United States District Court, D. Kansas
CROW U.S. Senior District Judge.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is currently incarcerated at
the Butler County Jail in El Dorado, Kansas. This matter
comes before the Court on Plaintiff's Motion to Appoint
Counsel (Doc. 3); Motion for Leave to Amend Complaint (Doc.
5); and Motion for Default Judgment (Doc. 6).
22, 2017, Plaintiff filed a Motion for Leave to File an
Amended Complaint (Doc. 5). This is Plaintiff's first
request to amend his complaint. The Court finds that
Plaintiff is entitled to amend his complaint under
Fed.R.Civ.P. 15(a) and grants the motion. See Fed.
R. Civ. P. 15(a)(1) (a party has the right to amend the
complaint once as a matter of course if the amendment is
timely filed). However, Plaintiff failed to attach his
proposed Amended Complaint to his motion as required by the
Court's Local Rules. See D. Kan. Rule 15.1.
Because Plaintiff has indicated that he is in the process of
changing facilities (Doc. 7), the Court will grant him
additional time to submit his proposed Amended Complaint.
Amended Complaint is not simply an addendum to the original
complaint, and instead completely supersedes it. Therefore,
any claims or allegations not included in the Amended
Complaint are no longer before the court. It follows that a
plaintiff may not simply refer to an earlier pleading, and
the Amended Complaint must contain all allegations and claims
that a plaintiff intends to pursue in the action, including
those to be retained from the original complaint. Plaintiff
must write the number of this case (17-3029-SAC-DJW) at the
top of the first page of his Amended Complaint and he must
name every defendant in the caption of the Amended Complaint.
See Fed. R. Civ. P. 10(a). Plaintiff should also
refer to each defendant again in the body of the complaint,
where he must allege facts describing the unconstitutional
acts taken by each defendant including dates, locations, and
circumstances. Plaintiff must allege sufficient additional
facts to show a federal constitutional violation.
has also filed a motion for appointment of counsel. There is
no constitutional right to appointment of counsel in a civil
case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir.
1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir.
1995). The decision whether to appoint counsel in a civil
matter lies in the discretion of the district court.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). “The burden is on the applicant to convince the
court that there is sufficient merit to his claim to warrant
the appointment of counsel.” Steffey v. Orman,
461 F.3d 1218, 1223 (10th Cir. 2006)(quoting Hill v.
SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.
2004)). It is not enough “that having counsel appointed
would have assisted [the prisoner] in presenting his
strongest possible case, [as] the same could be said in any
case.” Steffey, 461 F.3d at 1223 (quoting
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995)). In deciding whether to appoint counsel, courts must
evaluate “the merits of a prisoner's claims, the
nature and complexity of the factual and legal issues, and
the prisoner's ability to investigate the facts and
present his claims.” Hill, 393 F.3d at 1115
(citing Rucks, 57 F.3d at 979).
Court denies the motion to appoint counsel without prejudice
to Plaintiff refiling the motion after the Court has screened
Plaintiff's Amended Complaint. It is not clear at this
juncture whether Plaintiff will assert a colorable claim
against a named defendant in his proposed Amended Complaint
or whether the issues in the Amended Complaint will be
has also filed a Declaration for Entry of Default (Doc. 6).
Plaintiff's declaration states that Defendants were
served and failed to respond to Plaintiff's Complaint.
The Defendants have not been served in this case, and they
will not be served unless Plaintiff's proposed Amended
Complaint survives the Court's screening process pursuant
to 28 U.S.C. § 1915A. Plaintiff's declaration is
inaccurate and his motion for default judgment is premature.
THEREFORE ORDERED BY THE COURT that Plaintiff's Motion to
Appoint Counsel (Doc. 3) is denied without prejudice.
FURTHER ORDERED that Plaintiff's Motion for Default
Judgment (Doc. 6) is denied.
FURTHER ORDERED that Plaintiff's Motion for Leave to
Amend Complaint (Doc. 5) is granted.
FURTHER ORDERED that Plaintiff is granted until July 21, 2017
in which to file an Amended Complaint naming proper
defendants and setting forth sufficient facts which show the
personal participation of each person named as a defendant.
clerk is directed to send Plaintiff forms for filing a civil
rights complaint pursuant to § 1983, which he ...