The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for a case management hearing and consideration of the plaintiff's renewed motion for appointment of counsel [d/e 58] and the defendants motions for summary judgment. [d/e 50, 54]. The plaintiff appeared pro se. Defendants Stephen Mote, Donald Snyder and Cletus Shaw were represented by Assistant Attorney General Jason Young. Dr. Arthur Funk was represented by Attorney David Walter.
The plaintiff has two surviving claims pursuant to 42 U.S.C. §1983:
a) Defendant Funk was deliberately indifferent to the plaintiff's serious medical needs when he refused to treat the plaintiff for an asthma attack and refused to treat the plaintiff after he was attacked by another inmate in October of 2002.
b) Defendants Shaw, Mote and Snyder denied the plaintiff's due process rights during a disciplinary hearing for a charge of fighting on October 1, 2002. The claims are against the defendants in their individual capacities only.
On September 24, 2004, the plaintiff filed his complaint pursuant to 42 U.S.C. §1983 against seven defendants. On January 14, 2007, the plaintiff participated in a merit review hearing and four claims were identified against the defendants. On May 24, 2005, the defendants filed a motion to dismiss the complaint The plaintiff responded by filing a motion to voluntarily dismiss his lawsuit. [d/e 25]. The plaintiff stated that he was not able to continue his case without counsel and stated, for the first time, that he was under psychiatric care. The plaintiff had filed two prior motions for appointment of counsel, but had not mentioned that he had any mental health problems. [d/e 2, 7]
The court set the case for hearing and asked for a physician to provide information concerning the plaintiff's status. On July 20, 2005, the court heard testimony from Dr. Christine Fletcher. The doctor confirmed that the plaintiff was under psychiatric care. The plaintiff also stated that he had attended school through the 8th grade and had passed a high school equivalency examination.
On its own motion, the court appointed counsel for the plaintiff. The court made extensive efforts to find counsel to represent the plaintiff without success. The court circularized the bar association presidents of the eleven counties surrounding the Urbana court house and asked them to request volunteers in their news letters to accept pro bono appointment in prisoner pro se litigation in this court. There was not a single volunteer.
The court noted that there was some uncertainty as to whether the plaintiff had exhausted his administrative remedies for his claims. Since the court could not even consider the plaintiff's allegations if he had not first met this requirement, the court instructed the parties to provide information and any relevant documentation concerning the plaintiff's efforts to exhaust his administrative remedies. See 42 U.S.C. §1997e(a).
The plaintiff responded with briefing and extensive documentation. The court reviewed all documentation provided by all the parties and found that the plaintiff had not in fact exhausted his administrative remedies as required for two of his claims. Those claims and defendants were dismissed. The plaintiff filed a motion to reconsider the court's decision. [d/e 45] The motion was denied, but the plaintiff made cogent arguments in both his motion and in a subsequent hearing.
On August 23, 2007, the court rescinded its appointment of counsel stating that it believed the decision was premature. The court's initial concern was the that the plaintiff was under psychiatric care. However, the plaintiff was receiving care and treatment throughout the course of this litigation. The plaintiff has been coherent and able to make valid points during any video hearings. All documents filed in this case have been in the same distinctive handwriting and have been more clear and coherent that many others drafted by pro se prisoners. The court stated that before it could continue to look for counsel for the plaintiff, it must be sure that the plaintiff has in fact alleged violations of his constitutional rights. If not, the presence of counsel would not make a difference in the outcome of the lawsuits. See Farmer v Haas, 990 F.2d 319, 322 (7th Cir. 1993); King v. Frank, 328 F. Supp.2d 940, 951 (W.D. Wid July 27, 2004).
Specifically, the court noted that in reviewing documentation on the exhaustion requirement, it did not appear the plaintiff had stated a violation of his due process rights. In addition, documents submitted by the plaintiff suggested that the plaintiff had received medical treatment after the altercation with another inmate.
The court ordered the defendants to provide the court will well-supported briefs on the plaintiff's two surviving claims by September 14, 2007. The plaintiff was also ordered to provide a response on or before October 12, 2007. The court then set the case for video hearing to discuss the status of the case. See August 23, 2007 Court Order.
The defendants filed dispositive motions. The plaintiff ignored the deadline. Instead, the plaintiff filed another motion for appointment of counsel stating that he did not know how to respond to the motions. The plaintiff has previously provided appropriate responses to all matters before this court. In addition, the plaintiff filed a letter stating that he was hearing voices and believed the defendants and others were out to get him. The plaintiff made no such claim prior to the court rescinding its appointment of counsel. In fact, in all previous contact both orally and in writing, the plaintiff was able to adequately express himself and his viewpoints. ...