United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Appointed Counsel (ECF No. 57). For the reasons outlined
below, Plaintiff's motion is DENIED.
Anthony Jefferson is an inmate at Hutchinson Correctional
facility, in the custody of the Kansas Department of
Corrections. On September 12, 2017, Plaintiff filed this
case, acting pro se and seeking to proceed without prepayment
of the filing fee, which was granted. (See ECF Nos.
1, 2, 3.) Highly summarized, he claims the facility's
food service contractor and certain food service employees
violated his right to exercise his religious beliefs under
the First Amendment by providing certified religious meals
that actually failed to comply with Jewish dietary rules.
Although the meals were labelled as kosher, they were not.
Plaintiff claims the storage, preparation and service of the
meals do not comply with Jewish law. He filed the case as a
civil rights complaint under 42 U.S.C. § 1983 and also
cites the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”). He seeks nominal damages of $1.00
and punitive damages of $70, 000 from Defendants, as well as
declaratory and injunctive relief and costs.
the filing of the case, considerable motion practice has
ensued. Most significantly, Defendant Aramark Correctional
Services and its employee defendants Paul Church, Julie
Dockendorff, and Menachem Fellig filed a joint motion to
dismiss (ECF No. 41), which was later granted (Memorandum and
Order, ECF No. 72), and those four defendants were dismissed.
Defendant Patricia Berry, a KDOC contract monitor over food
issues, filed her own dispositive motion (ECF No. 49), which
was recently granted (Memorandum and Order, ECF No. 75) and
she has also been dismissed from the case. At this time, a
single defendant-Cheryl Allen (a KDOC dietician)-remains. Ms.
Allen recently filed a motion for summary judgment (ECF No.
Plaintiff's Motion for Appointment of Counsel (ECF No.
than a year after filing his Complaint, Plaintiff asks the
Court to appoint him counsel to assisting him in pursuing his
claims. He contends his knowledge of the law is limited, and
the case is complex and any deficiencies can only be
corrected through legal counsel. Prior to their dismissal,
Aramark Correctional Services, LLC, Paul Church, Julie
Dockendorff, Rabbi M. Fellig, and Patricia Berry opposed the
appointment of counsel. (Resp., ECF No. 65; Joinder, ECF No.
66). Defendants argued the case is not complex, similar
requests for appointment have been denied, and Plaintiff
alleges no other special circumstances which prevent him from
presenting his claims. Although all Defendants opposing the
motion have since been dismissed, the Court must still review
Plaintiff's motion on its merits.
a criminal defendant has a constitutional right to
representation by an attorney, there is no similar
constitutional right to counsel in a civil action such as
this one.However, for parties such as Plaintiff who
proceed in forma pauperis, 28 U.S.C. §
1915(e)(1) provides discretionary authority for the court to
“request an attorney to represent any person unable to
evaluating whether to appoint counsel, the court considers
multiple factors, including as (1) the merits of the
litigant's claims, including the nature and complexity of
those claims; (2) the litigant's ability to present his
or her claims; (3) the litigant's financial ability to
pay an attorney; and (4) the litigant's diligence in
attempting to secure an attorney. The court has an obligation
not to make indiscriminate appointments on every occasion
that a party seeks court-ordered counsel,  particularly in
light of the expanding federal court dockets, increased
filings by pro se parties, and decreasing number of attorneys
willing to accept appointments. The party seeking counsel under
§ 1915(e)(1) has the burden “to convince the
court” that asserted claims have sufficient merit to
warrant the appointment of counsel.“That counsel could
assist plaintiff in presenting ‘his strongest possible
case' is not a proper basis for granting such a
Court is satisfied Plaintiff is unable to afford counsel, as
evidenced by his motion for leave to proceed in forma
pauperis (ECF No. 2) and the earlier Order permitting him to
proceed in forma pauperis (Order, ECF No. 3).
Additionally, the Court does not construe Plaintiff's
efforts to engage his own counsel, or lack of demonstration
thereof, against his request for appointment, bearing in mind
his incarceration and inability to pay. However, after
careful consideration of the remaining factors, the Court
declines to appoint counsel for the following reasons.
Plaintiff's case does not appear unusually
complex. Additionally, after thorough review of
the docket and earlier dispositive motion practice, the Court
bears serious concerns regarding the merits of
Plaintiff's claims, even if counsel were to be appointed.
Only one defendant remains, and that defendant's motion
for summary judgment is currently pending before the District
importantly, Plaintiff has demonstrated no reason why he is
unable to adequately present the case on his own. Plaintiff
has shown no special circumstances, such as mental or
physical impairment, which would indicate he is unable to
present his claims.His written pleadings and motions appear
well-formulated, organized, and coherent. Although he
complains he has limited access to legal materials, and
limited ability to investigate facts or interview witnesses,
Plaintiff prepared and filed at least 21 affidavits of other
inmates to support his claims. He has also filed multiple
personal affidavits and other court documents-all
comprehensible, and some even citing ...