United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER, UNITED STATES MAGISTRATE JUDGE
December 18, 2019, the Court convened a status conference and
motion hearing to address the progress of the medical
malpractice screening panel and Plaintiff's recent Motion
to Appoint Counsel (ECF No. 87). Plaintiff
Emmanuel Soto-Montes appeared through counsel, Daniel K.
Back. Defendants Corizon, Inc., Travis Nickelson, NP, and
Deanna Morris, LPN (“Corizon Defendants”)
appeared through counsel, Richard M. Acosta. Defendant Baseer
A. Sayeed, M.D., appeared through counsel, Anthony M. Singer.
Defendant Gordon Harrod, M.D., appeared through counsel, Sean
D. Walsh. Attorney John H. Gibson appeared as the Chair of
the medical malpractice screening panels.
careful review of Plaintiff's Motion and the Corizon
Defendants' Response in Opposition to Plaintiff's
Motion to Appoint Additional Counsel (ECF No. 88),
Plaintiff's Motion to Appoint Counsel (ECF No.
87) was DENIED without prejudice by
oral ruling at the conclusion of the hearing. This written
opinion memorializes that ruling.
Emmanuel Soto-Montes is currently incarcerated at the El
Dorado Correctional Facility (EDCF) in El Dorado, Kansas. He
filed this case claiming he received inadequate medical care
at EDCF. Plaintiff made claims against six defendants:
Corizon Health, Inc.,  the contracted medical provider for EDCF;
Travis Nickelson, NP; Deanna Morris, LPN; James Heimgartner, the
warden of EDCF; Ray Roberts, the former Secretary of the
Kansas Department of Corrections (“KDOC”); Dr.
Basheer A. Sayeed; and Dr. Gordon Harrod.
facts underlying Plaintiff's claims have been thoroughly
outlined in a previous order (ECF No. 10 at 2-5) and will not
be repeated. Generally, he alleges he suffered multiple bouts
of severe abdominal pain from January 2015 through February
2016, which were not properly treated or diagnosed. He
contends this pain stemmed from his “low back/kidney
area.” (Am. Compl., ECF No. 8 at 5, ¶20.)
the Court initially found his Complaint failed to state a
claim upon which relief could be granted (Order, ECF No. 7),
he was ordered to amend his pleading. His Amended Complaint
contained claims for relief under: 1) 42 U.S.C. §§
1983, 1985, and 1986; 2) K.S.A. § 65-4901 et
seq.; 3) the Kansas Tort Claims Act; 4) the Eighth and
Fourteenth Amendments to the Constitution; 5) Article Five of
the Universal Declaration of Human Rights; and 6) common law
provisions protecting against medical malpractice, battery,
mistreatment of a confined person, breach of fiduciary duty
and breach of contract. (See ECF No. 8; ECF No. 10
at 1-2.) On September 2, 2016, the Court dismissed
Plaintiff's federal claims and the Universal Declaration
of Human Rights claims against all Defendants, and dismissed
defendants Roberts and Heimgartner. However, the Court found
Plaintiff “made sufficient allegations to state a claim
of medical negligence against defendants Corizon, Sayeed,
Harrod, Nickelson and Morris” along with other
potentially viable state law claims. (Order, ECF No. 10 at
case was briefly stayed to address the issue of jurisdiction,
and counsel was appointed to Plaintiff for the limited
purposes of briefing jurisdiction and moving forward with a
medical malpractice screening panel. (Mem. and Order, ECF No.
53.) The issue of jurisdiction was later resolved (see Order,
ECF No. 58), and this matter proceeded to two medical
malpractice screening panels-one to review the defendant
physicians' conduct, and one to review the defendant
nurses' conduct. (Order, ECF No. 72.) The Court ordered
that appointment of counsel “will be reevaluated when
the screening panel has issued its recommendations, and the
court has had the opportunity to review the same.” (ECF
No. 53 at 3.)
November 14, 2019, Plaintiff filed the instant motion pro se,
seeking counsel as described below. (ECF No. 87.) In an
effort to address the pending motion and ascertain the status
of the screening panel's work, the undersigned scheduled
the motion for a telephone conference. (ECF No. 89.)
Plaintiff was notified of the conference individually, in
addition to his appointed counsel, and informed he was
invited to take part in the phone conference.
December 17, 2019, the Court convened the conference.
Plaintiff's counsel, Danny Back, reported Plaintiff was
advised of the conference and the Court's invitation for
him to participate. The Chair of the screening panels, John
Gibson, advised the Court that all documents have been
produced to the panels, and they are currently reviewing the
documentation for panel meetings to occur in early January
Plaintiff's Motion for Appointment of Counsel (ECF No.
now asks the Court to appoint him new or additional counsel
to assist him in pursuing and filing a motion for restraining
order against defendant Corizon, claiming they have continued
to fail at providing him adequate medical care. (ECF No. 87
at 1.) He contends a scan of his abdomen in June 2015 showed
a cyst on his liver, which Corizon has not explored since
that time. He believes Corizon does not have his best
interests in mind and cannot provide the attention and
medical care he needs. Defendants Corizon, Nickelson, and
Morris (“Corizon Defendants”) opposed the
appointment of counsel. (Resp., ECF No. 88.) The remaining
defendants did not weigh in on the dispute.
Corizon Defendants argued Plaintiff has not demonstrated that
the merits of his potential new claim justify appointment of
additional counsel. Additionally, the Corizon Defendants
contend Plaintiff's lack of legal training and the nature
of the factual and legal issues do not support appointment of
counsel. To the extent Plaintiff seeks to add a new claim,
thereby amending his Complaint under Fed.R.Civ.P. 15,
Defendants contend any such motion would be futile and should
not be permitted.