Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division, No. 84 C 3113, Gerald B. Cohn, Magistrate.
Before CUMMINGS and CUDAHY, Circuit Judges, and MAROVITZ, Senior District Judge.*fn*
CUDAHY, Circuit Judge. Plaintiffs-appellants (the "plaintiffs" or "appellants") appeal the magistrate's order granting summary judgment for defendants-appellees (the "defendants") as well as his order denying their motion to substitute counsel. We hold that the magistrate abused his discretion by not allowing the substitution of counsel and that plaintiffs may be able to raise genuine issues of material fact to withstand a summary judgment motion. Accordingly, we vacate the order granting summary judgment and remand with instructions that substitute counsel be appointed and be given the opportunity to file affidavits opposing the defendants' summary judgment motion.
The plaintiffs, Cornelius Lewis and Paul Erickson, are state prisoners confined on death row at Menard Correctional Center ("Menard"). On May 9, 1984, the district Court for the Southern District of Illinois granted Lewis and Erickson leave to proceed with this lawsuit in forma pauperis. The plaintiffs, who initially proceeded pro se, filed a section 1983 claim, 42 U.S.C. § 1983 (1982), against various prison administrators of the Illinois Department of Corrections.*fn1 The complaint charged that certain policies, procedures and conditions of confinement on Menard's death row constituted cruel and unusual punishment in violation of the eighth amendment. Complaint, Lewis v. Lane, No. 84-3113 (S.D. Ill. filed May 14, 1984). Specifically, the plaintiffs alleged that the prison administrators maintained the heat in their cells during the months of December 1983 and January 1984 at an unreasonably low temperature and that the prison guards' practice of tapping on the bars of the cells ostensibly to test their strength was adopted and implemented to harass the prisoners. The plaintiffs sought declaratory, injunctive and monetary relief. Id.
The parties consented to the referral of this case to a magistrate for decision and entry of final judgment. The plaintiffs moved for appointment of counsel, and the magistrate, acting under section 1915(d),*fn2 appointed Tom D. Adams, a member of the southern District of Illinois bar, to represent both plaintiffs. When Adams learned of his appointment, he immediately asked the magistrate to be relieved of this duty because he did not believe that he was competent to handle a federal civil rights lawsuit involving constitutional issues. Adams' Deposition at 23, 25 (taken on March 26, 1986) ("Adams' Dep."). He also claimed that he did not have the time to devote to this case. Id. at 24-25. At the time of his appointment, Adams was a sole practitioner. Id. at 20-21. The magistrate did not find that any of Adams' proffered reasons excused him from taking this case. Adams eventually accepted the appointment after the magistrate indicated that his membership in the Southern District bar might be terminated if he declined the assignment. Id. at 25.
In August 1984, the defendant prison administrators filed their answer to the pro se complaint, asserting that the practice of testing bars was a reasonable security measure and that the heat in the condemned unit was not so inadequate as to constitute a violation of the eighth amendment. Answer, Lewis v. Lane, No. 84-3113 (S.D. Ill. filed Aug. 16, 1984).
On November 2, 1984, the plaintiffs filed a motion for substitution of counsel, or in the alternative, they requested that their suit be consolidated with another case challenging conditions on Menard's death row, Brisbon v. Lane, No. 82-3335 (S.D. Ill. filed Oct. 18, 1982). The motion specifically requested that the court appoint in place of Adams the attorney who was handling the Brisbon case. In their motion, the plaintiffs complained about Adams' failure to file an amended complaint to raise additional issues or to clarify those already raised as well as his refusal to keep in touch with them. Motion for Substitution of Counsel PP1-3, Lewis v. Lane, No. 84-3113 (S.D. Ill. filed Nov. 2, 1984).
Before the magistrate ruled on the motion to substitute, the defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). This motion asserted that the heat provided was adequate, that the prison administrators were not indifferent to the needs of the prisoners and that the bar-testing procedure was adopted when prison officials received information that one or more inmates were planning to escape by cutting through cell bars and the practice was thus a reasonable response to legitimate security needs. Motion to Dismiss, Lewis v. Lane, No. 84-3113 (S.D. Ill. filed Dec. 17, 1984).
The magistrate held a hearing on January 24, 1985 at which he considered both the motion to dismiss and the motion to substitute counsel. Adams informed the magistrate at the time that the only work he had done on the case was to visit Lewis once at Menard; he had not yet even reviewed the pleadings. He also stated that he had asked prison officials at Menard to allow him to tour the facility and interview witnesses but that they denied his request. Adams apologized for his lack of work on the case, explaining that his commitments to his paying clients did not allow him to spend much time on this case and that he did not think that he would have time for the indefinite future to devote to it. Adams also stated his belief that the prisoners deserved better representation than he was able to provide them. Statement of Proceedings at 2-3, Lewis v. Lane, No. 84-3113 (S.D. Ill. approved May 30, 1986) ("St. of Proc.").*fn3
Despite Adams' obvious lack of enthusiasm to carry out his responsibilities to his clients, the magistrate denied the plaintiffs' motion to substitute counsel. The magistrate, however, did take steps to improve Adams' ability to represent his clients. He ordered prison administrators to provide Adams with adequate access to Menard's death row to interview his clients and potential witnesses. The magistrate informed Adams that he had been appointed to represent Erickson as well as Lewis (Adams had not realized that he represented both plaintiffs). In response to Adams' complaint regarding time pressures, the magistrate gave him 60 days to reply to the defendants' motion to dismiss, which the magistrate indicated would be treated as a summary judgment motion because it was accompanied by supporting affidavits. The magistrate also indicated that he would set the case for oral argument before ruling on the summary judgment motion. Id. at 3. Lewis and Erickson were not informed of the disposition of these two motions.
Adams failed to take any action on this case after the January 24 hearing. He did to conduct any discovery, tour death row, interview the plaintiffs or witnesses, conduct any legal research, file any document with the court or review the record on file at the courthouse. Adams' Dep. at 28, 54. He never even determined whether the claims had merit. Id. at 61. By his own estimate, he spent a total of ten to fifteen hours on the case from the date of his appointment until the summary judgment motion was granted; this estimate included travel time and court appearances. Id. at 63. Adams did not even realize that the magistrate had converted the motion to dismiss into a summary judgment motion; he believed that the magistrate had simply reset the hearing on the motion to dismiss. He also did not know that a motion to dismiss could be treated as a motion for summary judgment if it is filed with supporting affidavits. Id. at 51-52. He also claimed that even after the January hearing he was not sure that he represented Erickson. Id. at 37. Adams did not receive a copy of the report of the January 24 hearing, and he apparently never attempted to obtain a copy. Id. at 51.
On May 29, 1985, the magistrate granted the defendants' summary judgment motion without oral argument. Adams did not file a motion to reconsider nor did he file a notice of appeal. Adams did not appeal because he "didn't intend to devote anymore [sic] time [to] the case or to be further involved with it if [the magistrate] had ruled on it." Id. at 60-61. Lewis indicated that he was going to file a notice of appeal, and Adams "was satisfied [that he] was finally out of it." Id. at 61. Lewis and Erickson, proceeding ...