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Mooree v. Ziegler

United States District Court, S.D. Illinois

November 14, 2017

SHUNG MOORE, Plaintiff,
v.
C/O ZIEGLER, C/O NEWCOMB, KIMBERLY BUTLER, and C/O MONJE, Defendants.

          MEMORANDUM AND ORDER

          ROSENSTENGEL, District Judge

         This matter is currently before the Court on Plaintiff Shung Moore's (“Moore”) objection to Magistrate Judge Donald G. Wilkerson's Order dated August 21, 2017, denying Moore's Motions for Appointment of Counsel (Doc. 46). For the reasons explained below, the appeal is denied, and Magistrate Judge Wilkerson's Order is affirmed.

         BACKGROUND

         In his complaint, Moore alleges several constitutional violations pursuant to 42 U.S.C. § 1983, as well as violations of Illinois state law against prison officials (“Defendants”) at Menard Correctional Center (Doc. 1). On December 28, 2016, this Court identified five counts against five Defendants as surviving threshold review and referred this matter to Magistrate Judge Wilkerson (Doc. 7). The following counts survived threshold review (Doc. 7, p. 5):

Count 1: Ziegler used excessive force against Moore when he pulled on the handcuff lead, thus wrenching Moore's arms and shoulders downward on July 27, 2014, in violation of the Eighth Amendment's prohibition on cruel and unusual punishment;
Count 2: Newcomb failed to intervene when Ziegler used excessive force against Moore on July 27, 2014, in violation of the Eighth Amendment's prohibition on cruel and unusual punishment;
Count 3: Harris used excessive force on Moore on July 30, 2014, when Harris put Moore's handcuffs on too tight in violation of the Eighth Amendment's prohibition on cruel and unusual punishment;[1]
Count 4: Monje and Butler negligently failed to preserve evidence when they did not maintain the video tape surveillance footage of the assault allegedly perpetrated by Ziegler and Newcomb in violation of Illinois state law; and Count 5: Harris retaliated against Moore on August 20, 2014, when he placed handcuffs on him too tight in violation of the Eighth Amendment's prohibition on cruel and unusual punishment.

         On November 10, 2016, Moore filed a motion seeking appointment of counsel (Doc. 3). Magistrate Judge Wilkerson denied Moore's motion on January 12, 2017, noting that Moore had “not met his burden in attempting to recruit counsel on his own.” (Doc. 15, p. 2).

         Moore then sought reconsideration of that ruling (Doc. 31) and included evidence of his attempts to recruit counsel. Despite evidence of such efforts to recruit counsel, Magistrate Judge Wilkerson denied Moore's renewed motion on August 21, 2017 (Doc. 43). Specifically, Magistrate Judge Wilkerson reasoned that Moore's claims are not overly complex, will not require expert discovery, and Moore's limited knowledge of the law is “not sufficient to warrant recruitment of counsel.” (Doc. 43, p. 2). Moreover, Moore did not allege any specific issues in conducting discovery. Id.

         On September 7, 2017, Moore filed an objection to Magistrate Judge Wilkerson's August 21, 2017 Order (Doc. 46), which appears to be an appeal of the Order directed to the undersigned.

         DISCUSSION

         The Court may modify or reverse a decision of a magistrate judge on a non-dispositive issue upon a showing that the magistrate judge's decision is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a). See also SDIL-LR 73.1(a). A decision is clearly erroneous “only if the district court is left with the definite and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997). See also Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988) (“To be clearly erroneous, a decision must strike [the Court] as more than just maybe or probably wrong; it must . . . strike [the Court] as wrong with the force of a five-week-old, unrefrigerated dead fish.”) (cited by S. Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001)).

         A plaintiff has no constitutional or statutory right to counsel in a federal civil proceeding. Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (citing Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)). Therefore, on a 28 U.S.C. § 1915(e)(1) motion, it is entirely within the Court's discretion whether or not to recruit counsel for civil litigants. Id. In making this determination, the Court must first consider whether the plaintiff has “made a reasonable attempt to obtain counsel or been effectively precluded from doing so.” Pruitt v. Mote, 503 F.3d 647, 654 ...


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