Miller v. Walton et al

Filing 150

ORDER GRANTING 140 MOTION to Vacate Appointment of Counsel filed by Robert Ethan Miller, Jr. Attorney Brian David Burbrink terminated. ORDER APPOINTING ATTORNEY: Attorney David W. Sullivan for Robert Ethan Miller, Jr added. Attorney Sulliv an is DIRECTED to file his notice of appearance on behalf of Plaintiff by March 28, 2016. Telephonic Status Conference set for April 14, 2016 at 2:00 PM before Magistrate Judge Donald G. Wilkerson. Counsel for Defendants to initiate the call by conferencing in counsel for Plaintiff and then calling the Court's conference line at 618-482-9004. In light of this Order, Plaintiff's pro se motions ( 147 MOTION to Expedite filed by Robert Ethan Miller, Jr., 148 MOTION for Pr eliminary Injunction filed by Robert Ethan Miller, Jr., 143 MOTION for Order to filed by Robert Ethan Miller, Jr.) are DENIED WITHOUT PREJUDICE and Defendants' 141 MOTION to Stay Discovery Pending Entry of Plaintiff's Counsel is GRANTED. Discovery in this matter is STAYED pending the entry of Plaintiff's counsel and the April 14, 2016 Status Conference. Signed by Magistrate Judge Donald G. Wilkerson on 3/15/2016.(nms)

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

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ROBERT ETHAN MILLER, JR.,
Plaintiff,
vs.
J.S. WALTON, et al.,
Defendants.

CIVIL NO. 3:15-cv-533-NJR-DGW

MEMORANDUM AND ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion for Leave to Decline Appointment filed by
Attorney Brian David Burbrink (Doc. 140). Pursuant to an Order of this Court, Attorney
Burbrink was recruited to represent Plaintiff, Robert Ethan Miller, in this matter. Attorney
Burbrink has filed a motion asking the Court recruit other counsel in this matter as he has been on
intermittent leave for a chronic health condition that causes him to work reduced hours. Based on
the representations made by Attorney Burbrink, the Court hereby GRANTS Attorney Burbrink’s
Motion (Doc. 140). Attorney Brian David Burbrink is hereby terminated from this action.
However, the Court’s previous finding that the circumstances presented in this case warrant
recruitment of counsel has remain unchanged. Accordingly, it is necessary to recruit Plaintiff
another attorney to represent him in this matter.
For the reasons stated and in accordance with 28 U.S.C. § 1915(e)(1) and Local Rule(s)
83.1(i) and 83.9(b), the Court ASSIGNS Attorney David W. Sullivan of the firm Cox, Zwerner,
Gambill & Sullivan, to represent Plaintiff in this Court only. Counsel shall enter his appearance

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on or before March 28, 2016. Counsel 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 Plaintiff, explaining that an associate may also be working on the
case. Plaintiff should wait for his attorney to contact him in order to allow counsel an opportunity
to review the court file. Counsel is ADVISED to consult Local Rules 83.8-83.14 regarding pro
bono case procedures.
Plaintiff is cautioned to consult with his counsel in this matter and to understand that it is
assigned counsel 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
with counsel.

Now that counsel has been assigned, Plaintiff 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 Plaintiff,
there is no guarantee the Court will appoint other counsel to represent Plaintiff.

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Plaintiff and his counsel are ADVISED that, 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 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. Assigned counsel may move for an exemption from 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 dealing with the client. Mr.
Chapman can be reached by phone at [phone] or email at [e-mail].
His services are available to you free of charge, as long as you are representing a prisoner pro bono
on a case in the district. You are also encouraged to view online lectures presented by Mr.

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Chapman at www.illinoislegaladvocate.org (under “Legal Resources” then “Prisoners’ Rights”).
In addition, the Court’s website, www.ilsd.uscourts.gov, includes a Prison Litigation handbook
which is available to you as a resource. It is listed under “Forms” as “Attorney Information Prisoner Litigation Handbook.” The Court encourages you to consult it and Mr. Chapman as
needed.
Counsel is informed that Plaintiff is currently incarcerated by the Bureau of Prisons at the
United States Penitentiary in Terre Haute, Indiana. Plaintiff’s current contact information is: P.O.
Box 33, Terre Haute, IN 47801. Information about the facility is available at www.bop.gov.
Counsel may use the Bureau of Prisons' videoconferencing system to confer with Plaintiff. The
Court asks the Assistant United States Attorney assigned to this case to facilitate those
arrangements.
IT IS FURTHER ORDERED that all pending Motions filed by Plaintiff pro se [with the
exception of Document 107] are DENIED WITHOUT PREJUDICE (Docs. 143, 147, and 148)
so that assigned counsel can evaluate how to proceed. Additionally, Defendants Motion to Stay
Discovery Pending Entry of Plaintiff’s Counsel (Doc. 141) is GRANTED. Discovery in this
matter is STAYED pending the entry of Plaintiff’s counsel and the Status Conference set for April
14, 2016. Counsel is FURTHER ORDERED to file a Motion to Amend the Complaint within
45 days of an entry of appearance.
This matter is SET for a telephonic status conference on April 14, 2016 at 2:00 p.m.
Defendants to initiate the conference call. The Court’s conference number is 618-482-9004.
Parties should be prepared to discuss the schedule in this matter.
IT IS SO ORDERED.

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DATED: March 15, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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