Curry v. Butler et al
Filing
57
ORDER: GRANTING 8 MOTION to Supplement filed by Steven Curry; DENYING 3 , 33 , 43 MOTIONS for Recruitment of Counsel filed by Steven Curry; DENYING 45 MOTION for Issuance of Subpoenas filed by Steven Curry, DENYING 54 Motion for Court-Appointed Expert Witnesses. Signed by Magistrate Judge Reona J. Daly on 1/25/2018. (ely)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN CURRY,
Plaintiff,
v.
KIMBERLY BUTLER et. al,
Defendants.
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Case No. 17-751-DRH-RJD
ORDER
DALY, Magistrate Judge:
Now pending before the Court are multiple Motions filed by Plaintiff.
1.
Motions for Recruitment of Counsel (Docs. 3, 33, 43) and Motion to Supplement
Document 3 (Doc. 8). Plaintiff’s Motion to Supplement Doc. 3 to demonstrate Plaintiff has
attempted to recruit counsel is GRANTED. For the reasons set forth below, Plaintiff’s Motions
for Recruitment of Counsel are DENIED.
Plaintiff has no constitutional nor statutory right to a Court-appointed attorney in this
matter. See Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007). However, 28 U.S.C. § 1915(e)(1)
provides that the Court “may request an attorney to represent any person unable to afford counsel.”
Prior to making such a request, the Court must first determine whether Plaintiff has made
reasonable efforts to secure counsel without Court intervention (or whether has he been effectively
prevented from doing so). Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992).
If he has, then the Court next considers whether, “given the difficulty of the case, [does] the
plaintiff appear to be competent to try it himself . . . .” Farmer v. Haas, 990 F.2d 319, 321-322 (7th
Cir. 1993); Pruitt, 503 F.3d at 655 (“the question is whether the difficulty of the case – factually
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and legally – exceeds the particular plaintiff’s capacity as a layperson to coherently present it to the
judge or jury himself.”). In order to make such a determination, the Court may consider, among
other things, the complexity of the issues presented and the Plaintiff’s education, skill, and
experience as revealed by the record. Pruitt, 503 F.3d at 655-656. Ultimately, the Court must
“take account of all [relevant] evidence in the record” and determine whether Plaintiff has the
capacity to litigate this matter without the assistance of counsel. Navejar v. Iyiola, 718 F.3d 692,
696 (7th Cir. 2013).
Plaintiff has met his burden in attempting to recruit counsel on his own. However, the
Court finds that Plaintiff appears competent to litigate this matter on his own. A review of
Plaintiff’s filings in this matter demonstrates Plaintiff’s ability to read, write, and understand the
English language. Moreover, Plaintiff was able to cogently set forth his claims in his complaint
and has demonstrated his ability to follow the directions of the Court. Finally, the Court finds that
recruitment of counsel at this time is premature as no schedule has been entered, and the question
of exhaustion of administrative remedies is still outstanding. For these reasons, Plaintiff’s
Motions for Recruitment of Counsel (Docs. 3, 33, 43) are DENIED.
2.
Motion for Issuance of Subpoenas (Doc. 45).
Plaintiff requests the issuance of
subpoenas to Menard Correctional Center and the Illinois Department of Corrections. Plaintiff’s
proposed subpoenas fail to identify the material being requested. It is also not apparent that
Plaintiff followed the service requirements set forth in Rule 45(a). Rule 45(a)(3) requires that the
requesting party complete the subpoena forms and make arrangements (and pay) for someone to
serve the subpoenas on the individuals from whom he seeks to obtain documents. The party who
seeks the subpoena is responsible for paying the associated costs even if the court has found that
the party is indigent.
See Armstead v. MacMillian, 58 F.App'x 210, 213 (7th Cir. 2003)
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(unpublished) ("District courts do not have statutory authority to waive witness fees for indigent
civil litigants..."). Plaintiff would be better off seeking records and documents in the custody of
Menard and IDOC through party discovery. In light of the procedural defects of the subpoena,
Plaintiffs Motion for Issuance of Subpoenas (Doc. 45) is DENIED.
3.
Motion for Court-Appointed Expert Witnesses (Doc. 54). Plaintiff seeks an Order
appointing an expert, at Plaintiff’s expense, to discuss his medical condition and the living
conditions in the segregation unit. The appointment of a medical expert pursuant to Federal Rule
of Evidence 706 may be necessary to “help sort through conflicting evidence . . . , but [the court]
need not appoint an expert for a party’s own benefit or to explain symptoms that can be
understood by a layperson.” Turn v. Cox, Fed.Appx. 463, 468 (7th Cir. 2014), citing Ledford v.
Sullivan, 105 F.3d 354 (7th Cir. 1997). In Ledford, the Seventh Circuit noted that “[t]he test for
deliberate indifference is not as involved as that for medical malpractice” and requires a subjective
determination of whether an official “knows of and disregards a substantial risk of an inmate’s
health or safety.” Id. at 359. If an expert could assist a jury in understanding evidence or
deciding facts at issue, an expert may be used; however, expert testimony is not required to explain
understandable symptoms.
Plaintiff states that an expert is required to explain how the living conditions of the
segregation unit have exacerbated his medical condition and caused him pain and suffering.
Plaintiff specifically requests an expert to testify regarding how the lack of ventilation, exposure to
mold, mildew, rust, and bacteria, lack of hot water, and exposure to unsanitary conditions, have
caused him pain and suffering. Plaintiff suffers from a heart defect and breathing problems. The
effects of the housing situation and the pain and suffering Plaintiff has endured as a result of his
living conditions are matters that are within the ordinary understanding of a jury.
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The
explanation of facts to a jury regarding housing conditions does not require an expert.
Plaintiff’s Motion for a Court-Appointed Expert (Doc. 54) is DENIED.
IT IS SO ORDERED.
DATED: January 25, 2018
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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