Watford v. LaFond et al

Filing 19

ORDER DISMISSING CASE with prejudice, based on Plaintiff's failure to comply with this Court's Orders dated November 2, 2016 (Doc. 8), December 27, 2016 (Doc. 14), and January 4, 2017 (Doc. 16). This dismissal shall not count as one of Plaintiff's three allotted strikes within the meaning of 28 U.S.C. § 1915(g). Signed by Chief Judge Michael J. Reagan on 2/7/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARLON L. WATFORD,
#R-15678,
Plaintiff,
vs.
THOMAS LaFOND,
SARAH WOOLEY,
KIMBERLY BUTLER,
LYNETTE COLVIS,
OFFICER SEVERS,
SERGEANT BRADLEY,
OFFICER ROSE,
JOHN R. BALDWIN,
and UNKNOWN PARTIES,
Defendants.

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Case No. 16-cv-00941-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Proceeding pro se, Plaintiff Marlon Watford filed the instant civil rights action pursuant
to 42 U.S.C. § 1983 on August 24, 2016. (Doc. 1). In the Complaint, Plaintiff set forth
numerous unrelated federal and state law claims against officers at Menard Correctional Center
(“Menard”). (Doc. 1). On November 2, 2016, the Court dismissed the Complaint for violating
the Federal Rules of Civil Procedure. (Doc. 8). The dismissal was without prejudice, and
Plaintiff was granted leave to file a First Amended Complaint on or before November 30, 2016.
(Doc. 8, p. 6).
A day before the deadline, Plaintiff filed a Motion for Extension of Time to File First
Amended Complaint. (Doc. 11). He requested an additional 150 days to prepare the amended
complaint. Id. The Court granted Plaintiff an additional 30 days, after explaining that this

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matter would not be allowed to linger indefinitely. (Doc. 12). Under the extended deadline, the
First Amended Complaint was due on or before December 30, 2016. Id.
On December 23, 2016, Plaintiff filed a “Motion to Object, Motion to Spread the Record,
and Motion for Reconsideration.” (Doc. 13). The motion included requests for reconsideration
of the Order Dismissing Complaint (Doc. 8), the (non-existent) decision to deny Plaintiff
counsel, and the decision to grant Plaintiff a 30-day extension of the deadline for filing an
amended complaint (Doc. 12).

The Court found no reason to grant the motion for

reconsideration of its Order Dismissing Complaint (Doc. 8), and Plaintiff offered none. (Doc.
14). The Court also pointed out that Plaintiff did not actually request assistance in recruiting
counsel, and the Court therefore did not deny his request. Id. At the same time, the Clerk was
directed to provide Plaintiff with a form for use in making this request. Id. In addition, the
Court granted Plaintiff’s second request for an extension of the deadline to file his amended
complaint. Id. Under the second extended deadline, the First Amended Complaint was due on
or before January 30, 2017. Id.
On December 29, 2016, Plaintiff filed yet another Motion for Extension of Time to
Amend Complaint. (Doc. 15). He did not request the Court’s assistance in recruiting counsel on
his behalf. In fact, Plaintiff indicated that he intended to prepare his own amended complaint.
Plaintiff again requested an additional 150 days to do so. (Doc. 15, p. 4). Because it appeared
that Plaintiff filed this request before receiving the Court’s order granting his second motion for
extension, the Court denied it as moot. (Doc. 16). The deadline for filing the First Amended
Complaint remained January 30, 2017. Id.
Plaintiff missed the deadline for filing his First Amended Complaint on January 30, 2017.
He failed to request an extension of this deadline. More than a week has passed since the First

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Amended Complaint was due under the second extended deadline. The Court has already
allowed Plaintiff 3 months to file his First Amended Complaint and will not allow this matter to
continue lingering.
Accordingly, this action shall be dismissed with prejudice based on Plaintiff’s failure to
comply with three Orders of this Court (Docs. 8, 14, 16) and his failure to prosecute his claims.
See FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994). However, the dismissal will not count as one of
Plaintiff’s three allotted “strikes” within the meaning of 28 U.S.C. § 1915(g).
Pending Motions
1.

Motion for Recruitment of Counsel (Doc. 17)
Plaintiff filed a Motion for Recruitment of Counsel for the first time on January 27, 2017.

(Doc. 17). Although he was provided with this Court’s standard form motion pursuant to the
Order dated December 27, 2016 (Doc. 14), he chose to file a handwritten motion instead. (Doc.
17). Plaintiff cites the following reasons for his request: (1) his unsuccessful attempts to secure
counsel on his own; (2) his appointment of counsel in other cases; and (3) the complexity of his
constitutional claims in this case. Id.
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). But see Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–67 (7th Cir.
2013) (district court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an
indigent litigant). When a pro se litigant submits a request for assistance of counsel, the Court
considers whether the indigent plaintiff has made reasonable attempts to secure counsel on his
own and, if so, whether the factual and legal difficulty of the case exceeds the plaintiff’s capacity

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to coherently present it. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007)). The Court also considers such factors as the
plaintiff’s “literacy, communication skills, education level, and litigation experience.” Pruitt,
503 F.3d at 655.
As an initial matter, Plaintiff has not demonstrated sufficient efforts to secure
representation in this case.

Plaintiff asserts that he sent 30 letters to attorneys seeking

representation and received written responses from only 3 prior to commencing this action.
Plaintiff attached the 3 responses to his motion. None of them refer to this case. They are dated
March or May 2016, long before he filed this action in late August. (Doc. 17, pp. 9-11). At the
time, Plaintiff was proceeding pro se in at least one other matter and was also in the process of
preparing an amended complaint for filing in that case. See Watford v. Doe, et al., Case No. 15cv-09540 (N.D. Ill. 2015). He failed to provide the Court with copies of his 30 letters requesting
representation. Counsel was ultimately recruited on his behalf in the prior case during the same
time period. This was 9 months before he filed his motion for recruitment of counsel in this
case. Under the circumstances, the Court cannot determine whether Plaintiff attempted to retain
counsel in this case or another pending matter.
Moreover, the Court cannot assess Plaintiff’s ability to competently litigate this matter on
his own because Plaintiff omitted information from his handwritten motion that is relevant to the
Court’s analysis. Id. In his handwritten motion, Plaintiff offers no information regarding his
level of education, language difficulties, medical issues, and mental health issues. In addition,
the Court cannot assess the complexity of the case because Plaintiff’s original Complaint does
not focus on a single set of related claims. It refers to numerous, unrelated claims against
different defendants. The Court cannot determine which of these claims Plaintiff intends to

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pursue going forward and whether he possesses the skills necessary to represent himself.
Without this information, the Court cannot fully analyze the difficulty of Plaintiff’s case or his
ability to proceed pro se. Under the circumstances, the Motion for Recruitment of Counsel (Doc.
17) shall be DENIED.
2.

Motion for Substitution of Judge (Doc. 18)
Plaintiff filed a Motion for Substitution of Judge. (Doc. 18). There, he claims that the

undersigned Judge is biased against him. Id. Rather than holding him to the less stringent
pleading standards that are generally applicable to pro se prisoner litigants, Plaintiff contends
that the Court held him to a higher standard than attorneys by failing to grant his numerous
requests for a 150-day extension of the deadline for filing his amended complaint. Id. He also
claims that the Court discriminated against him based on the size of his handwriting, which he
maintains is 7 times larger than the average person’s. Id. According to Plaintiff, the Complaint
should not have been dismissed under Rule 8 based on its length. Id. Plaintiff further alleges
that he may name the undersigned judge as a defendant in this action, if necessary to compel his
disqualification. Id. He has not done so to date. Id.
Plaintiff invokes 28 U.S.C. § 144 and 28 U.S.C. § 455(b)(1) in support of his request for
substitution of judges. Section 144 requires a party to present “a timely and sufficient affidavit
that the judge before whom the matter is pending has a personal bias or prejudice against him or
in favor of any adverse party.” 28 U.S.C. § 144. Section 455(a) requires a federal judge to
disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.”
Matter of Hatcher, 150 F.3d 631, 637 (7th Cir. 1998).

Section 455(b)(1) provides that

disqualification is also warranted where the judge has a personal bias concerning a party. 28
U.S.C. § 455(b)(1). The applicable standard is “whether the judge’s impartiality could be

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questioned by a reasonable, well-informed observer.” Id. This standard is an objective one.
Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996).
The thrust of Plaintiff’s argument is that the Court based its decision to dismiss his
original Complaint on its length. Review of the Order Dismissing Complaint (Doc. 8) directly
contradicts this assertion. There, the Court noted that the Complaint was long, but the length of
the Complaint was not fatal: “The length of Plaintiff’s complaint is a problem; its lack of
organization and unintelligibility are fatal.” (See Doc. 8, p. 3) (emphasis added). The
unintelligibility of Plaintiff’s Complaint, not its length, drove the Court’s decision to dismiss it.
Plaintiff’s claim of discrimination based on the size of his handwriting is unfounded.
Plaintiff’s argument that the Court demonstrated bias against him by refusing to grant his
request for a 150-day extension of the deadline for amending his Complaint is equally
unpersuasive. The Court made it clear that a 150-day extension was too long the first time
Plaintiff requested the extension. The Court explained that it would not allow this matter to
linger indefinitely. Nevertheless, Plaintiff was granted two extensions (30 days each) to file his
First Amended Complaint. He did not renew his request for an extension beyond January 30,
2017. Even so, Plaintiff had almost 3 months to prepare and file his amended complaint.
In essence, Plaintiff appears to object to the Court’s decision to dismiss his Complaint.
See Gleason v. Welborn, 42 F.3d 1107, 1112 (7th Cir. 1994) (adverse decision provides
inadequate evidence of bias where the decision is supported by facts and law). Upon review, the
Court finds that its decision was supported by the facts and applicable law. Standing alone, an
adverse decision does not amount to bias that warrants disqualification of the judge. Plaintiff
offers no other grounds warranting disqualification at this time. Accordingly, the Motion for
Substitution of Judge (Doc. 18) shall be DENIED.

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Disposition
IT IS HEREBY ORDERED that this action is DISMISSED with prejudice, based on
Plaintiff’s failure to comply with this Court’s Orders dated November 2, 2016 (Doc. 8),
December 27, 2016 (Doc. 14), and January 4, 2017 (Doc. 16). See FED. R. CIV. P. 41(b); Ladien
v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994).
This dismissal shall not count as one of Plaintiff’s three allotted “strikes” within the meaning of
28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that all pending motions, including the Motion for
Recruitment of Counsel (Doc. 17) and Motion for Substitution of Judge (Doc. 18), are DENIED.
IT IS ALSO ORDERED that Plaintiff’s obligation to pay the filing fee for this action
was incurred at the time the action was filed, regardless of subsequent developments in the case.
Accordingly, the filing fee of $350.00 remains due and payable. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court
within thirty days of the entry of judgment. FED. R. APP. 4(A)(4). If Plaintiff does choose to
appeal, he will be liable for the $505.00 appellate filing fee irrespective of the outcome of the
appeal. See FED. R. APP. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 72526 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at
467. Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another
“strike.” A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e)
may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed
no more than twenty-eight (28) days after the entry of judgment, and this 28-day deadline cannot
be extended.

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The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: February 7, 2017
s/ MICHAEL J. REAGAN
Chief Judge
United States District Judge

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