Williams v. Westerman et al
Filing
82
ORDER, DENYING 76 MOTION to Appoint Counsel filed by Robert Williams, 79 MOTION For Ineffective Counsel filed by Robert Williams, 77 MOTION to Appoint Counsel filed by Robert Williams, 78 MOTION to Appoint Counsel filed by Robert Williams. I nsofar as theses motions are construed as also seeking reconsideration of the 74 Order granting Plaintiff's motion for voluntary dismissal of this action, the request for reconsideration is also DENIED. Signed by Judge Michael J. Reagan on 9/15/2011. (mmr)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
ROBERT WILLIAMS,
Plaintiff
v.
LIEUTENANT WESTERMAN,
SERGEANT REINHOLD, and
DONALD GAETZ,
Defendants.
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Case No. 08-cv-0858-MRJ
MEMORANDUM AND ORDER
REAGAN, District Judge
Before the Court are four interrelated motions (Docs. 76-79) filed by Plaintiff
Robert Williams, an inmate in the custody of the Illinois Department of Corrections, housed at
Dixon Correctional Center. The Court construes the motions as seeking appointment of new
counsel, and for reconsideration the November 4, 2010, Order granting Plaintiff‟s motion for
voluntary dismissal of this action (Doc. 74).
In December 2008 Plaintiff, proceeding pro se and as a pauper, brought this
action pursuant to 42 U.S.C. § 1983, alleging that prison officials at Menard Correctional Center,
where he was then housed, violated his constitutional rights (see Docs. 1, 10 and 12). In March
2009, before the Court‟s preliminary review in accordance with 28 U.S.C. § 1915A, counsel
entered on behalf of Plaintiff (Docs. 7 and 8). On November 2, 2010, Plaintiff, by and through
counsel, filed a “Notice of Voluntary Dismissal,” pursuant to Federal Rule of Civil Procedure
41(a)(2) (Doc. 73). Construing the “Notice” as a motion, the Court voluntarily dismissed the
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action, without prejudice (Doc. 74), and judgment was entered accordingly on November 5, 2010
(Doc 75).
The first of Plaintiff‟s pro se post-judgment motions (Doc. 76) was filed on
November 22, 2010. Plaintiff filed two additional motions (Docs. 77 and 78) on November 29,
2010, and the fourth motion (Doc. 79) was filed on December 20, 2010. Plaintiff contends that
his attorneys, Scott A. Velasquez and J. Scott Humphrey, were ineffective in representing his
best interests when they dismissed this action on his behalf. Plaintiff argues that his attorneys
did not act in a way consistent with his best interests because they did not think that his action
would be successful. Plaintiff explains that, although he initially agreed to voluntarily dismiss
the action, he later changed his mind:
The first thing Scott ask [sic] me through the door, [sic] was to dismiss my
case. He was not trying to here [sic] me. And I told him that I would
dismiss my case. He told me that he was going to send me a letter to sign.
But now that I [have] had time to think about it, I am not going to sign any
letter, because I would be defeating the hold [sic] purpose of filing the
lawsuit to began [sic] with.
Doc. 78, p. 2 ¶ 10.
According to Plaintiff, he allowed his attorney(s) to talk him out of
continuing with the lawsuit. For these reasons, Plaintiff asserts that his Fourteenth Amendment
right to due process and Sixth Amendment right to counsel, and other unspecified civil rights,
were violated (see Doc. 78). Plaintiff now moves for the appointment of new counsel, and by
extension, to have the dismissal and judgment vacated.
1. Appointment of Counsel
As a preliminary matter, the Court notes that when Plaintiff moved for
appointment of counsel at the start of this case (Doc. 3), his motion was denied as moot (Doc.
13), because counsel had already voluntarily entered on Plaintiff‟s behalf. At that time, Plaintiff
asserted that he was not legally trained and had to rely on the assistance of others to prepare his
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pleadings. Plaintiff‟s recent motions do not offer any other explanation of why he cannot
proceed pro se. Rather, Plaintiff states that if new counsel is not appointed, he will proceed pro
se (Doc. 78, p. 3).
Plaintiff‟s reference to the Sixth Amendment right to counsel is misplaced; the
Sixth Amendment applies to criminal cases, not civil cases. U.S. Const. amend. VI. There is no
constitutional or statutory right to appointment of counsel in a civil case, although the Court may
in its discretion appoint counsel to represent indigent civil litigants. Mallard v. United States
District Court, 490 U.S. 296, (1989); Evitts v. Lucey, 469 U.S. 387 (1985); Jackson v. County of
McLean, 953 F.2d 1070, 1071 (7th Cir. 1992); see also 28 U.S.C. ' 1915(d). Nevertheless, the
Court also has inherent authority to appoint counsel to ensure the orderly prosecution of
litigation in the district. The Court must inquire whether, Agiven the difficulty of the case, [does]
the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel
[make] a difference in the outcome?@ Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993); see
also Greeno v. Daley, 414 F.3d 645, 658(7th Cir. 2005); see also Pruitt v. Mote, 503 F.3d 647 (7th
Cir. 2007). In Pruitt v. Mote, the Court of Appeals for the Seventh Circuit clarified that the
relevant inquiry is whether the difficulty of the case exceeds the particular plaintiff=s capacity as
a layperson to coherently litigate the case. Id.
The Court perceives no need to appoint counsel in order to proceed on the
motions before the Court. Although counsel would surely represent Plaintiff in a more artful
manner, Plaintiff has sufficiently presented the factual and legal basis for his request for
reconsideration of the dismissal order and judgment. Therefore, the Court will not appoint
counsel before deciding the merits of the motion(s).
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2. Reconsideration
Plaintiff does not specify a procedural basis for his motions. Technically, a
“motion to reconsider” does not exist under the Federal Rules of Civil Procedure. But such
motions are routinely filed, and they generally are treated as motions to alter or amend judgment
under Rule 59(e) or motions for relief from judgment/order under Rule 60(b). See, e.g., Mares
v. Busby, 34 F.3d 533, 535 (7th Cir. 1994).
Different standards and time-tables govern Rule 59(e) and Rule 60(b) motions.
So, for instance, Rule 59(e) permits a court to amend a judgment only if the movant
demonstrates a manifest error of law or presents newly discovered evidence that was not
previously available. See Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007). By
contrast, Rule 60(b) permits a court to relieve a party from an order or judgment based on these
reasons, inter alia: mistake, surprise or excusable neglect by the movant; fraud or misconduct by
the opposing party; a judgment that is void or has been discharged; or newly discovered evidence
that could not have been discovered within the deadline for a Rule 59(b) motion.
In Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006), the Court of
Appeals declared that district courts should analyze post-judgment motions based on their
substance as opposed to the date on which the motion was filed. The Seventh Circuit reiterated
this in Obriecht v. Raemisch, 517 F.3d 489, 493-94 (7th Cir. 2008): “whether a motion … should
be analyzed under Rule 59(e) or Rule 60(b) depends on the substance of the motion, not on the
timing or label affixed to it.” Therefore, this Court assesses motions to reconsider (especially
those drafted by pro se litigants) based on their substance – i.e., the reasons for relief articulated
by the movant -- as opposed to the title the movant chose for the motion or merely the date on
which he filed the motion.
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Although Borrero and Obriecht direct the Court to focus on the substance of the
motion, the timing of the motion is still relevant. Rule 59(e) is only applicable to motions filed
no later than 28 days after the entry of judgment. By contrast, a motion under Rule 60(b)(1)
alleging mistake, inadvertence, surprise or excusable neglect, may be filed within one year after
the entry of judgment.
FED. R. CIV. P. 60(c)(1).
Plaintiff Williams has moved for
reconsideration within 28 days of entry of judgment, so both Rule 59(e) and 60(b) remain
available to him.
Plaintiff Williams has not presented a manifest error of law or newly discovered
evidence, so Rule 59(e) is not the appropriate procedural mechanism. Rule 60(b) provides for
relief from judgment or an order for “mistake, inadvertence, surprise, or excusable neglect,” or
for, among other reasons, “any other reason that justifies relief,” so it is the most appropriate
procedural mechanism.
Fed.R.Civ.P. 60(b)(1) and (6).
However, Rule 60(b) is “an
extraordinary remedy and is granted only in exceptional circumstances.” McCormick v. City of
Chicago, 230 F.3d 319, 327 (7th Cir. 2000).
In light of Plaintiff‟s admission that he did agree to the voluntary dismissal of his
case, only to later and have a change of heart, there is no basis for deeming the voluntary
dismissal a “mistake,” “inadvertence” or a “surprise.” See Eskridge v. Cook County, 577 F.3d
806, 810 (7th Cir. 2009) (Plaintiff, having explicitly asked for a voluntary dismissal, could not
claim that the dismissal resulted from “mistake” or „inadvertence”).
Similarly, Plaintiff‟s
counsel merely carried out what Plaintiff had agreed to, so it cannot be said that there was any
sort of “neglect.” Rule 60(b)(1) is wholly inapplicable. The only other provision of Rule 60(b)
that may be applicable is subsection (6), which permits relief in the interests of justice.
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The phrase “any other reason that justifies relief” would appear to be a catch-all, a
safety valve of sorts. However, the Supreme Court has indicated that subsection (6) requires a
showing of “extraordinary circumstances” and that the party be faultless. Pioneer Investment
Services Co. v. Brunswick Associates, 507 U.S. 380, 393 (1993). The Court of Appeals for the
Seventh Circuit has stated that Rule 60(b)(6) is the proper remedy for a series of
misunderstandings between counsel, the litigant and the court. Prince v. Stewart, 580 F.3d 571
573 (7th Cir. 2009). There is an argument to be made that Plaintiff misunderstood counsel.
Plaintiff states: “He told me that he was going to send me a letter to sign. But
now that I [have] had time to think about it, I am not going to sign any letter, because I would be
defeating the hold [sic] purpose of filing the lawsuit to began [sic] with.” Doc. 78, p. 2 ¶ 10.
That statement could be construed as a misunderstanding between Plaintiff and his attorney
regarding whether a final decision to dismiss had been made, or whether Plaintiff‟s signature on
some sort letter was necessary to effectuate the dismissal. However, that argument is undercut
by the fact that Plaintiff describes his decision not to dismiss his case in hindsight-- “now that I
had time to think about it. . . .” The conclusion that Plaintiff has merely changed his mind is
further supported by other statements in Plaintiff‟s motions: “I let him talk me out of going
through with [trial].” (Doc. 76, p. 1); “[H]e talked me out of going to trial on my case, but I did
not sign anything, and I have changed my mind altogether.” (Doc. 76, p. 2). Plaintiff has also
submitted a copy of a letter from attorney Velasquez dated November 1, 2010, which states, “Per
our conversation this afternoon, I am writing this letter to confirm that we are to voluntarily
dismiss the . . . case.” (Doc. 78, p. 4). There is nothing to indicate that upon receipt of the letter
Plaintiff attempted to contact counsel and correct the misunderstanding.
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Plaintiff‟s suggestion that counsel did not want to proceed and did not think he
would be successful at trial does not alter the fact that Plaintiff agreed to dismiss his case.
Furthermore, an attorney‟s frank evaluation of the merits of a case does not mean that the
attorney is incompetent, or that the attorney does not have his client‟s best interest in mind.
Plaintiff‟s counsel voluntarily and diligently worked on Plaintiff‟s case for 18 months, which is
certainly some evidence that they did have his best interests in mind. See Doc. 80, Attorneys
Velasquez and Humphrey‟s Response to Motion for Ineffective Counsel.
Conclusion
For the reasons stated, the Court DENIES Plaintiff Robert Williams‟ motions for
appointment of counsel and for relief from the Court‟s November 4, 2010, Order and November
5, 2010, judgment dismissing this action (Docs. 76-78).
IT IS SO ORDERED.
DATED: September 15, 2011
s/ Michael J. Reagan
MICHAEL J. REAGAN
UNITED STATES DISTRICT JUDGE
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