United States District Court, N.D. Illinois
January 13, 2004.
JAMES E. WILLIAMS, Plaintiff, v., AURELIA PUCINSKI, THE COUNTY OF COOK, Defendants
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 either Will or
Cook County demonstrating that a judge granted his application to sue as
a poor person.
Williams states that no copy of defendants' motion to dismiss
was sent to him by either the defendants or the clerk. However, as
defendants point out, Williams's exhibit 5 is the Notice of Motion,
clearly addressed to James Earl Williams, Register Number A-08018, P.O.
Box 112, Route 538 Division Street, Joliet, IL 60434, and a copy of the
motion to dismiss. Williams has also included a copy of his Legal Mail
Card, which indicates that the only mailing he received from the State's
Attorney was on April 30, 1999 (Plaintiff's Exhibit 5(b). All this
demonstrates is that for some reason Williams appears not to have
received a copy of the motion. It is not evidence that defendants did not
mail the motion to Williams. Moreover, Williams has not explained how he
obtained a copy of the motion to attach as his exhibit if it was never
sent to him.
Williams's main complaint appears to be that Pucinski did not forward a
copy of the record to the appellate court. Williams's exhibit 8, which is
a list of motions filed and ruling made in his appeal 99-1642, shows that
on July 21, 1999, the Illinois Appellate Court denied
Williams's motion for declaratory order as to free copy of record.
On November 24, 1999, the Illinois Appellate Court denied Williams's
motion to reconsider order of 7/21/99 denying free copy of record, it
is difficult to understand which one of these orders Williams did not
comprehend. Irregardless of the fact that the Appellate Court allowed
Williams to proceed in forma pauperis, which presumably meant that he
did not have to pay the appellate docketing and filing fees, the court
decided later that he was not entitled to a free copy of the record.
Williams in fact states in his deposition that the order in his Appeal
No. 99-1642 designating him as a pauper " . . . specified for docketing
fees only, docketing and filing fees only." (Plaintiff's Deposition, p.
Williams has also submitted a letter, dated August 3, 1999, from
Patricia Anne Formusa, Director of Civil Appeals (Plaintiff's exhibit
11(a)). The letter reads:
In compliance with the Appellate Court order
entered on July 21, 1999 and with no evidence of a
trial court order allowing pauper status we cannot
forward your record on appeal without the fee of
$75.00 being paid. A money order made payable to
the "Clerk of the Circuit Court" is necessary for
the Clerk's office to forward your record to you
for filing with the Appellate Court.
Neither Formusa nor Pucinski arbitrarily decided not to forward the
record to the Illinois Appellate Court. They were following the order of
the Illinois Appellate Court denying Williams a free copy of the record.
This letter also lays to rest Williams's claim that Aurelia Pucinski
personally refused to file the record on appeal unless he paid a $75 fee
for the common-law record. Williams may have addressed his correspondence
and the like to Aurelia Pucinski; however, it was Patricia Anne Formusa,
Director of Civil Appeals, who responded to Williams (Plaintiff's Exhibit
11(2) and Plaintiff's Deposition, p. 10). The letter also lays to rest
Williams's argument that Cook
County employees refused to assist him, Formusa informed him as to
the what he had to do in order to have the record forwarded to the
Illinois Appellate Court. Williams may not have liked the advice, but
this does not equate to a denial of access to the courts.
COUNT TWO. WILLIAMS v. PUCINSKI,
00 CH 15516
On May 10, 2000, Williams filed Williams v. Pucinski, 00 MR
334, in Will County (Plaintiff's Exhibit 9), On August 24, 2000,
Williams's complaint, 00 MR 334, was transferred to Cook County
(Plaintiff's Exhibit 9(a)). On October 26, 2000, it was docketed as 00
(Plaintiff's complaint, Exhibit B). On June 7, 2001,
defendants moved to transfer the case from the Chancery Division to the
First Municipal Division of the Circuit Court of Cook County because
Williams sought monetary damages and did not ask for equitable or
injunctive relief (Plaintiff's Exhibit 10). On June 28, 2001, Williams
filed a motion for the court to take judicial notice that this suit asks
for the order of injunctive relief (Plaintiff's Exhibit 10(a)).
Nonetheless, on August 15, 2001, the court granted defendants' motion and
transferred the case (Plaintiff's Exhibit 10(b)). The case was set on
Progress Call and scheduled for hearing on defendants' motion for
transfer on June 4 and 7, 2001 without notifying Williams (Plaintiff's
complaint, Exhibit B). On September 19, 2001, Williams filed a motion to
voluntarily dismiss this state action,*fn2
Williams argues that this demonstrates that the County of Cook has
created a policy to prohibit all county employees from providing
assistance to pro se Plaintiff's proceeding as poor persons
against government employees. To support this claim, Williams cites to a
letter he received from Frank J. Gagliardi, Law Clerk to the Hon. Lee
Preston, dated January 5, 1998, informing Williams that employees of the
Circuit Court are prohibited from rendering any legal assistance, in this
particular instance, to assist Williams in obtaining service on the
defendant (Plaintiff's Complaint, Exhibit C). Because of Cook County's
policy not to assist pro se Plaintiff's, Williams claims he
filed a motion to voluntarily dismiss 00-CH-15516 on September 19, 2001.
Gagliardi's letter has no bearing on this case. First, it was written
in regard to another case Williams filed before he filed 00-CFI-15516.
Second, defendants obviously were served or waived service in 00-CH-15516
because they brought motions before the court. Third, as to the motions
to which Williams refers, it appears that he filed responses to them
(Plaintiff's Exhibit 10(a)). The court also notes several Notices of
Motions from defendants among Williams's exhibits. He was apprised of the
motions and given an opportunity to respond. The fact that he disagreed
with the circuit court's rulings does not translate into a denial of
access to the courts.
Even assuming that Cook County has an ordinance*fn3 prohibiting county
giving legal advice or assistance, this is a perfectly reasonable
policy. First, there is no right to appointed counsel or other free legal
advice in civil litigation. See Texaco, Inc. v. Short,
454 U.S. 516, 531-33, 536-37 (1982); Parham v. J.R., 442 U.S. 584, 608-09
(1979); cf. Pennsylvania v, Finley, 481 U.S. 551, (1987).
Second, the Illinois Supreme Court in Bernier v. Schaefer,
11 Ill.2d 525, 530, 144 N.E.2d 577, 579 (1957), stated:
. . . [T]he defendant seeks to excuse his inaction
because of alleged representations of the deputy
clerk. We have found no decision supporting any
right to vacate a judgment after 30 days on the
asserted ground. In Higgins v. Bullock,
73 III, 205, a party served with summons failed to
appear and defend because he claimed he was misled
by the sheriff. It was held that if the defendant
placed reliance on statements of the sheriff he
did so at his peril. Similarly, no regular or
official duty of the clerk was involved here;
it is no part of a deputy clerk's task to give
litigants legal advice. (This court's
Third, in describing the duties of the Clerk of Court for the Northern
District of Illinois, Judge Shadur wrote: "After all, the Clerk does not
render legal advice to inmates. Instead, his job is to file pleadings and
other documents, maintain the court's files and inform litigants of the
entry of court orders." Sanders v. Department of Corrections,
815 F. Supp. 1148, H49(N.D. Ill. 1993). This description of the duties of
clerks for federal courts is similar to those duties for county clerks
contained in 55 ILCS 5/3-2013:
5/3-2013. General duties of clerk
§ 3-2013. General duties of clerk. Subject
to the provisions of "The Local Records Act", the
duties of the county clerk shall be
1st. To act as clerk of the county board of his
county and to keep an accurate record of the
proceedings of said board, file and preserve all
bills of account acted upon by the board, and when
any account is allowed or disallowed, he shall
note that fact thereon, and when a part of any
account is allowed he shall note particularly the
2nd. To keep a book in which he shall enter the
number, date and. amount of each order upon the
county treasurer, and the name of the person in
whose favor the same is drawn, and when such order
is canceled, he shall note the date of
cancellation opposite such entry.
3rd. Before any such order is delivered to the
person for whose benefit it is
drawn, the county clerk shall present the
same to the county treasurer, who shall personally
countersign the same.
4th. To keep a book, in which shall be entered
in alphabetical order, by name of the principal, a
minute of all official bonds filed in his office,
giving the name of the office, amount and date of
bond, names of sureties and date of filing, with
such reference to the number or other designation
of the bond, that the same may be easily found.
5th, To keep proper alphabetical indexes of al)
records and papers in his office.
6th, To give any person requiring the same, and
paying the lawful fees therefor, a copy of any
record, paper or account in his office.
7th. Such other duties as are or may be required
Nowhere in this statute does it state that the clerk is to render legal
advice or assistance to litigants, pro se or not.
In his reply, Williams argues that he was granted in forma pauperis
status in Will County Circuit Court in 98 MR 852 (later 98 L 014617)
(Plaintiff's Exhibit 14). This does not change the fact that the Illinois
Appellate Court denied him a free record, and that the Appellate Court's
grant of in forma pauperis status was for docketing and filing fees only
(Plaintiff's Deposition, p. 14).
In sum, particularly through his own exhibits, Williams has
demonstrated that he was not denied access to the courts.
For the foregoing 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 entirety.
Williams's motion for court appointed attorney is denied. Williams's
motion for decision on his pending motion for summary judgment and motion
for decision on Williams's motion for summary judgment are denied as
If Williams wishes to appeal this dismissal, he may file a notice of
appeal with this court within 30 days of the entry of judgment.
Rule 4(a)(4), Fed.R.App.P. Unless he is granted leave to proceed on appeal
in forma pauperis, he will be liable for the $255 appellate