United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. Yandle United States District Judge.
Alan Sawyer, an inmate in the Illinois Department of
Corrections, filed this case pursuant to 42 U.S.C. §
1983 alleging deprivations of his constitutional rights.
Sawyer claims Defendants used excessive force against him and
is seeking a declaratory judgment and money damages. Now
pending before the Court is Sawyer's motion entitled
“Cross-Move for Motion for Summary Judgment”
(Doc. 31) to which Defendants have filed a response (Doc.
Sawyer has also filed a Motion to Appoint Counsel (Doc. 33).
for Summary Judgment
Rule of Civil Procedure 56(a) provides that “[t]he
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Generally, “[s]ummary judgment should not be entered
‘until the party opposing the motion has had a fair
opportunity to conduct such discovery as may be necessary to
meet the factual basis for the motion.'”
Grayson v. O'Neill, 308 F.3d 808, 815 (7th Cir.
2002) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 326 (1986). See also Smith v. OSF HealthCare
Sys., 933 F.3d 859, 866 (7th Cir. 2019) (emphasizing
“the importance of allowing a party the opportunity to
take meaningful discovery before granting summary
judgment”). Consistent with this precedent, the Court
finds that Sawyer's Motion for Summary Judgment is
does not claim that he is entitled to judgment as a matter of
law. Instead, he raises factual disputes that actually
prevent summary judgment under Rule 56. Specifically, he
contends Defendants' Answers to the Complaint denying the
excessive force and state law claims are squarely in conflict
with the facts set out in the Complaint and that there
“is a material fact dispute that should be
determined”, (Doc. 31, pp. 1, 2). He also presents
arguments against Defendants' affirmative defenses.
(Id. at pp. 3-4).
Court has not yet entered a discovery scheduling order, there
has been no evidentiary record established. Additionally,
Defendants have raised failure to exhaust administrative
remedies prior to the initiation of this cause of action as
an affirmative defense. (Doc. 29, p. 3). As a result of
Defendants' affirmative defense, the Court has stayed
discovery on the merits. (Doc. 32, p. 6).
foregoing reasons, Plaintiff's Cross-Move for Motion for
Summary Judgment is DENIED without
prejudice. If the case proceeds, Plaintiff's
motion be refiled at the close of discovery. See
Fed. R. Civ. P. 56(b) and (d). Defendants' Motion for
Extension of Time to File a Response (Doc. 34) is
DENIED as moot.
has filed a second Motion of Appointment of Counsel. (Doc.
33). A litigant in a civil case has no right to counsel.
Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007).
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.
first sought recruitment of counsel, Sawyer failed to
demonstrate that he had made a reasonable attempt to secure
counsel. (Doc. 22). Now on his second try, Sawyer again
states that he has written several law firms and attorneys,
but only provides a response from one attorney declining
representation and does not include any other additional
information, such as copies of the letters he mailed or even
the addressees or names of the firms and attorneys he
contacted. (Doc. 33, p. 2). Therefore, the Court finds that
Sawyer still has not provided sufficient information
regarding his attempts to obtain counsel on his own. Should
Sawyer choose to move for recruitment of counsel at a later
date, the Court directs Sawyer to: (1) contact at least three
attorneys regarding representation in this case prior to
filing another motion; (2) include in the motion the names
and address of at least three attorneys he has contacted; and
(3) if available, attach the letters from the attorneys who
Cross-Move for Motion for Summary Judgment (Doc. 31) is
DENIED without prejudice; Defendants'
Motions for Extension of Time (Doc. 34) is DENIED as
moot; and Plaintiff's Motion to Appoint Counsel
(Doc. 33) is DENIED without prejudice.