United States District Court, D. Kansas
JONATHAN L. McCONVILLE, Plaintiff,
NICOLE ENGLISH, Defendant.
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE.
brings this pro se civil rights action pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Plaintiff is a federal
prisoner housed at USP Leavenworth in Leavenworth, Kansas
(“USPL”). Plaintiff filed a Complaint (Doc. 5),
alleging the following. On April 30, 2014, Plaintiff was
placed in solitary confinement pending an investigation into
an assault that resulted in the death of another inmate.
Plaintiff has been held in solitary confinement for over
three years pursuant to a Bureau of Prisons
(“BOP”) policy allowing such confinement during
an investigation. Although two other inmates were formally
indicted (see Doc. 1, at 7), Plaintiff has not
received an incident report or been charged with a crime as a
result of the investigation. During his time in solitary
confinement, Plaintiff continues to be denied reasonable
access to the law library and access to the courts. Plaintiff
has repeatedly sought release into general population or to
be transferred. Defendant has ignored those requests.
Plaintiff alleges there is no effective administrative remedy
to resolve the matter because Defendant's actions are
pursuant to a BOP policy. Plaintiff alleges cruel and unusual
punishment in violation of the Eighth Amendment, and denial
of access to the courts in violation of the First Amendment.
Plaintiff's request for relief seeks his release to
general population at USPL or transfer to another institution
where he will be allowed to live in general population.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
an employee of a governmental entity. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion
thereof if a plaintiff has raised claims that are legally
frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
Court finds that proper processing of Plaintiff's claims
cannot be achieved without additional information from
appropriate officials of USPL. See Martinez v.
Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall
v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).
Motion to Appoint Counsel
filed a motion for appointment of counsel (Doc. 3), alleging
that he is in solitary confinement with limited access to the
law library and a copy machine.
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.
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's motion for appointment of counsel (Doc. 3) is
denied without prejudice.
IS FURTHER ORDERED THAT:
clerk of court shall effectuate service of summonses pursuant
to Fed.R.Civ.P. 4(i), at no cost to Plaintiff. The report
required herein shall be filed no later than sixty (60) days
from the date of this Order, and the answer shall be filed
within thirty (30) days following the receipt of that report
by counsel for Defendant.
Officials responsible for the operation of the United States
Penitentiary, Leavenworth, Kansas, are directed to undertake