United States District Court, D. Kansas
WILLIAM R. HOLT, Plaintiff,
JOE NORWOOD, et al., Defendants.
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. Plaintiff is an inmate at El Dorado Correctional
Facility-Central in El Dorado, Kansas (“EDCF”).
This matter is before the Court on Plaintiff's Motion for
Leave to Proceed In Forma Pauperis (Doc. 2), Motions for
Preliminary Injunction and Temporary Restraining Order (Docs.
3, 7), and Motion to Appoint Counsel (Doc. 4).
Nature of the Case
alleges in his Complaint (Doc. 1) that he was notified on
August 13, 2018, that he had a hold or warrant in Clay
County, Missouri, Warrant No. 16-CYARW-817, No.
16-CY-CR06976. On August 14, 2018, Plaintiff gave Ms.
Gadberry, a mental health provider, a Form-9 to give to
Records, requesting that his 180-day writ be filed in Clay
County, Missouri, to invoke his speedy trial rights. On
August 15, 2018, UTS Fuoss returned the form to Plaintiff,
asserting that because his release date was December 3,
2018-before the expiration of the 180-days- Records was not
allowing him to file the writ. UTM Randolph, the Chief
Officer of B Cellhouse, refused to order Fuoss or the Records
Clerk to file Plaintiff's 180-day writ, violating
Plaintiff's right to a speedy trial, equal protection,
and due process. Plaintiff alleges that he is being denied
equal protection because other inmates are receiving
assistance from the staff counselor while he is being denied
the same assistance. Plaintiff also alleges that the failure
to file his 180-day writ denied him access to the courts, and
that staff provided the incorrect mailing address for the
Clay County District Court. Plaintiff alleges that he will no
longer receive a fair and speedy trial in his Clay County,
alleges that M. Bos, Classification Administrator at EDCF,
allowed Fuoss and the Records Clerk to remove Plaintiff's
Form-9 from his grievance and refused to notify Missouri that
Plaintiff requested his speedy trial on August 15, 2018.
Plaintiff alleges that Defendants intentionally delayed the
grievance response and that Defendant Bos responded that
Plaintiff had failed to request his 180-day writ. On October
22, 2018, UTM Randolph provided Plaintiff with a copy of his
appealed grievance to the Secretary of Corrections, with a
sticky note attached which states “we are going to let
him submit his 180 day writ. See if he will sign off. If not
return to me.” (Doc. 1-1, at 6.) Defendant Randolph
asked Plaintiff to refile his 180-day writ showing a date of
October 22, 2018. Plaintiff asked Randolph to correct the
response given by Bos on October 26, 2018, as Randolph knew
that the Form-9 was attached to the grievance when filed, but
was removed by him or Fuoss prior to forwarding it to the
Warden. Randolph refused to take corrective action and made
numerous threats to Plaintiff.
also alleges that Defendants Jane and John Doe-the Clay
County, Missouri Clerk and Judge-refused to order the
appointment of legal counsel. Plaintiff names as Defendants:
Joe Norwood, Secretary of Correction; UTM Randolph; John Doe,
Clay County District Court Judge; Jane Doe, Clay County
District Court Clerk; M. Bos, Classification Administrator;
Paul Snyder, EDCF Warden; and A. Fuoss, Unit Team.
Plaintiff's request for relief seeks an order providing
for an August 14, 2018 speedy trial date; a temporary
restraining order enjoining Plaintiff's extradition to
Missouri; and an order appointing counsel.
Motion for Leave to Proceed In Forma Pauperis
has filed a motion for leave to proceed in forma pauperis
(Doc. 2). Plaintiff's motion failed to provide the
financial information required by federal law to support his
motion. The Court issued a Notice of Deficiency (Doc. 10)
directing Plaintiff to provide a certified copy of his trust
fund account statement (or institutional equivalent) for the
6-month period immediately preceding the filing of his
Complaint. The Court will provisionally grant Plaintiff's
motion to proceed in forma pauperis, subject to Plaintiff
providing the financial information as directed in the
Court's Notice of Deficiency.
Motion for Appointment of Counsel and for PI/TRO
has filed a motion for appointment of counsel (Docs. 4, 5).
Plaintiff's Motion for a Preliminary Injunction and
Temporary Restraining Order (Doc. 7) also seeks to have
counsel appointed in this case. Plaintiff alleges that he has
had difficulty with staff filing his documents in previous
cases, including their requirement that he only write on one
side of the pages. Plaintiff also states that the issues are
complex, he has no one to rely on for legal advice, and that
he is currently in segregation with limited access to the law
Court has considered Plaintiff's motion 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. 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 motions without prejudice to refiling the motions
if Plaintiff's Complaint survives screening.
Order to Show Cause
is ordered to show good cause why Defendants Jane Doe, Clay
County District Court Clerk, and John Doe, Clay County
District Court Judge, should not be dismissed for lack of
personal jurisdiction. In addition to subject matter
jurisdiction, the court must have authority or
“personal jurisdiction” over the parties
“so that the court's decision will bind
them.” Hill v. Pugh, 75 Fed.Appx. 715, 718
(10th Cir. 2003). Due process requires “that in order
to subject a defendant to a judgment in personam, if he be
not present within the territory of the forum, he have
certain minimum contacts with it such that the maintenance of
the suit does not offend ‘traditional notions of fair
play and substantial justice.'” Garrett v.
Klingner, 12 Fed.Appx. 842, 844 (10th Cir. 2001) (citing
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)); Burger King Corp. v. Rudzewicz, 471 U.S.
462, 471-72 (1985) (“The Due Process Clause protects an
individual's liberty interest in not being subject to the
binding judgments of a forum with which he has established no
meaningful ‘contacts, ties, or relations.'”)
(quoting Int'l Shoe, 326 U.S. at 319)). A ...