Bey v. Schartz et al

Filing 43

ORDER APPOINTING COUNSEL and GRANTING 42 MOTION to Appoint Counsel filed by Prince Bey. Attorney Bart C. Sullivan for Prince Bey added. Signed by Magistrate Judge Donald G. Wilkerson on 10/25/2012. (hbs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

PRINCE BEY,

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Plaintiff,
vs.
GREG SCHARTZ, et al.,
Defendants.

CIVIL NO. 11-cv-951-GPM-DGW

MEMORANDUM AND ORDER
WILKERSON, Magistrate Judge:
This matter is before the Court on Plaintiff’s Motion for Appointment of Counsel. (Doc. 42).
Civil litigants do not have a constitutional or statutory right to counsel. Pruitt v. Mote, 503
F.3d 647, 649 (7th Cir. 2007); Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). Under 28 U.S.C.
§ 1915(e)(1), however, this Court has discretion to recruit counsel to represent indigents in
appropriate cases. Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006).
The circumstances presented in this case warrant recruitment of counsel because it is now
is at the point where the difficulty of the case exceeds Plaintiff’s ability to “coherently present it to
the judge or jury himself.” Pruitt, 503 F.3d at 655; see also Santiago v. Walls, 599 F.3d 749, 760
(7th Cir. 2010).
Accordingly, the Court GRANTS Plaintiff’s motion (Doc. 42) and APPOINTS Attorney
Bart Sullivan of the firm Fox Galvin, LLC, to represent Plaintiff for all further proceedings in this

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Court only.1 Attorney Sullivan is encouraged to share his responsibilities with an associate who is
also admitted to practice in this district court. Attorney Sullivan shall enter his appearance on or
before November 9, 2012.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
Attorney Sullivan 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 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 his
client, but only to the extent that it does not impede his 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

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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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(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 contingent 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 Federal Bureau of
Prisons at the Federal Medical Center in Butner, NC. Information about the facility is available at
www.bop.gov. Counsel may use the Bureau of Prisons’ videoconferencing system to confer with
Plaintiff. The Court asks the Assistant United States Attorney who appears in this case assigned to
this case to facilitate those arrangements.
The Clerk of Court is DIRECTED to send a copy of this Order and the standard letter
concerning appointment of counsel to Attorney Bart Sullivan immediately.
IT IS SO ORDERED.
DATED: October 25, 2012

DONALD G. WILKERSON
United States Magistrate Judge

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