Burns v. Fenoglio et al

Filing 122

ORDER GRANTING 121 MOTION to Withdraw as Attorney filed by Tyrone Burns. Attorney L. Alexa Newton for Tyrone Burns added. Attorney Courtney C. Stirrat terminated. Telephonic Status Conference set for 8/25/2015 at 3:00 PM before Magistrate Judge Donald G. Wilkerson. Signed by Magistrate Judge Donald G. Wilkerson on 8/7/15. (sgp)

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

TYRONE BURNS,
Plaintiff,
vs.
JAMES FENOGLIO,
Defendant.

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CIVIL NO. 3:11-cv-1104-DGW

MEMORANDUM AND ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion to Withdraw filed by attorney Courtney Stirrat
on July 31, 2015 (Doc. 121). The Motion is GRANTED. Ms. Stirrat is terminated from the
docket with the Court’s thanks. The Court appoints attorney Alexa Newton of the firm Foley
Mansfield to represent Plaintiff for purposes of trial only. Attorney Newton is encouraged to
share her responsibilities with an associate who is also admitted to practice in this district court.
Attorney Newton shall enter her appearance on or before August 14, 2015. In light of this
appointment, the trial date of August 12, 2015 is hereby CANCELLED.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
Attorney Newton 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

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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 (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 Illinois Department
of Corrections at the Illinois River Correctional Center in Canton, Illinois. Information about the
facility is available at www.idoc.state.il.us.

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This matter is SET for a telephonic status conference on August 25, 2015 at 3:00 p.m.
Defendant to initiate the conference call. The Court’s conference number is 618-482-9004.
Parties should be prepared to discuss the trial date 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 Newton immediately.
IT IS SO ORDERED.
DATED: August 7, 2015

DONALD G. WILKERSON
United States Magistrate Judge

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