Sanders v. Cowell et al

Filing 33

ORDER DENYING 22 Motion for Recruitment of Counsel; GRANTING IN PART 23 Motion for Subpoenas (1); GRANTING IN PART 24 Motion for Subpoenas (2); DENYING 25 Motion to Compel; DENYING 28 Motion to Direct Answer ; GRANTING 29 Motion for Service of Process; DENYING 30 Motion for Recruitment of Counsel; GRANTING 31 Motion for Leave to File Amended Complaint. Signed by Magistrate Judge Donald G. Wilkerson on 9/24/13. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON SANDERS,

)
)
Plaintiff,
)
)
v.
)
)
TODD W. COWELL and EDWARD H. )
BIRKNER,
)
)
Defendants.
)

Case No. 3:13-cv-258-GPM-DGW

ORDER
WILKERSON, Magistrate Judge:
Now before the Court are a number of motions filed by Plaintiff (Docs. 22, 23, 24, 25, 28,
29, 30, and 31).
1. Motions for Recruitment of Counsel (Docs. 22, and 30).
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)(l)
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 plaintiffs capacity as a layperson to coherently
present it to the judge or jury himself.”). In order to make such a determination, the Court may

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. lyiola, 718
F.3d 692,696 (7th Cir. 2013).
Plaintiff has met the threshold requirement of attempting to seek counsel without Court
intervention. Plaintiff has also provided a very extensively argued motion for recruitment of
counsel in which he argues that he is currently in segregation, has limited access to the law library,
that his case is complex and will require extensive discovery, and that this matter will contain
sharply contested and conflicting testimony. It appears clear, however, from Plaintiff’s many
filings and extensive arguments that he has the capacity to present the Court with arguments to
support his claim for relief, that he is able, notwithstanding his confinement in segregation and his
9th grade education, to conduct legal research and petition the Court for appropriate relief. All
prisoners are limited in both their ability to conduct discovery and legal research because of the
nature of their incarceration and most such cases are sharply contested. These factors do not
warrant recruitment of counsel in all cases. Plaintiff’s limited access to the law library can be
remedied by allowing more time for discovery. Plaintiff’s claims against two defendants are not
overly complicated and extensive discovery does not appear necessary. Therefore, counsel will
not be recruited and these motions are DENIED.
2. Motions for Subpoenas (Docs. 23 and 24) and to Compel (Doc. 25).
The Clerk must issue subpoenas on request of a party. FED.R.CIV.P. 45(a)(3). However,
the Court has an obligation to protect persons subject to a subpoena and may preview subpoenas in

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order to ensure that the Courts subpoena power is not being abused. FED.R.CIV.P. 26(b)(2)(C),
45(c); Marozsan v. United States, 90 F.3d 1284, 1290 (7th Cir. 1996).
The Clerk is therefore DIRECTED to provide Plaintiff with the requested number (2) of
subpoena forms, blank and unsigned. Plaintiff shall complete the forms and submit them to the
Court for review. Plaintiff shall take appropriate steps to avoid imposing undue burden or
expense on a person subject to subpoena and shall restrict his requests to information that is
relevant to the claims or defenses. Plaintiff is ADVISED to review Rule 45 of the Federal Rules
of Civil Procedure. These Motions are GRANTED IN PART.
As to the Motion to Compel, Plaintiff in fact has filed discovery requests with the Court.
Local Rule 26.1 (b) provides that requests to produce and interrogatories shall not be filed with the
Court. These discovery requests should be served upon Defendants. This "motion," then, is
hereby STRICKEN.
3. Motion to Direct Answer, for Service of Process, and to Amend the Complaint (Docs. 28, 29,
and 31).
Plaintiff seeks to amend his complaint to change the naming of a Defendant from Edward
Birkner to Nathan Birkner and further seeks service of process as to this new Defendant. Plaintiff
is GRANTED leave to Amend his Complaint and the Clerk is DIRECTED to file the Amended
Complaint that was submitted along with the Motion. The Amended Complaint still contains
reference to Edward Birkner in the “Fact” section; however, it is clear that Plaintiff is asserting
claims against Nathan Birkner. And, Plaintiff is reminded that only the three counts identified in
the April 17, 2013 Order (Doc. 9) shall be litigated in this action.
The Clerk of Court shall prepare for Defendant NATHAN BIRKNER: (l) Form 5 (Notice
of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
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Summons). The Clerk is DIRECTED to mail these forms, a copy of the amended complaint, and
this Order to Defendant’s place of employment as identified by Plaintiff. If Defendant fails to
sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the
date the forms were sent, the Clerk shall take appropriate steps to effect formal service on
Defendant, and the Court will require Defendant to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure. With respect to a Defendant who no
longer can be found at the work address provided by Plaintiff, the employer shall furnish the Clerk
with the Defendant’s current work address, or, if not known, the Defendant’s last-known address.
This information shall be used only for sending the forms as directed above or for formally
effecting service. Any documentation of the address shall be retained only by the Clerk. Address
information shall not be maintained in the court file or disclosed by the Clerk.
Plaintiff’s Motion for Service of Process is accordingly GRANTED.
Plaintiff’s Motion to Direct Answer is DENIED.

However,

Defendant Nathan Birkner shall file a

responsive pleading in conformity with the Federal Rules of Civil Procedure.
For the foregoing reasons, the Motion for Recruitment of Counsel is DENIED (Doc. 22),
the Motion Number 1 for Subpoena is GRANTED IN PART (Doc. 23), the Motion Number 2 for
Subpoena is GRANTED IN PART (Doc. 24), the Motion to Compel is DENIED (Doc. 25), the
Motion to Direct Answer is DENIED (Doc. 28), the Motion for Service of Process is GRANTED
(Doc. 29), the Motion for Recruitment of Counsel is DENIED (Doc. 30), and the Motion for
Leave to Amend is GRANTED (Doc. 31).
IT IS SO ORDERED.
DATED: September 24, 2013
DONALD G. WILKERSON
United States Magistrate Judge
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