Hutcherson v. Talbot et al

Filing 42

ORDER denying 3 Motion to Appoint Counsel; denying 35 Motion for Subpoenas; denying 24 Motion for Subpoenas. Signed by Magistrate Judge Reona J. Daly on 8/1/2017. (dam)

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

LONNIE HUTCHERSON,
Plaintiff,
vs.
DR. TALBOT, et al.,
Defendants.

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Case No. 3:17 CV 253 SMY/RJD

ORDER
DALY, Magistrate Judge:
This matter comes before the Court on Plaintiff’s Motion for Recruitment of Counsel and
Motions to Subpoena Witnesses. (Docs. 3, 24, 35.) On March 3, 2017, Plaintiff commenced an
action pursuant to 42 U.S.C. § 1983, alleging constitutional violations. (Doc. 1.) On March 15,
2017, the Court screened the complaint pursuant to 28 U.S.C. § 1915A, and Plaintiff now
proceeds against Defendants Shah, Lochard, and Butalid on an Eighth Amendment claim of
deliberate indifference toward Plaintiff’s serious medical needs in relation to an umbilical hernia
and pain. (Doc. 5.)
Motions to Subpoena Witnesses
Plaintiff moved for injunctive relief for medical treatment in relation to his umbilical
hernia. (Doc. 6.) The Court set a hearing on the motion, and Plaintiff moved to subpoena
witnesses. On July 6, 2017, the Court heard the testimony of Plaintiff and Defendant Shah.
(Doc. 33.) Plaintiff moved to subpoena witnesses in support of his motion for preliminary
injunction. (Doc. 24.) The Court requested additional information on the proposed witnesses
and instructed that, if the Court determined that the proposed witnesses were appropriate, the

Court would set another evidentiary hearing to hear the proposed witnesses’ testimony. (Doc.
34.)

On July 21, 2017, Plaintiff submitted additional information regarding his proposed

witnesses. (Doc. 35.)
Plaintiff has identified four proposed witnesses: Counselor M. Neese, Pamela
Hutcherson, Phil Martin, and Lisa Prather. Generally, parties may subpoena persons to attend
and testify in court. Fed. R. Civ. P. 45. For pro se litigants, the Court provides subpoena forms
upon request and requires the pro se litigants to submit them for Court approval. Alexander v.
Richter, 2017 WL 1093289, at *1 (W.D. Wis. 2017). If the Court approves of the subpoena, the
Court will serve the subpoena on behalf of the pro se litigant. Jackson v. Brinker, 1992 WL
404537, at *2 (S.D. Ind. 1992). A pro se litigant seeking to subpoena a person for the purpose of
providing testimony also raises the issue of witness fees and expenses. Guy v. Maio, 227 F.R.D.
498, 501 (E.D. Wis. 2005). The Court may order the United States Marshal Service to cover the
witness fees and expenses. Coleman v. St. Vincent De Paul Soc., 144 F.R.D. 92, 95-96 (E.D.
Wis. 1992). However, the Court will do so only after a showing of materiality and necessity of
each witness. Id. Stated otherwise, a pro se litigant must explain how each witness is related to
the case, what testimony the witness will provide, and why such testimony is necessary for
purposes of the motion for injunctive relief.
Plaintiff has summarized the content of the proposed witnesses’ testimony and generally
explains that they are necessary to show that Defendants knew Plaintiff was in excruciating pain
or were otherwise aware of his medical condition. 1

However, Defendants do not contest

knowledge of Plaintiff’s medical condition but instead challenge the characterization of the

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Plaintiff references the defendant warden’s answer in which he states, “Defendant lacks knowledge or information
sufficient to form a belief about the truth of the allegations in this paragraph.” (Doc. 18.) Considering that the
defendant warden was added as a party in his official capacity for the purpose of carrying out orders for injunctive
relief, the defendant warden’s personal knowledge of Plaintiff’s medical condition is not relevant. (Doc. 5 at 7.)

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medical treatment provided to Plaintiff as deliberate indifference. (Doc. 32 at 2.) Additionally,
the proposed witnesses’ testimony substantially overlaps with the record presently before the
Court, including the complaint, medical records, and the testimony of Plaintiff and Dr. Shah.
Further, Plaintiff does not represent that the proposed witnesses personally treated him, nor does
he represent that they possess the requisite medical expertise and familiarity with his medical
condition to offer an opinion on Plaintiff’s medical condition. In sum, the Court concludes that
the proposed witnesses are neither necessary nor material to resolving Plaintiff’s motion for
injunctive relief. Accordingly, Plaintiff’s Motion for Subpoenas is denied. Because there is no
need for an additional evidentiary hearing, the Motion for Injunctive Relief is now ripe for the
Court’s review and will be decided on the record as it currently stands.
Motion for Recruitment of Counsel
Plaintiff also moves for recruitment of counsel. When presented with a motion for
recruitment of counsel, the Court must make the following inquiries: (1) has the movant
reasonably attempted to obtain counsel or effectively been precluded from doing so; and (2)
given the difficulty of the case, does the movant appear competent to litigate it without assistance
of counsel? Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). It appears that Plaintiff is
capable of litigating this case at this time. Defendants have asserted the affirmative defense of
failure to exhaust administrative remedies, meaning that Defendants are simply arguing that
Plaintiff did not properly complete the prison grievance process before filing suit. Plaintiff’s
Motion for Injunctive Relief is also pending, but the Court has observed Plaintiff’s competence
in pursuing this motion. Moreover, Plaintiff has not shown a reasonable attempt to obtain
counsel. Plaintiff should seek representation from at least three attorneys or law firms. Plaintiff
may file another motion for recruitment of counsel following resolution of the exhaustion issue,

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but Plaintiff must identify the attorneys or law firms he contacted and attach rejection letters, if
possible.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that Plaintiff’s Motions to Subpoena
(Docs. 24, 35) are DENIED. Plaintiff’s Motion for Injunctive Relief (Doc. 6) will be decided on
the record as it currently stands.
It is further ORDERED that Plaintiff’s Motion for Recruitment of Counsel (Doc. 3) is
DENIED. Plaintiff may file another motion for recruitment of counsel following resolution of
the exhaustion issue, but Plaintiff must identify the attorneys or law firms he contacted and
attach rejection letters, if possible.

SO ORDERED.
DATED: August 1, 2017.

s/
Reona J. Daly
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UNITED STATES MAGISTRATE JUDGE

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