Perez v. Fenoglio et al

Filing 63

ORDER, GRANTING 45 MOTION for Recruitment of Counsel filed by Miguel Perez. Attorney Jerina D Phillips for Miguel Perez added. Telephonic Status Conference set for 11/19/2015 at 2:00 PM before Magistrate Judge Donald G. Wilkerson. Signed by Magistrate Judge Donald G. Wilkerson on 10/14/15. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MIGUEL PEREZ,
Plaintiff,
v.
JAMES FENOGLIO, et al.,
Defendants.

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Case No. 3:11-cv-819-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is Plaintiff’s Motion for Recruitment of Counsel filed
September 2, 2015 (Doc. 45). For the reasons set forth below, the Motion to Appoint Counsel is
GRANTED.
Plaintiff has no constitutional nor statutory right to a Court-appointed attorney in this
matter. See Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007). However, 28 U.S.C. § 1915(e)(1)
provides that the Court “may request an attorney to represent any person unable to afford counsel.”
Prior to making such a request, the Court must first determine whether Plaintiff has made
reasonable efforts to secure counsel without Court intervention (or whether has he been effectively
prevented from doing so). Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992).
If he has, then the Court next considers whether, “given the difficulty of the case, [does] the
plaintiff appear to be competent to try it himself . . . .” Farmer v. Haas, 990 F.2d 319, 321-322
(7th Cir. 1993); Pruitt, 503 F.3d at 655 (“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.”). In order to make such a determination, the Court may
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consider, among other things, the complexity of the issues presented and the Plaintiff’s education,
skill, and experience as revealed by the record. Pruitt, 503 F.3d at 655-656. Ultimately, the
Court must “take account of all [relevant] evidence in the record” and determine whether Plaintiff
has the capacity to litigate this matter without the assistance of counsel. Navejar v. Iyiola, 718
F.3d 692, 696 (7th Cir. 2013).
The circumstances presented in this case warrant recruitment of counsel. See Santiago v.
Walls, 599 F.3d 749, 765 (7th Cir. 2010) (“The situation here is qualitatively different from typical
prison litigation.”).

First, Plaintiff has shown that he tried to obtain counsel on his own.

Moreover, Plaintiff will likely be unable to competently litigate this matter on his own behalf as it
will likely require significant discovery, Plaintiff is no longer incarcerated at the institution where
the alleged violations occurred, and English is not Plaintiff’s primary language.
Accordingly, the Court GRANTS Plaintiff’s Motion (Doc. 45) and APPOINTS Attorney
Jerina Phillips of the law firm Lewis Rice LLC, in St. Louis, Missouri, to represent Plaintiff for all
further proceedings.1 Attorney Phillips shall enter her appearance on or before October 26, 2015.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
Attorney Jerina Phillips who is the legal professional in this relationship. Without commenting
on the validity of the matter in litigation, counsel is reminded and plaintiff is advised that counsel,
even though appointed by the Court, has an obligation under the rules to refrain from filing
frivolous pleadings. As a consequence, counsel will likely, from time to time, advise Plaintiff
against taking a certain course of action. While Plaintiff may not totally agree with counsel’s
advice, he should realize that, in the long run, such advice will be in his best interest because it is in
1

The Local Rules of the Southern District of Illinois direct that every member of the bar of this
Court “shall be available for appointment by the Court to represent or assist in the representation of
those who cannot afford to hire an attorney.” SDIL-LR 83.1(i).
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compliance with the law. Also, counsel may advise Plaintiff to pursue additional claims or to
abandon certain existing claims.
Counsel, of course, maintains an ethical obligation to fully and vigorously represent her
client, but only to the extent that it does not impede her ethical obligation to follow the rules of the
Court and the law. If Plaintiff wants to be represented by counsel, he will have to cooperate fully
with counsel. The Court will not accept any filings from Plaintiff individually while he is
represented by counsel, except a pleading that asks that he be allowed to have counsel withdraw
from representation. If counsel is allowed to withdraw at the request of Plaintiff, it is unlikely the
Court will appoint other counsel to represent him.
Because Plaintiff is proceeding in forma pauperis, if there is a monetary recovery in this
case (either by verdict or settlement), any unpaid out-of-pocket costs must be paid from the
proceeds. See SDIL-LR 3.1(c)(1). If there is no recovery in the case (or the costs exceed any
recovery), the Court has the discretion reimburse expenses. The funds available for this purpose
are limited, and counsel should use the utmost care when incurring out-of-pocket costs. In no
event will funds be reimbursed if the expenditure is found to be without a proper basis. The Court
has no authority to pay attorney’s fees in this case. Counsel is encouraged to enter into a fee
contract with Plaintiff to address both the payment of attorney’s fees and costs should
Plaintiff prevail.
Finally, counsel is informed that Plaintiff is currently incarcerated by the Illinois
Department of Corrections at Graham Correctional Center in Hillsboro, Illinois. Information
about the facility is available at www.idoc.state.il.us. Counsel may use the Illinois Department of
Corrections’ videoconferencing system to confer with Plaintiff. The Court asks the Assistant
United States Attorney assigned to this case to facilitate those arrangements.
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This matter is SET for a telephonic status conference on November 19, 2015 at 2:00 p.m.
Counsel for Defendant Dr. Phil Martin to initiate the conference call. The Court’s conference
number is 618-482-9004. The parties should be prepared to discuss the schedule in this matter.
The Clerk of Court is DIRECTED to send a copy of this Order and the standard letter
concerning appointment of counsel to Attorney Phillips immediately.
IT IS SO ORDERED.
DATED: October 6, 2015

DONALD G. WILKERSON
United States Magistrate Judge

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