Fuller v. State of Kansas, Department of Children & Families

Filing 53

ORDER denying 52 Motion to Appoint Counsel. Signed by Magistrate Judge James P. O'Hara on 4/3/2018. (amh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CLARA R. FULLER,

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Plaintiff,
v.
STATE OF KANSAS, DEPARTMENT OF
CHILDREN AND FAMILIES, et al.,
Defendants.

Case No. 16-2415-DDC

ORDER
This matter comes before the court on the renewed motion of the pro se plaintiff,
Clara R. Fuller, for appointment of counsel (ECF No. 52). For the reasons set forth below,
plaintiff’s motion is denied without prejudice to being refiled at a later stage in this
litigation.
This is plaintiff’s third request for appointment of counsel. Plaintiff originally
requested appointment of counsel on August 10, 2016 (ECF No. 13). On August 22, 2016,
the court denied plaintiff’s motion (ECF No. 16), but without prejudice to refiling should
the presiding U.S. District Judge, Daniel D. Crabtree, deny the then-pending motion for
dismissal or in the alternative summary judgment (“motion to dismiss”) filed by the Kansas
Department of Children and Families (ECF No. 10). Plaintiff timely filed a motion for
review of the order denying her counsel (ECF No. 17). On January 18, 2017, Judge
Crabtree entered a memorandum and order (ECF No. 23) denying defendant’s motion to
dismiss without prejudice to refiling, and affirming the August 22, 2016 order denying
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appointment of counsel. Judge Crabtree noted, “[p]laintiff may file a renewed motion to
appoint counsel if—as Judge O’Hara’s Order also noted—her Complaint (or, any amended
complaint that she may file after securing leave to do so) survives any dispositive motion—
such as a motion to dismiss or motion for summary judgment—that defendant may submit
in the future.”1
On February 6, 2017, plaintiff filed her second request for appointment of counsel
(ECF No. 27). The court again declined to appoint counsel (ECF No. 30). After
considering the relevant factors, the court concluded that this is not a case in which justice
requires the appointment of counsel. However, the court assured plaintiff that, “should her
case ultimately proceed to trial, the court will almost surely grant a renewed motion for
counsel.”2 The court stated that, “until then,” for the reasons discussed and given the
limited pool of volunteer attorneys, “the court is unlikely to grant any further request to
appoint counsel.”3
Plaintiff filed the instant motion for appointment of counsel on April 3, 2018. This
renewed motion is nearly identical to her original motion for appointment of counsel.4
Because plaintiff does not suggest there have been any material changes to this case since
the court’s previous denial of appointment requests, the court can find no reason to now

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ECF No. 23 at 8.

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ECF No. 30 at 3.

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Id.

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Compare ECF No. 52 to ECF No. 13.
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appoint counsel. Perhaps plaintiff’s motion was precipitated by Judge Crabtree’s March
21, 2018 memorandum and order denying a motion by defendants for dismissal (ECF No.
47). But Judge Crabtree did not determine in that memorandum and order that plaintiff’s
claims would survive a motion to dismiss. Rather, Judge Crabtree denied the motion to
dismiss on procedural grounds, holding that defendants had not been properly served, such
that the court had no jurisdiction to decide the substantive question of whether plaintiff’s
amended complaint adequately states a claim for relief. Judge Crabtree granted defendants
leave to refile a motion to dismiss once they were properly served. Summons have now
been returned showing defendants were served on March 28, 2018, and indicating that
defendants’ renewed motion to dismiss (or answer) is due April 18, 2018 (ECF Nos. 4851).
As noted in previous orders, the court is willing to consider a subsequent request for
appointment of counsel brought by plaintiff if and when her case survives a dispositive
motion (e.g., a motion to dismiss or a motion for summary judgment) decided on its merits
or otherwise proceeds to trial. Thus, plaintiff’s motion for appointment of counsel is denied
without prejudice to refiling when this case is at a later stage.
Plaintiff is hereby informed that, within 14 days after she is served with a copy of
this order, she 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 requesting that the presiding U.S. district judge
review this order. A party must file any objections within the 14-day period if the party
wants to have appellate review of this order.
IT IS SO ORDERED.
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April 3, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O=Hara
U. S. Magistrate Judge

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