Owens v. Allen et al

Filing 127

ORDER: The 122 the Motion for Recruitment of Counsel is GRANTED and 123 the Motion to Compel is DENIED without prejudice. Attorney Benjamin Michael Farley shall enter his appearance on or before August 27, 2020. The Clerk of Court is DIRECTED to transmit this Order and copies of the docket sheet to attorney Farley. The 126 Motion for Extension of Time is GRANTED. Discovery is due by October 12, 2020, and dispositive motions are due by November 11, 2020. Signed by Chief Judge Nancy J. Rosenstengel on 8/14/2020. (jrj)

Case 3:14-cv-00055-NJR Document 127 Filed 08/14/20 Page 1 of 6 Page ID #1024

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES OWENS,
#K83253,
Plaintiff,
v.

Case No. 14-cv-00055-NJR

SANDRA FUNK, and
JOHN BALDWIN,
Defendants.

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff James Owens, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), is currently proceeding with an Eighth Amendment claim
pursuant to 42 U.S.C. § 1983 against Defendant Sandra Funk for transferring him from
Pinckneyville Correctional Center (“Pontiac”) to Menard Correctional Center (“Menard”)
in 2011, disregarding a substantial risk of serious harm to his safety. This matter is before
the Court on the Motion for Recruitment of Counsel (Doc. 122) and the Motion to Compel
Discovery (Doc. 123) filed by Owens, and a Motion for Extension of Time (Doc. 126) filed
by Defendant Funk.
MOTION FOR RECRUITMENT OF COUNSEL
In the motion for recruitment of counsel, Owens claims that he is in need of court
recruited counsel because discovery has become increasingly difficult for him. (Doc. 122).
He states that he has been transferred four times since 2011 making it difficult to obtain
discovery materials. Because he is indigent, he is limited on the mail he can send at
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government expense due to IDOC policy; thus, he is unable to conduct investigations to
find inmate witnesses and seek discovery from outside sources by mail. Owens also
claims that Defendants misidentified Sandra Funk as the staff person who transferred
him from Pinckneyville to Menard and have not provided him with the names of the
persons who really authorized his transfer.
Pursuant to 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent
any person unable to afford counsel.” When faced with a motion for recruitment of
counsel the Court applies a two part test: “(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?” Pruitt
v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). Owens has demonstrated reasonable efforts to
located counsel on his own without success (see Doc. 31), and the Court finds the
circumstances presented at this stage of litigation warrant recruitment of counsel.
Because of his indigency and the fact that he is no longer incarcerated where the alleged
events occurred, Owens does not seem capable of identifying, collecting, and presenting
the right type of evidence. See McCaa v Hamilton, 893 F.3d 1027, 1032-33 (7th Cir. 2018).
The case has become too challenging for Owens to continue representing himself.
Accordingly, the Court deems it both appropriate and necessary to recruit an
attorney to represent Owens in this matter going forward. The Court has randomly
selected counsel through the Case Management/Electronic Case Filing (“CM/ECF”)
system to represent him in conducting discovery and continuing to prosecute his claims
in this case only.
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MOTION TO COMPEL
Because counsel has been recruited to represent him, the Motion to Compel
(Doc. 123) will be denied without prejudice at this time so that recruited counsel can
evaluate how to proceed with discovery.
The Court will still address Owens’s claims presented in the Motion for
Recruitment of Counsel and Motion to Compel that Defendants provided him with a false
identification of the John Doe defendant. Owens named John Doe #3, the transfer
coordinator, as the individual liable for his unconstitutional transfer from Pontiac to
Menard in 2011 in the First Amended Complaint. (Doc. 14, p. 4; Doc. 16). Defendant
Warden Butler, who was party to the case for the sole purpose of discovering the identity
of the John Doe defendant, provided information to Owens that in 2011 the transfer office
coordinator was Sandra Funk. (Doc. 25). Owens, as master of his complaint, then made
the decision to substitute Sandra Funk for John Doe #3 and filed a motion to amend the
complaint. (See Docs. 26, 27). Although Sandra Funk has denied ordering the transfer
since filing her Answer to the Second Amended Complaint in November 2015 (Doc. 35)
and discovery may have revealed that other individuals could be liable, this does not
mean that Defendants provided false information to Owens when they gave him the
name of the individual who was employed as the transfer office coordinator in 2011.
Nothing in the record indicates that Defendants falsely identified Sandra Funk or that she
was not the transfer coordinator in 2011 as claimed.
MOTION FOR EXTENSION OF TIME
Defendant Funk has filed a motion asking for an extension of time to complete
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discovery and file a dispositive motion. (Doc. 126). She states that due to the COVID-19
pandemic she has been unable to take Owens’s deposition. The Court finds good cause
to amend the Scheduling Order, and the Motion for Extension of Time will be granted.
Discovery shall be completed by October 12, 2020, and dispositive motions are due
November 11, 2020.
DISPOSITION
For the reasons stated above, the Motion for Recruitment of Counsel (Doc. 122) is
GRANTED and the Motion to Compel (Doc. 123) DENIED without prejudice. In
accordance with 28 U.S.C. § 1915(e)(1) and Local Rule(s) 83.1(i) and 83.9(b), attorney
Benjamin Michael Farley, located at 600 Washington Avenue, Suite 2500, St. Louis, MO,
63101, is ASSIGNED to represent Plaintiff Owens in this civil rights case. On or before
August 27, 2020, assigned counsel shall enter his appearance in this case. Attorney Farley
is free to share responsibilities with an associate who is also admitted to practice in this
district court. Assigned counsel, however, must enter the case and shall make first contact
with Owens, explaining that an associate may also be working on the case. Owens should
wait for his attorney to contact him in order to allow counsel an opportunity to review
the court file.
The Clerk of Court is DIRECTED to transmit this Order and copies of the docket
sheet to attorney Farley. The electronic case file is available through the CM/ECF system.
Now that counsel has been assigned, Owens SHALL NOT personally file
anything in this case, 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 Owens,
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there is no guarantee the Court will appoint other counsel to represent him.
Counsel is ADVISED to consult Local Rules 83.8-83.14 regarding pro bono case
procedures.
Owens and his counsel are ADVISED that, because Owens 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
to reimburse expenses.
Section 2.6 of this Court’s Plan for the Administration of the District Court Fund
provides for a degree of reimbursement of pro bono counsel’s out-of-pocket expenses, as
funds are available. The Plan can be found on the Court’s website, as well as the form
motion

for

out-of-pocket

expenses

and

an

Authorization/Certification

for

Reimbursement. Any motion for reimbursement must be made within 30 days from the
entry of judgment, or reimbursement will be waived. See SDIL-LR 83.13. The funds
available for this purpose are limited, however, 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. No portion of a partial filing fee assessed pursuant to 28 U.S.C.
§ 1915 will be reimbursed. Counsel may be reimbursed for PACER fees for this case.
The district court has entered into an agreement with attorney James P. Chapman
and the Illinois Institute for Community Law to consult with lawyers on issues in these
cases, including substantive and procedural questions (both legal and practical) and
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dealing with the client. Mr. Chapman can be reached by phone at [phone] or email
at [e-mail]. His services are available to counsel free of charge, as long
as counsel is representing a prisoner pro bono on a case in the district. In addition, the
Court’s website, www.ilsd.uscourts.gov, includes a guide for attorneys which is available
as a resource. It is listed under “Rules and Forms” as “Guide for Attorneys Recruited to
Represent Plaintiffs in Section 1983 Cases.” The Court encourages appointed counsel to
consult it and Mr. Chapman as needed.
As of this date, Owens’s contact information is:
JAMES OWENS, #K83253,
Taylorville Correctional Center
1144 State Route 29
Taylorville, IL 62568
Finally, the Motion for Extension of Time (Doc. 126) filed by Defendant Funk is
GRANTED. Discovery is due by October 12, 2020, and dispositive motions are due by
November 11, 2020.
IT IS SO ORDERED.
DATED: August 14, 2020
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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