United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
Robert Chencinski, an inmate in the Illinois Department of
Corrections, filed this case alleging deprivation of his
constitutional rights pursuant to 42 U.S.C. § 1983, as
well as violations of the Americans with Disabilities Act
(“ADA”) and the Rehabilitation Act
(“RA”). Chencinski claims that Defendants are
denying him adequate accommodation under the ADA and RA for
his neurological condition, blepharospasm, by failing to
provide a safely accessible bed and are also deliberately
indifferent to his serious medical needs regarding treatment
of his blepharospasm and dental care.
motions filed by Chencinski are now before the Court: Motion
for Reconsideration for Appointment of Counsel (Doc. 28);
Motion for Status regarding his motion for a preliminary
injunction (Doc. 29); Motion for Default Judgment on his
request for injunctive relief (Doc. 32); Motion Requesting
Court Orders (Doc. 39); and Preliminary Injunction Exhibits
in Response to Defendants' Answers (Doc. 41).
stated in the Merit Review Order (Doc. 8, p. 10), as a
litigant in a civil case, Chencinski has no right to counsel.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir.
2010). Of course, a district court “may request an
attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915 (e)(1). Recruitment of
counsel lies within the sound discretion of the Court.
See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007) (citing Johnson v. Doughty, 433 F.3d 1001,
1006 (7th Cir. 2006)). Determining whether to appoint counsel
is a two-prong inquiry. Pruitt, 503 F.3d at 655. The
threshold question is whether the indigent plaintiff has made
a reasonable attempt to obtain counsel or been effectively
precluded from doing so. Santiago v. Walls, 599 F.3d
749, 761 (7th Cir. 2010). Only if the threshold has been met
will the Court consider the second prong, i.e.,
whether the plaintiff appears competent to litigate the case
given its difficulty. Pruitt, 503 F.3d at 655.
Motion for Reconsideration for Appointment of Counsel,
Chencinski asks again for the Court to request an attorney to
represent him because imprisonment greatly limits his ability
to litigate the case and pending injunction motion. He also
lists all of the documents and testimony he will need for the
preliminary injunction hearing and trial. (Doc. 28, p. 2).
The Court still finds, however, that Chencinski is competent
to litigate this matter without representation at this time.
Significantly, a review of the docket demonstrates that not
only has Chencinski's Complaint survived screening, but
his numerous pleadings demonstrate an ability to construct
coherent sentences, relay information to the Court, and
follow the directions of the Court. While the Court notes
Chencinski's concerns with regard to his ability to
investigate and collect documents due to his incarceration,
such concerns are not unique to him as a pro se
litigant and do not necessarily warrant recruitment of
counsel. Chencinski's motion is denied without prejudice.
Should the case increase in complexity as it advances to
trial, or should discovery prove overly burdensome,
Chencinski may refile his motion, and the Court will be
willing to revisit recruitment of counsel at that time.
Requesting Court Orders
Chencinski's Motion for Court Orders, (Doc. 39), he
states that if the Court does not recruit counsel on his
behalf, then he asks that the Court issue a list of orders
against Defendants regarding his access to the law library, a
required affidavit from another inmate, pictures and
measurements of his cell, copies of medical records, and
camera footage. Defendants have filed Responses to the
requests (Docs. 42, 43).
their Response, Defendants Dr. Myers and Wexford Health
Sources, Inc (“Wexford”), argue that, regardless
of whether Chencinski is seeking (1) a motion for a temporary
restraining order (“TRO”) or preliminary
injunction; (2) a discovery request; or (3) a motion to
compel, his motion should be denied. (Doc. 42, p.1). If he is
requesting emergency injunctive relief, not only has he not
alleged he would suffer irreparable harm, but Defendants
Myers and Wexford state that they have no control over
providing his requests at Pinckneyville Correctional Center.
(Id. at p.2). In order to obtain medical records,
they argue that Chencinski can obtain medical records by
making a request through Pinckneyville Records Office. They
further claim that if the motion is a discovery request, then
his request is premature and that a motion to compel should
be denied as he has not first sent discovery requests to
Defendants. (Id. at pp. 2-3). Defendants Thompson
and the Illinois Department of Corrections
(“IDOC”) adopt the same arguments as Myers and
Wexford. (Doc. 43, p. 1).
Motion Requesting Court Orders will be denied. To the extent
he is seeking an emergency injunction for additional law
library access and to obtain documents, Chencinski has not
met the burden necessary for TRO or preliminary injunction of
showing irreparable harm. See Fed. R. Civ. P. 65.
Because he is not claiming he is being denied access to the
law library or hindered by Defendants in his ability to
litigate his claims, there is no indication that he is being
denied meaningful access to the courts. In regard to his
request for more time in the law library, a prison facility
is not required to provide unlimited access to a law library,
even for pro se litigants. Martin v.
Davies, 917 F.2d 226, 240 (7th Cir. 1990), cert.
denied, 501 U.S. 1208 (1991). As long as a
constitutional level of access is afforded to petitioner,
prison authorities are entitled to make the necessary
decisions about allocation of prison resources without
interference by this Court. See Smith v. Shawnee
Library System, 60 F.3d 317, 323 (7th Cir.1995).
as discovery in this case has not yet commenced, any
discovery related requests are premature. Chencinski cannot
conduct discovery until after a pretrial scheduling and
discovery order is entered. In this case as Defendants have
raised Chencinski's failure to exhaust his administrative
remedies as an affirmative defense, (Docs. 25, 26, and 27),
the scope of discovery will initially be limited to the issue
of exhaustion before addressing the merits of
Chencinski's claims. See Pavey v. Conley, 544
F.3d 739, 742 (7th Cir. 2008).
the Court notes that for the purposes of preparing for his
preliminary injunction claim, Chencinski's medical
documents are already part of the record, having been
submitted by Defendants Myers and Wexford as attached
exhibits to their Response to the Motion for Preliminary
Injunction, (Docs. 38-1, 38-2). See Johnson v.
Smith, No. 05-4081-JLF, 2005 WL 817389 at *2 (S.D. Ill.,
Aug. 19, 2005) (the court will examine a request for
expedited discovery using the entirety of the record
“and the reasonableness of the request in light of all
of the surrounding circumstances.”) (quoting
Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
O'Connor, 194 F.R.D. 618, 623 (N.D. Ill. 2000)).
for Default Judgment on Injunction Relief
Merit Review Order, Defendants were ordered to respond to the
Motion for Preliminary Injunction within 14 days of service
of the pleadings. (Doc. 8, p. 10). On July 11, 2019,
Defendants filed Answers to the Complaint, but did not file
Responses to the pending preliminary injunction motion.
(Docs. 25, 26, 27). Chencinski filed a Motion for Default on
Injunctive Relief, (Doc. 32), on September 17, 2019, asking
the Court to enter a judgment in his favor, as Defendants had
still failed to file a response. Defendants Myers and Wexford
filed a response asking for an extension to file a response.
They stated that until a HIPAA Qualified Protective Order was
issued, they could not properly respond to the motion without
access to Chencinski's medical and dental records. (Doc.
33). Defendants Thompson and IDOC also filed a Motion for
Extension of Time to file a response until after the Court
granted the Motion for HIPAA Qualified Protective Order.
(Doc. 34). The Court granted the Motion for HIPAA Qualified
Protective Order, and Defendants have filed their responses.
(Doc. 38, 40). Defendants continuous filings with the Court
demonstrate that they have not failed to ...