United States District Court, D. Kansas
MICHAEL D. BENSON, Plaintiff,
TOPEKA POLICE DEPARTMENT, et al., Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow, U.S. Senior District Judge
Michael D. Benson is hereby required to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why this action should not be dismissed due to the
deficiencies in Plaintiff's Complaint that are discussed
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is detained at the Shawnee
County Jail in Topeka, Kansas. The Court granted Plaintiff
leave to proceed in forma pauperis. On September 18,
2018, the Court entered a Memorandum and Order and Order to
Show Cause (Doc. 9) (“MOSC”), granting Plaintiff
until October 18, 2018, in which to show good cause why his
Complaint should not be dismissed for the reasons set forth
in the MOSC. Plaintiff failed to respond, and on October 23,
2018, the Court dismissed this matter without prejudice under
Fed.R.Civ.P. 41(b). (Docs. 12, 13.) On May 15, 2019, the
Court granted Plaintiff's motion to reopen the case, and
granted Plaintiff until May 31, 2019, in which to show good
cause why this action should not be dismissed due to the
deficiencies set forth in the Court's MOSC at Doc. 9.
(Doc. 16.) This matter is before the Court on Plaintiff's
Response (Doc. 17) to the MOSC and motion for reconsideration
of the Court's denial of appointment of counsel (Doc.
allegations in his Complaint involve his state criminal
proceedings. Plaintiff alleges that he was arrested for
domestic battery without a warrant. Plaintiff alleges that
during the arrest, Topeka police officers used excessive
force and were inadequately trained. Plaintiff alleges that
he was booked into the Shawnee County Jail on frivolous
charges of aggravated battery on a LEO and possession of drug
paraphernalia. Plaintiff alleges a violation of his Fourth
Amendment right to be free from unreasonable search and
seizures and a violation of his Fourteenth Amendment right to
due process. Plaintiff names the Topeka Police Department and
the Topeka City Attorney as defendants.
online Kansas District Court Records Search indicates that
Plaintiff pleaded nolo contendere to Interference with LEO,
obstruct/resist/oppose misdemeanor warrant service or
execution, and was placed on twelve months of supervised
probation. See State v. Benson, No. 18-cr-1447
(Shawnee County District Court). Plaintiff's probation
was subsequently revoked for violations of his conditions of
probation. Id. Plaintiff's state criminal case
charging him with Aggravated Domestic Battery, Attempted
Aggravated Assault, Criminal Possession of Weapon by a Felon,
Interference with LEO, Criminal Threat, and Use/Possess With
Intent to Use Drug Paraphernalia, is still pending. See
State v. Benson, No. 18-cr-1359 (Shawnee County District
Court). Plaintiff pleaded guilty to several of the charges
and sentencing is scheduled for July 26, 2019.
Court found in the MOSC that: the Court may be prohibited
from hearing Plaintiff's claims relating to his state
criminal case under Younger v. Harris, 401 U.S. 37,
45 (1971); to the extent Plaintiff challenges the validity of
any sentence or conviction, his federal claim must be
presented in habeas corpus; if Plaintiff has been convicted
and a judgment on Plaintiff's claim in this case would
necessarily imply the invalidity of that conviction, the
claim may be barred by Heck; and Plaintiff's
claims against the Topeka City Attorney fail on the ground of
prosecutorial immunity. Plaintiff's response to the MOSC
fails to address any of these deficiencies. In addition, the
Topeka Police Department is not a proper defendant, as
“‘police departments . . . are not suable
entities under § 1983, because they lack legal
identities apart from the municipality.'” Young
v. City of Albuquerque, 77 F.Supp.3d 1154, 1186 (D. N.M.
2014) (quoting Ketchum v. Albuquerque Police
Dep't, 958 F.2d 381, 1992 WL 51481, at *2 (10th Cir.
March 12, 1992)). The Court will give Plaintiff an
opportunity to show cause why this matter should not be
dismissed for failure to state a claim.
Motion to Reconsider Appointment of Counsel
filed a motion asking the Court to reconsider his request for
appointment of counsel (Doc. 18). Plaintiff alleges that he
is not able to present his case, the legal issues are
complex, the case will require factual investigation,
Plaintiff is unable to retain counsel on his own, and the
case will require expert testimony. The Court has considered
Plaintiff's request and finds that reconsideration of the
Court's denial of appointment of counsel is not
warranted. The Court explained in its previous order that
there is no constitutional right to appointment of counsel in
a civil case. Durre v. Dempsey, 869 F.2d 543, 547
(10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616
(10th Cir. 1995). The decision whether to appoint counsel in
a civil matter lies in the discretion of the district court.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). “The burden is on the applicant to convince the
court that there is sufficient merit to his claim to warrant
the appointment of counsel.” Steffey v. Orman,
461 F.3d 1218, 1223 (10th Cir. 2006) (quoting 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 prisoner] in presenting his
strongest possible case, [as] the same could be said in any
case.” Steffey, 461 F.3d at 1223 (quoting
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
deciding whether to appoint counsel, courts 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.” Hill, 393 F.3d at 1115 (citing
Rucks, 57 F.3d at 979). The Court concludes in this
case that (1) it is not clear at this juncture that Plaintiff
has asserted a colorable claim against a named defendant; (2)
the issues are not complex; and (3) Plaintiff appears capable
of adequately presenting facts and arguments. The Court again
denies Plaintiff's request for appointment of counsel.
Plaintiff may renew his request if his Complaint survives
is required to show good cause why his Complaint should not
be dismissed for the reasons stated herein and in the
Court's MOSC at Doc. 9.
IS THEREFORE ORDERED THAT Plaintiff is granted until
July 12, 2019, in which to show good cause,
in writing, to the Honorable Sam A. Crow, United States
District Judge, why Plaintiff's Complaint should not be