Stallings v. Bailey

Filing 5

WRITTEN Opinion entered by the Honorable Sharon Johnson Coleman on 1/18/2012: Plaintiff's motion for leave to file in forma pauperis [# 3 ] is granted. The Court orders the trust fund officer at Plaintiff's current place of incarceration t o deduct $1.23 from Plaintiff's account for payment to the Clerk of Court as an initial partial filing fee. The Clerk shall send a copy of this order to the trust fund officer at Stateville Correctional Center. The Clerk shall issue summons to Defendant Bailey and the U.S. Marshal is directed to serve him. The Clerk is further directed to send Plaintiff a Magistrate Judge Consent Form, Instructions for Submitting Documents, and a copy of this order. Plaintiff's motion for appointment of counsel [# 4 ] is denied. Mailed notice(vcf, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Sharon Johnson Coleman

CASE NUMBER

12 C 0155

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

January 18, 2012

Johnnie Stallings (#R-32404) v. Kenyon T. Bailey

DOCKET ENTRY TEXT:

Plaintiff’s motion for leave to file in forma pauperis [#3] is granted. The Court orders the trust fund officer at Plaintiff’s
current place of incarceration to deduct $1.23 from Plaintiff’s account for payment to the Clerk of Court as an initial partial
filing fee. The Clerk shall send a copy of this order to the trust fund officer at Stateville Correctional Center. The Clerk
shall issue summons to Defendant Bailey and the U.S. Marshal is directed to serve him. The Clerk is further directed to
send Plaintiff a Magistrate Judge Consent Form, Instructions for Submitting Documents, and a copy of this order.
Plaintiff’s motion for appointment of counsel [#4] is denied.

O [For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff, a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
claims that Defendant Correctional Officer Bailey, a correctional official at the Stateville Correctional Center,
violated Plaintiff’s constitutional rights by subjecting him to the excessive use of force. More specifically,
Plaintiff alleges that on May 1, 2011, at the Stateville Northern Reception and Classification Center, Defendant
Bailey choked, kicked, and punched him, both on the gallery, and in his cell.
Plaintiff’s motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1),
Plaintiff is assessed an initial partial filing fee of $1.23. The trust fund officer at Plaintiff’s place of incarceration
is authorized and ordered to collect the partial filing fee from Plaintiff’s trust fund account and pay it directly to
the Clerk of Court. After payment of the initial partial filing fee, Plaintiff’s trust fund officer is directed to collect
monthly payments from Plaintiff’s trust fund account in an amount equal to 20% of the preceding month’s
income credited to the account. Monthly payments shall be forwarded to the Clerk of Court each time the amount
in the account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United
States District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall
clearly identify Plaintiff’s name and this case number. This payment obligation will follow Plaintiff wherever
he may be transferred.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint.
Here, accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has articulated a colorable federal
cause of action against Defendant Bailey for excessive use of force. Acevedo v. Canterbury, 457 F.3d 721, 724
(7th Cir. 2006).
(CONTINUED)

Page 1 of 2

AWL

STATEMENT (continued)
The Clerk shall issue summons to Defendant Bailey (hereinafter, “Defendant”) forthwith and send Plaintiff
a Magistrate Judge Consent Form and Instructions for Submitting Documents along with a copy of this order.
The United States Marshals Service is appointed to serve Defendant. Any service forms necessary for
Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendant with process. The U.S. Marshal
is directed to make all reasonable efforts to serve Defendant. If Defendant can no longer can be found at the work
address provided by Plaintiff, the Illinois Department of Corrections shall furnish the Marshal with Defendant’s
last-known address. The information shall be used only for purposes of effectuating service [or for proof of
service, should a dispute arise] and any documentation of the address shall be retained only by the Marshal.
Address information shall not be maintained in the Court file, nor disclosed by the Marshal. The Marshal is
authorized to mail a request for waiver of service to Defendant in the manner prescribed by Fed. R. Civ. P. 4(d)(2)
before attempting personal service.
Plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of the
Prisoner Correspondent. Plaintiff must provide the original plus a judge’s copy of every document filed. In
addition, Plaintiff must send an exact copy of any Court filing to Defendant [or to defense counsel, once an attorney
has entered an appearance on his behalf]. Every document filed must include a certificate of service stating to
whom exact copies were mailed and the date of mailing. Any paper that is sent directly to the judge or that
otherwise fails to comply with these instructions may be disregarded by the Court or returned to Plaintiff.
Plaintiff has also filed a motion for appointment of counsel. The motion is denied. Civil litigants do not
have a constitutional or statutory right to counsel. See Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002).
Nevertheless, a district court may, in its discretion, “request an attorney to represent any person unable to afford
counsel.” Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004), citing 28 U.S.C. § 1915(e)(1); Luttrell v. Nickel, 129 F.3d
933, 936 (7th Cir. 1997). In deciding whether to appoint counsel, the Court must consider: (1) whether, given the
degree of difficulty of the case, a plaintiff appears competent to try it himself; and (2) whether the assistance of
counsel would provide a substantial benefit to the court or the parties, potentially affecting the outcome of the case.
Gil, 381 F.3d at 656, relying on Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).
After considering the above factors, the Court concludes that appointment of counsel is not warranted in
this case. Although Plaintiff has articulated colorable claims, he has alleged no physical or mental disability that
might preclude him from adequately investigating the facts giving rise to his complaint. Neither the legal issues
raised in the complaint nor the evidence that might support Plaintiff’s claims are so complex or intricate that a
trained attorney is necessary.
As Plaintiff appears more than capable of presenting his case, the Court declines to appoint counsel for
Plaintiff at this time. It should additionally be noted that the Court grants pro se litigants wide latitude in the
handling of their lawsuits. Should the case proceed to a point that assistance of counsel is appropriate, the Court
may revisit this request.

Page 2 of 2