Curry v. Butler et al
ORDER DENYING 65 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Steven Curry re 57 Order; 66 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Steven Curry re 57 Order; 67 APPEAL OF MAGISTRATE JUDGE DECISION to Dis trict Court by Steven Curry re 57 Order. For the reasons stated within, the Court affirms Magistrate Judge Daly's 57 January 25, 2018 Order and denies Steven Curry's three appeals from the same. Signed by Judge David R. Herndon on 3/6/2018. (ceh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIMBERLY BUTLER et. al,
MEMORANDUM and ORDER
HERNDON, District Judge:
Now before the Court is plaintiff’s three (3) appeals from Magistrate Judge
Daly’s non-dispositive Order (doc. 57) of January 25, 2018, denying plaintiff’s
numerous motions for recruitment of counsel (docs. 3, 33, 43); denying plaintiff’s
motion for issuance of subpoenas (doc. 45); and denying plaintiff’s motion for
court-appointed expert witnesses (doc. 54).
While Magistrate Judge Daly
addressed each of plaintiff’s three motion categories in one Order – recruitment of
counsel, subpoenas, and expert witness appointment – plaintiff addressed each
category in a separate appeal.
For efficiency, the Court addresses all three
appeals (docs. 65, 66, 67) at once.
Based on the following, the Court affirms
Magistrate Judge Daly’s January 25, 2018 Order and denies each plaintiff’s three
A. Legal Standard
Local Rule 73.1(a) of the Southern District of Illinois provides:
Appeal of Non-Dispostive Matters – 28 U.S.C. §
Any party may appeal a Magistrate Judge’s order determining a
motion or matter within 14 days after issuance of a Magistrate
Judge’s order, unless a different time is prescribed by the Magistrate
Judge or a District Judge. The party shall file with the Clerk of the
Court and serve on all parties a written request for an appeal which
shall specifically designate the order or part of the order that the
parties wish the Court to reconsider. A District Judge shall
reconsider the matter and shall set aside any portion of the
Magistrate Judge’s order found to be clearly erroneous or
contrary to the law. A District Judge may also reconsider sua
sponte any matter determined by a Magistrate Judge under this rule.
Id. (emphasis added).
Also, under Federal Rule of Civil Procedure 72(a), the Court may modify or
reverse a magistrate judge on a non-dispostive issue upon a showing that the
magistrate judge’s decision is “clearly erroneous or contrary to the law.”
Specifically, Federal Rule of Civil Procedure 72(a) provides:
Nondispositive Matters. When a pretrial matter not dispositive of a
party’s claim or defense is referred to a magistrate judge to hear and
decide, the magistrate judge must promptly conduct the required
proceedings, and when appropriate, issue a written order stating the
decision. A party may serve and file objections to the order within 14
days after being served with a copy. A party may not assign as error
a defect in the order not timely objected to. The district judge in the
case must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to the law.
A finding is clearly erroneous when “the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been committed.”
Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948); see also Weeks v.
Samsung Heavy Industries Co. Ltd., 126 F.3d 926, 943 (7th Cir. 1997) (“The
clear error standard means that the district court can overturn the magistrate
judge’s ruling only if the district court is left with the definite and firm conviction
that a mistake has been made.”).
B. Plaintiff’s Appeal from Order Denying Motions for Recruitment of
A court may request that an attorney represent a person unable to afford
counsel if the court has determined that 1. Plaintiff made reasonable efforts to
secure counsel, and 2. If plaintiff has made such reasonable efforts, whether
plaintiff is competent to try the case himself given the intricacies and complexities
of the matter. See e.g. Jackson v Country of McLean, 953 F.2d 1070, 1073 (7th
Cir. 1992) and Farmer v Haas, 990 F.2d 319, 321-322 (7th Cir. 1993).
denying his motions for counsel, plaintiff argues that while considering step two,
Magistrate Judge Daly failed to acknowledge that plaintiff only has an 8th grade
education so that the claims he brings touches on aspects beyond his
comprehension, (doc. 67, p. 4; p. 7), and as such, should have been deemed unfit
to try the case himself.
The Court finds that the appeal regarding the motions for recruitment of
counsel lacks merit. Plaintiff has not shown that Magistrate Judge Daly’s Order is
clearly erroneous or contrary to law. In the January 25, 2018 Order, Magistrate
Judge Daly specifically held:
[T]he 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
Doc. 47, p. 2.
This Court agrees that a review of the filings in this case demonstrates that
plaintiff is extremely active in responding, objecting, and appealing to all
appropriate motions and orders.
Plaintiff’s attention to detail in his filings
indicates his competency to proceed sans counsel. Magistrate Judge Daly has
committed no clear error in finding that plaintiff has shown the proclivity and
ability to proceed with his case pro se. Accordingly, plaintiffs appeal (doc. 67)
regarding his motions for recruitment of counsel (docs. 3, 33, 43) is DENIED.
C. Plaintiff’s Appeal
In denying plaintiff’s motion for issuance of subpoenas (doc. 57), Magistrate
Judge Daly held that it was not apparent plaintiff followed the service
requirements of Rule 45(a) and the proposed subpoenas failed to identify the
material being requested.
Doc. 57, p. 2.
In his appeal, plaintiff argues that
Magistrate Judge Daly “knew exactly what [he] was requesting in [his] subpoena
forms” (doc. 65, p. 2) and that his request was “made in good faith and intent for
preparation for a preliminary injunction hearing that was set for January 30,
Id. at p. 3. Besides the obvious that the hearing the subpoenas were
The Court notes that Magistrate Judge Daly also referenced the motions for counsel being
premature as the question of exhaustion of remedies was still outstanding. This is still the case.
On February 26, 2018, a scheduling order was entered that sets dispositive motions regarding
exhaustion of administrative remedies due on April 26, 2018.
intended for has now come and passed, Magistrate Judge Daly did not rely on any
erroneous case law or rule of law in making her findings and the undersigned is
left with no firm conviction that a mistake has been committed. Weeks, 126 F.3d
Plaintiff’s appeal (doc. 65) concerning his motion for issuance of
subpoenas (doc. 45) is DENIED.
D. Plaintiff’s Appeal from Order Denying Motion for Court-Appointed
In the January 25, 2018 Order, Magistrate Judge Daly specifically found
that no court appointed expert was needed to aid in explaining to a jury the effects
that living conditions may have on health.
Doc. 57, p. 3.
“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. The explanation of facts to a jury regarding housing conditions does not
require an expert.” Id. at pgs. 3-4. Plaintiff disagrees with this conclusion in his
appeal, (doc. 66), arguing that “most jurys (sic) have never been to prison.”
The Court finds that Magistrate Judge Daly’s Order of January 25, 2018
denying plaintiff’s motion for court-appointed expert witnesses makes no findings
contrary to the law. A layperson does not need expert testimony to understand
the conditions plaintiff complains of and the court “need not appoint an expert for
a party’s own benefit or to explain symptoms to can be understood by a
Turner v. Cox, 569 Fed.Appx. 463, 468 (7th Cir. 2014).
plaintiffs appeal (doc. 66) is DENIED as Magistrate Judge Daly made no clear
error of law.
The Court finds that all three of plaintiff’s appeals miss the mark. Plaintiff
brought up no new arguments in his appeals, but merely re-argued his positions
from the original motions. Plaintiff did not establish that Magistrate Judge Daly’s
Order is clearly erroneous or contrary to the law.
Magistrate Judge Daly’s
January 25, 2018 Order is well written and clearly sets out the reasons for her
rulings. Judge Daly relied upon the Federal Rules of Civil Procedure, the Federal
Rules of Evidence, and upon appropriate case law. Moreover, Magistrate Judge
Daly certainly had the discretion to find as she did and accordingly her rulings are
not subject to a finding that they are contrary to the law. Thus, there is no reason
for this Court to vacate Magistrate Judge Daly’s Order.
Accordingly, the Court AFFIRMS Magistrate Judge Daly’s Order (doc. 57)
and DENIES Plaintiff’s three appeals from Magistrate Judge Daly’s nondispositive Order of January 25, 2018, denying plaintiff’s motions for recruitment
of counsel (docs. 3, 33, 43); denying plaintiff’s motion for issuance of subpoenas
(doc. 45); and denying plaintiff’s motion for court-appointed expert witnesses
IT IS SO ORDERED.
United States District Judge
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