United States District Court, D. Kansas
BENNY R. SMITH, Plaintiff,
RON BAKER, et al., Defendants.
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
a prisoner in state custody, brings a civil rights complaint
under 42 U.S.C. § 1983. He alleges that the defendant
prison officials, an interim warden and a deputy warden, have
subjected him to racial discrimination, violated his due
process and equal protection rights, seized his television,
censored his mail, allowed other prisoners to taunt and touch
him, and subjected him to retaliation for his decision to
seek protective custody rather than remain in the general
population. He seeks the replacement of his property and an
order to cease and desist the censorship of his telephone
calls and outgoing correspondence.
proceeds pro se and seeks leave to proceed in forma pauperis
under 28 U.S.C. § 1915.
Prison Litigation Reform Act substantially changed the manner
in which indigent prisons may proceed in the United States
District Courts. In particular, Section 1915 now provides:
"In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
physical injury." 28 U.S.C. § 1915(g).
records from the District of Kansas reflect that plaintiff
has filed at least ten cases in this court and that at least
three of those cases, or related appeals, were dismissed on
grounds qualifying as a strike under §
Court has carefully reviewed the complaint and the
attachments materials submitted by the plaintiff. The claims
presented appear primarily to concern plaintiff's
difficulty in contacting family members by telephone and his
frustration with the seizure of his television set after his
incentive level, an administrative rating within the prison
system, was reduced due to disciplinary infractions. While
the complaint also includes allegations that unnamed prison
officials have caused "the fumigation of dangerous
chemical in [plaintiff's] cell vent" and that
plaintiff was exposed to fumes from multiple fires set by
another prisoner, Doc. #1, pp. 14 and 18, these claims do not
suggest that plaintiff is in imminent danger, nor does the
relief he seeks appear related to these claims.
present record, the Court finds that plaintiff has not met
the criterion of imminent danger of serious injury that would
allow him to proceed in forma pauperis. The Court will deny
the motion to proceed in forma pauperis and must require
plaintiff to pay the full filing fee.
also moves for the appointment of counsel (Doc. #3). As a
party to a civil action, plaintiff has no constitutional
right to the appointment of counsel. Durre v.
Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).
Rather, the Court has discretion to appoint counsel and must
consider factors including "the merits of the
litigant's claims, the nature of the factual issues
raised in the claims, the litigant's ability to present
his claims, and the complexity of the legal issues raised by
the claims." Rucks v. Boergermann, 57 F.3d 978,
979 (10th Cir. 1995)(internal citations and
quotations omitted). It is not enough "that having
counsel appointed would have assisted [the plaintiff] in
presenting his strongest possible case, [as] the same could
be said in any case." Steffey, 461 F.3d 1218,
1223 (10th Cir. 2006).
point, the Court has not yet determined whether
plaintiff's claims may proceed. The Court therefore will
deny the request without prejudice. Likewise, while plaintiff
moves for the service of process by a U.S. Marshal (Doc. #4),
the Court will take no action on this request until a
determination is made on whether this matter should proceed.
THEREFORE, BY THE COURT ORDERED plaintiff's motion for
leave to proceed in forma pauperis (Doc. #2) is denied.
Plaintiff is granted to and including January 4, 2019, to
submit the $400.00 filing fee in this matter.
FURTHER ORDERED plaintiff s motion to appoint counsel (Doc.
#3) is denied without prejudice.