Roman v. Talbot et al
Filing
44
OPINION entered by Magistrate Judge David G. Bernthal on 11/4/2014. Plaintiff's Motion for Counsel 20 is DENIED, with leave to renew. Dr. Talbot's Motion for Summary Judgment 39 is DENIED. Plaintiff's Motion in Limine 43 is DENIED as premature. Scheduling order to enter. See written opinion. (KE, ilcd)
E-FILED
Tuesday, 04 November, 2014 03:08:28 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JOSE ROMAN,
Plaintiff,
v.
DR. PAUL TALBOT, et al.,
Defendants,
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No. 14-2017
OPINION
DAVID BERNTHAL, U.S. Magistrate Judge.
Plaintiff pursues an Eighth Amendment claim for deliberate
indifference to his serious medical need during his incarceration in
Danville Correctional Center. He alleges that Defendants failed to
properly diagnose and treat a back injury he suffered in prison.
Plaintiff has filed a motion for the Court to appoint counsel.
This is a civil case, not a criminal case, which means that the Court
cannot require an attorney to take this case, and an attorney taking
the case must do so pro bono, which means without pay. In
deciding whether the Court should search for volunteer counsel, the
question is “given the difficulty of the case, does the plaintiff appear
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competent to litigate it himself?" Pruitt v. Mote, 503 F.3d 647, 65455 (7th Cir. 2007).
However, before the Court answers that question, Plaintiff
must first demonstrate that he has made reasonable efforts to find
an attorney on his own. Pruitt, 503 F.3d at 654-55 (7th Cir. 2007).
Typically, a plaintiff makes this showing by writing to several
different law firms and attaching the responses to the motion for
appointment of counsel. Plaintiff’s motion does not demonstrate
any efforts to find counsel and therefore will be denied, with leave to
renew. Plaintiff is being released soon, which should make his
search for counsel easier. If Plaintiff renews his motion for counsel,
in addition to showing reasonable efforts to obtain his own counsel,
Plaintiff should set forth any classes he has taken or jobs he has
held inside and outside of prison and his litigation experience, if
any.
Also before the Court is Defendants’ motion for summary
judgment on exhaustion grounds. Defendants argue that Plaintiff
did not appeal the denial of his grievance within the required 30
days because his appeal was marked as received by the
Administrative Review Board 48 days after the denial. However,
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Defendants do not dispute Plaintiff’s assertion that he appealed the
denial of his grievance on July 12, 2013, by placing it in the mail at
the Danville Correctional Center, well within the 30 day deadline.
Plaintiff did not receive a response to his appeal until February 4,
2014, and that response denied Plaintiff’s appeal as untimely
because Plaintiff’s appeal had not been received until August 19,
2013.
Plaintiff had no control over what happened to his appeal
once he sent it for mailing. His appeal was timely—the prison’s
delay in mailing the appeal does not change that fact. See Conley v.
Anglin, 2013 WL 1197864 (7th Cir. 2013)(not published in Federal
Reporter)(“And though the defendants would like us to presume
that § 504.850 and the ARB's own procedures do not recognize the
“mailbox rule,” they offered no support (and still don't) for the
proposition.”) Having timely appealed on July 12, Plaintiff waited
the requisite six months for a response before filing this lawsuit. 20
Ill. Admin. Code 504.850(f). In short, on this record, Plaintiff
exhausted his available administrative remedies before filing this
lawsuit.
IT IS ORDERED:
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1)
Plaintiff’s motion for counsel is denied (20), with leave to
renew.
2) Dr. Talbot’s motion for summary judgment on exhaustion
is denied (39).
3)
Plaintiff’s motion in limine to exclude his criminal history
is denied as premature (43). Motions in limine are filed after the
case survives summary judgment and is set for trial.
4)
A scheduling order will enter separately.
ENTER: 11/4/2014
FOR THE COURT:
s/David G. Bernthal
DAVID G. BERNTHAL
UNITED STATES MAGISTRATE JUDGE
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