Miller v. Walton et al

Filing 137

ORDER GRANTING 106 MOTION to Appoint Counsel filed by Robert Ethan Miller, Jr. Attorney Brian David Burbrink for Robert Ethan Miller, Jr. added. Attorney Burbrink is directed to file his notice of appearance on behalf of Plaintiff by 2/17/201 6. Telephonic Status Conference set for 2/29/2016 at3:30 PM before Magistrate Judge Donald G. Wilkerson. Counsel for Defendants to direct the call by conferencing in counsel for Plaintiff and then calling the Court's conference line a t 618-482-9004. Pursuant to this Order, the Court DENIES WITHOUT PREJUDICE 27 28 36 44 62 64 65 67 70 75 76 77 93 101 105 108 117 124 125 126 132 133 134 135 136 . Plaintiff's deadline to respond to Defendants' motion for summary judgment at Document 114 is STAYED pending the February 29, 2016 Status Conference. See attached Order for further details. Signed by Magistrate Judge Donald G. Wilkerson on 2/3/2016. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT ETHAN MILLER, JR.,
Plaintiff,
v.
J.S. WALTON, et al.,
Defendants.

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Case No. 3:15-cv-533-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Request for Counsel filed by Plaintiff Robert Ethan
Miller Jr. (Doc. 106). For the reasons set forth below, the Motion is GRANTED.
Although 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),
pursuant 28 U.S.C. § 1915(e)(1), 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
Pruitt, 503 F.3d at 654.
The circumstances presented in this case warrant recruitment of counsel. See Santiago v.
Walls, 599 F.3d 749, 765 (“The situation here is qualitatively different from typical prison
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litigation.”). In particular, Plaintiff is no longer housed at the facility where his complaints arose.
Further, Plaintiff asserts that he has been diagnosed to be mentally incapacitated and suffering
from severe mental, emotional, and physical illnesses that render him totally disabled.
Accordingly, the Court GRANTS Plaintiff’s Motion (Doc. 106) and APPOINTS
Attorney Brian David Burbrink of the firm Ogletree, Deakins, Nash, Smoak & Stewart, PC to
represent Plaintiff for all further proceedings in this Court.1 Attorney Burbrink is encouraged to
share his responsibilities with an associate who is also admitted to practice in this district.
Attorney Burbrink shall enter his appearance on or before February 17, 2016.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
Attorney Burbrink 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 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

1

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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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 United States
Bureau of Prisons at FCI Terre Haute.

Information about the facility is available at

http://www.bop.gov/.
This matter is SET for a telephonic status conference on February 29, 2016 at 3:30 p.m.
Counsel for Defendants to initiate the conference call. The Court’s conference number is
618-482-9004. The parties should be prepared to discuss the schedule in this case; in particular,
when counsel for Plaintiff will be able to file a response to Defendants’ pending motion for
summary judgment at Document 114. In light of this Order, the pending motions (except
Plaintiff’s Motion Requesting Court Ordered Mental Health Care at Document 107 and
Defendants’ Motion for Summary Judgment at Document 114) are DENIED WITHOUT
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PREJUDICE (Docs. 27, 28, 36, 44, 62, 64, 65, 67, 70, 75, 76, 77, 93, 101, 105, 108, 117, 124,
125, 126, 132, 133, 135, and 136). Counsel for Plaintiff may request leave to refile said motions
if it is deemed necessary. Further, Plaintiff’s response deadline to Defendants’ Motion for
Summary Judgment (Doc. 114) is STAYED pending the February 29, 2016 Status Conference.
The Clerk of Court is DIRECTED to send a copy of this Order and the standard letter
concerning appointment of counsel to Attorney Burbrink immediately.
IT IS SO ORDERED.
DATED: February 3, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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