Lamm v. Grubbs et al

Filing 32

ORDER ENTERED: Plaintiff's motion 25 for appointment of counsel is denied without prejudice and his request 30 for an order regarding the Martinez Report is denied. The clerk shall prepare waiver of service forms pursuant to Rule 4(d) of th e Federal Rules of Procedure. The screening process under 28 U.S.C. 1915A having been completed, this matter is returned to the clerk of the court for random reassignment pursuant to D. Kan. R. 401. Signed by Senior District Judge Sam A. Crow on 9/12/2011. (Mailed to pro se party Jeramie Lamm by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JERAMIE LAMM,
Plaintiff,
v.

CASE NO.

11-3019-SAC

MICHAEL J. GRUBBS,
et al.,
Defendants.
O R D E R
This matter is before the court upon plaintiff’s Motion for
Appointment of Counsel (Doc. 25), plaintiff’s Objection to Martinez
Report (Doc. 30) and plaintiff’s Amended Complaint (Doc. 31).
Having considered the motion together with plaintiff’s
Affidavit and Memorandum in Support, the court denies the motion
without prejudice. There is no constitutional right to appointment
of counsel in a civil action.

Durre v. Dempsey, 869 F.2d 543, 547

(10th Cir. 1989); Carper v. Deland, 54 F.3d 613, 616 (10th Cir.
1995).

However, “[t]he court may request an attorney to represent

any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The
decision whether to appoint counsel lies in the court’s discretion.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). In deciding
whether to appoint counsel, the district court should consider “the
merits of the prisoner’s claims, the nature and complexity of the
factual and legal issues, and the prisoner’s ability to investigate
the facts and present his claims.”

Rucks, 57 F.3d at 979; Hill,

393 F.3d at 1115.

Having considered the above factors in this

case, the court finds that plaintiff interprets the case as
amounting to his word against that of the defendants as to the
incident.

The court further finds that the matter involves a

single incident of alleged excessive force, which plaintiff alleges
was videotaped; and that plaintiff’s filings to date indicate he is
quite capable of presenting the facts and issues in this case.
Because no special legal training is required to recount the facts
surrounding an alleged injury, pro se litigants may be expected to
state such facts without any legal assistance.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

See Hall v.

Accordingly, the

Court denies plaintiff’s motion for appointment of counsel at this
juncture.

However, this denial is without prejudice.

As the case

progresses, if it becomes apparent that appointed counsel is
necessary, plaintiff may renew this motion.
In his Objection to Martinez Report, plaintiff asks the
court to order defendants to submit additional documentation, and
alleges that the Report is incomplete without this information.
However, if plaintiff believes there are additional witnesses or
other evidence, he may seek to obtain and present that evidence at
the appropriate time.
Plaintiff has filed a First Amended Complaint (Doc. 31).
It appears from the court’s review of this complaint that it
differs from his original complaint only in that he provides names
of defendants that were previously referred to as three John Does.
Accordingly, the court finds that the First Amended Complaint must
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be served upon defendants.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s
Motion for Appointment of Counsel (Doc. 25) is denied without
prejudice, and that his request for an order regarding the Martinez
Report (Doc. 30) is denied.
IT IS FURTHER ORDERED that the clerk shall prepare waiver
of service forms pursuant to Rule 4(d) of the Federal Rules of
Procedure, that along with the First Amended Complaint, shall be
served upon all defendants by a United States Marshal or a Deputy
Marshal at no cost to plaintiff absent a finding by the court that
plaintiff is able to pay such costs.
IT IS FURTHER ORDERED that the screening process under 28
U.S.C. § 1915A having been completed, this matter is returned to
the clerk of the court for random reassignment pursuant to D.Kan.R.
40.1.
Copies of this Order shall be transmitted to plaintiff and
to defendants.
IT IS SO ORDERED.
Dated this 12th day of September, 2011, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

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