United States District Court, D. Kansas
ADRIAN M. REQUENA, Plaintiff,
WENDY NEWKIRK, MICHAEL CRANSTON, and LEVON CROTTS, Defendants.
CROW U.S. SENIOR DISTRICT JUDGE.
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.
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).
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).
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.
to appoint counsel (Doc. 44)
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.
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.
for leave to discover witnesses, subpoena witnesses for
deposition and/or for interrogatories (Doc. 45) and Motion
for issuance of subpoena (Doc. 48)
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.
for leave to reissue previous issuance of summons (Doc.
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.
for summary judgment (Doc. 49)
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 ...