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Bentz v. Butler

United States District Court, Southern District of Illinois

March 23, 2015

DAVID ROBERT BENTZ, BRETT SHARP, JESSE PEREZ, MARCOS GARCIA, ARMANDO GALLANDO, and JOHN LEE, Plaintiffs,
v.
KIMBERLY BUTLER, NURSE LANG, MAJOR WESTFALL, LT. JAMES BEST, LT. EOVALDI, LT. SAMUELS, SGT. N. BEBOUT, SGT. C. MAYER, C/O JOSHUA BERNER, C/O SHANE QUANDT, C/O JASON REDNOUR, C/O DONALD LINDENBERG, C/O JARED PHILLIPS, C/O McMILLAN, and UNKNOWN PARTIES, Defendants.

MEMORANDUM AND ORDER

NANCY J. ROSENSTENGEL, United States District Judge.

Plaintiffs David Robert Bentz, Brett Sharp, Jesse Perez, Marcos Garcia, Armando Gallando and John Lee, inmates in Menard Correctional Center, bring this action for deprivations of their constitutional rights pursuant to 42 U.S.C. § 1983, relative to the conditions of their confinement in the North-2 unit at Menard. The original complaint (Doc. 1), which also purported to be a proposed class action, was dismissed without prejudice (Doc. 15). The hazards of joint litigation were highlighted, and Plaintiffs were given an opportunity to file an amended complaint. Their amended complaint (Doc. 18) is now before the Court for a preliminary review pursuant to 28 U.S.C. § 1915A.

Also before the Court are: a “Notice” filed by Plaintiff Bentz alerting the Court to the fact that only he is receiving copies of documents sent from the Court (Doc. 19); a motion supposedly on behalf of all six plaintiffs (but Dated:ly by Plaintiff Bentz) seeking leave to amend the complaint by interlineation to substitute “Harris” as one of the unidentified defendants (Doc. 20); and a motion by Bentz, signed by all six plaintiffs, for appointment of counsel (Doc. 21). These motions make clear the need to elaborate on the hazards and requirements of joint litigation before the Court proceeds with the review of the amended complaint.

Pending Motions

Notice (Doc. 19)

Plaintiff Bentz notifies the Court that, of the six named plaintiffs, only he is receiving copies of documents sent from the Court ((Doc. 19). The Clerk of Court has addressed this issue with personnel at Menard, and each Plaintiff’s inmate identification number is included in the case caption affixed to each document sent from the Court. Those measures should help ensure that each of the plaintiffs receives a copy of any document sent from the Court. Insofar as the notice is carried on the docket as a motion, the motion (Doc. 19) shall be denied as moot.

Motion for Substitution (Doc. 20)

Plaintiff Bentz, acting on his own behalf, moves to substitute “Harris” as an unknown defendant in the amended complaint (Doc. 20). Amendment by interlineation is not permitted under Local Rule 15.1. Rather, a second amended complaint would be needed, stating all claims Plaintiffs want to pursue, and specifically naming “Harris” throughout the narrative.

Furthermore, one plaintiff cannot unilaterally amend a joint complaint, which is what the amended complaint is at this point in time. Bentz is not an attorney. Federal Rule of Civil Procedure 11(a) requires each party or his attorney to sign the complaint and all other pleadings. Although individuals may represent themselves in federal court, pro se litigants and non-lawyers cannot represent other individuals or corporations. Nocula v. Tooling Systems International Corp., 520 F.3d 719, 725 (7th Cir. 2008) (“corporations cannot appear pro se, and one pro se litigant cannot represent another”) (citations omitted). Therefore, Bentz cannot proceed as though he is representing the other five named plaintiffs. Similarly, even though the amended complaint proposes that the case proceed as a class action on behalf of all inmates in the North-2 unit at Menard, Bentz cannot represent the class and, in any event, a formal motion for class certification has not been filed.[1]

For these reasons, Bentz’s motion for substitution (Doc. 20) will be denied.

Motion for Counsel (Doc. 21)

Plaintiff Bentz, writing in the first-person, moves for appointment of counsel to represent all six named plaintiffs and/or class members (Doc. 21). The motion is signed by all six named plaintiffs. As already discussed, this case has not been certified as a class action; therefore, the motion is construed as seeking the appointment of counsel to represent the six named plaintiffs collectively.

There is no constitutional or statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866– 67 (7th Cir. 2013).

When a pro se litigant submits a request for assistance of counsel, the Court must first consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc)). If so, the Court must examine “whether the difficulty of the case-factually and legally-exceeds the particular plaintiff’s capacity as a layperson to coherently present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question ... is whether the plaintiff appears competent to litigate his own claims, given their degree of difficulty, and this includes the tasks that normally attend litigation: evidence gathering, preparing and responding to motions and other court ...


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