Duncan v. Quinn et al

Filing 129

ORDER finding as moot 83 Motion for Reconsideration; denying 90 Motion to Amend/Correct; denying 95 Motion to Appoint Counsel; finding as moot 128 Motion for Status. Signed by Magistrate Judge Stephen C. Williams on 11/2/2015. (jcp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRYL R. DUNCAN,
Plaintiff,
vs.
THOMAS SPILLER,
JEFF MILLER,
ERIC WANGLER
DONALD WANACK,
JERROD SELBY,
MICHAEL OBERTINI, and
JOHN WOLFE

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Case No. 15–cv–87–MJR–SCW

Defendants.

ORDER
WILLIAMS, Magistrate Judge:
Pro se Plaintiff Darryl Duncan filed this case alleging a plethora of unconstitutional behavior
at Pickneyville Correctional Center. (Doc. 4). After threshold review, the Court found that Plaintiff
had stated six claims: 1) Defendant Miller used excessive force against Plaintiff on August 2,
September 29, and October 29, 2014 in violation of the Eighth Amendment; 2) Defendants Wangler
and Womack used excessive force against Plaintiff on September 29 and October 21, 2014 in
violation of the Eighth Amendment; 3) Defendant Shelby and Obert used excessive force against
Plaintiff on December 2 and 16, 2014 in violation of the Eighth Amendment; 4) Defendant Wolfe
used excessive force against Plaintiff on January 8, 2015 in violation of the Eighth Amendment; 5)
Defendant Spiller instituted a policy, custom, or practice of using excessive force when he directed
Pickneyville staff to “hold [Plaintiff] and [shut] him up” in violation of the Eighth Amendment; and
6) Defendants Spiller, Miller, Wangler, Womack, Selby, Obert, and Wolf participated in a conspiracy
to retaliate against Plaintiff through a campaign of excessive force against him. (Doc. 4).
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This matter comes before the Court on several motions. Plaintiff filed a Motion seeking to
reconsider the Court’s previous rulings, as well as a new motion requesting counsel. (Doc. 83) (Doc.
95). Plaintiff also filed a motion seeking to amend his Complaint. (Doc. 90).
Motion to Amend
On August 10, 2015, the Court denied all of Plaintiff’s outstanding Motions to amend the
Complaint. (Doc. 84). It found that Plaintiff was attempting to bring unrelated claims into this
litigation and specifically informed Plaintiff that any new claims would have to be filed as a separate
suit and that, as a three-striker, Plaintiff would have to pay the resulting filing fees. (Doc. 84).
Exactly one week later, Plaintiff filed the present Motion to Amend. (Doc. 90). Approximately one
month later, on September 21, 2015, Plaintiff submitted a proposed Amended Complaint to the
Court, which the Court considers along with the present motion. For the following reasons, the
Court DENIES Plaintiff’s Motion to Amend. (Doc. 90).
Pursuant to Fed. R. Civ. P. 15(a)(2), a party may amend its pleadings with leave of the court
if justice so requires. As the Court noted in its previous order, a Court may deny a motion to amend
where it would not survive a motion to dismiss. Foman, v. Davis, 371 U.S. 178, 182 (1962); Glick

v. Koenig, 766 F.2d 265, 268-69 (7th Cir. 1985). This policy is intended to prevent defendants
from expending more labor to respond to a plaintiff’s futile gesture. Glick, 766 F.3d at 268-69. In
the Seventh Circuit, dismissals under Fed. R. P. 12(b)(6) and § 1915A share the same standard.

Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). On threshold review, the court shall
identify cognizable claims or dismiss any portions of the complaint that are frivolous, malicious, fails
to state a claim on which relief may be granted, or seeks monetary relief from a defendant with
immunity. 28 U.S.C. § 1915A(b). A plaintiff cannot rest on mere labels, conclusions, or a formulaic
recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007). A complaint must raise more than speculations, rather, it must provide plausible facts on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
In particular, where a plaintiff attempts to amend his Complaint, he must do more than
restate the same facts using different language, or reassert previously dismissed claims. Garcia v.

City of Chicago, Ill., 24 F.3d 966, 970 (7th Cir. 1994) (citing Wakeen v. Hoffman House, Inc.,
724 F.2d 1238, 1244 (7th Cir. 1983)). It is not an abuse of discretion for a district court to refuse to
grant leave to amend where the proposed amended complaint states no new claims—such a
complaint would be futile. Id.
Plaintiff’s motion seeks to add four Defendants, all of whom are parole agents. (Doc. 90, p.
1). Plaintiff also seeks to add claims based on his June 30, 2015 parole violation, as well as a claim
based on the May 12, 2014 revocation at the door that Plaintiff received due to a lack of an available
host site. (Doc. 90). The proposed amended complaint submitted by Plaintiff lists the same four
parole agent defendants plus Diaz, a member of the prisoner review board (PRB). The proposed
amended complaint states that Diaz denied him a final parole revocation hearing in retaliation for
Plaintiff’s litigation activities. The proposed amended complaint goes on to reiterate Plaintiff’s
complaints about his June 30, 2015 parole revocation, as well as to restate the May 12, 2014 claim
against Pate. None of the claims currently present in this case are mentioned either in Plaintiff’s
motion or in the proposed amended complaint. None of the current defendants are mentioned in
Plaintiff’s motion or the proposed amended complaint.
Plaintiff has failed to follow the local rules. Even reading Plaintiff’s motion with the
proposed amended complaint submitted a month later, Plaintiff’s motion is deficient. He has not
included his currently pending claims in his proposed amended complaint, which would have the
effect of dismissing those claims should the Court grant the motion. Johnson v. Dossey, 515 F.3d
778, 780 (7th Cir. 2008) (finding that when an amended complaint is filed, the prior pleading
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is withdrawn and the amended pleading is controlling). The Court could deny the motion on
these grounds alone, however, the merits of the proposed amendment require further comment.
As to Plaintiff’s claims regarding his May 12, 2014 parole violation, Plaintiff has attempted to
bring these claims multiple times in this case, and each time he has been denied. The Court will not
rehash its earlier orders on this point here—Plaintiff may refer to the orders at Doc. 4 and Doc. 84
for that—other than to say that Plaintiff’s statement of his claim regarding May 12, 2014 does
nothing more than restate a previously dismissed claim and is therefore futile.
Regardless of the merit of Plaintiff’s other claims regarding his parole violation of June 30,
2015, they do not belong in this suit. None of the Defendants in this case is named in the proposed
amendment.

This is currently a suit for excessive force while incarcerated at Pickneyville

Correctional Center. Plaintiff’s claims that an entirely different group of people violated his due
process and equal protection rights while he was out on parole do not overlap or share any common
factual or legal issues with the claims present in this case. In George v. Smith, the Seventh Circuit
emphasized that unrelated claims against different Defendants belong in separate law suits, “not
only to prevent the sort of morass” produced by multi-claim, multi-party suits but also so that the
Court may collect the appropriate filing fees. 507 F.3d 605, 607 (7th Cir. 2007). If Plaintiff wishes
to bring claims regarding his June 30, 2015 parole violation he must file a separate lawsuit and incur
another filing fee.

If the Court receives another Complaint addressing those claims without

mentioning the claims present in this case, it will presume that Plaintiff, having been told several
times to file a separate suit, is attempting to do so, and will screen the case pursuant to § 1915A and
assess the appropriate fees.
The Court notes that Plaintiff frequently describes his claims as a comprehensive
“conspiracy” to violate his rights, thus attempting to bootstrap of all his claims into one case. To
state a claim under Section 1983 for conspiracy, a plaintiff must show: “that 1) a state official and
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private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights;
and 2) those individuals were willful participant[s] in joint activity with the state or its agents.”

Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003) (internal citation and quotation marks
omitted); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007). Plaintiff has done little more
here than use the word “conspiracy” to describe a discrete series of events involving numerous
parties. This types of conclusory allegations do not state a claim upon which relief could be granted.
Because the Court finds that Plaintiff’s proposed Amendment does not comply with the local rules
and would otherwise be futile, the Court DENIES Plaintiff’s Motion to Amend his Complaint.
(Doc. 90).
Motion for Recruitment of Counsel
As a litigant in a civil case, Duncan has no right to counsel. Pruitt v. Mote, 503 F.3d 647,
649 (7th Cir. 2007). However, this Court has discretion to recruit counsel to represent indigent
plaintiffs in appropriate cases. Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006).
Determining whether to appoint counsel is a two-step inquiry. Pruitt, 503 F.3d at 655. The
threshold is whether the indigent plaintiff has made a reasonable attempt to obtain counsel.

Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010). Only if the threshold has been met will the
Court consider the second prong, whether the plaintiff appears competent to litigate the case given
its difficulty. Pruitt, 503 F.3d at 655.
In its previous orders denying Plaintiff’s request for counsel, the Court found Duncan failed
to make the threshold showing because he relied on exhibits that predated the events at issue here.
Plaintiff’s motion seeking reconsideration of the Court’s prior orders does not address this point at
all, and instead restates Plaintiff’s belief that his incarceration makes litigation impossible and his
claim that he has sought counsel. (Doc. 83). The Motion does not provide the names and addresses
of any of the attorneys that Plaintiff has contacted, nor does it include exhibits.
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(Doc. 83).

Plaintiff’s most recent motion also fails to include any exhibits or the names of any attorneys that
Plaintiff contacted. (Doc. 95). However, approximately six weeks after filing his most recent
motion, Plaintiff filed a Motion for Emergency Injunctive relief, which contained a letter from
Jeffrey Glass dated October 6, 2015 rejecting Plaintiff’s case, and a letter from Heidi Dodd dated
October 7, 2015, rejecting Plaintiff’s case. (Doc. 116, p. 7-8). Although this information should
have been submitted as an exhibit to Plaintiff’s motion, the Court will consider it. Based on the
Exhibits to the Motion for Emergency Injunctive Relief, the Court finds that Plaintiff has met his
threshold burden of showing that he has made a reasonable attempt to recruit counsel.
But that does not end the matter. Plaintiff has filed voluminous pleadings with this Court,
and represented himself at several hearings on motions. Plaintiff has kept the Court apprised of his
current address, propounded discovery, responded to discovery (Doc. 117), and successfully
defended himself against Defendants’ request for sanctions. Plaintiff has been able to consistently
and repeatedly articulate the factual basis of his claims. Plaintiff argues that guards at his institution
are interfering with his legal maneuverings, but the Court sees no evidence that this allegation has
impacted Plaintiff’s ability to present his case. Duncan may not be as proficient as the average
attorney, but he has adequately expressed the factual and legal bases for his claims. See Pruitt, 503
F.3d at 655 (quoting Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (If the test were
whether a good lawyer would have done better than a pro se plaintiff, “judges would be
required to request counsel for every indigent litigant”). Managing a case such as this may
become more challenging as it progresses to trial, but at the present time Duncan is competent to
litigate his case. Should the case increase in complexity as it advances to trial, or should discovery
prove overly burdensome, the Court will be willing to revisit appointment of counsel at that time.
But for now, the plaintiff’s motions to appoint counsel (Doc. 83) (Doc. 95) are DENIED without
prejudice.
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Motion to Reconsider
Plaintiff filed a Motion to Reconsider on July 30, 2015 objecting to a hearing on June 25,
2015, where the Court took up certain discovery disputes of the parties. (Doc. 83). Plaintiff
objected that the Court did not take up his various Motions to Amend at the hearing. (Doc. 83).
Plaintiff further objected to the denial of his Motion to Compel. (Doc. 83). Finally, Plaintiff
objected to the fact that certain of his Motions seeking injunctive relief were denied. (Doc. 83).
At the time the motion was filed, the Court had not yet ruled on Plaintiff’s motions to
amend. The Court issued a ruling on those motions on August 10, 2015. (Doc. 84). As no rulings
had been issued when Plaintiff filed the motion, there is nothing to reconsider. Pursuant to local
rule, the Court determines when a hearing is needed on a motion, and may decide a motion without
a hearing. SDLR 7.1 (h). Therefore, Plaintiff did not have a right to have a hearing on his motion,
and the lack of hearing does not violate Plaintiff’s due process rights. As to Plaintiff’s claims about
his Motions to Compel and his seeking injunctive relief, Plaintiff has identified no errors of law or
fact with regards to those motions. He has simply restated his earlier claims. He has also since refiled motions seeking injunctive relief and a motion to compel. As Plaintiff has re-filed those
motions, his request for reconsideration is MOOT and will be denied. (Doc. 83).
Motion for Status
On October 29, 2015, Plaintiff filed a Motion for status regarding his currently pending
motions. (Doc. 128). As this order disposes of many of Plaintiff’s Motions and the undersigned has
issued a Report and Recommendation on all of the remaining motions, with the exception of
Plaintiff’s Motion to Compel, which is not ripe, the Court finds that Plaintiff’s motion for status is
MOOT. (Doc. 128).
Conclusion

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Plaintiff’s motions to amend the Complaint is DENIED as futile. (Doc. 90). Plaintiff’s
Motions for Appointment of Counsel, including Plaintiff’s requests contained in unrelated motions
are DENIED without prejudice. (Doc. 83) (Doc. 95). Plaintiff’s Motion for Reconsideration is
DENIED. (Doc. 83). Plaintiff’s Motion for Status is MOOT. (Doc. 128).

IT IS SO ORDERED.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

DATE: November 2, 2015

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