Houck v. USA et al

Filing 54

MEMORANDUM AND ORDER, The Court ADOPTS in part and REJECT in part the Report (Doc. 44 ), GRANTS Houck's motion for recruitment of counsel (Doc. 43 ), REFERS the recruitment of counsel to Magistrate Judge Wilkerson, REFERS the motion to dismis s filed by defendants Weber, Lang, Deloia, Meade, Cook and Castellano (Doc. 38 ) to Magistrate Judge Wilkerson pursuant to Local Rule 72.1(a)(2) for further briefing and a new Report and Recommendation, STAYS all other aspects of this case pending resolution of the motion to dismiss (Doc. 38), and DENIES the motion to dismiss for lack of prosecution (Doc. 41 ) for the reasons stated in the Report. Signed by Judge J. Phil Gilbert on 5/8/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH HOUCK,
Plaintiff,
v.

Case No. 16-cv-1396-JPG-DGW

UNITED STATES OF AMERICA, MAUREEN
BAIRD, SLOOP, FEDERAL BUREAU OF
PRISONS, A. MARQUEZ, J.M. POWERS, C/O
JOHN DOE 1, C/O JOHN DOE 2, C/O LANG, C/O
WOOLRIDGE, DR. COOK, J. WEBER, LT.
BROOKS, LT. JOHN DOE 1, LT. JOHN DOE 2, LT.
MASH, LT. McMILLON, LT. DELOIA, MR.
MEADE, MS. CASTELLANO, MS. G. CREWS and
SIS LT. JOHN DOE,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 44)
of Magistrate Judge Donald G. Wilkerson recommending that the Court grant the motion to dismiss
for lack of subject matter jurisdiction filed by defendants Weber, Lang, Deloia, Meade, Cook and
Castellano (Doc. 38) and deny as moot the motion to dismiss for lack of prosecution filed by the same
defendants (Doc. 41). Plaintiff Kenneth Houck objects to the Report to the extent it recommends
dismissal for lack of subject matter jurisdiction (Docs. 52 & 53).
Houck was convicted of a federal sex offense and has spent some of his period of
incarceration at the United States Penitentiary at Marion, Illinois (“USP-Marion”). He filed this
lawsuit complaining of the treatment he received at USP-Marion because of his status as a sex
offender. The two remaining claims in this case are brought under the implied cause of action theory
recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Count 1 alleges a violation of the equal protection component of the Fifth Amendment Due
Process Clause because Houck is homosexual and was treated differently than similarly situated

non-homosexual sex offenders because of his homosexuality, particularly with respect to the
restrictions in his “Correctional Management Plan” (“CMP”) although in other respects as well.
Count 4 alleges a violation of the First Amendment right to free speech and free association based on
aspects of his CMP that result in restrictions on his correspondence with pen pals, his receipt of
certain photographs, and his book requests.
Magistrate Judge Wilkerson found in the Report that, under the analysis required by Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017), there is no private cause of action for either of Houck’s remaining
claims and that they should therefore be dismissed.
In his objections, Houck complains, among other things, that he was not assisted by counsel
on the complicated legal questions presented by the defendants’ motion based on Ziglar. He has also
filed a motion for appointment of counsel recounting several health-related reasons why he is not
capable of litigating this case at this time (Doc. 43).
While the Court has earlier denied Houck’s request for recruitment of counsel (Doc. 37), it
finds it advisable to recruit counsel now for a limited purpose. Whether to assign an attorney to
represent an indigent civil litigant is within the sound discretion of the district court. Pruitt v. Mote,
503 F.3d 647, 654 (7th Cir. 2007); Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.
1992). There is absolutely no right to appointment of counsel in a civil case. Pruitt, 503 F.3d at
656-57. Pursuant to 28 U.S.C. § 1915(e)(1), the Court may request the assistance of counsel in an
appropriate civil case where a litigant is proceeding in forma pauperis. Mallard v. United States
District Court, 490 U.S. 296 (1989); Pruitt, 503 F.3d at 649. Local Rule 83.1(i) obligates members
of the bar of this Court to accept assignments, provided an assignment is not made more than once
during a twelve-month period.

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Magistrate Judge Wilkerson’s Report does not suffer from any obvious flaws, and if accepted
it would have the serious consequence of foreclosing an entire avenue of relief to Houck and others
who might have the same types of complaints. The analysis required by Ziglar is complex, Houck is
untrained in the law, and the Court would benefit from learned adversarial briefing before reaching a
conclusion that might have such serious consequences. Therefore, the Court will grant Houck’s
motion for recruitment of counsel (Doc. 43) and will assign a member of the Court’s Pro Bono Panel
to represent Houck solely for the purposes of responding to the defendants’ motion based on Ziglar.
All other aspects of this case will be stayed pending resolution of that motion to dismiss.
For the foregoing reasons, the Court hereby:


ADOPTS in part and REJECT in part the Report (Doc. 44);



GRANTS Houck’s motion for recruitment of counsel (Doc. 43);



REFERS the recruitment of counsel to Magistrate Judge Wilkerson;



REFERS the motion to dismiss filed by defendants Weber, Lang, Deloia, Meade, Cook and
Castellano (Doc. 38) to Magistrate Judge Wilkerson pursuant to Local Rule 72.1(a)(2) for
further briefing and a new Report and Recommendation;



STAYS all other aspects of this case pending resolution of the motion to dismiss (Doc. 38);
and



DENIES the motion to dismiss for lack of prosecution (Doc. 41) for the reasons stated in the
Report.

IT IS SO ORDERED.
DATED: May 8, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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