The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORPER
Plaintiff James E, Williams, formerly an inmate in the Illinois
Department of Corrections, brought this pro se complaint
pursuant to 42 U.S.C. § 1983, alleging that defendants denied him Ms
First Amendment right of access to the courts. Williams has filed a
motion for summary judgment, and defendants Aurelia Pucinski, formerly
the Clerk of the Circuit Court of Cook County, and the County of Cook
have filed a response. Williams filed two replies, an additional exhibit,
and an affidavit supplementing his motion for summary judgment, For the
following reasons, the court denies Williams's motion for summary
judgment. In addition, the court sua sponte grants summary
judgment to defendants and dismisses this action with prejudice in its
Williams has filed a motion for court-appointed attorney. He states
that he will be on Mandatory Supervised Release, effective September 23,
2003, and will be transferred to Tennessee supervising authorities so
that he may reside with his wife. He states that he will not be able to
travel to and from Chicago until his three-year MSR is completed and that
he will need
an attorney to represent him on all issues including trial. The
court has since received a change of address from Williams giving a
It is an abuse of discretion for a court to consider a motion to
dismiss or a motion for summary judgment before ruling on a motion for
appointment of counsel. Brown-Bey v. United States,
720 F.2d 467, 471 (7th Cir. 1983); Pierce v. United Parcel Service, No.
01 C 5690, 2002 WL 992624 * 3 (N.D. Ill. 2002) citing Brown-Bey.
After reviewing Williams's pleadings to date, the court concludes that he
is able to represent himself al this stage of the proceedings. See
Maclin v. Freake, 650 F.2d 885, 887 (7th Cir. 1981). Moreover,
Williams brought the motion for summary judgment, not defendants. His
motion for court appointed attorney is accordingly denied.
Summary judgment is proper when the record shows no genuine issue as to
any material fact and the moving party is entitled to a judgment as a
matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial exists only
when the "evidence is such mat a reasonable jury could return a verdict
for the nonmoving party," Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A court ruling on a summary judgment motion must
view the evidence, and all reasonable inferences from the evidence, in
the light most favorable to the nonmoving party. Cincinnati ins. Co.
v. Flanders Else, Motor Serv. Inc., 40 F.3d 146, 150 (7th Cir.
1994). However, the mere existence of an alleged factual dispute is not
sufficient to defeat a motion for summary judgment. Metro. Life Ins,
Co. v. Johnson, 297 F.3d 558, 562 (7th Cir. 2002). If there are no
material facts in dispute, the court may sua sponte grant
summary judgment to the nonmoving party if the outcome is clear and the
opposing party has had an opportunity to respond. See Sawyer v.
States, 831 F.2d 755, 759 (7th Cir. 1987); Coach
Leatherware Co. v. Ann Taylor Inc., 933 F.2d 162, 167 (2nd Cir.
1991); McCabe v. Crawford & Co., 272 F. Supp.2d 736, 741
Moreover, a party may not attempt to survive a motion for summary
judgment through the submission of an affidavit that contradicts
testimony in his deposition. Amadio v. Ford Motor Co.,
238 F.3d 919, 926 (7th Cir. 2001).
COUNT ONE. WILLIAMS V. PUCINSKI,
98 L 014617 BACKGROUND FACTS
On September 8, 1998, Williams filed an action in Will County, 98 MR
0853, against the County of Cook, Aurelia Pucinski, and Mike McIntyre,
along with an application to sue as. a poor person (Plaintiff's Exhibit 1
and l(a)). Williams's application to sue as a poor person was granted
(Plaintiff's Exhibit 2 and 2(a)),
On November 19, 1998, the case was transferred to Cook County
(Plaintiff's Exhibit 3 and 3(a)), and on December 18, 1998, it was filed
as 98 L 014617 (Plaintiff's Exhibit 4),
On January 22, 1999, defendants filed a motion to dismiss (Plaintiff's
Exhibit 5). Or April 27, 1999, defendants' motion to dismiss was granted
with prejudice (Plaintiff's Exhibit 5(a)).
On May 12, 1999, Williams filed a notice of appeal and a written
request for Pucinski to prepare the record on appeal, consisting of the
common-law record (Plaintiff's Exhibit 7). On May 26, 1999, the Illinois
Appellate Court granted Williams leave to appeal as a poor person
(Plaintiff's Exhibit 8). However, Circuit Court employees refused to
assist him and attempted to charge him a $75 lee for the common-law
record. Pucinski never filed the record on appeal, and she never
responded to the letters Williams wrote her about this matter
(Plaintiff's Exhibit 8).
On August 16, 2000, the Appellate Court dismissed the appeal
(Appeal No. 1-99-1642) for want of prosecution (Plaintiff's Exhibit 8).
Williams states that he was allowed to proceed in forma pauperis.
However, Williams's exhibits consist of his hand-written application to
sue as a poor person (Plaintiff's Exhibit 1(a)) and copies of the
statute pertaining to filing by a "poor person," 735 ILCS 5/5-105
(Plaintiff's Exhibit 2), and 735 TLCS 5/5-105-5 (Plaintiff's Exhibit
2(a)). Williams has not produced any documentation from ...