Santiago v. Bradley et al

Filing 74

ORDER DENYING 28 Objection filed by Fabian Santiago, DENYING 31 Objection filed by Fabian Santiago, DENYING as moot 36 Objection filed by Fabian Santiago, DENYING as moot 30 Objection filed by Fabian Santiago, DENYING as moot 46 O bjection filed by Fabian Santiago, DENYING without prejudice 47 Motion to Appoint Counsel filed by Fabian Santiago, and DENYING without prejudice 67 Motion to Appoint Counsel filed by Fabian Santiago. Signed by Judge Nancy J. Rosenstengel on 10/1/2018. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FABIAN SANTIAGO,
Plaintiff,
vs.
TYLER A. BRADLEY, et al.,
Defendants.

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Case No. 17-CV-989-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is currently before the Court on several objections filed by Plaintiff
Fabian Santiago (“Santiago”) regarding Magistrate Judge Donald G. Wilkerson’s rulings.
Specifically, Santiago objects to Magistrate Judge Wilkerson’s order granting Defendants’
Motion for Merit Review and Stay at Doc. 23 (Doc. 28), Magistrate Judge Wilkerson’s
order regarding the Amended Complaint at Doc. 26 (Doc. 30), Magistrate Judge
Wilkerson’s order denying Santiago’s request for appointment of counsel at Doc. 20
(Doc. 31), Magistrate Judge Wilkerson’s order on Defendants’ Motion to Clarify at
Doc. 34 (Doc. 36), and Magistrate Judge Wilkerson’s scheduling order setting a Pavey
hearing at Doc. 44 (Doc. 46). On June 26, 2016, after receiving notice from Santiago that
he has not been able to view all filings, the Court provided Santiago with the opportunity
to request from the Court certain filings that he has been unable to view (Doc. 56). The
Court then reserved ruling on these objections until such time as it could confirm that
Santiago read the relevant documents to which he has launched an objection (Id.). In

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response to this Order, Santiago indicated that he would like the Court to rule on these
objections “as is,” and did not request any documents from the Court (Docs. 60 and 67).
Out of an abundance of caution, the Court granted Santiago additional time to request
from the Court certain documents and/or to supplement any of his previously filed
objections. The Court stated that if Santiago “does not file a supplement as to any
Objection or request that the Court send him any documents within that time, the Court
will presume that he has been able to view all relevant documents as to which he is
launching an objection and will rule on the objections accordingly.” (Doc. 69). Santiago
filed a Response titled “Plaintiffs Supplemental Motion Pertaining to Objections” and a
corresponding “Memorandum” (Docs. 70 and 71).
BACKGROUND
Santiago, an Illinois Department of Corrections inmate, was incarcerated at Hill
Correctional Center (“Hill”) at the time he initiated this pro se action (Doc. 6). His claims,
however, arose while he was confined at Menard Correctional Center (“Menard”).
Following a threshold review of the initial Complaint and Amended Complaint, Santiago
proceeds on the following claim:
Count 1:

First Amendment claim against Bradley and Hawkinson for
confiscating Santiago’s “prison legal news” publication
without reasonable justification and against the Illinois
Department of Corrections Director Baldwin in his official
capacity for implementing a policy and/or practice of
confiscating inmate’s publications.

On February 9, 2018, Defendants Baldwin and Bradley filed a Motion for a Merit
Review and Stay, asking the Court to conduct a threshold review of the Amended

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Complaint pursuant to 28 U.S.C. § 1915A(a) (Doc. 21). Defendants further requested a
stay of the responsive pleading deadline until thirty days after the Court entered a merit
review order (Id.). Magistrate Judge Wilkerson granted the motion, finding that
Defendants Baldwin’s and Bradley’s deadline to answer the Amended Complaint was
stayed pending the Court’s review and entry of an order (Doc. 23). Santiago filed an
objection to Magistrate Judge Wilkerson’s order on February 15, 2018 (Doc. 28), which
the Court construes as an appeal of the order pursuant to Rule 72 of the Federal Rules of
Civil Procedure.
On February 14, 2018, Magistrate Judge Wilkerson conducted threshold review of
the Amended Complaint pursuant to 28 U.S.C. § 1915A(a) (Doc. 26). Santiago filed an
objection to that order on February 16, 2018, which the Court construes as an appeal of
the order pursuant to Rule 72 of the Federal Rules of Civil Procedure (Doc. 30).
On September 18, 2017, Santiago filed a Motion to Appoint Counsel (Doc. 3). On
January 12, 2018, Magistrate Judge Wilkerson denied that motion without prejudice (Id.).
On February 20, 2018, Santiago filed an objection to Magistrate Judge Wilkerson’s order,
which the Court construes as an appeal of the order pursuant to Rule 72 of the Federal
Rules of Civil Procedure (Doc. 31).
On February 28, 2018, Defendants Baldwin and Bradley filed a Motion to Clarify
Order and for Extension of Time (Doc. 33). Defendants Baldwin and Bradley sought
clarification as to when a responsive pleading was due, and an extension of time to file a
responsive pleading following Magistrate Judge Wilkerson’s order entered on February
14, 2018 (Id.). In response, Magistrate Judge Wilkerson reinstated the initial complaint

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and set a deadline of March 16, 2018 for Defendants to file a responsive pleading (Doc.
34). Santiago objects to Magistrate Judge Wilkerson’s order, which the Court construes as
an appeal of the order pursuant to Rule 72 of the Federal Rules of Civil Procedure (Doc.
36).
Finally, on April 19, 2018, Magistrate Judge Wilkerson entered a scheduling and
discovery order (Doc. 44). On April 23, 2018, Santiago filed an Objection to Magistrate
Judge Wilkerson’s scheduling and discovery order to the extent that it set a Pavey hearing,
which the Court construes as an appeal of the order pursuant to Rule 72 of the Federal
Rules of Civil Procedure (Doc. 46).
DISCUSSION
The Court may modify or reverse a decision of a magistrate judge on a nondispositive issue upon a showing that the magistrate judge’s decision is “clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a). See also SDILLR 73.1(a). A decision is clearly erroneous “only if the district court is left with the definite
and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co.,
126 F.3d 926, 943 (7th Cir. 1997). See also Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866
F.2d 228, 233 (7th Cir. 1988) (“To be clearly erroneous, a decision must strike [the Court]
as more than just maybe or probably wrong; it must . . . strike [the Court] as wrong with
the force of a five-week-old, unrefrigerated dead fish.”).
I.

Appeal of Magistrate Judge Wilkerson’s February 12, 2018 order granting
Defendants’ Motion for Merit Review and Stay at Doc. 23 (Doc. 28)

On February 9, 2018, Defendants Baldwin and Bradley filed a Motion for a Merit

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Review and Stay, asking the Court to conduct a threshold review of the Amended
Complaint pursuant to 28 U.S.C. § 1915A(a) (Doc. 21). Defendants further requested a
stay of the responsive pleading deadline until thirty days after the Court entered a merit
review order (Id.). Magistrate Judge Wilkerson granted the motion, finding that
Defendants Baldwin’s and Bradley’s deadline to answer the Amended Complaint was
stayed pending the Court’s review and entry of an order (Doc. 23). Santiago appeals this
order, arguing that it was improper for Magistrate Judge Wilkerson to grant Defendants’
motion before defense counsel entered her notice of appearance.
Santiago is correct that defense counsel, Ayesha Patel, did not have a Notice of
Appearance on file prior to filing the Motion for Merit Review and Stay on February 9,
2018 (Doc. 21). In response to the filing of that motion, on February 12, 2018, the Clerk’s
Office specifically notified defense counsel that, pursuant to the Court’s Local Rule
83.1(f), counsel must file a written entry of appearance before addressing the court
(Doc. 22). 1 It was within Magistrate Judge Wilkerson’s discretion to accept the filing,
despite a violation of this Court’s local rules. Congregation of the Passion, Holy Cross
Province v. Touche, Ross & Co., 854 F.2d 219, 223 (7th Cir. 1988) (“Normally district courts
have considerable discretion in interpreting and applying their own local rules.”). Federal
Rule of Civil Procedure 83(a)(2) states that “[a] local rule imposing a requirement of form
must not be enforced in a way that causes a party to lose any right because of a nonwillful
failure to comply.” Courts have held that “a district court can depart from the strictures

1

Ayesha Patel then entered her appearance three days later, on February 15, 2018 (Doc. 29).

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of its own local procedural rules where (1) it has a sound rationale for doing so, and (2)
so doing does not unfairly prejudice a party who has relied on the local rule to his
detriment.” Heartland Recreational Vehicles, LLC v. Forest River, Inc., No. 3:08-CV-00490,
2010 WL 3119487, at *6 (N.D. Ind. Aug. 5, 2010) (citing United States v. Eleven Vehicles, 200
F.3d 203, 2015 (3d Cir. 2000)).
For purposes of docket control and efficiency, it made sense for Magistrate Judge
Wilkerson to consider the motion (coextensive with the Clerk’s Office notifying defense
counsel of the error), rather than striking the document only to have it re-filed at a later
date. The Court does not find that such actions resulted in any unfair prejudice to
Santiago. Thus, the Court denies Santiago’s appeal of Magistrate Judge Wilkerson’s
February 12, 2018 order.
II.

Appeal of Magistrate Judge Wilkerson’s February 14, 2018 order
regarding the Amended Complaint at Doc. 26 (Doc. 30)

On February 14, 2018, Magistrate Judge Wilkerson conducted threshold review of
the Amended Complaint pursuant to 28 U.S.C. § 1915A(a) (Doc. 26). Magistrate Judge
Wilkerson inadvertently entered this order, instead of issuing it as a Report and
Recommendation directed to the undersigned. Thus, this order was stricken by the Court
(see Doc. 26) and a Report and Recommendation was properly issued on April 4, 2018
(Doc. 40). Santiago was allowed the opportunity to respond to that Report and
Recommendation, and the undersigned ultimately ended up adopting it in part and
rejecting it in part . Thus, Santiago’s appeal of Magistrate Judge Wilkerson’s February 14,
2018 order, which has since been stricken, is moot.

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III.

Appeal of Magistrate Judge Wilkerson’s January 12, 2018 order denying
Santiago’s request for appointment of counsel at Doc. 20 (Doc. 31)

On January 12, 2018, Magistrate Judge Wilkerson denied Santiago’s Motion for
Appointment of Counsel without prejudice, finding that Santiago’s lawsuit is fairly
straightforward and is unlikely to require assistance of expert witnesses (Doc. 20, p. 2).
Further, Magistrate Judge Wilkerson found that Santiago’s filings have demonstrated his
ability to read, write, and understand the English language (Id.). Lastly, Magistrate Judge
Wilkerson found that the recruitment of counsel was premature, because a scheduling
order had yet to be entered and the question of exhaustion of administrative remedies
was still outstanding (Id.).
In his appeal of this order, Santiago argues that he needs counsel in order to locate
witnesses and his transfer to Hill has seriously hindered his ability to undertake
discovery. He also urges the Court to appoint him counsel to assist him in recovering
discovery and for purposes of summary judgment.
A plaintiff has no constitutional or statutory right to counsel in a federal civil
proceeding. Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (citing Olson v. Morgan,
750 F.3d 708, 711 (7th Cir. 2014)). Therefore, on a 28 U.S.C. § 1915(e)(1) motion, it is
entirely within the Court’s discretion whether or not to recruit counsel for civil litigants.
Id. In making this determination, the Court must first consider whether the plaintiff has
“made a reasonable attempt to obtain counsel or been effectively precluded from doing
so.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc).
Magistrate Judge Wilkerson found this preliminary inquiry to be satisfied. He

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denied the motion based on the fact that Santiago appeared competent to litigate his own
claims and the motion was premature. This inquiry turns on the complexity of issues in
the action and the litigant’s capabilities. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014);
see also Pruitt, 503 F.3d at 655 (“[T]he question is whether the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it to the judge or jury himself.”).
Here, the Court does not find that Santiago’s single claim that survived (at the
point in time at which Magistrate Judge Wilkerson ruled on his motion to appoint
counsel) was too complex for him to litigate on his own during the early stage of the
proceedings. Magistrate Judge Wilkerson previously found, and the undersigned agrees,
that Santiago demonstrated his ability to read, write, and understand the English
language and cogently set forth his claims. During the time at which Magistrate Judge
Wilkerson denied Santiago counsel, Santiago had filed an Amended Complaint that had
not yet been screened (and a scheduling and discovery order had not even been entered
yet in the case). The presence of counsel would have had no impact on the screening of
the complaint that Santiago filed. Thus, it was appropriate for Magistrate Judge
Wilkerson to deny Santiago’s motion without prejudice. Accordingly, the Court denies
Santiago’s appeal of Magistrate Judge Wilkerson’s January 12, 2018 order.
To the extent Santiago seeks counsel at this stage of the proceedings, the Court still
finds the request to be premature. The Court just screened the Amended Complaint and
discovery is not scheduled to close until February of next year. In light of the fact that
Defendant Hawkinson was added as a defendant, this deadline might need to be

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extended even further. Santiago stresses that he is entitled to counsel because he has been
transferred prisons. But the mere fact that Santiago has been transferred to a different
prison is not alone sufficient to show entitlement to counsel. See Olson v. Morgan, 750 F.3d
708, 712 (7th Cir. 2014). Santiago has not identified any specific discovery issues thus far.
Although he states that he needs counsel to help him locate documents and witnesses, he
does not indicate that he has made attempts to locate such documents and witnesses to
no avail. Additionally, only one count proceeds in this action. Santiago has
acknowledged his experience with civil litigation and he has demonstrated competency
through well-written pleadings. Thus, the Court finds that Santiago is competent to
litigate his claims on his own at this stage of the case. Thus, Santiago’s requests for
appointment of counsel (Docs. 47 and 67) are denied without prejudice.
IV.

Appeal of Magistrate Judge Wilkerson’s March 1, 2018 order on
Defendants’ Motion to Clarify at Doc. 34 (Doc. 36)

On February 28, 2018, Defendants Baldwin and Bradley filed a Motion to Clarify
Order and for Extension of Time (Doc. 33). Defendants Baldwin and Bradley sought
clarification as to when a responsive pleading was due, and an extension of time to file a
responsive pleading following Magistrate Judge Wilkerson’s order entered on February
14, 2018 (Id.), which conducted a threshold review of the Amended Complaint. In
response to the motion, Magistrate Judge Wilkerson reinstated the initial complaint due
to the fact that his February 14, 2018 order found that no additional claims set forth in the
Amended Complaint stated a claim for relief (Doc. 34). He also set a deadline of March
16, 2018 for Defendants to file an answer or other responsive pleading (Id.). Santiago

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appeals this order arguing that it was improper for Magistrate Judge Wilkerson to
reinstate the initial complaint and allow Defendants Baldwin and Bradley additional time
to file their responsive pleadings. As the Court mentioned previously, however, the
February 14, 2018 order was stricken by the Court because it was improperly docketed
as an order, rather than a Report and Recommendation directed at the undersigned. Thus,
Santiago’s appeal of Magistrate Judge Wilkerson’s order that clarifies that stricken order
is now moot.
V.

Appeal of Magistrate Judge Wilkerson’s April 19, 2018 scheduling order
setting a Pavey hearing at Doc. 44 (Doc. 46)

On April 19, 2018, Magistrate Judge Wilkerson entered a scheduling and discovery
order (Doc. 44). In Santiago’s appeal of this scheduling and discovery order, he argues
that it was improper for Magistrate Judge Wilkerson to schedule a Pavey hearing since
Defendants Baldwin and Bradley never raised exhaustion as an affirmative defense. The
Court agrees that, in Defendants’ Answer filed on April 13, 2018, Defendants did not raise
exhaustion as an affirmative defense (Doc. 43, p. 11-13). Nonetheless, this issue is now
moot because the Pavey hearing has since been canceled (See Doc. 65). 2 Thus, Santiago’s
appeal of Magistrate Judge Wilkerson’s April 19, 2018 scheduling order to is moot.
CONCLUSION
Accordingly, the Court DENIES Santiago’s appeal of Magistrate Judge
Wilkerson’s February 12, 2018 order granting Defendants’ Motion for Merit Review and

2

Oddly, Defendants filed a “Motion to Withdraw Affirmative Defense of Failure to Exhaust
Administrative Remedies” (Doc. 61), even though they never raised the affirmative defense of failure to
exhaust administrative remedies in the Answer (see Doc. 43, p. 11-13).

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Stay (Doc. 28), DENIES Santiago’s appeal of Magistrate Judge Wilkerson’s January 12,
2018 order denying Santiago’s Motion for Appointment of Counsel (Doc. 31), DENIES as
moot Santiago’s appeal of Magistrate Judge Wilkerson’s February 14, 2018 order
regarding the Amended Complaint (Doc. 30), DENIES as moot Santiago’s appeal of
Magistrate Judge Wilkerson’s March 1, 2018 order granting Defendants’ Motion to
Clarify (Doc. 36), and DENES as moot Santiago’s appeal of Magistrate Judge Wilkerson’s
April 19, 2018 scheduling order setting a Pavey hearing (Doc. 46). Santiago’s requests for
appointment of counsel (Docs. 47 and 67) are DENIED without prejudice at this time.
IT IS SO ORDERED.
DATED: October 1, 2018
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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