Kelly v. Langston et al

Filing 66

ORDER GRANTING 55 MOTION to Appoint Counsel filed by Farron Kelly, 56 MOTION for Recruitment of Counsel filed by Farron Kelly. Status Conference set for 2/28/2014 02:00 PM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson.) Signed by Magistrate Judge Donald G. Wilkerson on 1/30/2014. (jdp)

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

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FARRON KELLY,
Plaintiff,
vs.
MR LANGSTON and LT. FELKNER,
Defendant(s).

CIVIL NO. 12-cv-1089-MJR-DGW

MEMORANDUM AND ORDER
WILKERSON, Magistrate Judge:
This matter is before the Court on Plaintiff’s Motion for Appointment of Counsel. (Docs.
55,56). The Court previously denied Plaintiff’s requests for counsel, however, the Court has
reconsidered the question in light of Santiago v. Walls, 599 F.3d 749 (7th Cir. 2010) and United
States v. Norwood, 602 F.3d 830 (7th Cir. 2010).
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). In evaluating
whether counsel should be appointed, this Court must examine (what are known as) the Pruitt
factors and apply them to the specific circumstances of this case. Santiago v. Walls, 599 F.3d
749, 760 (7th Cir. 2010). The Court must ask: “‘(1) has the indigent plaintiff made a reasonable
attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the

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difficulty of the case, does the plaintiff appear competent to litigate it himself?’” Id. at 761, quoting
Pruitt, 503 F.3d at 654.
The circumstances presented in this case warrant recruitment of counsel. See Santiago,
599 F.3d at 765 (“The situation here is qualitatively different from typical prison litigation.”).
First, Plaintiff has shown that he tried to obtain counsel on his own. Moreover, a trial date has
been set and this case 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.” See Pruitt, 503 F.3d at 655.
Accordingly, the Court GRANTS Plaintiff’s motions (Docs. 55,56) and APPOINTS
Attorney Thomas J. Palazzolo of the firm Bryan Cave to represent Plaintiff for all further
proceedings.1 Attorney Palazzolo is encouraged to share his responsibilities with an associate
who is also admitted to practice in this district court.

Attorney Palazzolo shall enter his

appearance on or before February 11, 2014.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
Attorney Palazzolo 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.
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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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 Lawrence Correctional Center. Information about the facility is available at
www.idoc.state.il.us.

Counsel

may

use

the

videoconferencing system to confer with Plaintiff.

Illinois

Department

of

Corrections’

The Court asks the Assistant Attorney

General Lisa Cook assigned to this case to facilitate those arrangements.
This matter is SET for a telephonic status conference on February 28, 2014 at 2:00 PM.

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Defendant to initiate the conference call. The Court’s conference number is 618-482-9004.
Parties should be prepared to discuss the upcoming trial date of April 14, 2014.
The Clerk of Court is DIRECTED to send a copy of this Order and the standard letter
concerning appointment of counsel to Attorney Thomas Palazzolo immediately.
IT IS SO ORDERED.
DATED: January 30, 2014

DONALD G. WILKERSON
United States Magistrate Judge

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