Merritte v. Rolla et al

Filing 16

IT IS HEREBY ORDERED that the First Amended Complaint is DISMISSED without prejudice for lack of compliance with the Court's dismissal order (Doc. 7). Plaintiff is GRANTED leave to file a Second Amended Complaint, with the assistance of counse l, according to the instructions and deadlines set forth herein. IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Counsel is GRANTED. The Court APPOINTS Attorney ANDREW M. LIEFER of The Law Office of Andrew M. Liefer. (Amended Pleadings due by 3/21/2016). Signed by Judge J. Phil Gilbert on 1/20/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CALVIN MERRITTE,
#R-53322,
Plaintiff,
vs.
BILLY ROLLA, et al.,
Defendants.

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Case No. 15-cv-00794-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is now before the Court for consideration of a Motion for Appointment of
Counsel (Doc. 10) and First Amended Complaint filed by Plaintiff Calvin Merritte (Doc. 11).
Plaintiff brought this civil rights action pursuant to 42 U.S.C. § 1983 and Illinois state law on
July 22, 2015. (Doc. 1). In his original complaint, Plaintiff claimed that he was denied access to
the courts during his incarceration at Lawrence Correctional Center (“Lawrence”), Pinckneyville
Correctional Center (“Pinckneyville”), and “other” prisons in the Illinois Department of
Corrections (“IDOC”) from 2013-15. Plaintiff named four known and numerous unknown
Pinckneyville officials,1 seven Lawrence officials,2 and four supervisory officials3 for violating
his rights under the First, Sixth, and Fourteenth Amendments.

1

These defendants include Thomas Spiller and his successors (head warden), Billy Rolla (law librarian),
Dana Prusacki (law librarian), C/O B. Johnson (correctional officer), and various unknown officials
(correctional officers, counselors, and grievance officers).
2
These defendants include Marc Hodge (warden), Steven Duncan (warden), Randy Stevenson (clinical
service supervisor), Counselor Ray (counselor), Kevin Horton (counselor), C/O Johnson (correctional
officer), and C/O Jenkins (correctional officer).
3
These defendants include S. A. Godinez, Donald Stolworthy, and Gladyse Taylor (former or current
IDOC directors), as well as Jackie Miller (administrative review board member).

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After screening the complaint, this Court concluded that it violated Rules 8, 10, 18, and
20 of the Federal Rules of Civil Procedure. On August 26, 2015, the Court entered an order
dismissing the complaint. (Doc. 7). However, the dismissal was without prejudice, and Plaintiff
was granted leave to file an amended complaint on or before September 30, 2015. (Id.).
He responded by filing a Motion for Appointment of Counsel on September 4, 2015.
(Doc. 10). In the motion, Plaintiff indicated that he was unable to retain an attorney on his own.
As proof of his efforts, he provided an unsigned form letter from a law firm that declined to take
his case. The letter was dated August 26, 2015. Plaintiff went on to state that he did not
understand this Court’s dismissal order and therefore could not remedy the problems noted
therein by preparing an amended pleading. Further, his lack of access to his legal boxes made it
difficult to prepare the amended complaint. (Id.).
Before the Court ruled on the motion, Plaintiff filed his amended complaint on
September 29, 2015. (Doc. 11). And, with it, he took his case in a whole new direction.
Plaintiff named none of the defendants who were named in the original complaint, and he
focused on entirely different claims. Instead of the court access claims against Lawrence and
Pinckneyville officials for conduct that occurred from 2013-15, Plaintiff’s new claims addressed
an assault of Plaintiff by his cellmate at Lawrence on August 17, 2014.
First Amended Complaint
The amended complaint shall be dismissed. The pleading does not comply with the
Court’s instructions for amending the complaint that are set forth in the dismissal order.
(Doc. 7). The Court granted Plaintiff leave to file an amended complaint addressing the claims
he raised in his original complaint. He was given a second chance to properly plead those

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claims. The Court did not grant him the freedom to scrap one lawsuit and file another for a
single fee.
Further, the amended complaint, if accepted, would render the original complaint void.
See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004).
An amended complaint supersedes and replaces earlier complaints.

Id.

In other words,

Plaintiff would lose the ability to pursue his court access claims in this action because he omitted
them from the amended complaint.4
Plaintiff expressed his clear desire to pursue the court access claims in the Motion for
Appointment of Counsel.

(Doc. 10).

complaint is therefore perplexing.

His abandonment of these claims in his amended

In light of these considerations, the Court deems it

appropriate to dismiss the amended complaint and give Plaintiff another opportunity to prepare
an amended complaint that focuses on his court access claims, and any other related claims
against the same defendants. He is free to pursue the unrelated claims set forth in his amended
complaint in a separate action.
Motion for Appointment of Counsel
Plaintiff’s Motion for Appointment of Counsel shall be granted.

There is no

constitutional or statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d
847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006).
Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for
an indigent litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–67 (7th Cir. 2013).
4

Plaintiff would then have to bring the court access claims in a separate action. However, because his
court access claims date back to 2013, they may be time-barred. The limitations period for a § 1983
claim in Illinois is two years. O’Gorman v. City of Chicago, 777 F.3d 885 (7th Cir. 2015) (citing Moore
v. Burge, 771 F.3d 444, 446 (7 Cir. 2014); Wallace v. Kato, 549 U.S. 384, 387 (2007)). In contrast, the
assault-related claims, which arose in 2014, would still be viable, assuming that Plaintiff files a separate
complaint to address those claims before the expiration of the two-year limitations period.

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When a pro se litigant submits a request for assistance of counsel, the Court must first consider
whether the indigent plaintiff has made reasonable attempts to secure counsel on his own.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647, 654
(7th Cir. 2007). If so, the Court must examine “whether the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to coherently present it.”
Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question . . . is whether the
plaintiff appears competent to litigate his own claims, given their degree of difficulty, and this
includes the tasks that normally attend litigation: evidence gathering, preparing and responding
to motions and other court filings, and trial.” Pruitt, 503 F.3d at 655. The Court also considers
such factors as the plaintiff’s “literacy, communication skills, education level, and litigation
experience.” Id.
Plaintiff’s attempt(s) to secure attorney representation have failed. Although Plaintiff has
considerable experience litigating pro se in the federal courts, the circumstances he faces in this
particular case are unique. His claims in the original complaint focus entirely on the denial of
court access. In his Motion for Appointment of Counsel, he insists that he is unable to prepare
an amended complaint addressing these claims because he lacks access to his legal boxes and
other materials necessary to do so. The Court deems it appropriate under the circumstances
presented to recruit counsel for the sole purpose of preparing and filing a Second Amended
Complaint on Plaintiff’s behalf.
Disposition
IT IS HEREBY ORDERED that the First Amended Complaint is DISMISSED without
prejudice for lack of compliance with the Court’s dismissal order (Doc. 7).

Plaintiff is

GRANTED leave to file a Second Amended Complaint, with the assistance of counsel,

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according to the instructions and deadlines set forth herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel is
GRANTED. The Court APPOINTS Attorney ANDREW M. LIEFER of The Law Office of
Andrew M. Liefer, Fairview Heights, IL, to represent Plaintiff Calvin Merritte in this case and in
this Court only. Counsel shall prepare and file a Second Amended Complaint on Plaintiff’s
behalf that is consistent with this order and the dismissal order entered in this matter on
August 26, 2015.5 (Doc. 7). The Second Amended Complaint SHALL BE FILED WITHIN
TWO MONTHS of the entry of this order (on or before March 21, 2016). Should Plaintiff’s
counsel fail to file a Second Amended Complaint within the allotted time or consistent with the
instructions set forth in the dismissal order (Doc. 7), the entire case shall be dismissed with
prejudice. FED. R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir.
1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915A.
The CLERK is DIRECTED to send a copy of the standard letter concerning
appointment of counsel to Attorney Liefer immediately.
On or before February 4, 2016, Attorney Liefer shall enter his/her appearance in this
case. Attorney Liefer is free to share responsibilities with an associate who is also admitted to
practice in this district court. However, assigned counsel 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.
The Clerk is DIRECTED to transmit this Order, copies of the docket sheet, the
complaint (Doc. 1), and the dismissal order (Doc. 7) to Attorney Liefer. The electronic case file
5

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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is available through the CM/ECF system.
Plaintiff is advised that the Court will not accept any filings from him 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, there is no guarantee that the Court will appoint other counsel to represent Plaintiff.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: January 20, 2016
s/J. Phil Gilbert
U.S. District Judge

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