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Felton v. City of Chicago

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
Oct 30, 2014
Case No. 14 C 6857 (N.D. Ill. Oct. 30, 2014)

Opinion

Case No. 14 C 6857

10-30-2014

JOSEPH FELTON, Plaintiff, v. CITY OF CHICAGO, et al., Defendants.


(USCA No. 14-3211) MEMORANDUM ORDER

After this Court's issuance of its September 8, 2014 memorandum order ("Order") that dismissed both the pro se complaint by Joseph Felton ("Felton") and this action as frivolous, Felton filed a timely notice of appeal of that dismissal with our Court of Appeals. Nearly three weeks later Felton also filed with the Court of Appeals a motion for leave to appeal in forma pauperis, and on October 28 that court transferred that motion to this District Court for a ruling. This Court hastens to comply.

This is one case where the requirement of a complaint's "plausibility" introduced by the Twombly-Iqbal canon serves a useful purpose. Fully a quarter century ago Neitzke v. Williams, 490 U.S. 319 (1989) confirmed that factual frivolousness of the allegations in a complaint (as contrasted with its insufficiency under Fed. R. Civ. P. 12(b)(6)) could justify sua sponte dismissal (see 28 U.S.C. § 1915(d)). Just a few years later Denton v. Hernandez, 504 U.S. 25 (1992), dealing with frivolousness in legal terms rather than on a factual basis, reconfirmed Neitzke's teaching.

In this instance the frivolousness of Felton's claim that his constitutional rights had been violated by unnamed Chicago Police Officers through a claimed use of excessive force and attempted murder is fully confirmed by the publicly reported objective facts regarding the incident that gave rise to Felton's claim -- to that end this Court attaches a copy of the Order and draws particular attention to its three attached Exhibits.

Accordingly this Court denies Felton's in forma pauperis motion because the frivolousness of his underlying claim (and hence of his appeal) causes the appeal not to have been taken in good faith (see 28 U.S.C. §1915(a)(3)). As the Court of Appeals' October 28 order reflects, Fed. R. App. P. 24 calls for him to refile the motion before the Court of Appeals.

All further references to Title 28's provisions will simply take the form "Section omitting the prefatory "28 U.S.C. §."

That said, this Court's understanding of our Court of Appeals' teaching as to Section 1915(b) is that Felton's effort (even though unsuccessful) to seek appellate review on an in forma pauperis basis triggers the requirement of Section 1915(b)(1) that he pay the full amount of the Court of Appeals' filing fees, albeit in installments. This Court has determined from Felton's accompanying printout of transactions in his trust fund account that the average monthly deposits during the six-month period ending on the date that he filed his notice of appeal (October 8, 2014) was $120, 20% of which (id.) is $24. Accordingly Felton is assessed that initial partial filing fee of $24, and the Cook County Jail trust fund officer is ordered to collect that amount from Felton's trust fund account there and to pay it directly to the Clerk of Court ("Clerk"):

Office of the Clerk
United States District Court
219 South Dearborn Street
Chicago IL 60604



Attention: Fiscal Department

After such payment the trust fund officer at Cook County Jail (or at any other correctional facility where Felton may hereafter be confined) is authorized to collect monthly payments from his trust fund account in an amount equal to 20% of the preceding month's income credited to the account. Monthly payments collected from the trust fund account shall be forwarded to the Clerk each time the amount in the account exceeds $10 until the full $350 filing fee is paid. Both the initial payment and all future payments shall clearly identify Felton's name and the 14 C 6857 case number assigned to this action. To implement these requirements, the Clerk shall send a copy of this order to the Cook County Jail trust fund officer.

Because Felton's printout does not specifically identify the Cook County Jail as the custodial institution involved, he is ordered to provide that information to this District Court on or before November 14, 2014. If some other institution is involved, the text references to that Jail are modified accordingly.

In the meantime, as the Order at 2 reflects, Felton is also liable under the same statutory provision for payment of this District Court's filing fee in future installments. Because the calculation on that score is identical to that stated earlier (an average monthly deposit of $120), both the earlier required amount of the initial partial filing fee and the amount of all future installments must be doubled.

/s/_________

Milton I. Shadur

Senior United States District Judge
Date: October 30, 2014 MEMORANDUM ORDER

Pro se prisoner plaintiff Joseph Felton ("Felton") has utilized the printed form of 42 U.S.C. § 1983 ("Section 1983") Complaint made available for that purpose by the Clerk's Office to charge the City of Chicago ("City") and its Police Superintendent Gary McCarthy with the claimed violation of his constitutional rights by unnamed Chicago Police Officers (not Superintendent McCarthy himself) through their claimed use of excessive force and attempted murder. This memorandum order is issued to address a number of problems revealed by this Court's preliminary screening called for by 28 U.S.C. § 1915A(a).

All further references to Title 28's provisions will simply take the form "Section omitting the prefatory "28 U.S.C. §."

To begin with, although Felton has also submitted a Clerk's-Office-supplied form of In Forma Pauperis Application ("Application"), he has not even come close to satisfying the requirements of Section 1915 in that respect. Section 1915(a)(2) calls for any such application to be accompanied by a copy of the plaintiff's trust fund account statement for the six-month period immediately preceding the filing of the complaint. Felton has left blank the space above his signature calling for the date on which he signed the Complaint, but the document's receipt in the

Clerk's Office on September 4, 2014 suggests a probable date of "filing" of (say) September 2 (September 1 was Labor Day, a court holiday). But instead of covering the six months from March through August 2014, the Application bears a May 16, 2014 signature by Felton and a May 7, 2014 certification by the financial officer at the Cook County of Corrections ("County Jail," where Felton is in custody) -- and so the trust fund printout reflects only transactions beginning with April 1 and ending with May 6, 2014. Accordingly Felton is ordered to supplement his initial filing with a printout of his trust fund account transactions at the County Jail for the required period of March 1 through September 1 on or before September 26, 2014.

That date gives Felton the benefit of the "mailbox rule" (see Houston v. Lack, 487 U.S. 266 (1988)).

From the printout that Felton has supplied to this point, it looks as though April 1 or thereabouts may have been his first day in custody at the County Jail. If he was not in custody on March 1, a printout from the date of his arrival at the County Jail until the end of August will of course do the job.
--------

Now to the substantive aspects of Felton's Complaint as set out in his Statement of Claim (Complaint ¶ IV). In that respect neither the City nor Superintendent McCarthy is a proper Section 1983 defendant -- but that defect would likely be curable if the action were to survive, so that issue will be put aside while more grievous problems are dealt with.

On that score this Court will credit Felton's account of the serious injuries he sustained -- but it was painfully obvious to this Court on reading his skeletal account of the incident that produced those injuries that he had omitted critical facts that would (at a minimum) cast more light on whether those injuries resulted from his own flight in what appeared from his narrative to be a high-speed chase, rather than from the action of police in pursuing him. In the vernacular, even a threshold of the Complaint reading cast serious doubt on whether his version could pass the smell test.

Those suspicions led this Court to have one of its law clerks obtain and print out the news accounts that were clearly to be expected to report an incident of the type to which Felton's Complaint refers. Instead of expending further resources in recapping what those newspaper accounts reflected, this Court has attached Ex. 1 (which reproduces an article from the March 17, 2014 Chicago Tribune), Ex. 2 (which reproduces the Chicago Tribune article on the following day) and Ex. 3 (which reproduces the Chicago Sun Times article of March 17).

It is frankly an affront to the judicial system for Felton to attempt, like the alchemists of the Middle Ages, to transmute base metal into gold. Section 1915A(b)(1) amply justifies the dismissal of both Felton's Complaint and this action as frivolous, and this Court so orders. That, however, does not alter or excuse his payment of the $350 filing fee that he remains obligated to pay, so that the earlier provisions of this memorandum order that require him to provide a supplemental filing as to his trust fund account transactions at the County Jail remain in effect.

/s/_________

Milton I. Shadur

Senior United States District Judge
Date: September 8, 2014

Police: Cops opened fire two separate times during Lake Shore Drive chase, standoff

March 17, 2014 | By Jeremy Gorner, Stephanie Baer and Meredith Rodriguez | Tribune reporters

Recommend 7 Tweet 2 Police fired two separate times at a murder suspect during a chase on Lake Shore Drive, but they did not hit him and eventually used a flash-bang grenade to subdue mm and end a nearly nine-hour standoff near the Fullerton exit, officials said.

Image materials not available for display. Joseph Andrew Felton Jr., 43 -- a suspect in the death of his wife in Georgia earlier this month -- was found bleeding from cuts to his wrists, apparently self-inflicted when SWAT officers approached his black Chrysler 300 Sunday night, police sources said. He was taken to a hospital shortly before 10 p.m. and charges were still pending, police said.

Background Checks Online backgroundcheck.pooplesmart.com Enter Any Name - Safe & Accurate. Get a Full Background Check Now! The arrest closed a chaotic chain of events that began around 12:30 p.m. Sunday with a police chase from Harvey through the South Side of Chicago, ending near 8 the Fullerton exit of Lake Shore Drive when Felton rear-ended a car carrying a woman and at least one child, police and witnesses said. The woman's car in turn damaged a police car. "In fear for their lives and safety, and that of the public, law enforcement officers from the Chicago Police and an outside law enforcement agency fired at the offender," Chicago police said in a statement, disclosing new details of the chase and standoff. Felton sped off and continued north on Lake Shore Drive, police said. As he approached the Fullerton exit, Felton "intentionally" collided with a Chicago police car, authorities said. "Chicago police officers approached the disabled vehicles to render aid," the statement said. "The offender was observed with what appeared to be a handgun in his hand and more shots were fired by Chicago police. The injured officer was moved to safety and the offender refused to exit his vehicle, which led to the barricade situation," One driver said he heard 10 to 12 shots and jumped into the back seat of his car to shield his child and his wife who were crouched down on the floor. "I've never seen anything like this in my life," the witness said. "It was very violent." Lake Shore Drive was shut down as Felton refused to leave his car. Police talked to him throughout the afternoon by cell phone and through a loudspeaker attached to an armored Hummer, police said. Felton's sisters, who live in Chicago, also talked to him by phone but Felton refused to surrender, police said. "He's just afraid," said one of the sisters, Lastella Felton, describing him as "very discombobulated." Police said Felton's car had dark-tinted windows that made it difficult to see Felton inside. "He told negotiators he was armed with a large number of guns and was not coming out alive," said Chicago Chief of Patrol Wayne Gulliford. "The suspect did threaten to harm himself and police if they approached." Finally, around 9:30 p.m., police used the flash-bang grenade and Felton was taken into custody. He could be seen being taken from the scene on a stretcher. A police source said no guns were found inside the car. Police say Felton is a suspect in the murder of his wife, Shcray Latriest Felton, who was found dead in her home in Hampton, Ga., on Saturday. She had sought orders of protection against him twice in Will County, one in 2011 and the other last year. In seeking the order in 2011, she alleged that they got 9 into an argument over her new job on Dec. 13 while driving to Chicago, according to Will County records. Baby Name Generator parents.com Parents® Baby Name Quiz. Find The Perfect Name For Your Baby Now "I then asked him to take me home and he refused to," she said in court documents. "He then told me that he was going to crash the car with both of us in it and kill us." She said Joseph Fenton bit her thumb when she tried to remove the keys from the ignition and "back-handed" her on the face, causing her nose and hp to bleed, the order states. In the 2013 order, Sheray Felton stated she was afraid of Joseph Felton because of his "extreme jealousy." "Joseph is also verbally abusive to me," the order states. "He will tell me that I'm going to die all the time. He will tell me he will kill me and my son if I try to leave him." Joseph Felton was charged with domestic battery in July 2013. Sheray Felton alleged he struck her in the face and pulled her wig from her head, but the charge was later dropped when Sheray Felton did not appear in court. During the days after Felton's murder, her mother in Chicago tried to call her daughter, the family has told police. Joseph Felton would answer the phone and say she wasn't home or couldn't come to the phone, police said. The mother finally flew from Chicago to Atlanta to see her daughter, police said. Officers were called and forced their way into the Felton home and found the wife's body. Joseph Felton was gone. Sometime during the week, Felton showed up at one of his sister's homes in Chicago, the family has told police. The sister refused to let him in and called police, a source said. Find Obituaries Now genealogy.com/Records+Obituaries 1) Simply enter their name. 2) View their obituary online! 1 | 2 (/2014-03-17/news/chi-lake-shore-drive-standoff-ends-with-flash-of-grenade-20140317_1_police-chase-chicago-police-police-car/2) | Next (/2014-03-17/news/chi-lake-shore-drive-standoff-ends-with-flash

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New details on Lake Shore Drive chase as charges filed

March 18, 2014 | By Deanese Williams-Harris and Adam Sege | Tribune reporters

Recommend 4 Tweet 3 The man at the center of last weekend's Lake Shore Drive standoff topped 100 mph during an expressway police pursuit, drew fire from three officers and hit a squad SUV so hard it went airborne, a prosecutor said Tuesday. The new details were disclosed as charges were filed against Joseph Felton, 44, formerly of the 700 block of Union Avenue in University Park. He was charged with attempted first-degree murder, aggravated battery/use of a deadly weapon and aggravated fleeing of police more than 21 mph over the speed limit.

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Felton was denied bail during a hearing today but did not appear in court because he remains at Northwestern Memorial Hospital. Police say he cut his wrists while holding police at bay in his black Chrysler 300 for nine hours Sunday. The chase began about 12:50 p.m., when a Harvey police officer approached Felton as he sat in a parked car in the south suburb, Assistant State's Attorney Dan Griffin said. The officer knew of a warrant for Felton's arrest out of Georgia, where he was a suspect in his wife's death earlier this month, Griffin said. Felton sped off onto Interstate 57, Griffin said. He merged onto the Dan Ryan Expressway, driving at more than 100 mph and weaving in and out of traffic, the prosecutor said. With Chicago police and Illinois State Police joining the pursuit, Felton headed north on Lake Shore Drive. At North Avenue, three police cars waited for him, with drivers stopping behind them, according to Griffm and court documents. Felton's car struck the back of Toyota Avalon, causing the driver's head to strike her steering wheel and the Avalon to hit a CPD squad car, according to Griffm. At that point, two troopers and a Chicago police officer fired at Felton's car, "acting out of fear for their safety and the safety of civilians," Griffm said. Felton managed to continue driving north and, at Fullerton Avenue, he sped toward a Chicago police SUV, Griffin said. The officer driving the SUV attempted to avoid a collision, but Felton drove at him and rammed the squad car with such force it left the ground. Griffin said. The officer's SUV came to rest on the parkway east of the drive, according to court documents. Other units soon surrounded Felton's car, beginning a standoff that would last more than eight hours. In announcing the charges, police said they have been in contact with authorities in Henry County, Ga. where Felton's wife Sheray Latriest Felton was found dead on March 8. Her body was not discovered until days later when her mother flew down from Chicago, her family said. An autopsy Monday found that Sheray Felton died from blunt force trauma with a weapon, including lacerations "with an edged weapon," according to the Henry County sheriff's office. Pohce have said Joseph Felton is a suspect in her death. "We currently have detectives in Chicago to continue with the death investigation," the Henry County Sheriff's Office said in a release today. "The extradition process will begin once he is presented with the Chicago charges. ... At this time we are building a case for prosecution." In November 1999, Felton kicked in his wife's door, took a razor blade and cut his wife repeatedly on the head, face, neck, arms, back and body. He then dragged her to his car and drove around for 12 hours before taking her to the hospital. At the hospital, he told the staff that his wife had been robbed, according to court documents.
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Sheray Felton had sought two orders of protection against her husband since 2011, claiming he was extremely jealous, was physically abusive and had threatened to kill her and her son if she tried to leave him, according to court records. Felton was charged with domestic battery in July 2013 when Sheray Felton alleged he struck her in the face and pulled her wig from her head, but charges were dropped when she failed to appear in court. Her family said she finally moved to Georgia several months ago to get away from her husband, but Felton followed her there. After the murder, Felton fled back to Chicago, where he sought help in vain from his sisters, according to police. On Sunday, Harvey police went to a home where they believed Felton was hiding and saw Felton in the Chrysler 300, according to court documents. dawiUiams@tribune.com
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Man in Lake Shore Drive standoff has long history of trouble

BY JON SEIDEL Staff Reporter March 17, 2014 12:02PM Jealousy, intimidation and cruelty reigned over a 3-year-old south suburban marriage that finally erupted last weekend with the wife's death and a violent standoff on Lake Shore Drive, records show. Chicago Police confirmed on Monday that they opened fire along with Illinois Stale Police at the Georgia murder suspect who held police at bay for nearly nine hours Sunday. That man, thought to be 43-year-old Joseph Andrew Felton Jr.. was not shot, police said. No criminal charges had been filed in connection with the standoff as of Monday evening. Felton's wife, Sheray Felton, was found dead Saturday at her home in Hampton, Ga. She moved there from the Chicago area to get away from the man records show she married in January 2011. Joseph Felton turned out to be a violent, suspicious and controlling husband, according to Sheray Felton's claims, as she sought multiple protection orders against him over the years. She said he gagged her and held her against her will. She said he stabbed her with scissors. And she said he repeatedly threatened her life. Her family found her body in her home on Saturday, Georgia police said. The next day, investigators down south reached out to the Harvey Police Department- Sandra Alvarado, a Harvey police spokeswoman, said officers spotted the suspect's car at 148th and Myrtle — near Felton's former home there. Harvey officers chased the suspect's car 20 miles into Chicago and onto Lake Shore Drive. Chicago and state police opened fire on the suspect after he rammed his car into a vehicle filled with civilians near the 2000 block of North Lake Shore Drive, according to the Chicago Police Department. Later, police thought the suspect was holding a handgun after he drove into a Chicago police vehicle and officers tried to render aid. That's when Chicago police fired a second time, according to CPD. The suspect refused to get out of his car, which was no longer drivable, leading to the standoff". Chicago police would not confirm whether any guns were recovered from his car once they finally took him into custody. A Cook County judge sentenced Felton to 13 years in prison for attempted murder in 2001, according to court records. He got out in December 2010 but went back twice for parole violations, records show. He was charged earlier this year in Henry County, Ga., with false imprisonment and simple battery. Jim Wright, the district attorney there, said a grand jury declined on Thursday to indict him on those charges after Sheray. Felton failed to appear for testimony. However, she sought a protective order against him in January, explaining her ordeal. In a petition seeking the protective order, she claimed that Joseph Felton attacked her after she made arrangements for their 22-year-old son to visit, pulling off a wig that was sewn to her head, knocking her down and dragging her across the floor by her feet. She also wrote in the petition that he picked her up and threw her on a futon, upset because their son was coming to visit. She said he cursed at her and made threats against their son. He wouldn't let her get up, not even to go to the bathroom, so she said she urinated on the bed and lay in her own urine for a few hours until Felton fell asleep. The next day, she wrote, he threw her to die floor. She managed to call 911, though, and she screamed for help when police arrived. That's when he gagged her with a pair of basketball shorts before police arrested him, according to the petition. Sheray Felton also sought orders of protection against her husband twice in Will County — in 2011 and 2013. Once she said he threatened to crash a car and kill them both after he accused her of taking a job so she could meet people and divorce him. Just last May, she said he repeatedly told her she would die. "He will tell me he will kill me and my son if! try to leave him," Sheray Felton wrote. Both cases were eventually dismissed when no one showed up in court, records show. In July. Joseph Felton was charged with misdemeanor domestic battery after allegedly slapping his wife and pulling her wig off in Steger She told officers at the time his violence had been on the rise, police said. That case also was dismissed because of a lack of a complaining witness, court records show. Contributing: Nick Swedberg Email: jseidel@suntimes.com Twitter: @SeidelContent

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Summaries of

Felton v. City of Chicago

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
Oct 30, 2014
Case No. 14 C 6857 (N.D. Ill. Oct. 30, 2014)
Case details for

Felton v. City of Chicago

Case Details

Full title:JOSEPH FELTON, Plaintiff, v. CITY OF CHICAGO, et al., Defendants.

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

Date published: Oct 30, 2014

Citations

Case No. 14 C 6857 (N.D. Ill. Oct. 30, 2014)