United States District Court, D. Kansas
SHAWN W. McDIFFETT, Plaintiffs,
DARRELL FROMM, et al., Defendants.
J. Waxse U.S. Magistrate Judge
bring this pro se civil rights action pursuant to 42
U.S.C. § 1983. The Court granted Plaintiff leave to
proceed in forma pauperis. Although Plaintiff is currently
incarcerated at the Hutchinson Correctional Facility in
Hutchinson, Kansas (“HCF”), the events giving
rise to his Complaint took place during his incarceration at
the El Dorado Correctional Facility in El Dorado, Kansas
alleges that when he was transferred to EDCF on November 23,
2016, he notified staff of his various allergies, which
included peanut butter. It appeared as though the nurse
processing Plaintiff recorded these allergies. After
Plaintiff was assigned to his cell, he again advised staff of
his peanut allergy and that a special tray and handling
precautions were needed. Despite the use of a special-colored
food tray with the allergy noted, Plaintiff still encountered
problems with the handling and delivery of his food tray.
Some days there would be peanut butter on his tray and other
days staff would serve him a vegetarian or high-protein tray.
On one occasion Plaintiff's tray was returned to the
kitchen because it contained peanut butter. When the tray was
returned to Plaintiff a hard-boiled egg had been added to the
tray, but the peanut butter was still on the tray. Staff then
attempted to scrape off the peanut butter with a spork and
returned the tray to Plaintiff. Plaintiff alleges that on 17
out of 39 days, his meal tray was incorrectly prepared,
handled or delivered to Plaintiff. On January 8, 2017,
Plaintiff suffered from an allergic reaction while eating his
breakfast. Upon inspection of his food tray, he discovered
peanut butter smeared on the inside of the food slot and
along the outside edges of the tray. Plaintiff was assured by
the Segregation Review Board and by Defendant Fromm that the
situation had been taken care of. Despite that assurance, on
January 23, 2017, Plaintiff was served a tray containing
peanut butter. Plaintiff alleges that all facility
departments, including Corizon, Aramark and EDCF
Administrative Staff, were put on notice and demonstrated
deliberate indifference to his serious medical needs in
violation of the Eighth Amendment.
names multiple EDCF, Aramark and Corizon staff as defendants.
Plaintiff seeks a declaratory judgment, compensatory damages,
nominal damages and punitive damages.
filed a Motion for Appointment of Counsel (Doc. 3). Plaintiff
asks the Court to appoint counsel to represent him because
Plaintiff is unable to afford counsel, Plaintiff has limited
access to the law library, Plaintiff has extremely limited
knowledge of the law, and Plaintiff's supplies are
Court has considered Plaintiff's 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)).
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). The Court concludes in this
case that (1) it is not clear at this juncture that Plaintiff
has asserted a colorable claim against a named defendant; (2)
the issues are not complex; and (3) Plaintiff appears capable
of adequately presenting facts and arguments. The Court
denies the motion without prejudice to refiling the motion if
Plaintiff's Complaint survives screening.
Court finds that proper processing of Plaintiff's claims
cannot be achieved without additional information from
appropriate EDCF officials. See Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978); see also Hall v.
Bellmon, 935 F.2d 1106 (10th Cir. 1991).
THEREFORE ORDERED THAT Plaintiff's motion for appointment
of counsel (Doc. 3) is denied without prejudice.
FURTHER ORDERED THAT:
report required herein shall be filed no later than sixty
(60) days from the date of this Order.
Officials responsible for the operation of the EDCF are
directed to undertake a review of the subject matter of the
(a) to ascertain the facts and circumstances;
(b) to consider whether any action can and should be taken by
the institution to resolve the subject ...