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Serio v. Westerman

United States District Court, S.D. Illinois

September 6, 2017

RAYMOND SERIO, Plaintiff,
v.
PAM WESTERMAN, et al., Defendants.

          MEMORANDUM AND ORDER

          REONA J. DALY UNITED STATES MAGISTRATE JUDGE.

         Before the Court are several pending motions from the parties. (Docs. 16, 20, 23, 24, 25.) Plaintiff is an inmate with the Illinois Department of Corrections. On July 8, 2016, Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. (Doc. 1.) On September 1, 2017, the Court screened Plaintiff's first amended complaint. (Doc. 31.) Plaintiff now proceeds with the following claims:

Count 1: Defendant Doe violated Plaintiff's First Amendment rights by retaliating against Plaintiff for filing grievances by denying Plaintiff access to his personal property.
Count 2: Defendant Westerman violated Plaintiff's rights under the First Amendment and Eighth Amendment by retaliating against Plaintiff for filing grievances by threatening him and arranging an assault on Plaintiff.
Count 3: Defendant Mullholland violated Plaintiff's rights under the First Amendment and Eighth Amendment by retaliating against Plaintiff for filing grievances by assaulting him and confiscating or destroying his personal property.
Count 4: Defendant Butler violated Plaintiff's rights under the First Amendment by turning a blind eye to the misconduct of Defendants Doe.
Count 6: State law claim for replevin under 735 ILCS § 5/19-101, et seq., against Defendants Doe and Butler for the return of confiscated property.
Count 7: State law claim for battery against Defendant Mullholland in connection with his alleged assault of Plaintiff.
Count 8: State law claim of intentional infliction of emotional distress against Defendants Doe, Westerman, Butler, and Mullholland.

(Doc. 31.)

         On December 14, 2016, the Court entered a scheduling order. (Doc. 19.) On December 19, 2016, Plaintiff moved to stay proceedings pending an order on his motion for leave to amend and his motion to reconsider the ruling on the motion for appointment of counsel. (Doc. 20.) As of the entry of this Order, Plaintiff's motion for leave to amend and motion to reconsider are resolved. Accordingly, Plaintiff's motion to stay proceedings is denied. In the same motion, Plaintiff also requests that the Court not dismiss his case based on his failure to pay the partial filing fee due to his inability to pay. On July 21, 2016, the Court assessed an initial partial filing fee of $1.67 and directed the agency having custody of Plaintiff to forward the fee to the Clerk of Court. (Doc. 5.) The Court subsequently issued an order, stating, “The initial partial filing fee assessed to Plaintiff must be forwarded to the Clerk of Court by February 14, 2017.” (Doc. 19.) Because Plaintiff has demonstrated that he currently lacks the funds to pay the fee, the Court clarifies that it has no intention of dismissing Plaintiff's case for failure to pay the fee at this time. See Sultan v. Fenoglio, 775 F.3d 888, 890 (7th Cir. 2015).

         On April 14, 2017, Defendant Mullholland moved for an extension of time to file dispositive motions on the issue of exhaustion of administrative remedies. (Doc. 25.) Defendant states that Plaintiff has refused to respond to related discovery requests, citing the pendency of his motions, and Defendant also moves to compel Plaintiff's discovery responses. (Doc. 24.) Defendant's motions are granted. Plaintiff shall respond to Defendant's discovery requests by October 5, 2017. An amended scheduling order will issue separately.

         Recruitment of Counsel

         Plaintiff moves for the Court to reconsider the decision denying Plaintiff's motion for recruitment of counsel.[1] (Doc. 16.) Plaintiff reiterates that he cannot litigate this case because he has difficulties with reading comprehension; he has no understanding of the law; he has received assistance from another prisoner with all of ...


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