United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed by a prisoner in
federal custody. Plaintiff commenced this action while
incarcerated in the United States Penitentiary-Leavenworth
(USPL). He is presently incarcerated at the Federal
Correctional Institution in Edgefield, South Carolina.
October 2017, the Court reopened this matter. The Court
issues the present order to address several pending motions.
motions to amend (Docs. 86 and 87)
seeks leave to amend the complaint to add a defendant,
clarify that his claims are against the defendants in their
individual capacities, and to add a claim for monetary
damages. Defendants oppose these requests, and they note that
plaintiff has filed multiple motions to amend the complaint
in this action. A review of the record shows that plaintiff
first filed an amended complaint approximately one month
after he commenced this action (Doc. 9), then filed a motion
for joinder (Doc. 11), a motion to dismiss party (Doc. 12), a
motion to amend the amended complaint (Doc. 16), a second
motion to amend the complaint (Doc. 17), and a third motion
to amend the complaint (Doc. 19).
order of February 2, 2006 (Doc. 35), the Court allowed those
amendments but advised plaintiff that no further amendments
would be allowed except upon a showing of good cause.
However, after that order petitioner filed another motion to
amend (Doc. 48) and a supplement to that motion (Doc. 52).
Court has considered petitioner's most recent motions to
amend (Doc. 86 and Doc. 87) in light of this history and
concludes that these motions should be denied. Under Rule
15(a)(1) of the Federal Rules of Procedure, a party may amend
its pleading once as a matter of course within 21 days after
service of a responsive pleading. Thereafter, a party may
amend its pleading only with the consent of the opposing
party or leave of the court. Leave should granted freely when
justice so requires. Fed.R.Civ.P. 15(a)(2)-(3).
case, plaintiff has offered no explanation why the material
in the most recent requests to amend was not included
earlier. The Court believes that he has been given
considerable leeway in his pleadings to this point, as he has
been allowed to amend the complaint and to submit other
pleadings that attempt to introduce additional facts and
argument. Having considered the record, the Court denies the
requests to amend.
motion to appoint counsel (Doc. 86)
moves for the appointment of counsel (Doc. #86). There is no
constitutional right to the appointment of counsel in a civil
matter. Carper v. Deland, 54 F.3d 613, 616
(10th Cir. 1995); Durre v. Dempsey, 869
F.2d 543, 547 (10th Cir. 1989). Rather, the
decision whether to appoint counsel in a civil action lies in
the discretion of the district court. Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991).
The party seeking the appointment of counsel has the burden
to convince the court that the claims presented have
sufficient merit to warrant the appointment of counsel.
Steffey v. Orman, 461 F.3d 1218, 1223
(10th Cir. 2016)(citing 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 movant] in presenting his strongest
possible case, [as] the same could be said in any
case.” Steffey, 461 F.3d at 1223 (citing
Rucks v. Boergermann, 57 F.3d 978, 979
(10th Cir. 1995)). The Court should consider
“the merits of the 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.” Rucks, 57 F.3d at 979.
Court has considered the record and declines to appoint
counsel. The plaintiff is capable of presenting the factual
and legal bases for his claims, and it does not appear that
the issues are unusually complicated.
motion for judgment on the pleadings or motion for summary
judgment (Doc. 88)
seeks judgment on the pleadings, or, in the alternative,
summary judgment. Federal Rule of Civil Procedure 12(c)
states that “[a]fter the pleadings are closed - but
early enough not to delay trial - a party may move for
judgment on the pleadings.” In this case, because there
had been no response by defendants, the pleadings were not
closed, and plaintiff's motion therefore is not proper.
“[j]udgment on the pleadings is appropriate only when
the moving party has clearly established that no material
issue of fact remains to be resolved and the party is
entitled to a judgment as a matter of law.” Sanders
v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141
(10th Cir. 2012)(quoting Park Univ. Enters.,
Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239,
1244(10th Cir. ...