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Holt v. Norwood

United States District Court, D. Kansas

December 21, 2018

WILLIAM R. HOLT, Plaintiff,
v.
JOE NORWOOD, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE.

         Plaintiff, 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).

         I. Nature of the Case

         Plaintiff 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[1] 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, Missouri case.

         Plaintiff 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.

         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.

         II. Motion for Leave to Proceed In Forma Pauperis

         Plaintiff 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.

         III. Motion for Appointment of Counsel and for PI/TRO

         Plaintiff 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 library.

         The 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)).

         In 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.

         IV. Order to Show Cause

         Plaintiff 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 ...


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