Godfrey v. Harrington et al

Filing 28

ORDER DENYING WITHOUT PREJUDICE 18 Motion to Amend/Correct; DENYING 19 Motion for Recruitment of Counsel ; DENYING WITHOUT PREJUDICE 20 Motion to Produce; DENYING WITHOUT PREJUDICE 21 Motion to Amend/Correct; DENYING 22 Motion ; DENYING WITHOUT PREJUDICE 23 Motion. Signed by Magistrate Judge Donald G. Wilkerson on 9/12/13. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TOBY GODFREY,

)
)
Plaintiff,
)
)
v.
)
)
RICHARD HARRINGTON, SERGEANT )
HEIMAN, SERGEANT ELADVOR, and )
UNKNOWN PARTY,
)
)
Defendants.
)

Case No. 3:13-cv-280-GPM-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are various Motions filed by Plaintiff: Motion to Amend
Complaint (Doc. 18), Motion for Recruitment of Counsel (Doc. 19), Motion to Request Production
of Documents (Doc. 20), Motion to Correct Defendant’s Names (Doc. 21), Motion to Request
Examination by Outside Doctor (Doc. 22), and Motion for Subpoena Documents and Evidence
(Doc. 23).1 Each Motion will be given separate consideration as set forth below:
Motion to Amend Complaint (Doc. 18)
Pursuant to the Order entered on May 31, 2013, Plaintiff is proceeding on three claims:
Count 1 – against Defendants Heiman and Eladvor for failure to protect; Count 4 – against
Defendant Unknown Party for deliberate indifference; and Count 5 – against Heiman, Eladvor,
and Unknown Party for state law claims. Defendant Harrington also remains a party to this action
in light of Plaintiff’s claims for injunctive relief. In his Motion to Amend, Plaintiff seeks to
amend his complaint to add new parties: Michael M (a medical doctor), Robert Shearing (a
medical director), and Gail Walls (director of nurses). Plaintiff has not provided a proposed
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Plaintiff also has filed a Motion for Temporary Restraining Order and Preliminary Injunction
that will be addressed in a Report and Recommendation.

amended pleading for the Court to review. Local Rule 15.1 provides that if a party seeks to
amend their pleading, they must submit the proposed amended pleading along with their motion;
any amendments that Plaintiff wants the Court to consider should be underlined. Plaintiff is
therefore instructed to provide the Court with a proposed amended complaint and to indicate, in
the accompanying motion to amend, why leave to amend should be granted. Plaintiff is further
informed that any such proposed amended complaint will be screened pursuant to 28 U.SC. §
1915A. Plaintiff shall file his Motion to Amend the Complaint within thirty (30) days of the date
of this Order. This motion is accordingly DENIED WITHOUT PREJUDICE.
Motion for Recruitment of Counsel (Doc. 19)
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
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

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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).
Plaintiff appears to have met the threshold requirement of seeking counsel without Court
intervention. Nonetheless, an attorney will not be recruited in this matter. Plaintiff indicates that
he has some college education and is hampered only by the fact that he is in segregation, has no
knowledge of the law, and has limited access to legal resources. Such a situation is not unique
and not grounds for recruitment of counsel. Plaintiff appears capable of prosecuting this matter
without the assistance of counsel. The claims in this matter are not overly complicated and it is
not apparent that extensive discovery will be required. Plaintiff is capable of seeking relief, as
evidenced by the numerous motions he has filed to date, he can articulate his claim and requests for
relief in an understandable manner, and he is capable of following Court direction, as shown by the
filing of an amended complaint in response to the April 11, 2013 Order. This motion is
accordingly DENIED.
Motion to Request Production of Documents (Doc. 20)
Plaintiff seeks discovery from Defendants related to his claims. Plaintiff is informed that
discovery will not commence in this action until Defendants appear and file responsive pleadings.
In addition, discovery requests should be directed and sent to Defendants’ attorney. Discovery
should not be filed with the Court, except Requests for Admissions as provided by Local Rule
26.1(b). This motion is accordingly DENIED WITHOUT PREJUDICE.
Motion to Correct Defendant’s Names (Doc. 21)
In this Motion, Plaintiff seeks to “correct” the names of Defendants.

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Specifically,

Plaintiff asserts that Defendant Heiman is in fact “Sergeant Hieman,” Defendant Eladvor is in fact
“Sergeant Eovaldi,” and the Unknown party is “Michael Moldenhauer.” As instructed above,
Plaintiff can include these changes when he files a motion to amend his complaint and should
include the correct spellings of Defendants’ names in his proposed amended complaint. This
motion is accordingly DENIED WITHOUT PREJUDICE.
Motion to Request Examination by Outside Doctor (Doc. 22)
Federal Rule of Civil Procedure 35 provides that this Court may order a party to submit to
a physical examination if that party’s medical condition is in dispute. Plaintiff seeks such an
examination because he is experiencing various physical ailments. Rule 35 does not authorize the
Court to appoint a medical expert, at Plaintiff’s request, to examine the Plaintiff himself; rather,
the Rule allows the Court to direct an opposing party to make himself available for examination.
Plaintiff has no right to shift the burden or cost of such an examination from himself,
notwithstanding his in forma pauperis status.

This Court also will not manage Plaintiff’s

on-going health condition or examinations and consultations.

Plaintiff should forward his

requests for medical care to the health officials at the prison, who are in a better position to assess
and acquire medical care for Plaintiff. This motion is accordingly DENIED.
Motion for Subpoena Documents and Evidence (Doc. 23).
As stated above, discovery will not commence until Defendants appear in this action. In
addition, the categories of information requested by Plaintiff appear to be of the type that will be
automatically produced by Defendants in accordance with Federal Rule of Civil Procedure
26(a)(1). As such, a subpoena for such documents is unnecessary. When discovery does
commence and if Plaintiff requires additional documents, he may petition the Court, at that time,

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for the issuance of a subpoena. This motion is accordingly DENIED WITHOUT PREJUDICE.
CONCLUSION
For the foregoing reasons the Motion to Amend Complaint (Doc. 18) is DENIED
WITHOUT PREJUDICE, the Motion for Recruitment of Counsel (Doc. 19) is DENIED, the
Motion to Request Production of Documents (Doc. 20) is DENIED WITHOUT PREJUDICE,
the Motion to Correct Defendant’s Names (Doc. 21) is DENIED WITHOUT PREJUDICE,
Motion to Request Examination by Outside Doctor (Doc. 22) is DENIED, and the Motion for
Subpoena Documents and Evidence (Doc. 23) is DENIED WITHOUT PREJUDICE. Plaintiff
shall file a Motion to Amend the Complaint (and attach a proposed amended complaint) within
thirty (30) days of the date of this Order.
IT IS SO ORDERED.
DATED: September 12, 2013

DONALD G. WILKERSON
United States Magistrate Judge

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