United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. Mr. Collins is an inmate at Lansing Correctional
Facility in Lansing, Kansas (“LCF”). He alleges
that his Eighth Amendment rights are being violated primarily
by Defendants' failure to protect him. Plaintiff names as
defendants: Joe Norwood, Director of the Kansas Department of
Corrections (“KDOC”); Sam Cline, Warden of LCF;
Melissa Waldock, LCF Classification Administrator; Colette
Winkelbauer, LCF Deputy Warden; Doug Burris, KDOC Corrections
Manager; and Andrew Lucht, former EAI Major.
to Plaintiff, he agreed to serve as a confidential source in
a wide-spread corruption investigation at LCF. He signed two
(2) confidential source agreements, one in 2015 and one in
2016, with EAI officials and provided information that
assisted in the investigation. Then, his identity as a
confidential informant was leaked by an unidentified KDOC
employee to security threat groups (“STGs”)
implicated in the corruption investigation and was revealed
in a LCF employee's civil service appeal of
administrative action taken based on the investigation. Mr.
Collins has been labeled a “snitch” and has been
“green lighted” for attack by the STGs. He is
being held in segregation for protective purposes. Mr.
Collins alleges he is not safe in long term protective
custody and furthermore should not be required to spend the
remainder of his confinement (approximately three more years)
in segregation. Plaintiff has repeatedly requested transfer
to an out of state prison pursuant to interstate compact, but
he has not received a response to his requests.
Collins alleges violation of his Eighth Amendment right to be
free from cruel and unusual punishment. He seeks injunctive
relief in the form of an order directing his transfer to an
out of state prison, as well as compensatory and punitive
has also requested appointment of counsel. See Doc.
#3. 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 the proper processing of Plaintiff's
claims cannot be achieved without additional information from
appropriate officials of the Lansing Correctional Facility.
See Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106
(10th Cir. 1991). Accordingly, the Court orders the
appropriate officials of LCF to prepare and file a
Martinez report. Once the report and Defendants'
answers have been received, the Court can properly screen
Plaintiff's claims under 28 U.S.C. § 1915.
IS THEREFORE ORDERED that Plaintiff's motion for
appointment of counsel (Doc. #3) is denied without
IS FURTHER ORDERED:
Clerk of the Court shall prepare waiver of service forms for
the defendants, pursuant to Rule 4(d) of the Federal Rules of
Civil Procedure, to be served at no cost to Plaintiff absent
a finding by the Court that Plaintiff is able to pay such
report required herein shall be filed no later than
sixty (60) days from the date of this order,
and Defendants' answers shall be filed within
twenty (20) days following receipt of that
report by counsel for Defendants or as set forth in the
waiver of service, whichever is later.
Officials responsible for the operation of the Lansing
Correctional Facility are directed to undertake a review of
the subject matter of the complaint:
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 matter of the
complaint; and c. To determine whether other like complaints,
whether pending in this Court or elsewhere, are related ...