The opinion of the court was delivered by: Gilbert, District Judge
This matter is before the Court on Magistrate Judge Clifford Proud's Report and Recommendation (R&R) (Doc. 45). In his R&R, Judge Proud recommends that the Court grant defendants' motion for summary judgment (Doc. 45). Pinkston-El did not object to the R&R and the Court initially adopted it in its entirety. (Doc. 46). It vacated its order on June 5, 2006 after PinkstonEl informed the Court that he did not object to the R&R because he never received a copy of it. (Doc. 49). Two days later, the Court received Pinkston-El's notice of appeal regarding the Court's order adopting the R&R, accompanied by Pinkston-El's motion for leave to appeal in forma pauperis (Docs. 50, 51). Though the Court received his notice of appeal after it vacated its order adopting the R&R, Pinkston-El actually signed the notice on June 2, 2006, three days before the vacatur. Pinkston-El timely filed his objections to the R&R (Doc. 56), and defendants have responded (Doc. 57). PinkstonEl has also filed a motion to appoint counsel (Doc. 55).
Before addressing the merits of Pinkston-El's objections and his motion to appoint counsel, the Court must address the jurisdictional effect of his notice of appeal. As the filing of a notice of appeal "confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal[,]" Wisc. Mut. Ins. Co. v. United States, 441 F.3d 502, 504 (7th Cir. 2006) (internal quotation marks and citation omitted), the question is, of course, whether the Court had jurisdiction to vacate its order. At first blush, the obvious answer seems to be yes. The Court vacated the order before it received Pinkston-El's notice of appeal. Nevertheless, because Pinkston-El mailed his notice of appeal before the Court vacated its order, if the mailbox rule applies to this filing, the Court was without jurisdiction to vacate its order. Under Federal Rule of Appellate Procedure 4(c)(1), a notice of appeal is considered filed the day the prisoner deposits it in the mail if he makes a declaration in accordance with 28 U.S.C. § 1746 or by a notarized statement. To benefit from the rule, the declaration or statement must "set forth the date of deposit and state that first-class postage has been prepaid." Fed.R.App.P. 4(c)(1). Pinkston-El's notice of appeal does not comply with this provision because he failed to state that first-class postage had been prepaid. Thus, the Court will consider it filed the day the Clerk's Office received it, which makes it a nullity. This works no hardship on Pinkston-El, and in any event, he tacitly admitted that his notice was null when he filed his timely objections. Accordingly, the Court has jurisdiction in this matte and DENIES his motion for leave to appeal in forma pauperis as MOOT.
II. Motion to Appoint Counsel
Pinkston-El also asks the Court to appoint him counsel in this matter. He has attached a letter from one law firm declining to represent him in this matter and several letters from various legal aid groups, though the letters are not clear, the Court can only assume that these organizations declined to represent him as well. Pinkston-El claims that he cannot understand all of Judge Proud's order and that he, at the time he filed the motion, did not have sufficient access to the prison's library (due to a lock down and the presence of only two law clerks for 2000 inmates) to file his objections within the 10 days given him by the Court. Despite these facts, Pinkston-El was able to file five single-spaced pages of objections within the period given him by the Court.
Judge Proud denied Pinkston-El's first motion for appointment of counsel on March 9, 2005 (Doc. 14). In this order, Judge Proud noted that Pinkston-El had not included any information regarding his attempts to secure private counsel to represent him. This was not the deciding factor in Judge Proud's decision, however, as he went on to find that Pinkston-El was capable of proceeding without counsel, given the issues presented. Judge Proud found that Pinkston-El's filings with the court demonstrated his ability adequately to communicate his positions. The Court sees no reason to disagree with Judge Proud on this score. The only new argument presented in his second motion is that he did not have sufficient time or access to the prison library to object to the R&R in a timely manner. The passage of time has shown that he was indeed able to lodge his objections within the time prescribed by the Court. For these reasons, Pinkston-El's motion for appointment of counsel is DENIED.
Pinkston-El had four claims that passed this Court's initial screening: a First Amendment claim and three related state claims. (Doc. 11). He based all his claims on an Illinois Department of Corrections (IDOC) policy which forbids "[h]airstyles that create a risk that contraband hidden in the hair cannot be detected or that impede searches for contraband or that pose a risk that contraband hidden in the hair may injure the employee(s) charged with searching the offender." I.D.O.C. Policy Number FY02-IN-#30. Pinkston-El, as a member of the Moorish Science Temple, takes the Nazarite vow, which forbids him from cutting his hair. Because of his choice of hairstyle, IDOC officials have issued him disciplinary tickets for refusing to cut his dreadlocks, and have forcibly cut his hair.
Pinkston-El claims this policy violates his First Amendment rights to the free exercise of his religion.
Judge Proud recommended that the Court grant defendants' motion for summary judgment on Pinkston-El's First Amendment claim and decline to exercise supplemental jurisdiction over his remaining state law claims. (Doc. 45 at 8-9). Essentially, he found that the IDOC policy does not violate the First Amendment because it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78 (1987); Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988). Judge Proud came to this determination after reviewing a number of affidavits from prison officials and staff. Proud also found that Pinkston-El impermissibly attempted to amend his complaint when he raised claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Illinois Religious Freedom Restoration Act for the first time in response to defendants' motion for summary judgment. ...