United States District Court, D. Kansas
SHAWN W. McDIFFETT, Plaintiff,
CHARLES H. NANCE, et al., Defendants.
P. O'HARA U.S. MAGISTRATE JUDGE.
a federal inmate proceeding pro se, brings this action under
42 U.S.C. § 1983 alleging defendants were deliberately
indifferent to his medical needs when he was held in custody
by the State of Kansas. This matter is before the court on
plaintiff's motion to appoint counsel (ECF No. 68).
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.”
first asserts counsel should be appointed because the medical
allegations in the case make it “complex, requiring
expert and professional testimony, depositions, locating and
subpoena of witnesses, research and the obtaining of
evidence, and much more.” These listed circumstances,
however, are more or less present in every case. They do not
elevate the complexity of the factual and legal issues
presented. Rather, plaintiff's allegations of
defendants' deliberate indifference to his medical care
are straight forward. The court has no doubt that the U.S.
district judge assigned to this case will be able to discern
the applicable law.
next requests counsel based on his belief that his legal
material was destroyed when he was transferred from state to
federal custody in May 2019. As discussed in the court's
August 1, 2019 order, however, it turns out plaintiff's
legal material was mailed to his wife. Additionally,
defendants mailed copies of key documents in this litigation
to plaintiff on July 31, 2019. Thus, the asserted inability to
access legal material is not a reason to appoint counsel in
plaintiff states his access to the prison's law library
is limited because he is currently in the Special Housing
Unit (“SHU”). He implies he has access to the
library only on weekends. He complains that he has requested
prison guards to take him to the library, but they have
refused. But plaintiff states he “is currently awaiting
redesignation to a facility more equipped to handle
plaintiff's medical care level.” This indicates
plaintiff's alleged limited access to the library may be
short-lived and increase when he is moved out of the SHU or
to another facility. All pretrial proceedings in this case,
including discovery, are currently stayed until a ruling is
issued on a defendants' pending motion to dismiss or for
summary judgment. Thus, presumably the only research
plaintiff would undertake in the library would be related to
his response to the pending motion. But plaintiff has given
the court no information about what he wants to research, nor
an estimate of the amount of time he believes necessary to
complete such research. In other words, plaintiff has not met
his burden of demonstrating an inability to present his
claims to the court. However, to ensure plaintiff has had
more-than-sufficient time to research and respond to the
dispositive motion that has been pending since February 27,
2019, the court hereby extends his response deadline to
September 9, 2019.
plaintiff states he is having difficulty obtaining a writing
instrument while in the SHU. Plaintiff previously raised a
similar concern when he was confined in the Hutchinson
Correctional Facility. U.S. District Judge Samuel A. Crow
denied a request for appointment of counsel on this
basis. Judge Crow noted plaintiff appeared
capable of adequately presenting facts and arguments. The
same can be said at this stage in the litigation. Plaintiff
was able to obtain a pen to draft the instant motion and the
motion requesting copies of the case file (ECF No. 69).
court has considered plaintiff's motion and concludes
that this is not a case in which appointment of counsel is
justified, at least at this juncture. First, it is not clear
that plaintiff's claims have merit; as mentioned above, a
motion to dismiss or for summary judgment is pending. Second,
the factual and legal issues in the case are not complex.
Finally, plaintiff appears able to investigate the facts and
present his claims. The court therefore denies
plaintiff's request for counsel. However, if the case
survives defendants' pending dispositive motion,
plaintiff is given leave to file another motion for
appointment of counsel if it becomes apparent that appointed
counsel is justified.
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.
Clerk is directed to mail a copy of this order to plaintiff
via regular and certified mail.
Carper v. DeLand, 54 F.3d 613,
616 (10th Cir. 1995); Durre v. Dempsey, 869 F.2d
543, 547 ...