Grigsby v. Gaetz et al

Filing 57

ORDER APPOINTING Attorney: Attorney Dean Michael Athans for Darnell Grigsby added. Attorney Athans is DIRECTED to file his notice of appearance on behalf of Plaintiff by 2/12/2016. Telephnic Status Conference set for 2/29/2016 at 3:00 PM before Magistrate Judge Donald G. Wilkerson. Counsel for Defendant to direct the call by conferencing in counsel for Plaintiff and then calling the Court's conference line at 618-482-9004. Signed by Magistrate Judge Donald G. Wilkerson on 2/2/2016. (nms)

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

DARNELL GRIGSBY,
Plaintiff,
v.
ROSS HAVERHALS, JR.,
Defendant.

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CIVIL NO. 3:13-cv-579-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
This matter is before the Court sua sponte to reevaluate whether recruitment of counsel is
warranted in this case. A review of the record reveals that discovery in this matter has been
completed, dispositive motions have been filed and ruled upon, and this case is ready for trial.
The Court notes that although there is no constitutional or statutory right to appointment of counsel
in a civil case, the Court may, in its discretion, appoint counsel to represent indigent civil litigants.
Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). Moreover, the Court has
inherent authority to appoint counsel to ensure the orderly prosecution of litigation in this district.
Members of the bar are obligated to accept appointments, provided an appointment is not made
more than once during a twelve-month period. SDIL-LR 83.1(i).
In recruiting counsel, the Court must inquire whether, “given the difficulty of the case,
[does] the plaintiff appear to be competent to try it himself and, if not, would the presence of
counsel [make] a difference in the outcome?” Farmer v. Haas, 990 F.2d 319, 321-322 (7th Cir.
1993); see also Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (“the question is whether the difficulty

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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.”).
To date, the Court has considered Plaintiff more than capable of representing himself and
perceives that Plaintiff would do an adequate job representing himself at trial. Nevertheless, for
the benefit of the Court and in appreciation for the Court’s trial calendar, the appointment of
counsel will likely ensure that the final pretrial conference and trial run more efficiently.
Although counsel will be appointed, discovery will not be reopened, and additional
dispositive motions will not be accepted. Counsel is appointed for purposes of the final pretrial
conference and trial only. The appointment will not extend to any appeal, although counsel is
expected to fully advise plaintiff of his appellate rights and the basic procedure for any appeal.
The record is available through the Court’s electronic filing system (CM-ECF). Plaintiff should
prepare his litigation file for his attorney so that counsel has ample time to prepare for the final
pretrial conference and trial. Plaintiff’s counsel will have to coordinate communication with
Plaintiff and the transfer of the legal file through prison officials. Defense counsel, Illinois
Assistant Attorney General Susannah J. Price, is encouraged to facilitate the exchange of
documentation.
IT IS THEREFORE ORDERED that Attorney Dean M. Athans of the firm Wilson,
Elser, Moskowitz, Edelman & Dicker LLP is hereby APPOINTED to represent Plaintiff in the
District Court, for purposes of the final pretrial conference and trial only. Attorney Athans shall
formally enter his appearance on or before February 12, 2016. A Telephonic Status Conference
is set in this matter for February 29, 2016 at 2:30 p.m. Counsel for Defendant shall direct the call
by conferencing in counsel for Plaintiff and then calling the Court’s conference line at

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618-482-9004. Counsel should be prepared to discuss the scheduling of the trial and final
pre-trial conference in this matter.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
Attorney Athans who is the legal professional in this relationship. 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.
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.
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 the Illinois
Department of Corrections at Pontiac Correctional Center. Information about the facility is

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available at www.idoc.state.il.us.
The Clerk of Court is DIRECTED to send a copy of this Order and the standard letter
concerning appointment of counsel to Attorney Athans immediately.
IT IS SO ORDERED.
DATED: February 2, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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