United States District Court, D. Kansas
ORDER TO SHOW
CROW Senior U.S. District Judge.
William David Gross is hereby required to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why this action should not be dismissed or stayed for
the reasons set forth below. This matter is before the Court
on a civil rights complaint filed under 42 U.S.C. § 1983
by a prisoner. Plaintiff proceeds pro se and in forma
seeks compensation for, or the return of, his property that
is being held by the Defendants-the Osage County Sheriff and
the Osage County Sheriff's Office. Plaintiff alleges that
property was seized pursuant to his underlying criminal
proceeding, and that Defendants have failed to return the
property at the conclusion of those proceedings and despite a
release by the United States Attorney's Office.
is seeking the same relief in his criminal case. See
United States v. Gross, No. 15-cr-40012-CM (D. Kan.).
The Court in that case entered a Memorandum and Order on
March 9, 2018 (Doc. 111), ruling on multiple motions filed by
Plaintiff for the return of his property under Fed. R. Crim.
P. 41(g). The Court denied the motions without prejudice,
It appears from defendant's most recent filing that
defendant has been in contact with the Osage County
Sheriff's Department, which suggests to this court that
his request may be moot at this point. If defendant still has
not received his property and believes the federal government
has actual or constructive possession of the property as
required by Rule 41(g), he may file a new motion, and the
court expects the government to respond to any such motion
with an update on the status of any efforts to assist with
the return of defendant's property from state
Doc. 111, at 2. Plaintiff responded to the Court's
Memorandum and Order on April 3, 2018 (Doc. 112), stating
that although the U.S. Attorney's Office provided
Plaintiff with a copy of its release of the subject property,
“it appears the U.S. attorney at the Sheriff's
request failed to provide any certification to supplement or
provide release and return of the property which the Court
makes note of and so states.” (Doc. 112, at 1-2.)
Plaintiff suggests that Doc. 112 is intended to serve as his
new motion for return of property under R. 41(g). See
id. at 2 (“this new motion is filed in conjunction
with previous filings as a supplemental addendum”).
is seeking the same relief in his criminal case, which will
involve participants who are already familiar with the
underlying criminal action and the issues surrounding the
property. In the interest of judicial economy, this matter
should be dismissed or stayed pending a ruling on
Plaintiff's motion in his criminal case. See Garcia
v. Trubey, No. 12-3095-SAC, 2012 WL 2019187, at *5 (D.
Kan. 2012) (finding that the order of the federal district
court in plaintiff's criminal case denying his 41(g)
motion for return of seized property precludes him from
relitigating his claims before this federal district court).
has also filed a Motion for Appointment of Counsel (Doc. 8),
arguing that the case is complex and he is not skilled in the
practice of law. The Court has considered Plaintiff's
request 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.
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 request without prejudice to refiling a motion if
Plaintiff's case proceeds.
IS THEREFORE ORDERED BY THE COURT that Plaintiff is
granted until April 30, 2018, in which to
show good cause, in writing, to the Honorable Sam A. Crow,
United States District Judge, why Plaintiff's Complaint
(Docs. 1, 4) should not be dismissed or stayed for the
reasons stated herein.
IS FURTHER ORDERED that Plaintiff's Motion to
Appoint Counsel (Doc. 8) is denied without