United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
matter is before the Court for case management following
transfer of this action from the United States District
Court, Central District of Illinois. (See Doc. 63)
Edward Abernathy, an inmate of the Illinois Department of
Corrections currently incarcerated at Pinckneyville
Correctional Center, filed this action for alleged
deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983. In his First Amended Complaint, Abernathy
alleges that he suffers from hearing loss and bodily pain
that he believes are symptoms of dementia. (Doc. 35).
Abernathy alleges that M.D. Myers and C. Brown have provided
inadequate treatment for these conditions and that they have
not adequately tested him for dementia. (Id.).
Following review pursuant to 28 U.S.C. § 1915A,
Abernathy was allowed to proceed on a claim for deliberate
indifference to a serious medical need against Myers and
Brown. (Doc. 42).
time, there are two pending motions. First, Abernathy filed a
document that the Court construes as a second Motion for
Recruitment of Counsel. (Doc. 54). Civil litigants do not
have a constitutional or statutory right to counsel.
Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007).
Under 28 U.S.C. § 1915(e)(1), the Court has discretion
to recruit counsel to represent indigent litigants in
appropriate cases. Johnson v. Doughty, 433 F.3d
1001, 1006 (7th Cir. 2006). When deciding whether to recruit
counsel for an indigent litigant, the Court must consider (1)
whether the indigent plaintiff has made reasonable attempts
to secure counsel on his own, and, if so, (2) whether the
difficulty of the case exceeds the plaintiff's capacity
as a layperson to coherently present it. Navejar v.
Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing
Pruitt, 503 F.3d at 655). Abernathy's first
motion was denied because he had not demonstrated any effort
to locate counsel on his own before seeking the Court's
assistance. (Doc. 42, p. 5). Although it is not clear from
Abernathy's filing, it appears he may have attempted to
contact some attorneys to request representation. (Doc. 45,
pp. 1, 4). He has not, however, provided any responses
declining representation. The Court finds that, while
responses to Abernathy's requests are pending, the
request for recruitment of counsel is premature. Accordingly,
the Motion for Recruitment of Counsel (Doc. 54) is
DENIED without prejudice.
may renew his request for the recruitment of counsel at a
later date. If he does renew his request, Abernathy should
give the Court rejection letters from at least three
attorneys to prove that he has made reasonable efforts to
obtain counsel on his own. Additionally, he should advise the
Court of any impediments that may affect his ability to
litigate this matter pro se.
Abernathy filed a Motion for Preliminary Injunction seeking
an order directing prison officials to send him to an outside
facility or specialist for medical treatment related to his
head, knees, and teeth. (Doc. 60). To obtain preliminary
injunctive relief, a plaintiff must show that (1) his
underlying case has a reasonable likelihood of success on the
merits, (2) no adequate remedy at law exists, and (3) he will
suffer irreparable harm without the injunction. Turnell
v. CentiMark Corp., 796 F.3d 656, 661 (7th Cir. 2015).
If he shows those three factors, the court then balances the
harm to each party and to the public interest from granting
or denying the injunction. Id. at 662. The Seventh
Circuit has described injunctions like the one sought here,
requiring an affirmative act, as a mandatory preliminary
injunction. Graham v. Med. Mut. of Ohio, 130 F.3d
293, 295 (7th Cir. 1997). Mandatory injunctions are
“cautiously viewed and sparingly issued, ”
because they require the court to command a defendant to take
a particular action. Id. (citing Jordan v.
Wolke, 593 F.2d 772, 774 (7th Cir. 1978)).
alleges he is suffering from chronic headaches, body pains,
memory loss, and hearing loss. He has not, however, described
the medical treatment he has requested or received for those
conditions at Pinckneyville. He has not alleged that any
defendant has denied him any particular medical treatment. He
makes no attempt to address the likelihood of success of his
claim on the merits or whether an adequate remedy at law
exists. Although he states he is likely to suffer irreparable
harm, he does not describe what irreparable harm he may
suffer without preliminary injunctive relief. Thus, Abernathy
has not shown he is entitled to the relief he requests.
See Winter v. Natural Res. Def. Council, 555 U.S. 7,
22 (2008) (a preliminary injunction is “an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such
also alleges generally that he has been harassed, retaliated
against, subjected to unreasonable searches and seizures, and
denied access to the law library and to the courts. He
asserts these matters “need to be addressed
A.S.A.P.” as he is likely to suffer irreparable harm
without preliminary injunctive relief. But he fails to state
any facts in support of these claims, and he does not
identify any individuals with regard to the claims. Further,
the allegations are not related to his underlying claim
against Defendants Myers and Brown for inadequate medical
care, and, therefore, the Court has no authority to grant any
relief related to those claims. “[A] preliminary
injunction is appropriate only if it seeks relief of the same
character sought in the underlying suit, and deals with a
matter presented in that underlying suit.” Hallows
v. Madison County Jail, No. 18-cv-881-JPG, 2018
WL 2118082, at *6 (S.D. Ill. May 8, 2018) (internal citations
omitted); see also Devose v. Herrington, 42 F.3d
470, 471 (8th Cir. 1994) (“[A] party moving for a
preliminary injunction must necessarily establish a
relationship between the injury claimed in the party's
motion and the conduct asserted in the complaint.”);
Pacific Radiation Oncology, LLC v. Queen's Medical
Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (“there
must be a relationship between the injury claimed in the
motion for injunctive relief and the conduct asserted in the
these reasons, the Motion for Preliminary Injunction (Doc.
60) is DENIED without prejudice.
is ADVISED that he is under a continuing
obligation to keep the Clerk of Court informed of any change
in his address; the Court will not independently investigate
his whereabouts. This shall be done in writing and not later
than 7 days after a transfer or other change
in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may
result in dismissal of this action for want of prosecution.
See Fed. R. Civ. P. 41(b).