United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“Report”) (Doc. 44) of Magistrate
Judge Donald G. Wilkerson recommending that the Court grant
the motion to dismiss for lack of subject matter jurisdiction
filed by defendants Weber, Lang, Deloia, Meade, Cook and
Castellano (Doc. 38) and deny as moot the motion to dismiss
for lack of prosecution filed by the same defendants (Doc.
41). Plaintiff Kenneth Houck objects to the Report to the
extent it recommends dismissal for lack of subject matter
jurisdiction (Docs. 52 & 53).
was convicted of a federal sex offense and has spent some of
his period of incarceration at the United States Penitentiary
at Marion, Illinois (“USP-Marion”). He filed this
lawsuit complaining of the treatment he received at
USP-Marion because of his status as a sex offender. The two
remaining claims in this case are brought under the implied
cause of action theory recognized in Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). Count 1 alleges a violation of the equal
protection component of the Fifth Amendment Due Process
Clause because Houck is homosexual and was treated
differently than similarly situated non-homosexual sex
offenders because of his homosexuality, particularly with
respect to the restrictions in his “Correctional
Management Plan” (“CMP”) although in other
respects as well. Count 4 alleges a violation of the First
Amendment right to free speech and free association based on
aspects of his CMP that result in restrictions on his
correspondence with pen pals, his receipt of certain
photographs, and his book requests.
Judge Wilkerson found in the Report that, under the analysis
required by Ziglar v. Abbasi, 137 S.Ct. 1843 (2017),
there is no private cause of action for either of Houck's
remaining claims and that they should therefore be dismissed.
objections, Houck complains, among other things, that he was
not assisted by counsel on the complicated legal questions
presented by the defendants' motion based on
Ziglar. He has also filed a motion for appointment
of counsel recounting several health-related reasons why he
is not capable of litigating this case at this time (Doc.
the Court has earlier denied Houck's request for
recruitment of counsel (Doc. 37), it finds it advisable to
recruit counsel now for a limited purpose. Whether to assign
an attorney to represent an indigent civil litigant is within
the sound discretion of the district court. Pruitt v.
Mote, 503 F.3d 647, 654 (7th Cir. 2007); Jackson v.
County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992).
There is absolutely no right to appointment of counsel in a
civil case. Pruitt, 503 F.3d at 656-57. Pursuant to
28 U.S.C. § 1915(e)(1), the Court may request the
assistance of counsel in an appropriate civil case where a
litigant is proceeding in forma pauperis. Mallard v.
United States District Court, 490 U.S. 296 (1989);
Pruitt, 503 F.3d at 649. Local Rule 83.1(i)
obligates members of the bar of this Court to accept
assignments, provided an assignment is not made more than
once during a twelve-month period.
Judge Wilkerson's Report does not suffer from any obvious
flaws, and if accepted it would have the serious consequence
of foreclosing an entire avenue of relief to Houck and others
who might have the same types of complaints. The analysis
required by Ziglar is complex, Houck is untrained in
the law, and the Court would benefit from learned adversarial
briefing before reaching a conclusion that might have such
serious consequences. Therefore, the Court will grant
Houck's motion for recruitment of counsel (Doc. 43) and
will assign a member of the Court's Pro Bono
Panel to represent Houck solely for the purposes of
responding to the defendants' motion based on
Ziglar. All other aspects of this case will be stayed
pending resolution of that motion to dismiss.
foregoing reasons, the Court hereby:
• ADOPTS in part and REJECT in
part the Report (Doc 44);
• GRANTS Houck's motion for
recruitment of counsel (Doc. 43);
• REFERS the recruitment of counsel to
Magistrate Judge Wilkerson;
• REFERS the motion to dismiss filed by
defendants Weber, Lang, Deloia, Meade, Cook and Castellano
(Doc. 38) to Magistrate Judge Wilkerson pursuant to Local
Rule 72.1(a)(2) for further briefing and a new Report and
• STAYS all other aspects of this case
pending resolution of the motion to dismiss (Doc. 38); and
• DENIES the motion to dismiss for lack
of prosecution (Doc. 41) for the reasons stated ...