United States District Court, N.D. Illinois, Eastern Division
ST. EVE United States District Court Judge.
reasons stated below: (1) Defendant's motion to dismiss
 is denied; and (2) Plaintiffs motion for attorney
representation  is denied without prejudice to later
renewal. Defendant shall answer the complaint by 11/27/16.
The Court strikes the 12/19/16 status and resets it to
12/7/16 at 8:30 a.m. Defendants' counsel is directed to
make arrangements for plaintiff Jacob Holmes available to
participate in the 12/7/16 status hearing via telephone.
Counsel shall contact the courtroom deputy, 312/435-5879, by
12/6/16 with the call-in information
Jacob Holmes, a prisoner now confined at the Pontiac
Correctional Center, brought this pro se civil rights action
invoking 42 U.S.C. § 1983, alleging that his rights were
violated when IDOC officials shaved his dreadlocks and beard,
which he grew and maintained for religious reasons, against
his will. The Court on June 8, 2016, screened Plaintiffs
complaint pursuant to 28 U.S.C. § 1915A and allowed
Plaintiff to proceed on a claim that his right to free
exercise was violated by Defendant Tracy Engelson. (Dkt. 5,
at 2-3 (citing cases)). Before the Court is Defendant
Engelson's motion to dismiss Plaintiffs claims against
him pursuant to Federal Rule of Civil Procedure 12(b)(6)
, to which Plaintiff has responded , and Plaintiffs
request for counsel.
Court first addresses Defendant's motion to dismiss. In
resolving that motion, the Court uses the same standard as
that employed for screening the complaint, see Maddox v.
Love, 655 F.3d 709, 718 (7th Cir. 2011); see also
Hallinan v. Fraternal Order of Police of Chi. Lodge No.
7, 570 F.3d 811, 820 (7th Cir. 2009) (noting that motion
under Rule 12(b)(6) challenges the sufficiency of the
complaint), and will consider any additional factual
allegations in Plaintiffs response, where consistent with the
factual content of the complaint. Smith v. Dart, 803
F.3d 304, 311 (7th Cir. 2015).
arguing that the complaint fails to state a claim on which
relief may be granted, see Fed. R. Civ. P. 12(b)(6),
Defendant essentially maintains that the Court should
determine, from the complaint alone, that Plaintiffs
dreadlocks were shaved pursuant to a prison
regulation that is, as a matter of law, reasonably related to
legitimate penological interests. (See Dkt. 11, at 3-7.) In
support of this argument, Defendant submits that rules
regulating the hairstyles of prisoners for institutional
security reasons have almost uniformly been upheld against
constitutional challenges, (Dkt. 11, at 3), and that, because
Plaintiff grew his dreadlocks "for years, it
cannot plausibly be inferred that Engelson had no penological
interest in ordering Plaintiff to cut his hair." (Dkt.
11, at 5 (emphasis in Defendant's motion)). As support
for his argument that the Court can make this determination
at the pleading stage, Defendant relies upon Williams v.
Snyder, 150 Fed.Appx. 549, 551 (7th Cir. 2015), which,
Defendant asserts, "affirm[s] the district court's
decision to dismiss First Amendment claims in Merit Review
Order . . . because cutting dreadlocks 'involved a de
minimis imposition on [inmate's] free exercise of
his religion and hat his interests were "far
outweighed" by the prison's legitimate penological
interests in the safety and security.'"
Court disagrees. Critically, Defendant misconstrues the
holding in Williams, which, in fact, confirms that
it is proper to await the development of a factual record
before balancing the parties' interests. In
Williams, the Seventh Circuit reversed the
district court's dismissal of the free exercise (and
Religious Exercise in Land Use and Institutionalized Persons
Act (RLUIPA)) claims, determining that "[t]he district
court erred" by "essentially applying] a summary
judgment standard, " in which "[t]he court
purported to balance the interests of [the plaintiff] and the
prison." Id. at 552. The Court emphasized that
"such a balancing process is not appropriate based on
the pleadings alone, without the benefit of additional
factfinding or a summary judgment record, " and that a
"finding that the hairstyle policy involved a de
minimis imposition resolves factual questions, which are
not appropriately decided at the pleading stage."
Id. (citing Mack v. O 'Leary, 80 F.3d
1175, 1180 (7th Cir. 1996); see also Grayson v.
Goetting, No. 15-cv-00198-NJR, 2015 WL 887800, at *3
(S.D. 111. Feb. 27, 2015) (permitting plaintiff to proceed on
First Amendment claims regarding required removal of
dreadlocks for prison photograph).
Defendant correctly asserts that courts frequently uphold
facially neutral prison grooming regulations against
religious challenges, such cases typically, if not uniformly,
involve determinations made after the development of a
factual record. See, e.g., Grayson v. Schuler, 666
F.3d 450, 455 (7th Cir. 2012) (reversing grant of summary
judgment to defendants); Williams v. Snyder, 367
Fed.App'x 679, 681 (7th Cir. 2010) (affirming grant of
defense motion for judgment as matter of law after close of
evidence); Johnson v. McCann, No. 08 C 4684, 2010 WL
2104640, at *7 (N.D. 111. May 21, 2010) (granting summary
judgment for defendants); Thomas v. Winters, No.
04-3049, 2006 WL 563035, at *1, *5 (CD. 111. Mar. 8, 2006)
(same); Clark v. Briley, No. 03 C 3852, 2005 WL
2369330, at *5 (N.D. 111. Sept. 26, 2005) (same).
Plaintiff, as Defendant suggests, effectively pleaded himself
out of Court by alleging his years-long cultivation of his
dreadlocks or including within his complaint documents that
reference a prison policy as providing the basis for the
shearing of Plaintiffs beard and dreadlocks. (Dkt. 11, at
4-5). Plaintiff has not, after all, including the policy
language itself, much less evidence providing any explicit
rationale underlying the policy or policies at issue. Nor
does Plaintiff, merely by including the documentation that
references institutional safety and security, somehow vouch
for an undisclosed policy or its underlying rationale.
See Thomas v. Kalu, 218 Fed.App'x 509, 512 (7th
Cir. 2007) (explaining that plaintiff did not, by attaching
letter referencing a "step 5" in grievance process,
affirmatively "plead the 'fact' that there is a
'step 5' in the grievance process, " or
foreclose himself "from later establishing facts that
show he followed the prison's grievance process" or
that step 5 was, in fact, unavailable to him).
Plaintiff does not bear the burden to, as Defendant suggests,
"show that his hairstyle did not pose a safety or
security threat at the time it was cut." (Dkt. 11, at
5). Instead, Plaintiff must show that the "prison has no
need to regulate hair length . . . ." Lewis v.
Stearnes, 712 F.3d 1083, 1085 (7th Cir. 2013). The Court
cannot make this determination on the present record. Because
Plaintiff has sufficiently alleged that the removal of his
beard and dreadlocks thwarted his religious exercise without
need (Dkt. 14), the Court Denies Defendant's motion to
Court next turns to Plaintiffs motion seeking attorney
representation. Although "[t]here is no right to
court-appointed counsel in federal civil litigation, "
Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014),
the Court has discretion to request that an attorney
represent an indigent litigant on a volunteer basis under 28
U.S.C. § 1915(e)(1). In making the decision whether to
recruit counsel, the Court must engage in a two-step
analysis: (1) has the plaintiff made a reasonable attempt to
obtain counsel on his own behalf or been effectively
precluded from doing so; and, if so, (2) given the factual
and legal complexity of the case, does this particular
plaintiff appear competent to litigate the matter himself.
Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007)
(en banc). This analysis does not focus solely on the
plaintiffs ability to try the case, but on his ability to
gather evidence and prepare and respond to motions.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir.
to be considered include: (1) the stage of litigation,
Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir.
2010) (holding that it is difficult to make an accurate
determination regarding a plaintiff s ability to litigate the
matter when case is still in "its infancy"); (2)
plaintiff s submissions and pleadings, Olson, 750
F.3d at 712 (well-written pleadings and appearance that
plaintiff can follow instructions indicate that counsel is
not needed); (3) medical and mental health issues,
Olson, 750 F.3d at 712; (4) transfer to a different
facility, Junior v. Anderson, 724 F.3d 812, 815 (7th
Cir. 2013) (transfer to a different facility may impede
plaintiffs ability to obtain evidence including
affidavits/declarations from others to support his/her
claim); (5) plaintiffs capabilities, including intelligence
(IQ), literacy, degree of education, communication skills,
and litigation experience, Pruitt, 503 F.3d at 655;
Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir.
2014) (recruitment of counsel required for a blind inmate
with a tenth-grade education); Henderson v. Ghosh,
755 F.3d 559, 565 (7th Cir. 2014) (enlistment of counsel was
necessary for a functionally illiterate inmate); and (6)
complexity of the case, Dewitt, 760 F.3d at 658;
Henderson, 755 F.3d at 566; Santiago v.
Walls, 599 F.3d 749, 761 (7th Cir. 2010);
Pruitt, 503F.3d at 655-56.
considering the above factors, the Court concludes that
solicitation of counsel for Plaintiff is not currently
warranted. As a threshold matter, although Plaintiff has not
identified most of the attorneys or entities he contacted
seeking legal assistance, he states that he "has made
repeated efforts to obtain a lawyer, " which suggests
that he may have made a reasonable effort to find a lawyer on
his own prior to his present motion. Plaintiff is, however,
encouraged to continue to write to attorneys, explain his
claims, and ask that they represent him pro bono. Plaintiff
should provide information regarding which attorneys or
organizations he contacted seeking assistance, should he
renew his motion at a later date.
after reviewing Plaintiffs pleadings and participation in the
case thus far, it appears that Plaintiff is capable of
continuing to litigate this case on his own at this stage.
Plaintiffs submissions are reasonably organized, and
Plaintiff indicates that he has access to a "Jailhouse
Lawyer's Handbook" as a legal reference.
Defendant's motion and the Court's orders also have
provided additional citations to relevant legal authority
that Plaintiff may study as the case proceeds. Plaintiff also
is encouraged to continue to use the resources at his
disposal; these may include, in addition to the handbook, the
law library and any staff or prisoners able to assist him as
the case proceeds. Although Plaintiff has been transferred
from the institution in which his hair was shorn, the present
case involves occurrences over a short time frame that
culminated in Plaintiffs hair being shorn; Plaintiff was a
participant and has indicated that he has relevant knowledge
and documents within his possession. (See ...