United States District Court, D. Kansas
P. O'Hara, U.S. Magistrate Judge
brings this pro se civil-rights action pursuant to
42 U.S.C. § 1983. Plaintiff is an inmate in the
Hutchinson Correctional Facility. He has filed this action
alleging inadequate medical care and accommodations related
to his epilepsy and hepatitis-C. This matter is before the
court on plaintiff's third motion to appoint counsel (ECF
civil actions such as this one, there is no constitutional
right to appointed counsel.The decision whether to appoint
counsel in a civil matter lies in the discretion of the
district court. In deciding whether to appoint counsel,
the court 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.” “The burden is on the
[prisoner] to convince the court that there is sufficient
merit to his claim to warrant the appointment of
counsel.” 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.”
requests counsel to help him understand the filings and
requirements of the upcoming scheduling conference. He
asserts that he has limited formal education and knowledge of
the law, and further, that he has limited access to the law
library due to his placement in administrative segregation.
Plaintiff requests the assistance of counsel to present
evidence and cross-examine witnesses should the case go to
court has considered the instant motion and concludes that
this is not a case in which appointment of counsel is
justified at this juncture. Plaintiff offers substantively
the same reasons for asking for counsel as in his first two
motions (see ECF No. 3 and 8). Based on the court's
analysis of whether to appoint counsel, the outcome remains
the same. First, it is still not clear that plaintiff's
claims have merit. Second, the factual and legal issues in
the case are not complex. The court has no doubt that Judge
Robinson, the U.S. district judge assigned to this case, will
have little trouble discerning the applicable law. Third,
plaintiff has continued to demonstrate the ability to
investigate his claims. Finally, plaintiff's pleadings
continue to be cogent, and plaintiff appears capable of
adequately presenting facts and arguments. The court
therefore denies plaintiff's request for counsel.
However, if the case survives the motion to dismiss stage,
plaintiff is given leave to file another motion for
appointment of counsel if it becomes apparent that appointed
counsel is necessary at that time.
is hereby informed that, within 14 days after he is served
with a copy of this order, he may, pursuant to Fed.R.Civ.P.
72 and D. Kan. Rule 72.1.4(a), file written objections to
this order by filing a motion for review of this order by the
presiding U.S. district judge. Plaintiff must file any
objections within the 14-day period if he wants to have
appellate review of this order. If plaintiff does not timely
file his objections, no court will allow appellate review.
THEREFORE ORDERED that plaintiff's motion to appoint
counsel is denied without prejudice.
of this order shall be mailed to plaintiff via regular mail.
 Plaintiff has filed two similar
motions in this action in the past three months, both of
which were denied without prejudice (see ECF Nos. 6 and
 Carper v. DeLand, 54 F.3d
613, 616 (10th Cir. 1995); Durre v. Dempsey, 869
F.2d 543, 547 (10th Cir. 1989).
Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citing
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995)); Williams v. Meese, 926 F.2d ...