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Childress v. Godinez

United States District Court, S.D. Illinois

June 18, 2015

CRAIG A. CHILDRESS, # 902850, Plaintiff,


J. PHIL GILBERT, District Judge.

This case is now before the Court on remand from the United States Court of Appeals, Seventh Circuit. Plaintiff brought this civil rights action pursuant to 28 U.S.C. § 1983 while he was incarcerated at the Treatment and Detention Facility in Rushville, Illinois ("Rushville"), [1] where he is still confined. The appellate court's mandate issued June 12, 2015 (Doc. 34), and accompanying order (Doc. 34-2) reversed this Court's dismissal of Plaintiff's constitutional claims (Docs. 7, 19).

Specifically, the Seventh Circuit found that Plaintiff had stated a cognizable Eighth Amendment claim against Defendant Bates (the Warden of Big Muddy River Correctional Center), for maintaining a policy that allowed the placement of computer-related material into the property boxes of inmates before their release (Doc. 34-2, pp. 10-13). The possession of this material could violate the terms of these former prisoners' supervised release, thus placing them at risk of being returned to prison. Despite Plaintiff's allegation that Defendant Bates knew that this policy and practice had caused two other inmates to be reincarcerated, he failed to alter the procedures. In Plaintiff's case, a computer disk containing his resume was produced for him when he completed the "Lifestyle Redirection Program" in preparation for his re-entry into the community. Plaintiff lost his freedom because he unknowingly had the computer disk in his possession as a result of this policy.

On remand, the Seventh Circuit has ordered this Court to reinstate the original complaint (Doc. 1), consider Plaintiff's two motions for the recruitment of counsel (Docs. 3 and 5), and allow Plaintiff to file an amended complaint, so that he may identify and articulate his claims against any other officials who were personally responsible for the alleged deprivation of his constitutional rights.

Motions for Recruitment of Counsel (Docs. 3, 5)

While Plaintiff filed two separate motions, the contents of the motion at Doc. 5 were also included in the original motion at Doc. 3, thus they are duplicative.

There is no constitutional or statutory right to appointment of counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). However, Federal District Courts have discretion under 28 U.S.C. § 1915(e)(1) to request counsel to assist pro se litigants. Id. When presented with a request to appoint counsel, the Court must consider: "(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 v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).

With regard to the first step of the inquiry, at the time he filed this suit in December 2012, Plaintiff had written to seven different attorneys seeking representation in his case, without success. Based on these actions, Plaintiff has made a reasonable showing that he has attempted to obtain counsel on his own.

The Court must now consider the case itself. Concerning the second step of the inquiry, "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, 503 F.3d at 655. In this case, Plaintiff claims that persons acting under color of state law placed a computer disk in his property boxes, or maintained a policy/practice that allowed such placement, with deliberate indifference to the risk that he would be reincarcerated because he had the disk in his possession. In order to maintain an Eighth Amendment deliberate indifference claim against a particular defendant, a plaintiff must show that the defendant was subjectively aware of the risk the plaintiff faced, yet failed to act to mitigate the risk of harm. See Farmer v. Brennan, 511 U.S. 825, 847 (1994); Brokaw v. Mercer Cnty., 235 F.3d 1000, 1012 (7th Cir. 2000).

As the Seventh Circuit noted, in this case, the Court must assess:

whether Mr. Childress can, from the confines of his present institutional situation, adequately investigate and articulate, in accordance with established practices of § 1983 liability, the familiarity of each defendant with the practices of the Lifestyle Redirection Program and with the conditions of mandatory release placed on offenders like Mr. Childress.

(Doc. 34-2, p. 19).

The circumstances presented in this case warrant recruitment of counsel. Therefore, Plaintiff's motions for recruitment of counsel (Docs. 3, 5) are GRANTED. The Court will contact attorneys admitted to practice in this district in an effort to locate a volunteer. Plaintiff shall continue to litigate pro se during the recruiting effort.

As directed by the Seventh Circuit, Plaintiff shall be allowed to file an amended complaint. The United States Magistrate Judge shall establish a schedule for the filing of the First ...

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