Nails v. Kansas City, Kansas Public Library et al

Filing 6

MEMORANDUM AND ORDER denying 4 Motion to Appoint Counsel. Signed by Magistrate Judge Teresa J. James on 1/21/2015. Mailed to pro se party Angela Nails by regular mail. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANGELA NAILS,
Plaintiff,
v.

Case No. 14-CV-2636-CM-TJJ

KANSAS CITY PUBLIC LIBRARY,
et al.,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff, proceeding pro se filed this action alleging civil rights and due process
violations under 28 U.S.C. § 1343 and Title 42 of the United States Code against the Kansas City
Public Library, David Hanson, Carol Levers, and Public Library Security Officers.1 This action
appears to stem from the revocation of Plaintiff’s library privileges after using her cellular phone
to make calls in the library’s computer lab and attempting to sell clothing to another library
patron.2 This matter comes before the Court on Plaintiff’s Motion for Appointment of Counsel
and Declaration of Good Faith Efforts to Obtain Counsel (ECF No. 4). Plaintiff requests that the
Court appoint counsel to represent her in this case. For the reasons set forth below, Plaintiff’s
Motion for Appointment of Counsel is denied.
While a defendant in a criminal action has a constitutional right to be represented by an
attorney, it is well settled that a party in a civil action has no right to appointment of counsel.3

1

Compl. at 2–3, ECF No. 1.

2

Id. at 7–8.

3

Durre v. Dempsey, 869 F .2d 543, 547 (10th Cir. 1989).
1

Instead, courts considering requests for the appointment of counsel in civil actions generally look
to the in forma pauperis statute, 28 U.S.C. § 1915.4 Under 28 U.S.C. § 1915(e)(1), a court “may
request an attorney to represent any person unable to afford counsel.” The appointment of
counsel under 28 U.S.C. § 1915(e)(1) is a matter within the discretion of the district court.5 In
determining whether to appoint counsel under § 1915(e)(1), the district court may consider a
variety of factors, including: (1) the merits of the litigant’s claims, (2) the nature and complexity
of the factual and legal issues raised in the claims, and (3) the litigant’s ability to investigate the
facts and present the claims.6 The party seeking appointed counsel has the burden to “convince
the court” that the asserted claims have sufficient merit to warrant counsel’s appointment.7
After reviewing the Complaint, Motion for Appointment of Counsel, and the above
factors, the Court finds that Plaintiff’s request to appoint counsel should be denied. In reaching
its decision, the Court emphasizes the first factor in § 1915(e)(1)—the merits of the litigant’s
claims. Here, Plaintiff’s claims are not meritorious because she fails to state a claim upon which
relief may be granted.
Fed. R. Civ. P. 8(a)(2) requires that a complaint provide a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Additionally, the complaint must state
more than “labels and conclusions” and a “formulaic recitation of the elements of a cause of

4

Lane v. Brewer, No. 07-3225-JAR, 2008 WL 3271921, at *2 (D. Kan. Aug. 7, 2008); Winston v.
Simmons, No. 01-3335-KHV, 2003 WL 21418359, at *8 n.7 (D. Kan. June 18, 2003).
5

Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (a district court has discretion to
request an attorney to represent a litigant who is proceeding in forma pauperis under 28 U.S.C. §
1915(e)(1)).
6

Cox v. LNU, 924 F. Supp. 2d 1269, 1280-81 (D. Kan. 2013).

7

Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (internal citation
omitted).
2

action.”8 “Factual allegations must be enough to raise a right to relief above the speculative
level.”9 Because Plaintiff proceeds pro se, her pleadings are liberally construed.10 Liberal
construction, however, “does not relieve the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based.”11
Plaintiff has failed to allege specific facts upon which a recognized legal claim can be
based. Plaintiff appears to admit to being warned about using her phone in the library computer
lab and admits to making the solicitation to buy clothes.12 Plaintiff also admits that these were
violations of library policy.13 Plaintiff was given the opportunity to appeal the library’s decision
to revoke her privileges and was notified via letter of the appeal timeline.14 Plaintiff merely
complains that “[t]he rule could have been posted on the board w[h]ere other information is
posted to be read.15 In light of the above facts, it is unclear on the face of the Complaint how
such an allegation rises to the level of a civil rights or due process violation.16 Therefore, none of
8

9

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Id.

10

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

11

Id.

12

Compl. at 7–8, ECF No. 1.

13

Id.

14

Id. at 7.

15

Id. at 8.

16

A procedural due process claim requires the allegation of two elements: (1) the interference
with a recognized liberty or property interest; and (2) constitutionally insufficient procedures
being used to deprive the Plaintiff of that interest. Andrade v. Christ, No. 08-cv-01649-WYDKMT, 2009 U.S. Dist. LEXIS 78505, at *11 (D. Colo. Sept. 1, 2009). Unless a fundamental right
is implicated, a claim for violation of substantive due process also requires the allegation of two
3

the above even rises to the level of a “formulaic recitation of the elements of a cause action” and
certainly cannot be said to “raise a right to relief above the speculative level.”17 Therefore, in
light of Plaintiff’s failure to meet the basic Rule 8(a)(2) pleading standard, Plaintiff has failed to
state a claim upon which relief may be granted.
Moreover, the remaining factors also weigh against granting the motion. While vague,
the Complaint does not suggest that this case involves complicated legal or factual issues. The
facts relating to revocation of library privileges for violation of library policy are straightforward
and uncomplicated. With sufficient preparation, Plaintiff would be able to adequately represent
herself in this case.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Appoint Counsel (ECF No.
4) is denied.
Dated in Kansas City, Kansas, on this 21st day of January, 2015.
s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

elements: (1) interference with a recognized liberty or property interest; and (2) deprivation of
that interest in a way that is “arbitrary, capricious, or without a rational basis.” See Tonkovich v.
Kansas Bd. of Regents, 159 F.3d 504, 528 (10th Cir. 1998). Plaintiff does not allege that she had
a liberty or property interest in her library privileges. Nor does she allege that there were
procedural problems with the revocation of her library privilege. Nor that the deprivation was
arbitrary and capricious. On the contrary, Plaintiff acknowledges and explains the reasons her
privileges were taken away, but merely disagrees that her actions were sufficient to justify the
revocation.
17

Twombly, 550 U.S. at 555.
4