Morgan, Jr. v. Zaylor et al

Filing 9

MEMORANDUM AND ORDER denying 7 Objection to Order of Magistrate Judge; denying 8 Motion to Appoint Counsel. Signed by District Judge Julie A. Robinson on 6/23/14. Mailed to pro se party Robert S. Morgan, Jr. by regular and certified mail. (Certified Tracking Number: 7009 1410 0002 0381 3124) (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT S. MORGAN, JR.,

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Plaintiff,
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v.
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CHARLES L. ZAYLOR and
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CHRISTINE (LNU),
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Defendants.
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____________________________________)

Case No. 14-2275-JAR

MEMORANDUM AND ORDER
Plaintiff Robert S. Morgan, Jr., appearing pro se, brings this action against Defendants
Charles L. Zaylor, D.O. and Christine (lnu), for alleged malpractice and Medicare fraud. This
matter is before the Court on Plaintiff’s Objection to Court Order Denying Assistance of Counsel
(Doc. 7) and Motion for Appointment of Counsel (Doc. 8). For the reasons discussed more fully
below, Plaintiff’s motions are denied.
Fed. R. Civ. P. 72 allows a party to provide specific, written objections to a magistrate
judge’s order. With respect to a magistrate judge’s order relating to nondispositive pretrial
matters, the district court does not conduct a de novo review; rather, the court applies a more
deferential standard by which the moving party must show that the magistrate judge’s order is
“clearly erroneous or contrary to the law.”1 “The clearly erroneous standard applies to factual
findings, and ‘requires that the reviewing court affirm unless it on the entire evidence is left with

1

First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1461–62 (10th Cir. 1988); 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a)).

the definite and firm conviction that a mistake has been committed.’”2
In both motions, Plaintiff renews his request for appointment of counsel, which was
previously denied by Judge O’Hara.3 A party in a civil action has no right to appointment of
counsel.4 The court may, however, appoint counsel pursuant to § 1915(e)(1) for a litigant
proceeding in forma pauperis. The appointment of counsel is a matter within the sound
discretion of the district court.5 In deciding whether to appoint counsel under § 1915(e)(1), the
court should consider “the merits of the litigant’s claims, the nature of the factual issues raised in
the claims, the litigants’ ability to present his claims, and the complexity of the legal issues
raised by the claims.”6 Plaintiff opines that the assistance of an attorney is necessary to request
medical records related to his case. The Court disagrees. Requesting medical records does not
require special legal knowledge. Moreover, Judge O’Hara found that the factual and legal issues
of Plaintiff’s claims, which appeared meritless, were not exceptionally complex and that Plaintiff
could successfully argue his claims without the assistance of a lawyer given the liberal standards
governing pro se litigants. The Court notes that Plaintiff has already successfully filed pleadings
and thus shown that he is capable of presenting his case without the aid of counsel, including
securing appropriate medical records. Accordingly, the Court finds that Judge O’Hara’s decision
to deny Plaintiff appointed counsel was not clearly erroneous or contrary to the law.

2

McCormick v. City of Lawrence, No. 02-2135-JWL, 2005 WL 1606595, at *2 (D. Kan. July 8, 2005)
(citing 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE & PROCEDURE § 3069,
at 355 (2d ed. 1997) and quoting Ocelot Oil, 847 F.2d at 1464) (internal quotation marks omitted).
3

Doc. 6.

4

Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).

5

Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006).

6

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

2

IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Objection to Court
Order Denying Assistance of Counsel (Doc. 7) is OVERRULED AND DENIED and Plaintiff’s
Motion for Appointment of Counsel (Doc. 8) is DENIED.
Dated: June 23, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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