Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Funches v. Love

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


September 27, 2010

PEREZ FUNCHES, PLAINTIFF,
v.
TIMOTHY LOVE, DERWIN L. RYKER, AND ROGER E. WALKER, JR., DEFENDANTS.

The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

This prisoner civil rights action was opened after two of Plaintiff's claims were severed by United States District Judge J. Phil Gilbert pursuant to George v. Smith, 507 F.3d 605 (7th Cir. 2007), from claims filed in an earlier action pending before Judge Gilbert (see Funches v. Ebbert, civil case no. 07-226-JPG). Consequently, this action consists of two counts -- Counts 6 and 7 of the complaint. In Count 6, Plaintiff alleges that Defendant Love (a prison chaplain) denied Plaintiff his right to freely exercise his religion (African Hebrew Israelite) in violation of Plaintiff's rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. In Count 7, Plaintiff alleges that Defendants Ryker (the warden) and Walker (the director of the Illinois Department of Corrections) knew about but failed to correct the unconstitutional actions taken by Defendant Love as alleged in Count 6.

At the time Plaintiff filed his claims, he was incarcerated in the Lawrence Correctional Center (Lawrence), where Defendant Love is the chaplain and Defendant Ryker is the warden. Defendants filed a motion for summary judgment in the original case before these claims were severed.*fn1 After the claims were severed and this action was assigned to the undersigned district judge, the motion for summary judgment was set for hearing. At time of the hearing, Plaintiff was incarcerated in the Dixon Correctional Center (Dixon).

The motion for summary judgment was granted in part and denied in part. As a preliminary matter, Defendant Walker was dismissed for lack of personal involvement as required under 42 U.S.C. § 1983. With respect to the RLUIPA, sovereign immunity bars claims for money damages against Defendants in their official capacities. See Nelson v. Miller, 570 F.3d 868, 884-85 (7th Cir. 2009). Moreover, the RLUIPA does not subject state officials to suit in their individual capacities. Id. at 889. The Court has carefully considered whether Plaintiff may pursue injunctive and declaratory relief against Defendants Love and Ryker, in their official capacities, under the RLUIPA. Plaintiff currently is incarcerated at Dixon; it is conceivable that he could be transferred at some time back to Lawrence, but that is merely speculation at this time. If Plaintiff were entitled to damages on his RLUIPA claim, then a request for declaratory relief would survive as a predicate for damages. See id. at 883. Because Plaintiff no longer is incarcerated at Lawrence and because he is not entitled to monetary damages, his requests for injunctive and declaratory relief under the RLUIPA are moot. Consequently, the RLUIPA claim is dismissed in its entirety.

This leaves the First Amendment claim against Defendants Love and Ryker. It is well-settled that in the context of First Amendment claims, "prisoners need not allege a physical injury to recover damages because the deprivation of the constitutional right is itself a cognizable injury, regardless of any resulting mental or emotional injury." Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (citing cases). Because nominal and punitive damages remain viable on this claim, see id. at 941, Plaintiff may proceed on his claim for declaratory relief, see Nelson, 570 at 883. Any claim for injunctive relief, however, is moot. Plaintiff succinctly explained during the hearing that his argument is not that he should be allowed to practice every tenet of his religion and that concessions should be made by the prison to allow him to do so. Rather, he argues the opposite: he wants prison officials to allow African Hebrew Israelites the same accommodations as other sects for inmate-led services and congregational prayer. There is sufficient evidence in the record to raise a genuine issue of material fact on the question whether Defendants did, in fact, treat Plaintiff's religious sect differently. For this reason, the Court rejects Defendants' qualified immunity argument.

Currently before the Court is a renewed motion for appointment of counsel, in which Plaintiff requests the assistance of counsel in light of the complexity of his remaining claims. In evaluating the propriety of recruitment of counsel, this Court must examine (what are known as) the Pruitt factors and apply them to the specific circumstances of this case. Santiago v. Walls, 599 F.3d 749, 760 (7th Cir. 2010). The Court must ask: "'(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?'" Id. at 761, quoting Pruitt v. Mote, 503 F.3d 647, 854 (7th Cir. 2007) (en banc). The circumstances presented in this case warrant recruitment of counsel. See Santiago, 599 F.3d at 765 ("The situation here is qualitatively different from typical prison litigation."). First, Plaintiff has shown that he tried to obtain counsel on his own.*fn2 While it is true that Plaintiff has survived a motion for summary judgment, the issues remaining for trial -- and the discovery to be conducted -- now exceed Plaintiff's ability to "coherently present [the case] to the judge or jury himself." See Pruitt, 503 F.3d at 655. Plaintiff's motion (Doc. 23) is GRANTED, and the Court RECRUITS Attorney John J. Pawloski, Law Office of John Pawloski, 1900 Locust Street, Suite 302, St. Louis, Missouri 63103 to represent Plaintiff in this case and in this Court only. Mr. Pawloski is directed to file his entry of appearance on or before October 12, 2010.

Discovery has not been conducted on these claims. Having already resolved Defendants' motion for summary judgment, the issues are narrow and will not require extensive discovery. Accordingly, the parties are granted 90 days to conduct discovery and prepare for trial. The Court will not consider additional dispositive motions. A final pretrial conference is SCHEDULED for January 24, 2011, at 9:00 a.m. in the East St. Louis, Illinois, courthouse. A jury trial*fn3 is SCHEDULED for March 22, 2011, at 8:00 a.m. in the East St. Louis, Illinois, courthouse.

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.