Snavely v. Kansas Department of Corrections et al

Filing 161

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 131 for reconsideration and for immediate injunctive relief is denied. Plaintiff's motion 134 for relief is granted in part and denied in part. No filing fee is assessed for the interl ocutory appeal assigned Case No. 11-3304. All other relief sought by the plaintiff is denied. Plaintiff's motion 141 for temporary restraining order is denied. Signed by Senior District Judge Sam A. Crow on 10/10/2012. (Mailed to pro se party William H. Snavely, III by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM H. SNAVELY, III,
Plaintiff,
v.

CASE NO. 05-3468-SAC

KANSAS DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. The matter comes before the court upon three motions filed
by the plaintiff, namely,
#131 motion for reconsideration and for immediate

injunctive

relief;
#134 motion (captioned as objection to order)1; and
#141 motion for restraining order.
Motion for reconsideration and injunctive relief (Doc. 131)
Plaintiff seeks reconsideration of the July 24, 2012, order
entered by Magistrate Judge Sebelius (Doc. 130) alleging it contains
erroneous conclusions and misstatements of fact. The order in question
denied plaintiff’s request to reschedule a pretrial conference.
Plaintiff’s motion for reconsideration contains a variety of
claims concerning his conditions of confinement and broad allegations
that exposure to those conditions constitutes torture. Plaintiff also
complains about the greater resources available to the Kansas Attorney
1

This pleading was docketed as a motion upon the request of the Magistrate Judge
and was entered on the docket on August 3, 2012.

General, as opposed to his own status as a pro se litigant. He contends
that due to this inequality, it would be unfair to expect him to
represent his own interests in a conference.
However, nothing in the motion supports a conclusion that
plaintiff

should

be

relieved

from

participation

in

telephonic

conferences with the court either due to the conditions of his
confinement or his current status as a party proceeding pro se.
First, it is well-settled law that a party in a civil action has
no constitutional right to the assistance of counsel. See Johnson v.
Johnson, 466 F.3d 1213, 1216 (10th Cir. 2006) and Durre v. Dempsey,
869 F.2d 543, 547 (10th Cir. 1989)(“There is no constitutional riht
to appointed counsel in a civil case.”). Next, while a federal court
“may request an attorney to represent any person unable to afford
counsel”, see 28 U.S.C. § 1915(e)(1), the decision rests in the
discretion of the court. The record shows the Magistrate Judge has
gone to considerable lengths in this matter to obtain counsel for the
plaintiff,

but

those

efforts

have

been

unsuccessful

to

date.

Nevertheless, this does not provide a basis for plaintiff to refuse
to participate in conferences or other proceedings scheduled by the
Magistrate Judge. Plaintiff’s motion is denied.
Plaintiff’s objection to order (Doc. 134)
Plaintiff objects to the court’s order directing him to submit
an initial partial appellate filing fee (Doc. 112). That order
concerned plaintiff’s interlocutory appeal, Case No. 11-3304. The
interlocutory matter was dismissed for lack of jurisdiction on
December 21, 2011

(Doc. 111).

The court has considered the record and the appellate order of
dismissal. Because the court finds no directive in that order imposing

a filing fee, the court concludes the order directing plaintiff to
pay an appellate filing fee may be withdrawn. Accordingly, the court
grants that portion of the motion. To the extent plaintiff seeks
additional relief from the court, such as broad directives on how the
Kansas Department of Corrections may access plaintiff’s funds to pay
fee obligations, the court declines to grant such relief on the present
record. Likewise, to the extent plaintiff asks that the court reopen
the appeal, such a request must be addressed to the appellate court.
Motion for restraining order (Doc. 141).
Plaintiff seeks a restraining order against three guards,
asserting that one of the three, Officer Schiller, attacked him in
2009 outside the prison. He also seeks a court order for a prisoner
witness acceptable to the plaintiff to accompany him if he is
transported anywhere outside the prison.
The function of a temporary restraining order is to “preserve
the status quo pending the outcome of the case.” Tri-State Generation
& Transmission Ass’n, Inc. v. Shoshone River Power, Inc., 805 F.2d
351, 355 (10th Cir. 1986).
The Tenth Circuit has stated that “because a preliminary
injunction is an extraordinary remedy, the right to relief must be
clear and unequivocal.” Beltronics USA, Inc. v. Midwest Inventory
Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009). Thus, a grant
of such relief “is the exception rather than the rule.” GTE Corp. v.
Williams, 731 F.2d 676, 678 (10th Cir. 1984).
To

obtain

this

relief,

plaintiff

may

not

rest

on

bare

allegations, but instead must show by clear proof that (1) he will
suffer irreparable injury unless the relief is granted; (2) the
threatened harm outweighs any damage the relief sought would cause

the opposing parties; (3) the remedy, if granted, would not be adverse
to the public interest; and (4) there is a substantial likelihood that
plaintiff will prevail on the merits in this action. See Little v.
Jones, 607 F.3d 1245, 1251 (10th Cir 2010).
The court has considered the plaintiff’s argument but concludes
the plaintiff has not made the extraordinary showing that is required
in this context. In reaching this conclusion, the court has reviewed
the plaintiff’s allegations against Officer Schiller that were
included

in

the

proposed

amended

complaint.

Even

accepting

plaintiff’s earlier allegations as true, the court cannot conclude
that plaintiff has shown by clear proof that he will suffer irreparable
injury unless the relief is granted. Rather, the court concludes the
plaintiff’s request for a temporary restraining order and an inmate
witness approved by the plaintiff simply presents a demand for an
intrusion into the management decisions of prison administrators.
That intrusion is unwarranted on the basis of plaintiff’s conclusory
allegations.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
reconsideration and for immediate injunctive relief (Doc. 131) is
denied.
IT IS FURTHER ORDERED plaintiff’s motion for relief (Doc. 134)
is granted in part and denied in part. No filing fee is assessed for
the interlocutory appeal assigned Case No. 11-3304. All other relief
sought by the plaintiff is denied.
IT

IS

FURTHER

ORDERED

plaintiff’s

motion

for

temporary

restraining order (Doc. 141) is denied.
Copies of this order shall be transmitted to the parties.

IT IS SO ORDERED.
DATED:

This 10th day of October, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge