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Robert Williams v. Lieutenant Westerman

September 15, 2011


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


Before the Court are four interrelated motions (Docs. 76-79) filed by Plaintiff Robert Williams, an inmate in the custody of the Illinois Department of Corrections, housed at Dixon Correctional Center. The Court construes the motions as seeking appointment of new counsel, and for reconsideration the November 4, 2010, Order granting Plaintiff‟s motion for voluntary dismissal of this action (Doc. 74).

In December 2008 Plaintiff, proceeding pro se and as a pauper, brought this action pursuant to 42 U.S.C. § 1983, alleging that prison officials at Menard Correctional Center, where he was then housed, violated his constitutional rights (see Docs. 1, 10 and 12). In March 2009, before the Court‟s preliminary review in accordance with 28 U.S.C. § 1915A, counsel entered on behalf of Plaintiff (Docs. 7 and 8). On November 2, 2010, Plaintiff, by and through counsel, filed a "Notice of Voluntary Dismissal," pursuant to Federal Rule of Civil Procedure 41(a)(2) (Doc. 73). Construing the "Notice" as a motion, the Court voluntarily dismissed the action, without prejudice (Doc. 74), and judgment was entered accordingly on November 5, 2010 (Doc 75).

The first of Plaintiff‟s pro se post-judgment motions (Doc. 76) was filed on November 22, 2010. Plaintiff filed two additional motions (Docs. 77 and 78) on November 29, 2010, and the fourth motion (Doc. 79) was filed on December 20, 2010. Plaintiff contends that his attorneys, Scott A. Velasquez and J. Scott Humphrey, were ineffective in representing his best interests when they dismissed this action on his behalf. Plaintiff argues that his attorneys did not act in a way consistent with his best interests because they did not think that his action would be successful. Plaintiff explains that, although he initially agreed to voluntarily dismiss the action, he later changed his mind:

The first thing Scott ask [sic] me through the door, [sic] was to dismiss my case. He was not trying to here [sic] me. And I told him that I would dismiss my case. He told me that he was going to send me a letter to sign. But now that I [have] had time to think about it, I am not going to sign any letter, because I would be defeating the hold [sic] purpose of filing the lawsuit to began [sic] with.

Doc. 78, p. 2 ¶ 10. According to Plaintiff, he allowed his attorney(s) to talk him out of continuing with the lawsuit. For these reasons, Plaintiff asserts that his Fourteenth Amendment right to due process and Sixth Amendment right to counsel, and other unspecified civil rights, were violated (see Doc. 78). Plaintiff now moves for the appointment of new counsel, and by extension, to have the dismissal and judgment vacated.

1.Appointment of Counsel

As a preliminary matter, the Court notes that when Plaintiff moved for appointment of counsel at the start of this case (Doc. 3), his motion was denied as moot (Doc. 13), because counsel had already voluntarily entered on Plaintiff‟s behalf. At that time, Plaintiff asserted that he was not legally trained and had to rely on the assistance of others to prepare his pleadings. Plaintiff‟s recent motions do not offer any other explanation of why he cannot proceed pro se. Rather, Plaintiff states that if new counsel is not appointed, he will proceed pro se (Doc. 78, p. 3).

Plaintiff‟s reference to the Sixth Amendment right to counsel is misplaced; the Sixth Amendment applies to criminal cases, not civil cases. U.S. Const. amend. VI. There is no constitutional or statutory right to appointment of counsel in a civil case, although the Court may in its discretion appoint counsel to represent indigent civil litigants.Mallard v. United States District Court, 490 U.S. 296, (1989); Evitts v. Lucey, 469 U.S. 387 (1985); Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992); see also 28 U.S.C. ' 1915(d). Nevertheless, the Court also has inherent authority to appoint counsel to ensure the orderly prosecution of litigation in the district. The Court must inquire whether, Agiven 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?@ Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993); see also Greeno v. Daley, 414 F.3d 645, 658(7th Cir. 2005); see also Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007). In Pruitt v. Mote, the Court of Appeals for the Seventh Circuit clarified that the relevant inquiry is whether the difficulty of the case exceeds the particular plaintiff=s capacity as a layperson to coherently litigate the case. Id.

The Court perceives no need to appoint counsel in order to proceed on the motions before the Court. Although counsel would surely represent Plaintiff in a more artful manner, Plaintiff has sufficiently presented the factual and legal basis for his request for reconsideration of the dismissal order and judgment. Therefore, the Court will not appoint counsel before deciding the merits of the motion(s).


Plaintiff does not specify a procedural basis for his motions. Technically, a "motion to reconsider" does not exist under the Federal Rules of Civil Procedure. But such motions are routinely filed, and they generally are treated as motions to alter or amend judgment under Rule 59(e) or motions for relief from judgment/order under Rule 60(b). See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994).

Different standards and time-tables govern Rule 59(e) and Rule 60(b) motions.

So, for instance, Rule 59(e) permits a court to amend a judgment only if the movant demonstrates a manifest error of law or presents newly discovered evidence that was not previously available. See Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007). By contrast, Rule 60(b) permits a court to relieve a party from an order or judgment based on these reasons, inter alia: mistake, surprise or excusable neglect by the movant; fraud or misconduct by the opposing party; a judgment that is void or ...

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