Salcedo-Vazquez v. Nwaobasi et al

Filing 28

ORDER GRANTING 23 MOTION for Reconsideration re 21 Order on Motion to Appoint Counsel filed by Teodolfo Salcedo-Vazquez. Attorney Stephen R. Welby for Teodolfo Salcedo-Vazquez added. Telephonic Status Conference set for 11/14/2013 10:00 AM before Magistrate Judge Donald G. Wilkerson. Signed by Magistrate Judge Donald G. Wilkerson on 10/10/13. (sgp)

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

TEODOLFO SALCEDO-VAZQUEZ,
Plaintiff,
vs.
S. NWAOBASI and WEXFORD HEALTH
SOURCES, INC.,
Defendants.

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CIVIL NO. 3:13-cv-606-GPM-DGW

MEMORANDUM AND ORDER
WILKERSON, Magistrate Judge:
This matter is before the Court on Plaintiff’s Motion for Reconsideration of an Order
denying, without prejudice, recruitment of Counsel. (Doc. 23). 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
difficulty of the case, does the plaintiff appear competent to litigate it himself?’” Id. at 761, quoting
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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, Plaintiff indicates
that he is only Spanish-speaking and that he has been assisted by jail house lawyer 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 motion (Doc. 23) and APPOINTS Attorney
Stephen R. Welby of the The Welby Law Firm, LLC to represent Plaintiff for these proceedings.1
Attorney Welby is encouraged to share his responsibilities with an associate who is also admitted
to practice in this district court. Attorney Welby shall enter his appearance on or before October
23, 2013. This appointment is made with the understanding that Attorney Welby speaks
limited Spanish and that Attorney Welby may withdraw if he finds that he is unable to
communicate with Plaintiff.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
Attorney Welby 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

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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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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 the Illinois
Department of Corrections at the Menard Correctional Center. Information about the facility is
available at www.idoc.state.il.us. Counsel may use the Illinois Department of Corrections’
videoconferencing system to confer with Plaintiff. The Court asks Defendants’ Counsel to
facilitate those arrangements, if possible.

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The Clerk of Court is DIRECTED to send a copy of this Order and the standard letter
concerning appointment of counsel to Attorney Welby immediately.
The Pavey evidentiary hearing set for November 14, 2013 at 10:00 a.m. is hereby
CANCELLED. However, this matter is SET for a telephonic conference on that same date and
time (11/14/13 at 10:00 a.m.). Defendants shall initiate the conference call. The parties should
be prepared to discuss any discovery related to exhaustion, Plaintiff’s response to the Motion for
Summary Judgment (Doc. 25), and a date for the hearing on exhaustion.
IT IS SO ORDERED.
DATED: October 10, 2013

DONALD G. WILKERSON
United States Magistrate Judge

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