Opinion

Serio v. Brown

Court
District Court, S.D. Illinois
Filed
Aug 26, 2025
Cited by
0 cases
Authority
More cited than 39.0%

The opinion

FOR THE SOUTHERN DISTRICT OF ILLINOIS

RAYMOND SERIO, )

)

Plaintiff, )

)

vs. ) Case No. 3:23-cv-2874-DWD

)

DAVID MITCHELL, BRANDON )

RIDGEWAY, DIANE SKORCH, )

BROCK MORGENSTERN, JOSH )

MCDONALD, and SYDELLE FULK )

)

Defendants. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Before the Court is the Application for Relief from Assignment of Mr. Jerald D.

Dehne. (Doc. 62). Mr. Dehne was assigned as counsel for Plaintiff on August 12, 2025.

(Doc. 58). At this time, however, Mr. Dehne informs the Court that he has a conflict of

interest with the Office of the Attorney General, which is defending Defendants in this

action. Accordingly, for good cause shown therein, Mr. Dehne’s Application for Relief

from Assignment is GRANTED. See L.R. 83.11(a)(1). As explained below, Mr. L. Douglas

Gill of the Gill Law Firm is ASSIGNED as counsel for Plaintiff. The matter remains

REFERRED for a mandatory mediation with Court Attorney Megan Arvola.

I. Plaintiff’s Motion for the Appointment of Counsel (Doc. 56)

The Court designated the four following claims to proceed in this case:

Count 1: Eighth Amendment deliberate indifference claim against

Sydelle Fulk and Christine Brown for failing to ensure that

Plaintiff’s medications were continued;

Count 2: Eighth Amendment cruel and unusual punishment claim

house Plaintiff in a cell that met his needs;

Count 3: First Amendment retaliation claim against Defendants

Skorch, Ridgeway, and Brock Morgenstern for allowing

Plaintiff to be disciplined over his requests for single-cell

housing;

Count 4: Intentional Infliction of Emotional Distress against all

Defendants.

(Doc. 34, pgs. 5, 11; 50, pgs. 3-4).

On February 24, 2025, the Court ruled as follows on the issue of exhaustion of

administrative remedies:

The Motion for Summary Judgment on the issue of exhaustion (Doc. 43) is

GRANTED in PART as to Claim 1 against Defendant Brown, and it is

DENIED in PART as to Claims 2 and 3 against Defendants Mitchell and

Morgenstern. The Court relinquishes supplemental jurisdiction over Claim

4 against Defendant Brown, but Claim 4 may proceed against all other

remaining Defendants. The Clerk of Court is DIRECTED to TERMINATE

Defendant Brown, and to enter judgment in her favor at the close of this

case. The remaining Claims shall proceed to merits discovery against

Defendants Fulk, Mitchell, McDonald, Morgenstern, Ridgeway, and

Skorch. A merits discovery schedule shall follow.

(Doc. 50, pgs. 14-15).1

Plaintiff, who is proceeding in forma pauperis, was afforded additional time to

respond to the Motion for Summary Judgment, but he failed to do so. (Docs. 5; 50, pg. 1).

Plaintiff states he “simply could not understand the things in the law library [that] he

read on the issue of exhaustion[,] [so] he was unable to form a response to the summary

judgment motion.” (Doc. 56, pg. 2). Nevertheless, the Court ruled in the above manner.

Plaintiff argued the appointment of counsel is warranted because he has always

1The Motion for Summary Judgment was filed by Defendants Brown, Mitchell, and Morgenstern.

(Doc. 43). Defendants Ridgeway, Skorch, and McDonald did not file such a motion, and Defendant Fulk

(Doc. 56, pgs. 1-3, 6). In this case, Defendant Fulk served discovery requests that Plaintiff

“does not understand enough…to turn over adequate responses and [to] protect his

rights.” (Doc. 56, pg. 2). Plaintiff made “multiple attempts to find a prisoner to help him

with discovery[,] but everyone has turned him down.” (Doc. 56, pg. 2). One prisoner

helped Plaintiff with the instant Motion for the Appointment of Counsel, but he “would

go no further and [was] transferred to another prison.” (Doc. 56, pg. 2). Similarly, Plaintiff

claims he “has written at least twenty-five (25) attorneys and asked that they take the

case.” (Doc. 56, pg. 2). To show his efforts, Plaintiff attached the only two responses that

he received to his inquiries about securing counsel in this case. (Doc. 56, pgs. 9-11).

Plaintiff explained his “serious comprehension problems when it comes to legal

pleadings and such documents.” (Doc. 56, pg. 3). He also noted the U.S. Constitution,

Illinois Constitution, legal theory, and civil and criminal rights are “much too

complicated to comprehend.” (Doc. 56, pg. 3). Plaintiff described his education as follows:

“Plaintiff strugled [sic] in grammar school and stopped going completely in the sixth (6th)

grade…. [H]e attended one day of high school.” (Doc. 56, pg. 3). During his incarceration,

Plaintiff “barely passed” the GED examination “after several attempts.” (Doc. 56, pg. 3).

Finally, Plaintiff described his “multiple serious mental illnesses,” which “effect

his daily life in 2 very negative way[s].” (Doc. 56, pg. 3). First, Plaintiff “can suffer from

psychossis [sic] and horrible depression.” (Doc. 56, pg. 3). Although he is prescribed

medication, “it leaves him sleepy” and unable to concentrate, read, or comprehend. (Doc.

56, pgs. 3, 6). Second, due to his “serious mental illnesses[,] he can go days sometimes

weeks unable to even get out of bed [to] perform normal daily activities.” (Doc. 56, pgs.

Notably, Plaintiff was appointed counsel in three other federal cases. See Serio v. Rauner

et al., No. 15-cv-6262, Doc. 11, pg. 7 (N.D. Ill. July 29, 2015) (“Given the nature of Plaintiff’s

claims and that Plaintiff’s medical issues appear to be ongoing, the Court recruits

[counsel] to represent Plaintiff in accordance with counsel’s trial bar obligations.”); Serio

v. Westerman et al., No. 16-cv-763, Doc. 73, pg. 2 (S.D. Ill. Oct. 23, 2018) (“To date, the Court

has considered Plaintiff capable of representing himself and perceives that Plaintiff

would do an adequate job representing himself at trial. Nevertheless, for the benefit of

the Court and in appreciation for the Court’s trial calendar, the recruitment of counsel

will likely ensure that the final pretrial conference and trial run more efficiently.”); Serio

v. Williams et al., No. 17-cv-6949, Doc. 53 (N.D. Ill. July 12, 2019) (“In light of Plaintiff’s

recent pleadings and his averment of mental illness, Plaintiff’s renewed motion for

attorney representation is granted. The Court recruits [counsel] to represent Plaintiff in

accordance with counsel’s trial bar obligations.”); (Doc. 56, pg. 6).

On August 12, 2025, the Court found, based on the representation that he has

“written at least twenty-five (25) attorneys,” but only received the two responses attached

to the Motion for the Appointment of Counsel, Plaintiff satisfied the threshold burden of

demonstrating a reasonable attempt to obtain counsel under 28 U.S.C. § 1915(e)(1). (Doc.

58, pgs. 4-5) (citing 28 U.S.C. § 1915(e)(1); Walker v. Price, 900 F.3d 933, 938 (7th Cir. 2018);

Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir. 2010); Pruitt v. Mote, 503 F.3d 647, 655 (7th

Cir. 2007); Perry v. Sims, 990 F.3d 505, 513 (7th Cir. 2021); (Doc. 56, pgs. 2, 9-11)). Moreover,

in consideration of Plaintiff’s representations about his “serious [legal] comprehension

problems,” limited primary education, and “multiple serious mental illnesses,” together

motion practice, and trial preparation, the Court further found he could not competently

litigate the case. (Doc. 58, pgs. 4-5) (citing Walker, 900 F.3d at 938; Santiago, 599 F.3d at

760-61; Watts v. Kidman, 42 F.4th 755, 760 (7th Cir. 2022); (Doc. 56, pgs. 3-4, 6)).

For these reasons, the Motion for the Appointment of Counsel was granted. In

light of Mr. Dehne’s relief from assignment, and in accordance with § 1915(e)(1) and Local

Rules 83.1(j) and 83.9(b), Mr. L. Douglas Gill is ASSIGNED to represent Plaintiff in this

civil rights case. See L.Rs. 83.1(j) (“Unless expressly exempted, every member of the bar

of this Court, as defined in subparagraph (a) of this Rule, shall be available for assignment

by the Court to represent or assist in the representation of those who cannot afford to hire

an attorney. SDIL-LR 83.8-83.14 set forth the district’s Pro Bono Program and applicable

procedures.”); 83.9(b) (eff. Oct. 30, 2023) (“Counsel shall be assigned by Order of the

Court, which shall be immediately sent to all parties to the action and the assigned

attorney. The order shall include the name, address, and, if available, telephone number

of the party to be represented. Information regarding how to contact a prisoner-party is

available on the Court’s website.”). On or before September 9, 2025, Mr. Gill shall enter

his appearance in this case. Mr. Gill is free to share his responsibilities with an associate

who is also admitted to practice in this District Court. However, Mr. Gill must enter the

case and make first contact with Plaintiff, explaining that an associate may also work on

the case. Plaintiff should wait for his attorney to contact him in order to allow counsel an

opportunity to review the record.

The Clerk of the Court is DIRECTED to transmit this Memorandum & Order, as

well as copies of the docket sheet, to Mr. L. Douglas Gill of the Gill Law Firm, 239 S. Lewis

CM-ECF system. Mr. Gill is ADVISED of the need to consult Local Rules 83.8 to 83.14

regarding pro bono case procedures.

Now that counsel has been assigned, Plaintiff shall not personally file anything in

this case, except, if necessary, a pleading requesting for Mr. Gill to withdraw his

representation. If Mr. Gill is allowed to withdraw at the request of Plaintiff, there is no

guarantee that the Court will appoint other counsel for Plaintiff in this case.

Plaintiff is proceeding in forma pauperis. However, if Plaintiff should recover

damages in this action (by verdict or settlement), then Plaintiff and Mr. Gill are

ADVISED that Plaintiff will be obligated to pay the filing fee from that recovery.

Section 2.6 of this Court’s Plan for the Administration of the District Court Fund

provides for a degree of reimbursement of pro bono counsel’s out-of-pocket expenses, as

funds are available. The Plan can be found on the Court’s website, as well as the form

motion for out-of-pocket expenses and an Authorization/Certification for

Reimbursement. Any motion for reimbursement must be made within 30 days from the

entry of judgment, or reimbursement will be waived. See SDIL-LR 83.13. The funds

available for this purpose are limited, however, and counsel should use the utmost care

when incurring out-of-pocket costs. In no event will funds be reimbursed if the

expenditure is found to be without a proper basis. The Court has no authority to pay

attorney fees in this case. No portion of a partial filing fee assessed pursuant to 28 U.S.C.

§ 1915 will be reimbursed. Counsel may be reimbursed for PACER fees for this case.

The District Court has entered into an agreement with attorney Alan Mills and the

Uptown People’s Law Center to consult with lawyers in these cases,

with clients. Mr. Mills can be reached by email at alan@uplcchicago.org. He can also be

reached by phone at 773-769-1411, but email is his preferred means of contact. His

services are available to counsel free of charge, as long as counsel is representing a

prisoner pro bono in this Court. Further, the Court’s website, www.ilsd.uscourts.gov,

includes a guide for attorneys which is available as a resource. To access the guide, click

on the “Attorney Information” tab at the top of the Court’s website and select the “Guide

for Attorneys Recruited to Represent Plaintiffs in Section 1983 Cases.” The Court

encourages appointed counsel to consult it and Mr. Mills, as needed.

As of this date, Plaintiff’s contact information is:

Raymond Serio, No. B70625

Lawrence Correctional Center

10930 Lawrence Road

Sumner, IL 62466

II. Mandatory Mediation Referral and Appointment of Mediator

This prisoner civil rights case has survived a threshold review, the exhaustion of

administrative remedies is no longer at issue, and the deadlines for merits discovery and

the filing of dispositive motions have not yet lapsed. (Docs. 50 & 51). Therefore, on

August 12, 2025, the Court found it was appropriate to refer the case for a mandatory

mediation under the Mandatory Mediation Plan, as provided in § 2.1(A)(2) n. 1, to

promote “a more efficient and less expensive alternative to continuing litigation, without

impairing the quality of justice or the right to trial.” See Admin. Order No. 301, §§ 1.2(A),

2.1(A)(2) n. 1 (eff. Oct. 8, 2021).

The Court recognized each case is unique. In some cases, “the parties may have

See id. § 3.1A. In other cases, a “mediation may not be appropriate until much later.”

See id. When referring this case for a mandatory mediation, it was the Court’s intention

for the mandatory mediation to occur when the case evolved to the point where the

negotiations would be meaningful and productive. Thus, the Court ordered:

1. The parties, counsel, and the parties’ representatives, if any, shall engage in

a single mandatory mediation session. The Mandatory Mediation Plan and related

information can be found at https://www.ilsd.uscourts.gov/mandatory-mediation-

program. The Mandatory Mediation Plan is also attached to this Memorandum & Order.

2. Court Attorney and ADR Coordinator Megan Arvola is appointed as the

Mediator in this matter. Ms. Arvola is an attorney and trained mediator. She previously

served as a term law clerk to a former district judge in this District for three years. After

serving as a term law clerk, she represented clients in private civil practice for over eight

years before returning to the Court. As she is an employee of the Court, her appointment

is without charge to the parties. Ms. Arvola serves as a neutral in this matter and is not a

decision maker. Ms. Arvola is bound by the confidentiality provisions of the Mandatory

Mediation Plan, as are the parties, counsel, and the parties’ representatives. Participants

in the mediation session are directed to review the confidentiality provisions of § 3.8, as

well as the entire Mandatory Mediation Plan.

3. Within 30 days, any party could file a “Motion to Opt Out of Mandatory

Mediation.” Defendant Fulk filed such a motion on August 20, 2025. (Doc. 20). Mr. Gill is

DIRECTED to file a Response to that Motion to Opt Out of Mandatory Mediation, and

any other such motion that is hereafter filed by Defendants, on or before October 10, 2025.

previously noted, such Motions are only granted for “good cause.” They must set forth

specific reasons why the mandatory mediation has no reasonable chance of being

productive and identify when the case may be in a better posture to explore settlement.

4. If the above-contemplated Motion is denied, the Court will enter an Order

directing the mediator to set a single mandatory mediation session no later than 30 days

before the close of discovery.

5. Absent a motion from the parties, the referral of this case for a mandatory

mediation will not delay or defer other dates established in the Scheduling Order (Doc.

51) and has no effect on the scheduled progress of the case toward trial.

6. If the parties agree that it would be beneficial to set the mandatory

mediation session at an earlier date, then they may file a motion with the Court. The

parties may also request a stay of the proceedings if they believe that would allow for a

more productive mandatory mediation session.

7. Participants in the mandatory mediation session may discuss the case in

confidence and ex parte with Ms. Arvola. Both sides are encouraged to engage in

communication with Ms. Arvola prior to the mandatory mediation session in order to

discuss the case, her role, the general process, and the importance of confidentiality.

8. In the event a settlement in principle is reached, Ms. Arvola may make a

record of the material terms, but there will be no other recordings of the mandatory

mediation session. Any recording of the material terms will remain confidential unless a

dispute arises regarding the settlement.

9. At the conclusion of the single mandatory mediation session, Ms. Arvola

mandatory mediation session but does not disclose confidential communications.

10. The parties shall participate in the mandatory mediation with Ms. Arvola

in conformance with the Mandatory Mediation Plan. Any failure to conform to its

provisions or to this Memorandum & Order may be deemed sanctionable by the Court.

III. Conclusion

As explained above, the Application for Relief from Assignment is GRANTED.

Mr. L. Douglas Gill of the Gill Law Firm is ASSIGNED as counsel for Plaintiff. The matter

remains REFERRED for a mandatory mediation with Court Attorney Megan Arvola.

SO ORDERED.

Dated: August 26, 2025

s/ David W. Dugan

__________________________

DAVID W. DUGAN

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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