Kincaid v. Sangamon County, Illinois et al
Filing
97
OPINION entered by Judge Sue E. Myerscough on 10/3/2012. Plaintiff's renewed motion for the appointment of counsel is denied, d/e 91 . Plaintiff's motion for service on Defendant Taylor is denied, d/e 93 . Plaintiff's unopposed mo tion to extend his deadline to file an amended complaint, identify unknown defendants, and serve Defendant Taylor is granted, d/e 94 . Plaintiff's deadline for filing an amended complaint and identifying unknown parties is 10/31/2012. Plainti ff's deadline for serving Defendants Taylor and Rosenbeck is extended to 10/31/2012. Failure to do so will result in the dismissal of Defendants Taylor and Rosenbeck, without prejudice. Defendants' motion for a conference regarding Plaint iff's deposition is granted, d/e 96 . A conference is scheduled for 10/9/2012 at 3:00 p.m. Plaintiff shall appear by video conference. Defendants' counsel may appear in person or by phone. If Defendants' counsel will appear by phone, they must inform the clerk by 10/5/2012. Entered by Judge Sue E. Myerscough on 10/3/2012. (MAS, ilcd)
E-FILED
Wednesday, 03 October, 2012 12:08:56 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PAUL E. KINCAID,
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Plaintiff,
v.
SANGAMON COUNTY, et al.,
Defendants.
09-CV-3053
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff pursues claims for deliberate indifference to his serious
medical needs during his detention in the Sangamon County Jail.
Discovery deadlines have been set, but service problems remain for two
Defendants: Officer Rosenbeck and Nurse Taylor , both of whom
formerly worked at the Jail.
The U.S. Marshals have attempted to serve Rosenbeck at the
forwarding address provided by the Jail, but the address is vacant. The
Court has tried to assist Plaintiff in locating and serving this Defendant,
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but Plaintiff bears the ultimate responsibility of locating and serving
Rosenbeck.
As for Nurse Taylor, the Court detailed its efforts to help Plaintiff
locate Nurse Taylor in the order of June 13, 2012. In short, the Court
has no information on Nurse Taylor’s whereabouts. Plaintiff was given
until September 4, 2012 to serve Taylor. Plaintiff has now filed a motion
for the Court to serve Taylor. As explained, Plaintiff paid the filing fee
and is therefore responsible for service under Local Rule 16.3(D)(“If the
full statutory filing fee is paid, the plaintiff is responsible for arranging for
service.”). Plaintiff paid both the district court and appellate court filing
fees in full, which indicates that he has access to sufficient funds to pay
for service. He also has access to some outside help, as evidenced by his
family’s attempt to find an attorney for him. In any event, even if
Plaintiff cannot afford to arrange service on his own, the Court does not
know where to serve Nurse Taylor.
Plaintiff has renewed his motion for the appointment of counsel,
attaching evidence that he has tried to obtain an attorney on his own and
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evidence that he had an angioplasty and stent placement last Spring and
suffers from periodontitis.
The question on a motion to appoint counsel is,“given the difficulty
of the case, does the plaintiff appear competent to litigate it himself?"
Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).
the difficulty of the case is considered against the plaintiff's
litigation capabilities, and those capabilities are examined in
light of the challenges specific to the case at hand. The
question is not whether a lawyer would present the case more
effectively than the pro se plaintiff; “if that were the test,
‘district judges would be required to request counsel for every
indigent litigant.’”
Pruitt, 503 F.3d at 655 (quoted and other cites omitted). A plaintiff's
“literacy, communication skills, educational level, and litigation
experience” are relevant factors, though there are no "fixed requirements."
Id. at 655. “Intellectual capacity and psychological history, to the extent
that they are known, are also relevant. The plaintiff's performance up to
that point in the litigation may be some evidence of these factors, but, in
the end, the estimation as to whether a plaintiff can handle his own case
must be ‘a practical one, made in light of whatever relevant evidence is
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available on the question.’” Santiago v. Walls, 599 F.3d 749, 762 (7th
Cir. 2010), quoting Pruitt, 503 F.3d at 656. The Court cannot require
an attorney to accept pro bono appointment on a civil case such as this.
Pruitt, 503 F.3d at 653 (in forma pauperis statute “‘does not authorize
the federal courts to make coercive appointments of counsel.’”)(quoted
cite omitted).
Plaintiff does not set forth his education level, but his pleadings are
literate, effectively communicate his positions, and demonstrate
knowledge of the applicable law and of legal procedure. Plaintiff’s
medical problems do not appear to be hampering his ability to proceed
pro se. Plaintiff asserts that the delays in Judge Baker’s handling of this
case have prejudiced his ability to obtain evidence. The Court notes that
Plaintiff waited nearly two years to bring his case and never inquired
about the status of his case after Judge Baker held the merit review
hearing. The Court acknowledges that the passage of time generally
makes discovery more difficult. Yet that difficulty would exist whether or
not Plaintiff is represented by an attorney. Plaintiff’s medical records
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corroborating his medical problems should still be discoverable, and he
already possesses other relevant exhibits which he filed with his
Complaint. He also has personal knowledge of the events, as evident
from the detailed chronology in his Complaint. The only named
Defendants who cannot be found are Rosenbeck and Taylor, both of
whom seem tangential to Plaintiff’s claims. And, though a medical
condition is at issue, the claim is relatively simple. Plaintiff allegedly
became very ill, obvious even to a layperson, and Defendants were
deliberately indifferent to Plaintiff’s pleas for help. See Ledford v.
Sullivan, 105 F.3d 354, 359 (7th Cir. 1997)(expert not necessarily
needed to determine whether defendants were deliberately indifferent).
In short, the Court concludes that on the present record Plaintiff appears
competent to proceed pro se in light of the nature of his claims.
IT IS THEREFORE ORDERED:
1)
Plaintiff’s renewed motion for the appointment of counsel is
denied (d/e 91).
2)
Plaintiff’s motion for service on Defendant Taylor is denied
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(d/e 93).
3)
Plaintiff’s unopposed motion to extend his deadline to file an
amended complaint, identify unknown defendants, and serve Defendant
Taylor is granted (de/ 94). Plaintiff’s deadline for filing an amended
complaint and identifying unknown parties is October 31, 2012.
Plaintiff’s deadline for serving Defendants Taylor and Rosenbeck is
extended to October 31, 2012. Failure to do so will result in the
dismissal of Defendants Taylor and Rosenbeck, without prejudice.
4)
Sua sponte, the other deadlines are adjusted as follows:
Plaintiff’s expert disclosures are due November 30, 2012; defendants’
expert disclosures are due December 31, 2012; discovery closes February
28, 2013; dispositive motions are due March 29, 2013.
5) Defendants’ motion for a conference regarding Plaintiff’s
deposition is granted (d/e 96). A conference is scheduled for October 9,
2012 at 3:00 p.m.. Plaintiff shall appear by video conference; the clerk is
directed to issue a video writ to secure Plaintiff’s presence. Defendants’
counsel may appear in person or by phone. If Defendants’ counsel will
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appear by phone, they must inform the clerk by October 5, 2012. The
clerk will initiate the phone call.
ENTERED:
October 3, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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