United States District Court, D. Kansas
KELLY S. TUNNELL, Plaintiff,
JASON B. GILL, JUSTIN R. MANNING, JON GILL, ROBERT L. HEPHNER, and DANIEL R. MLAGAN, Defendants.
GARY SEBELIUS, UNITED STATES MAGISTRATE JUDGE
matter comes before the court upon the following motions
brought by plaintiff, who is proceeding pro se: (1)
Motion for Appointment of Counsel (ECF No. 48); and (2)
Motion to Amend to Add John and Jane Doe Defendants (ECF No.
51). For the following reasons, these motions are denied.
a federal civil rights case filed under 42 U.S.C. §1983
alleging a violation of the Fourth Amendment to the
Constitution for conducting an illegal search and seizure of
plaintiff's residence at the time of his arrest on April
8, 2014. The court has previously allowed plaintiff to
proceed in forma pauperis.
seeks to amend his complaint to add “John and Jane
Doe” defendants. These defendants represent other
officers who were at the scene of the search of his
residence. He asserts that he has asked defense counsel for
the names of all officers who were involved in the search but
defense counsel has not responded.
deadline for filing motions to add additional parties was
July 14, 2017. The discovery deadline was August 24, 2017.
Plaintiff filed this motion on February 9, 2018.
Fed.R.Civ.P. 15(a), once a responsive pleading has been
filed, “a party may amend only by leave of court or by
written consent of the adverse party; and leave shall be
freely given when justice so requires.” Ordinarily,
leave to amend will be freely granted absent “a showing
of undue delay, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or undue
prejudice to the opposing party, or futility of
court finds plaintiff's motion is untimely. He has
offered no reason why this motion was not filed prior to the
deadline for adding parties. He notes that he requested the
names of the officers from defense counsel, but he provides
no details on when he sought that information. He was aware
of the deadline and made no effort to extend it. Under these
circumstances, the motion is denied.
also seeks appointment of counsel. This is plaintiff's
third request for appointment of counsel. In this motion, he
contends (1) the issues in this case are complex; (2)
defendants have filed a motion for summary judgment and he
does not have the legal training to respond to the motion;
(3) his previous filings were written by another inmate who
is no longer available to him; (4) he does not have the
ability to litigate this case; and (5) he has contacted three
attorneys in the past 90 days, two of which did not respond
and the other declined his request for representation.
previously been pointed out by other judges in this case,
there is no constitutional right to appointed counsel in a
civil case. However, 28 U.S.C. § 1915(e)(1)
permits the court to “request an attorney to
represent” a party proceeding in forma
pauperis. The court emphasizes that § 1915(e)(1)
merely permits the court to request an attorney to represent
an indigent defendant in a civil case and does not authorize
the court to require an unwilling attorney to take the
case.Thus, to the extent plaintiff requests the
court to appoint counsel, the court lacks the power to do so.
The court only may seek a volunteer attorney to represent
him. Furthermore, Congress provides no method for
compensating attorneys that take on a case under §
1915(e)(1), so attorneys who do so will usually be serving
pro bono. As a result, the court exercises this
1915(e)(1) grants broad discretion for courts to request
counsel to represent an indigent party. In exercising its
discretion, the Tenth Circuit directs district courts to
consider: (1) the merits of the litigant's claims; (2)
the nature of the factual issues raised in the claims; (3)
the litigant's ability to present the claims; and (4) the
complexity of the issues raised by the claims.“‘The
burden is on the applicant to convince the court that there
is sufficient merit to his claim to warrant the appointment
upon a review of these factors, the court is not persuaded
that plaintiff's motion should be granted. Defendants
have filed a motion for summary judgment raising several
reasons why plaintiff's claims must fail. The court does
not presume to predict how Judge Crabtree will rule on the
motion. But the court concludes, after considering the
relevant circumstances and the applicable law, that
defendants have asserted arguments that suggest the lack of
merit of plaintiff's claims. On the other factors, the
court is not persuaded that the issues are so complex that
plaintiff cannot properly address them. In fact, the record
before the court shows that plaintiff has been able to
properly litigate his claims. The court recognizes that
plaintiff now contends that the inmate who previously helped
him is no longer available. ...