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Williams v. Walker

March 16, 2010


The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge


Currently pending before the Court are a Motion to Quash filed by the Attorney General of Illinois (Doc. 51), a Motion to Appoint Counsel filed by Plaintiff (Doc. 52), a Motion to Compel, for Recusal, to Appoint Counsel, for Extension of Time to Complete Discovery, and for Extension of Time to File a Response to Motion for Summary Judgment filed by Plaintiff (Doc. 58), and motions for reconsideration (Doc. 61), for Leave to File (Doc. 72), and to Accept Resubmitted Documentation Referencing the 9/29/09 grievance all filed by Plaintiff (Doc. 73).


On June 10, 2009, the Attorney General of the State of Illinois filed a Motion to Quash a subpoena served by Plaintiff because it did not comply with the requirements of Fed. R. Civ. P. 45 (Doc. 51). Specifically, the Attorney General claims that the subpoena does not specify the time and place documents are to be produced, Plaintiff did not serve proper notice upon the Attorney General, the Attorney General is not in possession, custody, or control of the documents Plaintiff requests, the subpoena was improperly served, and discovery at this point in the litigation is limited to the question of exhaustion of administrative remedies. This motion is GRANTED. The subpoena is QUASHED. Plaintiff may obtain the discovery requested in the subpoena by other means and at the appropriate time, as addressed below.


On June 29, 2009, the Plaintiff filed a nineteen-page document which was primarily a Response to the Defendants' Motions for Summary Judgment. On page nine of the document, Plaintiff asks that he be appointed counsel, that Judges Murphy and Wilkerson recuse themselves from the case, that the case be assigned a new district judge, that Defendants produce all documents requested in the subpoena, that an order be issued that Plaintiff be allowed to keep the produced documents at all times, that his legal property be returned to him, and that the deadline for filing a complete response to the motions for summary judgment be extended to October 31, 2009 (Doc. 58).

Appointment of Counsel

A district court "may request an attorney to represent any person unable to afford counsel."

28 U.S.C. § 1915(e)(1). There is no constitutional or statutory right to counsel for a civil litigant, however. Stroe v. Immigration and Naturalization Services, 256 F.3d 498, 500 (7th Cir. 2001); Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). Appointment of counsel lies within the sound discretion of the trial court. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (citing Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006)).

In determining whether to appoint counsel, the Court is directed to make a two-fold inquiry: "(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?" Pruitt, 503 F.3d at 654 (citing Farmer v. Haas, 990 F.2d 319, 321- 22 (7th Cir. 1993)). The first prong of the analysis is a threshold question. If a plaintiff has made no attempt to obtain counsel on his own, the court should deny the request. See Pruitt, 503 F.3d at 655.

Plaintiff has not met the threshold burden of showing that he has attempted to retain counsel on his own. In his motion, he states that he has contacted James Rosemergy, Harvey Welsh, the Land of Lincoln Law Center, and the Southern Poverty Law Center seeking representation, but he includes no documentation of these attempts. Even if the Plaintiff had so attempted, appointment of counsel is not warranted at this time. The Court has yet to determine whether Plaintiff exhausted his administrative remedies. If the case continues after that determination has been made, Plaintiff may refile his request for appointment of counsel. Accordingly, the Motion for Appointment of Counsel (Doc. 52) and request for appointment of counsel (Doc. 58) are DENIED without prejudice to refiling.

Recusal of District and Magistrate Judges

A judge or magistrate judge shall disqualify himself in a proceeding "in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). A judge shall also disqualify himself where he has a personal bias or prejudice against a party, or has personal knowledge of disputed evidentiary facts concerning the proceeding; in a case where he has participated as counsel or as a witness or expressed his opinion concerning the merits of the case; in which he or a family member has a financial interest in the outcome of the case; or in which a family member is a party, attorney, or material witness. 28 U.S.C. § 455(b). Plaintiff requests that both United States District Judge G. Patrick Murphy and United States Magistrate Judge Donald G. Wilkerson recuse themselves from the case. ...

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