Salley v. Doe et al

Filing 17

MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 10/28/2014. Rule 16 Deadline 12/29/2014. Plaintiffs motion to request counsel 15 is DENIED. Plaintiffs motion to amend complaint 16 is GRANTED. Pursuant to its merit review of the Comp laint under 28 U.S.C. § 1915A, the Court finds that the plaintiff states an Eighth Amendment claim based upon the conditions of confinement against Warden Kevwe Akpore. The Clerk of the Court is directed to add Warden Kevwe Akpore as a party De fendant. Any additional claims shall not be included in the case, except at the Courts discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15. The Clerk is directed to attempt service on Defendant pursuant to the standard procedures. (cc Plaintiff via conventional mail.) (LN, ilcd)

E-FILED

Tuesday, 28 October, 2014 02:15:08 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
DONTANEOUS SALLEY,
Plaintiff,
v.
KEVWE AKPORE,
Defendant.

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No. 14-1277-SLD-JEH

MERIT REVIEW ORDER
This cause is before the Court for a review of Plaintiff Dontaneous Salley’s
Amended Complaint.
On August 14, 2014, the Court conducted a merit review hearing of Salley’s
Complaint. During this hearing and also in a subsequent written Order entered on
August 25, 2014, the Court explained to Salley that he needed to file an Amended
Complaint and that this Amended Complaint should state what injuries he received,
should state what treatment he received, and should specifically name the individual or
individuals who he believes is responsible for violating his constitutional rights.
Salley has now filed an Amended Complaint that names Kevwe Akpore, Warden
of the Hill Correctional Center, as a party Defendant. Based upon the new facts
included in his Amended Complaint, the Court finds that Salley has stated a claim
under the Eighth Amendment based upon the conditions of his confinement.
However, the Court finds that Salley has not stated a claim for deliberate
indifference. Despite the Court’s instruction, Salley did not identify any person who
was deliberately indifferent to his serious medical needs. More importantly, having to
wait 4-6 hours before a bed became available in the ICU does not constitute deliberate
indifference, nor does being given X-rays when Salley believed that a scan was
necessary.
Finally, Salley’s motion for appointment of counsel is denied. The Court does
not possess the authority to require an attorney to accept pro bono appointments on
civil cases such as this. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). The most that the
Court can do is to ask for volunteer counsel. Jackson v. County of McLean, 953 F.2d 1070,
1071 (7th Cir. 1992)(holding that it is a “fundamental premise that indigent civil litigants
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have no constitutional or statutory right to be represented by counsel in federal court.”).

In determining whether the Court should attempt to find an attorney to
voluntarily take a case, “the question is whether the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to coherently present
it to the judge or jury himself . . . . The question is 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.” Pruitt, 503 F.3d at 655 (emphasis in
original). In other words, this inquiry is an individualized one based upon the record as
a whole, the nature of the claims, and the plaintiff’s ability to pursue his claims through
all phases of the case, including discovery and trial. Navejar v. Iyioloa, 718 F.3d 692, 696
(7th Cir. 2013).
As the Seventh Circuit has acknowledged, “[a]lmost everyone would benefit
from having a lawyer, but there are too many indigent litigants and too few lawyers
willing and able to volunteer for these cases. DeWitt v. Corizon, Inc., ___ F.3d ___, 2014
WIL 3686080, * 2 (7th Cir. July 25, 2014)(internal quotation omitted). Although the
Seventh Circuit has held that appointment of counsel should occur in cases in which
counsel would have made a difference in the outcome of the litigation (Santiago v.
Walls, 599 F.3d 749, 465 (7th Cir. 2010)), the Seventh Circuit has also held that the test for
appointment of counsel is not whether a lawyer could more effectively handle the case.
Pruitt, 503 F.3d at 655. The test is whether the litigant is competent to litigate his own
claims. Id.
In the instant case, Salley appears to be literate; he has filed cogent pleadings
with the Court; and his claim has survived a merit review. Moreover, Salley’s claim is
not so novel or complex that he cannot litigate it himself. Ledford v. Sullivan, 105 F.3d
354, 359 (7th Cir. 1997)(expert not necessary to determine whether Defendants were
deliberately indifferent). Salley is capable of offering his own testimony and evidence
obtained through discovery to support his claim if such support is possible to obtain.
Salley has personal knowledge of the facts supporting his claim and appears
cable of cross-examining Defendant regarding his version of the events. Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Salley has offered no reason why he cannot
litigate this case or why his case differs from any other of the plethora of prisoner pro se
plaintiffs who ask for the appointment of counsel in almost every case filed. DeWitt, ___
F.3d ___, 2014 WL 36386080, at * 2-4. Therefore, the Court denies his motion for
appointment of counsel.

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IT IS THEREFORE ORDERED:
1.

Plaintiff’s motion to request counsel [15] is DENIED.

2.

Plaintiff’s motion to amend complaint [16] is GRANTED.

3.
Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the
Court finds that the plaintiff states an Eighth Amendment claim based upon the
conditions of confinement against Warden Kevwe Akpore. The Clerk of the Court is
directed to add Warden Kevwe Akpore as a party Defendant. Any additional claims
shall not be included in the case, except at the Court’s discretion on motion by a party
for good cause shown or pursuant to Federal Rule of Civil Procedure 15.
4.
This case is now in the process of service. Plaintiff is advised to wait until
counsel has appeared for Defendant before filing any motions, in order to give the
Defendant notice and an opportunity to respond to those motions. Motions filed before
Defendant’s counsel has filed an appearance will generally be denied as premature.
Plaintiff need not submit any evidence to the Court at this time unless otherwise
directed by the Court.
5.
The Court will attempt service on Defendant by mailing him a waiver of
service. Defendant has 60 days from the date the waiver is sent to file an answer. If
Defendant has not filed answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status of service. After
Defendant has been served, the Court will enter an order setting discovery and
dispositive motion deadlines.
6.
With respect to a defendant who no longer works at the address provided
by Plaintiff, the entity for whom that defendant worked while at that address shall
provide to the Clerk said defendant’s current work address, or, if not known, said
defendant’s forwarding address. This information shall be used only for effectuating
service. Documentation of forwarding addresses shall be retained only by the Clerk
and shall not be maintained in the public docket nor disclosed by the Clerk.
7.
Defendant shall file an answer within 60 days of the date the waiver is
sent by the Clerk. A motion to dismiss is not an answer. The answer should include all
defenses appropriate under the Federal Rules. The answer and subsequent pleadings
shall be to the issues and claims stated in this opinion. In general, an answer sets forth
Defendant’s positions. The Court does not rule on the merits of those positions unless
and until a motion is filed by Defendant. Therefore, no response to the answer is
necessary or will be considered.
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8.
This district uses electronic filing, which means that, after defense counsel
has filed an appearance, defense counsel will automatically receive electronic notice of
any motion or other paper filed by Plaintiff with the Clerk. Plaintiff does not need to
mail to defense counsel copies of motions and other papers that Plaintiff has filed with
the Clerk. However, this does not apply to discovery requests and responses.
Discovery requests and responses are not filed with the Clerk. Plaintiff must mail his
discovery requests and responses directly to Defendant’s counsel. Discovery requests
or responses sent to the Clerk will be returned unfiled unless they are attached to and
the subject of a motion to compel. Discovery does not begin until defense counsel has
filed an appearance and the Court has entered a scheduling order, which will explain
the discovery process in more detail.
9.
Counsel for Defendant is hereby granted leave to depose Plaintiff at his
place of confinement. Counsel for Defendants shall arrange the time for the deposition.
10.
Plaintiff shall immediately notify the Court, in writing, of any change in
his mailing address and telephone number. Plaintiff’s failure to notify the Court of a
change in mailing address or phone number will result in dismissal of this lawsuit, with
prejudice.
11.
If a defendant fails to sign and return a waiver of service to the clerk
within 30 days after the waiver is sent, the Court will take appropriate steps to effect
formal service through the U.S. Marshal’s Service on that defendant and will require
that defendant to pay the full costs of formal service pursuant to Federal Rule of Civil
Procedure 4(d)(2).
12.
The Clerk is directed to attempt service on Defendant pursuant to the
standard procedures.
Entered this 28th day of October, 2014

s/ Harold A. Baker
HAROLD A. BAKER
UNITED STATES DISTRICT JUDGE

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