United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner, proceeds pro se and seeks
leave to proceed in forma pauperis.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
financial statement supplied by the correctional facility
where plaintiff is incarcerated reflects an average deposit
of $0.48 and an average balance of $0.53 during the six
months preceding the filing of this action. The Court
therefore grants leave to proceed in forma pauperis and does
not assess an initial partial filing fee. Plaintiff remains
obligated to pay the $350.00 filing fee in installments
calculated under 28 U.S.C. § 1915(b)(2), and a copy of
this order will be transmitted to his present custodian with
instructions to commence collection action as funds become
motion for appointment of counsel
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 has studied the complaint and declines to appoint
counsel at this time. Plaintiff is able to present his claims
clearly, and the claims do not appear to be unusually
of the complaint
commenced this complaint while housed in the Sumner County
Detention Center (SCDC), Wellington, Kansas, pending his
extradition to Oklahoma.
complaint names the following defendants: (1) Sumner County;
(2) Sheriff Derrin Chambers; (3) Sgt. Church; (4) Lt. A.
Yoder; (5) Sgt. Wesley Baucom; (6) Cpl. Fairbanks; (7) Cpt.
Carson; (8) Cpl. Mckaig; (9) Cpl. Schwartz; (10) Dep. Durham;
(11) Dep. Kratt; (12) Dep. Warner; (13) Dep. Biddle; (14)
Dep. Patterson; (15 - 18) John or Jane Does 1-4; and (19)
complaint asserts the following claims: Count 1: Doe #1
endangered plaintiff by labeling him as racist and spreading
that information to staff and the population of the SCDC, and
Doe #2 contributed to conditions in the environment there;
Count 2: Defendants Sumner County, Chambers, Yoder, and
Baucom were made aware of harm caused by Doe #2 and allowed
the risk to continue; specifically, plaintiff alleges that he
was assaulted and sexually abused by another inmate, Terrill
Cooks, as a direct result of being labEled as a racist. He
states that Cooks approached him in the SCDC day room and
demanded the television remote, which plaintiff refused to
hand over. Cooks then picked up a wooden broom and began to
walk upstairs to where another prisoner, Arrell Farmer, was
temporarily locked down due to misconduct. Farmer and Cooks
began to verbally harass and threaten plaintiff with assault.
Plaintiff remained in his seat in the day room for
approximately four and a half hours. During that time he
experienced shortness of breath, nausea, and other symptoms.
Farmer was released from lockdown at 9 p.m., he and Cooks
returned to the day room, and one or both slapped plaintiff
in the face. They then attempted to force plaintiff into the
shower area, but deputies interrupted this attempt and
separated the inmates. Plaintiff was interviewed and placed
in isolation for two hours. Farmer and Cooks were placed in
another pod and placed in lockdown for 14 days. All three
prisoners were changed from orange to green clothing to
identify them as separatees. On the following day, plaintiff
filed a grievance against Doe #2 for endangering his safety;
he also filed a complaint under the Prison Rape Elimination
Act, 34 U.S.C. § 30301 (PREA), in which he identified
the assault as a hate crime based upon his bisexuality.
Plaintiff also asked to speak with defendant Yoder. Lt. Yoder
met with plaintiff on the next day and plaintiff stated his
belief that he was the victim of a hate crime and his belief
that staff at the SCDC had created a dangerous environment
that violated PREA standards. Lt. Yoder advised plaintiff
that he would investigate the plaintiff's claims.
Following this, plaintiff spoke with unnamed “Patrol
Deputies” and advised them that he wished to press
charges against Cooks for attempted sexual assault. Count 3:
Defendant Durham endangered plaintiff's safety by leaving
him alone in a hallway with Cooks while taking him to a
medical appointment. Plaintiff estimates that he was alone
with Cooks for two minutes. Cooks verbally threatened
plaintiff. Plaintiff called defendant Durham who removed
Cooks. Plaintiff filed a grievance against Durham, alleging
gross negligence and stating that defendants were not
enforcing PREA standards.
4: Defendants Sumner County, Chambers, Yoder, and Baucom
failed to protect plaintiff resulting in the assault on him.
Sgt. Baucom met with plaintiff on September 17, 2018, to
discuss his grievance. Plaintiff sought an explanation for
why he had not been allowed to see a sexual abuse crisis
counselor. Plaintiff's grievance was rejected, and he
filed a second grievance demanding to see a sexual abuse
crisis counselor. On the next day, he was seen by defendant
Yoder. Plaintiff complained that SCDC staff has endangered
him and again asked to see a sexual abuse crisis counselor.
5: Defendants Doe #3 and Baucom “opened, sequestered,
molested, and then defaced” plaintiff's legal mail
on two occasions. Count 6: Defendants Nurse Mandy and Doe #4
denied plaintiff access to emergency mental health services.
Plaintiff sought mental health services on October 11, 2018,
and was seen by defendant Mandy. After discussing the nature
of his complaint, defendant Mandy sent plaintiff back to his
7: Defendants Sumner County, Chambers, Baucom, Carson
Schwartz, Fairbanks, Warner, and Kratt violated by
plaintiff's right to be protected from retaliation,
subjected him to cruel and unusual punishment, and denied him
due process. Plaintiff met with defendants Schwartz and Yoder
and discussed his claims concerning the processing of his
legal mail. Plaintiff also complained that defendants had
conspired to present his exhaustion of remedies and had
failed to address his concerns of emotional duress and
related physical symptoms.
8: Defendants Doe #1, Sumner County, Chambers, Yoder, and
Church victimized plaintiff sexually and subjected him to
voyeurism. Count 9: Defendants Sumner County “et
al” retaliated against plaintiff. The SCDC has a closed
circuit camera that is installed in each cell in the
facility. Plaintiff complains that upon his entry at the SCDC
he was not informed of PREA compliance policies and was not
advised of monitoring by the camera system that would subject
him to cross-gender viewing of him by staff.
occasions in 2017, plaintiff witnessed altercations between
inmates that left blood in the pod. Plaintiff asked that the
area be cleaned, and then asked for supplies to allow him to
clean the area.
submitted a PREA complaint on the SCDC kiosk system in August
2018. Shortly afterward, he was placed in a segregation cell
and held there for approximately two hours in shackles. He
met with defendant Church and presented his complaints.
October 2018, plaintiff saw Sumner County mental health
services. That counselor diagnosed plaintiff with post
traumatic stress disorder and advised plaintiff that he was
ordering medication. Plaintiff did not receive the ...