Serio v. Westerman et al

Filing 33

ORDER denying 16 Motion for Reconsideration; denying 20 Motion to Amend/Correct; denying 23 Motion for Hearing; granting 24 Motion to Compel; granting 25 Motion for Extension of Time to File. Plaintiff shall respond to Defendants discovery requests by October 5, 2017. Signed by Magistrate Judge Reona J. Daly on 9/6/2017. (dam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAYMOND SERIO,
Plaintiff,
v.
PAM WESTERMAN, et al.,
Defendants.

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Case No. 3:16 CV 763 SMY/RJD

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
Before the Court are several pending motions from the parties. (Docs. 16, 20, 23, 24,
25.) Plaintiff is an inmate with the Illinois Department of Corrections. On July 8, 2016, Plaintiff
filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional
rights. (Doc. 1.) On September 1, 2017, the Court screened Plaintiff’s first amended complaint.
(Doc. 31.) Plaintiff now proceeds with the following claims:
Count 1: Defendant Doe violated Plaintiff’s First Amendment rights by
retaliating against Plaintiff for filing grievances by denying Plaintiff access to his
personal property.
Count 2: Defendant Westerman violated Plaintiff’s rights under the First
Amendment and Eighth Amendment by retaliating against Plaintiff for filing
grievances by threatening him and arranging an assault on Plaintiff.
Count 3: Defendant Mullholland violated Plaintiff’s rights under the First
Amendment and Eighth Amendment by retaliating against Plaintiff for filing
grievances by assaulting him and confiscating or destroying his personal property.
Count 4: Defendant Butler violated Plaintiff’s rights under the First Amendment
by turning a blind eye to the misconduct of Defendants Doe.
Count 6: State law claim for replevin under 735 ILCS § 5/19-101, et seq., against
Defendants Doe and Butler for the return of confiscated property.
Count 7: State law claim for battery against Defendant Mullholland in connection
with his alleged assault of Plaintiff.

Count 8: State law claim of intentional infliction of emotional distress against
Defendants Doe, Westerman, Butler, and Mullholland.
(Doc. 31.)
On December 14, 2016, the Court entered a scheduling order. (Doc. 19.) On December
19, 2016, Plaintiff moved to stay proceedings pending an order on his motion for leave to amend
and his motion to reconsider the ruling on the motion for appointment of counsel. (Doc. 20.) As
of the entry of this Order, Plaintiff’s motion for leave to amend and motion to reconsider are
resolved. Accordingly, Plaintiff’s motion to stay proceedings is denied. In the same motion,
Plaintiff also requests that the Court not dismiss his case based on his failure to pay the partial
filing fee due to his inability to pay. On July 21, 2016, the Court assessed an initial partial filing
fee of $1.67 and directed the agency having custody of Plaintiff to forward the fee to the Clerk of
Court. (Doc. 5.) The Court subsequently issued an order, stating, “The initial partial filing fee
assessed to Plaintiff must be forwarded to the Clerk of Court by February 14, 2017.” (Doc. 19.)
Because Plaintiff has demonstrated that he currently lacks the funds to pay the fee, the Court
clarifies that it has no intention of dismissing Plaintiff’s case for failure to pay the fee at this
time. See Sultan v. Fenoglio, 775 F.3d 888, 890 (7th Cir. 2015).
On April 14, 2017, Defendant Mullholland moved for an extension of time to file
dispositive motions on the issue of exhaustion of administrative remedies. (Doc. 25.) Defendant
states that Plaintiff has refused to respond to related discovery requests, citing the pendency of
his motions, and Defendant also moves to compel Plaintiff’s discovery responses. (Doc. 24.)
Defendant’s motions are granted. Plaintiff shall respond to Defendant’s discovery requests by
October 5, 2017. An amended scheduling order will issue separately.

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Recruitment of Counsel
Plaintiff moves for the Court to reconsider the decision denying Plaintiff’s motion for
recruitment of counsel. 1 (Doc. 16.) Plaintiff reiterates that he cannot litigate this case because
he has difficulties with reading comprehension; he has no understanding of the law; he has
received assistance from another prisoner with all of his filings in this case; and that his mental
health also inhibits his ability to litigate.
On July 13, 2016, Plaintiff moved for recruitment of counsel. (Doc. 4.) On November
22, 2016, the Court denied the motion for recruitment of counsel, reasoning that it was too early
to determine Plaintiff’s ability to litigate the case. (Doc. 15.) The Court advised Plaintiff to
refile the motion after Defendant Mullholland filed an answer. (Id.) Instead, on November 29,
2016, Plaintiff filed the instant motion to reconsider. (Doc. 16.) This case is currently in the
exhaustion stage in which the Court will determine whether Plaintiff properly completed the
grievance process with respect to his claims or was prevented from doing so.
When presented with a motion for recruitment of counsel, the Court must consider the
movant’s ability to litigate the case. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). Upon
review of Plaintiff’s litigation history, it appears that Plaintiff frequently uses “by and through”
language in the introductory section of his court filings to identify the author of the document.
For instance, with respect to the instant motion, Plaintiff states, “Now comes Plaintiff Raymond
Serio, by and through himself, with extensive help from another prisoner . . . ” (Doc. 16.)
Additionally, in another motion to reconsider, Plaintiff states, “Now comes Plaintiff Raymond
Serio, by and through himself with the help of Jay Jay another prisoner . . .” Serio v. Quinn, 15cv-3177-SLD, Doc. 10., (C.D. Ill. 2015). By contrast, Plaintiff has also recently filed substantive
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Plaintiff titles the motion as an “Objection to Magistrate’s Decision and Motion to Reconsider.” The undersigned
construes the motion as a motion for the undersigned to reconsider the prior ruling rather than an objection to a
report and recommendation or an appeal of magistrate judge directed to the presiding district judge.

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motions simply “by and through himself,” including a motion to intervene and a motion to
reconsider a denial of injunctive relief, indicating that he personally drafted the motions. Lippert
v. Ghosh, 1:10-cv-4603, Doc. 386 (N.D. Ill. 2015); Serio v. Butler, 3:15-cv-01203-MJR, Doc. 11
(S.D. Ill. 2015). Plaintiff has also filed correspondence and grievances, apparently drafted by
Plaintiff, as exhibits to motions. Serio v. Butler, 3:15-cv-01203-MJR, Doc. 11 at 4-20 (S.D. Ill.
2015). Taken together, Plaintiff’s court filings severely undermine the allegations regarding his
ability to read and understand the law.
Even assuming that Plaintiff had assistance with drafting each of the aforementioned
documents, Plaintiff’s filings suggest that Plaintiff understates his ability to read and understand
the law. For instance, in his complaint, Plaintiff alleges that he quoted rules, cited policy, and
asserted privilege – all within a single conversation with a property officer – and alleges that he
sent numerous grievances and letters to Warden Butler. (Doc. 1.) Additionally, Plaintiff has
filed a motion for injunctive relief to preserve evidence for future litigation and a motion to
intervene in another inmate’s case to obtain documents for his own case. Lippert v. Ghosh, 1:10cv-4603, Doc. 386 (N.D. Ill. 2015); Serio v. Butler, 3:15-cv-01203-MJR, Doc. 1 (S.D. Ill. 2015).
Even if Plaintiff received assistance with drafting such motions, Plaintiff’s recognition of these
evidentiary issues and monitoring of another inmate’s case indicates that Plaintiff is able to read
and understand the law.
Plaintiff also requests the recruitment of counsel due to anticipated difficulties with
gathering evidence, discovery disputes, and access to the law library.

If Plaintiff cannot

informally resolve a discovery dispute or requires additional time for legal research, Plaintiff is
encouraged to file a motion with the Court.

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In sum, the Court finds that Plaintiff is capable of litigating the case at this time.
Accordingly, Plaintiff’s motion to reconsider the ruling on the motion for recruitment of counsel
is denied.
CONCLUSION
It is hereby ORDERED that Plaintiff’s Motion to Reconsider the Order on the Motion for
Recruitment of Counsel (Doc. 16) is DENIED. Plaintiff may refile a motion for recruitment of
counsel following the resolution of the exhaustion issue. Plaintiff’s Motion for a Hearing or a
Ruling on the Motion to Reconsider (Doc. 23) is DENIED. It is further ORDERED that
Plaintiff’s Motion to Stay (Doc. 20) is DENIED.
It is further ORDERED that Defendant’s Motion for an Extension of Time (Doc. 24) and
Motion to Compel (Doc. 25) are GRANTED. Plaintiff shall respond to Defendant’s discovery
requests by October 5, 2017. An amended scheduling order will issue separately.

SO ORDERED.
DATED: September 6, 2017

s/
Reona J. Daly
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UNITED STATES MAGISTRATE JUDGE

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