The opinion of the court was delivered by: Murphy, District Judge
Plaintiff Shauntez Hairston is a pretrial detainee in the St. Clair County Jail. His extensive litigation activities have been outlined in several orders issued by United States District Judge Michael J. Reagan. See generally Hairston v. Cole, civil no. 08-569-MJR (S.D. Ill. Feb. 12, 2010); Hairston v. Blackburn, civil no. 09-598-MJR (S.D. Ill. Feb. 12, 2010). Judge Reagan noted that in the cases in which Hairston has been appointed pro bono counsel, his motion practice is held in check by appointed counsel; however, in cases in which Hairston is proceeding pro se, his motion practice has become increasingly burdensome to the Court because of the sheer volume of frivolous motions. Currently, there are 29 motions pending in this case, only 3 of which were filed by Defendants.
Hairston complains that Defendants violated his constitutional rights while he was in segregation from February 2007 through March 2008. Specifically, he alleges that during that time, he was "held in disciplinary segregation excluding a couple weeks in the infirmary, approx. [sic] a week in restraint chair and 42*fn1 consecutive days in another segregation section of S.C.C.J." (Doc. 13, ¶ 16). He claims that he "was locked down 24 hours a day without recreation the majority of 2007;" that lights in disciplinary segregation "were extremely bright and stayed on 24 hours a day only dimming from midnight to 4:30 a.m.," causing damage to his eyes; that for "384 consecutive hours the [extremely bright light] stayed on without going off or dimming, causing further damage to [his] eyes;" that he was denied hygiene items and cleaning supplies; that he was denied access to his personal property and mail; and that he was denied sufficient access to the law library (id. at ¶¶ 19-65). He contends that Defendants knew that his constitutional rights were being violated and deliberately failed to enforce his rights.
Hairston's substantive claims are obscured by the frivolous and/or duplicative motions he has filed. In cases assigned to District Judge Reagan in which Hairston is proceeding pro se, Hairston is enjoined from filing additional motions without prior approval from Judge Reagan. The undersigned district judge cautions Hairston that if his excessive motion practice continues in this case, a similar injunction will be issued.
Motions to Appoint Counsel
Shortly after filing the second amended complaint in April 2009, Hairston filed a motion for appointment of counsel (Doc. 14). While that motion has been pending, Hairston filed seven additional motions requesting counsel (Docs. 33, 36, 44, 58, 62, 64, 69) and a motion for oral argument on his motion for appointment of counsel (Doc. 45). Hairston's arguments for counsel center around several main themes: (1) the jail's law library is inadequate; (2) he suspects interference with his outgoing mail; and (3) opposing counsel, Michael Garavalia, has a "personal vendetta" against him.
As Hairston readily acknowledges, civil litigants do not have a constitutional or statutory right to counsel. See Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). However, under 28 U.S.C. § 1915(e)(1), this Court has discretion to request counsel to represent indigent litigants in appropriate cases. As a threshold matter, the Court must find that either the indigent litigant made reasonable efforts to retain private counsel, but was unsuccessful, or the indigent plaintiff was effectively precluded from making such efforts. Jackson v. County of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992). After this threshold inquiry is satisfied, the Court asks, "given the difficulty of the case, does the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel make a difference in the outcome?" Zarnes, 64 F.3d at 288. The two-fold inquiry into both the difficulty of the plaintiff's claims and the plaintiff's competence to litigate those claims himself is necessarily intertwined: "the difficulty of the case is considered against the plaintiff's litigation capabilities, and those capabilities are examined in light of the challenges specific to the case at hand." Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc).
At this time, the Court will not appoint counsel in this case. Hairston alleges, with some vagueness, that he has attempted to retain counsel but that no attorney will accept his case without a retainer fee. It is possible (likely) that Hairston is not a pleasure to be around and this has made it difficult for him to find counsel. If this is the problem, he should minister to himself by developing better interpersonal skills.
The ultimate question remains: "Whether the difficulty of the case -- factually and legally -- exceeds the particular plaintiff's capacity as a layperson to coherently present it to the judge or jury himself." Pruitt, 503 F.3d at 655. Hairston appears competent to present his claim. Despite his complaints about the law library, Hairston manages to cite quite a bit of case law and Illinois statutes and regulations in his papers. The sheer volume of papers he has filed shows that his outgoing mail is reaching the Court. Finally, if opposing counsel is violating the federal rules because of a personal vendetta, that is an issue for this Court -- not appointed counsel -- to handle. Presence of counsel likely would not make a difference at this time; however, the Court has discretion to recruit pro bono counsel at a later time if it is warranted. See Pruitt, 503 F.3d at 658. The Court is mindful of Hairston's desire for counsel; if the Court finds that recruitment of counsel is warranted in the future, it will appoint counsel. Hairston need not -- and should not -- continue to file motions requesting appointment of counsel. For these reasons, Hairston's motions for appointment of counsel and for a hearing on his request (Docs. 14, 33, 36, 44, 45, 58, 62, 64, 69) are DENIED at this time.
Hairston has filed four motions for clarification. The Court is unsure what relief Hairston seeks in these motions. Rather, the motions contain more accusations against opposing counsel. Hairston believes that he cannot fairly litigate his claims in this case because of all the other lawsuits he has filed against officials at the jail, most or all of whom are represented by attorney Garavalia. Hairston makes several references to an official, Annette Tim, who is sued in other cases and is represented by attorney Garavalia. Apparently, Hairston masturbates in front of Tim. Garavalia warned Hairston to stop harassing Tim (these admonishments relate to the other cases in which Tim is a defendant); by contrast, Hairston contends that he and Tim have some sort of consensual "illicit" relationship, whereby his masturbating in front of her is not harassment. Hairston also complains that attorney Garavalia in unprofessional because he does not speak to or about Hairston with respect. These motions to clarify are nothing more than frivolous filings; Hairston wants to "explain" to the Court things that don't have anything to do with the merits of this lawsuit. In fact, in one motion, his complaints about attorney Garavalia's "professional misconduct" lead to him expressing "concerns about [his] criminal case in St. Clair County, Illinois with the public defenders office representing [him], Assistant States Attorney Steven Sallerson, and other judicial officers at that courthouse" (Doc. 52).*fn2
Hairston raises a single issue in these motions that warrants consideration. He claims that officials must have tampered with his mailing of the second amended complaint because, according to Defendants, there is no Count 1 listed in the complaint and paragraphs 67 through 71 are not included. The second amended complaint was scanned and filed by this Court's Clerk's Office. The electronically filed version appears to be missing page 13. The Court has reviewed the original handwritten copy submitted to the Court for filing and notes that it does contain page 13. Apparently, due to a clerical error, one page was deleted when the second amended complaint was scanned and electronically filed.
For these reasons, the motion for clarification filed March 8, 2010 (Doc. 80) is GRANTED in part and DENIED in part, such that the Clerk of Court is directed to REFILE the second amended complaint in its entirety. The ...