Wallace v. Baldwin et al

Filing 364

ORDER re 352 MOTION to Withdraw as Attorney / MOTION TO WITHDRAW AS COUNSEL, AND/OR FOR THE APPOINTMENT OF A GUARDIAN AD LITEM filed by Maurice L. Wallace: As provided in the attached Order, Dr. David Rakofsky, clinical psychologist, is appointed to examine Plaintiff Maurice Wallace. The Court DIRECTS the Clerk to transmit a copy of this Order to the Warden of Lawrence Correctional Center and to the Litigation Coordinator for Lawrence Correctional Center. The Court further DIRECTS the Clerk to transmit a copy of this Order to Dr. Rakofsky. Signed by Judge David W. Dugan on 3/28/2024. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAURICE L. WALLACE,
Plaintiff,
vs.
ROBERT JEFFREYS,
DOUG SIMMONS,
JOHN EILERS,
FRANK LAWRENCE,
KIM BUTLER,
JACQUELINE LASHBROOK,
JOSHUA SCHOENBECK,
JASON HART,
SANDY WALKER,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 17-cv-576-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
This matter is before the Court on the Motion to Withdraw as Attorney and/or for
the Appointment of a Guardian ad Litem (“Motion”) (Doc. 352) filed by Plaintiff Maurice
Wallace’s appointed counsel. As stated in the Motion, Mr. Wallace has indicated that he
wishes to terminate his relationship with counsel. Counsel filed the Motion pursuant to
Mr. Wallace’s express instruction. Additionally, counsel has expressed concerns
regarding Mr. Wallace’s competency. Given these concerns, counsel has asked the Court
to conduct an inquiry into Mr. Wallace’s competence for the purpose of appointing a
guardian ad litem. The Court held an ex parte hearing on the matter on December 5, 2023.
During the hearing, the Court heard from Mr. Wallace and from counsel, and took the
matter under advisement.

Federal Rule of Civil Procedure 17(c) provides for the appointment of a guardian
ad litem to “protect an incompetent person.” Fed. R. Civ. P. 17(c). The record before the
Court raises substantial questions regarding Mr. Wallace’s competence, but there is not
enough information for the Court to make a final determination. Therefore, the Court will
order a psychological evaluation to determine whether Mr. Wallace is competent.
Mr. Wallace is domiciled in Illinois. Therefore, his competency shall be determined
by applying Illinois’ substantive law on competency. Yoder v. Patla, 234 F.3d 1275 (7th Cir.
2000). Under Illinois law, a court may appoint a guardian for an individual where “it has
been demonstrated by clear and convincing evidence that because of [his] disability [he]
lacks sufficient understanding or capacity to communicate responsible decisions
concerning the care of [his] person.” In re Estate of Kusmanoff, 2017 IL App (5th) 160129, ¶
85 (citing 755 ILCS § 5/11a-3). “The test,” under the laws of Illinois, “is whether the
individual is capable of managing his person or estate.” In re Estate of McPeak, 53 Ill.
App.3d 133, 135 (1977).
Thus, as to these proceedings, the Court views the relevant inquiry to be whether
there is sufficient evidence to determine that Mr. Wallace is mentally impaired to the
extent that he lacks sufficient understanding of the nature and effect of this litigation
and/or lacks the capacity to communicate responsible decisions regarding this litigation.
Put another way, the Court must determine whether Mr. Wallace possess the mental
and/or emotional acuity to make rational and intelligent choices about the direction of
this lawsuit.
The Court therefore ORDERS as follows:

1. Dr. David Rakofsky1 is appointed to perform a psychological evaluation of
Plaintiff Maurice Wallace. The cost of this evaluation shall be paid from the
District Court Fund. See Plan for Administration of the District Court Fund
§ 2.15.
2. Within 60 days, Plaintiff Maurice Wallace shall be evaluated by Dr.
Rakofsky for the purpose of having a psychological evaluation conducted.
3. Within 21 days of examining Mr. Wallace, Dr. Rakofsky shall prepare a
report and shall provide the report to this Court by submitting it via
electronic mail to [e-mail].
4. The Warden of Lawrence Correctional Center is ORDERED to take all
appropriate steps to ensure that Dr. Rakofsky is permitted to arrange an inperson evaluation with Mr. Wallace at Lawrence Correctional Center as
provided in this Order. To that end, the Warden of Lawrence Correctional
Center is ORDERED to provide the Court with contact information for the
individual at Lawrence Correctional Center who will be responsible for
coordinating with Dr. Rakofsky to arrange for the examination. The
Warden shall provide this information by submitting it via electronic mail
to [e-mail] on or before April 3, 2024.

The Court DIRECTS the Clerk to transmit a copy of this Order to the Warden of
Lawrence Correctional Center and to the Litigation Coordinator for Lawrence
Correctional Center. The Court further DIRECTS the Clerk to transmit a copy of this
Order to Dr. Rakofsky.
IT IS SO ORDERED.
Dated: March 28, 2024

1

s/David W. Dugan
DAVID W. DUGAN
United States District Judge

Dr. Rakofsky is a licensed clinical psychologist and is the President of and supervising psychologist at Wellington
Counseling Group in Northbrook, Illinois.