Bentz et al v. Butler et al

Filing 103

ORDER DENYING WITHOUT PREJUDICE 93 Motion for Contempt; DENYING WITHOUT PREJUDICE 94 Motion for Recruitment of Counsel ; DENYING WITHOUT PREJUDICE 97 Motion for Contempt; GRANTING IN PART 102 Motion. Signed by Magistrate Judge Donald G. Wilkerson on 11/2/16. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
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Plaintiff,
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)
v.
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KIMBERLY BUTLER, NURSE LANG,)
MAJOR WESTFALL, LT JAMES BEST, LT.)
EOVALDI, LT. SAMELS, SGT N. BEBOUT,)
SGT C. MAYER, JOSHUA BERNER,)
SHANE QUANDT, JASON REDNOUR,)
DONALD
LINDENBERT,
JARED)
)
PHILLIPS, and C/O MCMILLAN,
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Defendants.
DAVID ROBERT BENTZ,

Case No. 3:14-cv-996-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motions for Contempt filed by Plaintiff on
September 2, 2016 and October 17, 2016 (Docs. 93 and 97), the Motion for Recruitment of
Counsel filed by Plaintiff on September 23, 2016 (Doc. 94), and the Motion for Filing Fee
Payments filed by Plaintiff on October 31, 2016 (Doc. 102).
In his Motions for Contempt (which are identical),1 Plaintiff indicates that the Defendants
or library staff at the Menard Correctional Center are intentionally interfering with the electronic
filing process or with the sending and receiving of documents to and from the Clerk of Court. He
states that they are either failing to file documents submitted for filing by Plaintiff or they are
misleading him by indicating that something has been filed when it has not been filed. Plaintiff
does not identify, nor has he attached, any document that he has submitted for filing that has not
been filed. Nor has he indicated, with any level of detail, in what manner he has been prejudiced
1

And which have been filed by Plaintiff in other cases pending in this District and before the
undersigned.
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in this matter (i.e. that he has missed a deadline or otherwise failed to act when required because he
did not receive a document in this matter). At this time, Plaintiff’s Motions are DENIED
WITHOUT PREJUDICE. However, the Clerk of Court is DIRECTED to mail to Plaintiff, by
regular mail, a copy of the docket sheet in this matter along with this Order. Plaintiff shall notify
the Court, by November 18, 2016, what documents he has submitted for filing that have not been
filed in this case. Plaintiff shall attach a copy of the documents that he states are file-stamped by
the staff as having been filed but that have not, in fact been filed. That is, he shall attach the
documents he refers to in the sentence: “It should also be noted that a lot of times/sometime when
original documents are returned (if returned at all) they are stamped by staff as being filed, but in
fact never were filed at all by library staff at Menard leaving this Plaintiff to believe that said
filings was filed when it really was not filed at all.” Plaintiff shall also attach any document
(whether it is a motion, notice, or a response to a motion) that he submitted for filing but that has
not been filed as indicated in the docket sheet.
Plaintiff’s Motion for Recruitment of Counsel is DENIED WITHOUT PREJUDICE.
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 –

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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 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 previously sought counsel on September 12, 2014 (Doc. 8) and March 17, 2015
(Doc. 21) when other plaintiffs were involved in this suit. Those Motions were denied without
prejudice. The basis for Plaintiff’s request for counsel is the inadequacy of the law library at
Menard CC. Plaintiff states, in general terms, that he is hampered in this litigation by either the
lack of resources or the lack of trained staff to assist him in this litigation. Plaintiff is a relatively
sophisticated litigant – he is capable of articulating his claims in a coherent manner and citing to
relevant case law when appropriate. This matter is also relatively simple: Plaintiff complains in
most part of the conditions of his confinement, namely, the temperature of his environment during
the summer months. This claim is not complicated nor does it require any expert discovery.
Plaintiff is capable of litigating without the assistance of counsel.
As to the inadequacies of the law library, Plaintiff has not set forth in any detail in what
manner he has been prejudice by the law library staff/resources. If Plaintiff believes that he is
being denied access to the Courts, he can file another lawsuit to that effect. If, after Plaintiff has
submitted the documents and notice directed above, the Court finds that he is being hampered by
the library staff in litigating this matter, recruitment of counsel will be reconsidered.

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The Motion for Filing Fee Payments is GRANTED IN PART. Plaintiff is informed that
there is a remaining balance of $284.62 with respect to the filing fee in this matter.
DATED: November 2, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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