Neither has

Illinois consented to being sued on claims such as Rose’s in federal court. 745 ILL. COMP.

STAT. 5/1; see also, e.g., Doe v. Bd. of Trs. of Univ. of Ill., 429 F. Supp. 2d 930, 939–40 (N.D.

Ill. 2006) (explaining that Illinois’s limited consent to suit under civil rights statutes,

including the ADA, extends only to suits by current, former, and prospective employees

of the State for violations committed by the State as an employer). The only exception

that might apply to any of Rose’s claims, then, is abrogation by Congress.

Count II of Rose’s complaint invokes 42 U.S.C. §1983. Though it is true that

Congress did not abrogate the states’ Eleventh Amendment immunity under § 1983,

Quern v. Jordan, 440 U.S. 332, 345 (1979), this Court need not reach that question, as states

and their agencies “are not suable ‘persons’ within the meaning of [§] 1983.” Thomas v.

Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (citing Will v. Mich. Dep’t of State Police, 491 U.S.

58, 70–71 (1989)). Consequently, by naming Illinois as defendant in an action under

§ 1983, Rose fails to state a claim upon which relief can be granted in Count II.

Count IV, on the other hand, arises under RICO. To abrogate the states’ Eleventh

Amendment immunity, Congress “must make its intention to abrogate ‘unmistakably

clear in the statute.’” Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541 (2002) (quoting

Dellmuth v. Muth, 491 U.S. 223, 228 (1989)). But “nothing in RICO shows a clear indication

that Congress intended to waive the states’ sovereign immunity.” Thompson v. Whitmer,

No. 21-2602, 2022 WL 168395, at *5 (6th Cir. Jan. 19, 2022); see 18 U.S.C. § 1964(c).

Moreover, RICO was enacted under Congress’s power to regulate commerce. United

States v. Espinoza, 52 F. App’x 846, 848–49 (7th Cir. 2002). Even if Congress had intended

to abrogate the states’ Eleventh Amendment immunity as to civil RICO claims, it cannot

do so under its Article I commerce power. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

57–73 (1996). Consequently, Count IV similarly fails to state a claim on which relief could

be granted.

It is not immediately apparent, however, that Counts I and III of Rose’s complaint

are barred by sovereign immunity. Count I arises under Title II of the ADA, which

provides that “no qualified individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of the services, programs or

activities of a public entity, or be subjected to discrimination by any such entity.”

42 U.S.C. § 12132. Rose alleges that she has been denied accommodations necessary for

her to access court services and proceedings. (Doc. 2). Unlike § 1983 or RICO, however,

the Supreme Court has held that ADA Title II abrogates the states’ Eleventh Amendment

immunity “as it applies to the class of cases implicating the fundamental right of access

to the courts.” Tennessee v. Lane, 541 U.S. 509, 533–34 (2004); see also United States v. Georgia,

546 U.S. 151, 159 (2006) (“[I]nsofar as Title II creates a private cause of action for damages

against the States for conduct that actually violates the Fourteenth Amendment, Title II

validly abrogates state sovereign immunity.”). Though this class of cases is not unlimited,

see King v. Marion Cir. Ct., 868 F.3d 589, 591–93 (7th Cir. 2017), it is possible that Rose’s

claim will fall within it. As such, she is not now barred from bringing this claim under

28 U.S.C. § 1915(e).

Count III arises under Title V of the ADA (specifically, 42 U.S.C. § 12203), not Title

II. (Doc. 2). Rose alleges that, after attempting to exercise her rights under Title II by

making accommodation requests and reporting misconduct, she was retaliated against,

even to the point of being forbidden from presenting her argument in a state judicial

proceeding. Id. Though these allegations, taken as true, could potentially “implicat[e] the

fundamental right of access to the courts,” Lane, 541 U.S. at 533–34, or “actually violate

the Fourteenth Amendment,” Georgia, 546 U.S. at 159 (emphasis omitted), neither the

Supreme Court nor the Seventh Circuit has addressed whether such a suit under Title V

validly abrogates the states’ Eleventh Amendment immunity. Due to this uncertainty,

Count III cannot be said to be “transparently defective,” Hoskins, 320 F.3d at 763, and the

Court thus declines to dismiss that Count.

Because Counts II and IV of Rose’s complaints are barred by the Eleventh

Amendment, the Court dismisses them pursuant to 28 U.S.C. § 1915(e)(2)(B). As to Rose’s

surviving claims in Counts I and III, the Court grants Rose’s Application to Proceed in

District Court Without Prepaying Fees or Costs.

MOTION FOR RECRUITMENT OF COUNSEL

Turning to Rose’s Motion for Recruitment of Counsel (Doc. 8), the Court notes that

civil litigants do not have a right, either constitutional or statutory, to court-appointed

counsel. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007). Rather, district courts are

empowered to recruit an attorney to represent a plaintiff without charge when she is

“unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The Seventh Circuit has instructed

courts to consider two factors when determining whether recruitment of counsel is

warranted: (1) whether the plaintiff has made a reasonable attempt to obtain counsel or

been effectively precluded from doing so; and (2) given the difficulty of the case, whether

the plaintiff appears competent to litigate it herself. Pruitt, 503 F.3d at 654.

When considering the difficulty of the case, the Court must determine “the

particular plaintiff’s capacity as a layperson to coherently present” the case to the judge

and jury. Olson v. Morgan, 750 F.3d 708, 712 (7th Cir. 2014) (quoting Pruitt, 503 F.3d at

655). Factors to be considered include “the plaintiff’s literacy, communication skills,

educational level, and litigation experience.” Pruitt, 503 F.3d at 655. In conducting this

inquiry, the court must determine “whether the plaintiff appears competent to litigate his

own claims, given their degree of difficulty, and this includes the tasks that normally

attend litigation: evidence gathering, preparing and responding to motions and other

court filings, and trial.” Id. (emphasis omitted).

At this point in the litigation, the Court does not find it necessary to appoint

counsel. While Rose has made a reasonable attempt to obtain counsel (Doc. 8, at 1), this

Court is not convinced that the demands of the litigation exceed her capabilities. The

Court notes that Rose’s filings have been well-written and easy to understand. This case

is still in the pleadings stage, and Rose does not point to any specific tasks that she has

been unable to complete. While sympathetic to the difficulties Rose may face as a result

of her disabilities, the Court finds that she is capable of representing herself at this stage

of the litigation. Should this case proceed to a point where the difficulty exceeds Rose’s

capabilities, the Court is open to considering a renewed motion for recruitment of

counsel.

CONCLUSION

For these reasons, Plaintiff Tina Rose’s Application to Proceed in District Court

Without Prepaying Fees or Costs (Doc. 4) is GRANTED. However, pursuant to 28 U.S.C.

§ 1915(e)(2)(B), Counts II and IV of her Complaint (Doc. 2) are DISMISSED without

prejudice. Her Motion for Recruitment of Counsel (Doc. 8) is DENIED.

The Court DIRECTS the Clerk of Court to provide Rose with a USM-285 form.

Rose is ORDERED to return the completed form to the Clerk of Court. Upon receipt of

the completed USM-285 form, the Clerk is DIRECTED to prepare and issue a summons

for Defendant State of Illinois, by and through its Judicial Branch, including the Second

Judicial Circuit and the Franklin County Circuit Court, and to deliver a service packet

consisting of the summons, USM-285 form, and a copy of the Complaint to the United

States Marshals Service. The Court DIRECTS the United States Marshal, upon receipt of

these documents, to serve a copy of the summons and Complaint upon Defendant in any

manner consistent with Rule 4, as directed by the Plaintiff. Costs of service shall be borne

by the United States.

Finally, the Court DIRECTS the Clerk’s Office to correct Defendant’s name in

accordance with footnote 1.

IT IS SO ORDERED.

DATED: November 12, 2025 Tl Mhonitin I

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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