Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Requena v. Newkirk

United States District Court, D. Kansas

March 25, 2019

ADRIAN M. REQUENA, Plaintiff,
v.
WENDY NEWKIRK, MICHAEL CRANSTON, and LEVON CROTTS, Defendants.

          ORDER

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

         This matter is a civil rights action filed under 42 U.S.C. § 1983. Plaintiff, proceeding pro se, commenced this action while he was a prisoner in state custody.[1]

         On March 31, 2016, the Court dismissed this matter. On appeal, the U.S. Court of Appeals for the Tenth Circuit remanded this matter on plaintiff's claim that his Eighth Amendment rights were violated by the failure of defendants Newkirk, Cranston, and Crotts to protect him from a beating that took place on June 30, 2012. Requena v. Roberts, 893 F.3d 1195 (10th Cir. 2018).

         On January 7, 2019, the U.S. Supreme Court denied the petition for writ of certiorari filed by petitioner. Requena v. Roberts, 139 S.Ct. 800 (Mem.) (Jan. 7, 2019).

         The Court enters the present order to direct service of process, to order the preparation of a report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), and to address a number of motions filed by the plaintiff.

         Motion to appoint counsel (Doc. 44)

         Plaintiff moves for the appointment of counsel. 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.

         The Court declines to appoint counsel at this point in this matter. It appears that plaintiff is able to present his claims, and it is not yet clear how complex the relevant issues of law and fact may be. If it becomes apparent that the appointment of counsel is needed in this matter, the Court will reconsider this request.

         Motion for leave to discover witnesses, subpoena witnesses for deposition and/or for interrogatories (Doc. 45) and Motion for issuance of subpoena (Doc. 48)

         Plaintiff requests discovery in these motions. Because the Court, elsewhere in this order, directs the preparation of a report pursuant to Martinez v. Aaron, the Court will deny these motions without prejudice. The purpose of the Martinez report is to provide a written response by prison officials to a prisoner's allegations, supported by affidavits and internal reports. As plaintiff will be provided with documents relevant to his claim upon the filing of the report, it is the practice of the Court to stay discovery pending the preparation and service of the Martinez report, which may require some or all of the material sought by plaintiff. After that report has been filed, plaintiff may renew his requests for discovery.

         Motion for leave to reissue previous issuance of summons (Doc. 47)

         Plaintiff seeks the issuance of summons on defendants Newkirk, Cranston, and Crotts. As part of its order in this matter, the Court will direct the service of the complaint upon these defendants pursuant to the agreement for electronic service between the Kansas Department of Corrections and the District of Kansas. To the extent plaintiff requests service, the motion is granted.

         Motion for summary judgment (Doc. 49)

         Plaintiff moves for summary judgment based upon the order of remand in this matter. Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under Rule 56(a), summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). At this point, the plaintiff is not entitled to summary judgment on his claim of an Eighth Amendment violation. Rather, a response to that claim is directed in this order, and the parties will have ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.