United States District Court, D. Kansas
ANTHONY D. WILLIAMS, Plaintiff,
K. AULEPP, et al., Defendants.
P. O'Hara U.S. Magistrate Judge
a federal inmate proceeding pro se, brings this
action under the Federal Tort Claims Act, Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics,
42 U.S.C. §§ 1985 & 1986. He alleges defendants
were deliberately indifferent to his medical needs in
violation of the Eighth Amendment; and infringed his right to
free speech, retaliated against him for petitioning the
courts, and denied him access to the courts in violation of
the First Amendment. This matter is before the court on
plaintiffs motions to appoint counsel (ECF Nos. 80 and 84).
civil actions such as this one, there is no constitutional
right to appointed counsel.The decision whether to appoint
counsel in a civil matter lies in the discretion of the
district court. In deciding whether to appoint counsel,
the court 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." "The burden is on the
[prisoner] to convince the court that there is sufficient
merit to his claim to warrant the appointment of
counsel." 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
motions assert appointment of counsel is in the public
interest because counsel would help ensure his case is not
dismissed based on "confusion of legal theories or
unfamiliarity with pleading requirements], " and thus
would bring the actions of defendants to light. Plaintiff also
asserts he is being denied access to the courts because he
has been transferred to different prisons, he only has access
to his legal materials four days a week, he has no space to
draft motions, he is not provided postage to mail his legal
papers, and his legal mail is not being processed correctly
by prison officials.
court has considered plaintiffs motions and concludes that
this is not a case in which appointment of counsel is
justified, at least at this juncture. First, it is not clear
that plaintiffs claims have merit; a motion to dismiss is
pending. Second, the factual and legal issues in
the case are not complex. The court has no doubt that the
U.S. district judge assigned to this case will have little
trouble discerning the applicable law. Third, plaintiff has
demonstrated the ability to investigate and argue his claims.
Despite his allegations that his access to the court has been
denied, the record reflects plaintiff has filed numerous
documents with the court, even since his transfer to the
Federal Correctional Institution at Beaumont, Texas. Finally,
plaintiffs briefs are cogent, and plaintiff appears capable
of adequately presenting facts and arguments. The court
therefore denies plaintiffs request for counsel. However, if
the case survives defendants' motion to dismiss,
plaintiff is given leave to file another motion for
appointment of counsel if it becomes apparent that appointed
counsel is necessary at that time.
is hereby informed that, within 14 days after he is served
with a copy of this order, he may, pursuant to Fed.R.Civ.P.
72 and D. Kan. Rule 72.1.4(a), file written objections to
this order by filing a motion for review of this order by the
presiding U.S. district judge. Plaintiff must file any
objections within the 14-day period if he wants to have
appellate review of this order. If plaintiff does not timely
file his objections, no court will allow appellate review.
THEREFORE ORDERED that plaintiffs motions to appoint counsel
are denied without prejudice.
of this order shall be mailed to plaintiff via regular mail.
403 U.S. 388(1971).
Carper v. DeLand, 54 F.3d 613,
616 (10th Cir. 1995); Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989).
Hill v. Smith Kline Beecham
393 F.3d 1111, 1115 (10th Cir. 2004) (citing
Rucks v. Boergermann,57 F.3d 978, 979 (10th Cir.
1995)); Williams v. Meese,926 F.2d ...