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Cox v. Ann

United States District Court, D. Kansas

November 19, 2014

NICHOLAS A. COX, Plaintiff,
ANN (LNU), et al., Defendants.


GERALD L. RUSHFELT, Magistrate Judge.

The Court addresses two motions, filed by Plaintiff: Motion for Appointment of Counsel or in the alternative Motion for Expert Witness Appointments and order allowing Defendant's Legal Books/Materials (ECF 235); and Motion for Continuance (ECF 241). For the following reasons the Court denies both motions. Upon its own motion it grants Plaintiff 21 days within which to respond to two of the outstanding motions for summary judgment, filed respectively by Defendant Dr. Pattison and by CCS defendants.

Plaintiff is incarcerated in state prison in Kansas. He proceeds pro se and in forma pauperis. He previously filed in this case two other motions for appointment of an attorney. The Court denied both of them. It did so without prejudice to a later motion for appointment, such as Plaintiff has here submitted.

The rules for appointment of an attorney to represent a litigant in United States District Court vary, depending upon the nature of the case. In criminal prosecutions an indigent defendant has a constitutional right to appointment of counsel without cost to her or him. In some civil cases a party may have a statutory right to appointment of counsel, e.g. to pursue a claim under federal law for employment discrimination.

As noted in the Memorandum and Order of May 30, 2013 (ECF 95), in general there is no constitutional right to appointment of counsel in a civil case. Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). For parties proceeding in forma pauperis, 28 U.S.C. § 1915(e)(1) provides discretionary authority for the Court to "request an attorney to represent any person unable to afford counsel." Loftin v. Dalessandri, 3 F.Appx. 658, 663 (10th Cir. 2001). The request addresses its discretion. The Court itself has no staff attorney and no retained panel of attorneys from which to make an appointment in a civil case. An attorney who agrees to such appointment will usually be donating his or her time and professional resources, serving the party pro bono. Consequently, the Court exercises this power sparingly. And it looks closely at the facts of record and the circumstances of the moving party, here the Plaintiff, to determine if they adequately support the motion. He bears the burden to justify his motion.


In his motion Plaintiff states, "Ultimately, the most important reason in deciding appointment of counsel is merit and this case has it." ECF 235 at 2. Simply to say that the case has merit, of course, does not make it so. To evaluate the merits, the Court must look at what is of record in the case. That includes the pleadings of the parties and exhibits or other evidence they may have submitted upon motions or hearings, if any. Addressing the motions here, the Court has reviewed the Amended Petition (Complaint) (ECF 159) and other matters of record. These include the pleadings, the briefing and exhibits submitted with previous motions and those that pertain to the pending motions for summary judgment.

The Amended Petition (ECF 159) asserts five claims for damages Plaintiff allegedly suffered while incarcerated in the Johnson County Adult Detention Center. He alleges that all the Defendants violated his rights to medical care. They suspended his oral medication from June 1 through 15, 2012, without first examining him. They failed to restore them, in spite of the grievances he filed. He pleads that, "From 6/1/12 until 6/15/12, I received no medical attention despite numerous requests and grievances." ECF 159 at 5. Plaintiff admits he had violated institutional rules by "cheeking" the medicine when it was administered to him, but did so to delay the onset of drowsiness. He pleads that the conduct of the Defendants violated 42 U.S.C. § 1983 and the Eighth and Fourteenth Amendments of the U.S. Constitution. He claims Defendants also thus violated the Kansas Constitution, the Kansas Bill of Rights, and Chapter 60 of Kansas Statutes Annotated. Counts 1, 2 and 3 of his pleading allege the federal claims. Count 4 alleges claims under Kansas law against Defendants Correct Care Solutions, LLC, Dr. Keith Pattison, Nurse Ann, Nurse R., Nurse Megan Collar, and Nurse John Doe for gross negligence and wanton and intentional disregard for the safety of Plaintiff. Count 5 alleges claims against Defendants Denning and Dvorak for grossly negligent and intentional misconduct in violating their duties as law-enforcement officers under K.S.A. §§ 19-1903, 19-1919, and 19-805(a).

Plaintiff alleges he suffered "unbearable withdraw symptoms" as a result of medical mistreatment. ECF 159 at 8. They include "throwing up, stomach aches/pains, loss of appetite, no sleep for three days, the shakes, nausea suicidal thoughts, severe depression, and a broken middle knuckle on my middle finger of my right hand that I will suffer arthritis in for the rest of my life." Id. The Amended Petition further alleges that Defendants had in place customs and policies that authorized the improper treatment he received and that they were deliberately indifferent to his medical needs, thus asserting claims under 42 U.S.C. § 1983.

If nothing more were required than the allegations of the Amended Petition, the Court could more readily determine the motion to appoint counsel. Reviewing the rest of the record, and particularly the briefing and exhibits in support of the pending motions for summary judgment, however, the Court finds little if any evidence by deposition, affidavit, or medical records to adequately support the alleged claims. Plaintiff has provided some personal evidence by his declaration. Considering the remaining record, however, the Court finds little if anything to suggest a likelihood that the claims of Plaintiff are sufficient to prevail under Section 1983 and the Eighth and Fourteenth Amendments to the U.S. Constitution. Plaintiff has the burden not only to plead, but also to prove by admissible evidence that Defendants were not simply negligent, but were indeed deliberately indifferent to a serious medical need. With regard to Defendants Denning and Dvorak, who are sued as law-enforcement officers, Plaintiff must also overcome their defenses of qualified immunity.

To support his claims under Kansas state law, Plaintiff would probably need one or more expert witnesses.[1] Yet he apparently has designated none. The deadline for such designation has long passed. For reasons set forth in an earlier Memorandum and Order (ECF 95), the Court has denied the request of Plaintiff to appoint an expert witness.

Liability issues aside, the Court also considers what the record suggests with regard to the relief Plaintiff seeks. He seeks both compensatory and punitive damages against all Defendants. But the Court finds little if any persuasive evidence to suggest he has suffered substantial compensatory damages caused by culpable conduct of the Defendants. His pleadings describe complaints, both physical and mental, that he suffered during fifteen days of the alleged withdrawal of medications. Notwithstanding substantial time to pursue discovery, however, the Court finds no medical records, testimony either lay or expert, or other evidence of record to show complaints or problems of a medical nature, caused by these Defendants. Because Plaintiff was incarcerated, the Court might assume he himself incurred no medical bills, loss of income, or other actual damages. Were he to prevail against any or all of the Defendants, the Court can hardly assume that his recovery for compensatory damages would exceed a few thousand dollars. And it can only speculate as to any recovery for punitive damages.

The Court recognizes the possibility that its assumptions and analysis may be inaccurate. At this point no one can predict with certainty the outcome of this case, if it proceeds to trial. But to determine whether or not to appoint an attorney, it must assess the case as fully as possible, not only from the pleadings and the arguments of Plaintiff, but also from the rest of the record. That includes an analysis both of what the record contains and what it does not but should contain as a basis for justifying a request for counsel. The Court finds only a scant record to support the motion, beyond the bare allegations of the complaint itself. "The applicant bears the burden of convincing the Court that his claims have sufficient merit to warrant appointment of counsel." McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). In this case it does not find that Plaintiff has met that burden.

The Court notes a potential issue, not raised by the parties, regarding its jurisdiction over the subject matter of the case. If the counts under the United States Constitution and 42 U.S.C. § 1983 fail to survive the motions for summary judgment, the Court may be without jurisdiction over the subject matter of the remaining claims. They arise under the laws of Kansas. For jurisdiction of this Court upon removal from the District Court of Johnson County, Kansas, Defendants relied upon the pleading of the federal claims. ECF 1. They arise, of course, under the Constitution and laws of the United States. Subject-matter jurisdiction of this Court thus depends upon 28 U.S.C. § 1331. The claims under state law, by contrast, have no jurisdictional basis in that statute. And they appear to have no independent source for jurisdiction. If diversity of citizenship exists between Plaintiff and Defendants, jurisdiction may survive under 28 U.S.C. § 1332. The Court does not know if diversity exists between Plaintiff and Defendants. And it makes no ...

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