Shelton v. Harper County Sheriff's Department et al

Filing 20

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 11 for return of property is denied. Plaintiff's motion 19 to appoint counsel is denied. The clerk of the court shall issue summons to the defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure. Signed by Senior District Judge Sam A. Crow on 3/26/2013. (Mailed to pro se party Wesley J. Shelton by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WESLEY J. SHELTON,
Plaintiff,
v.

CASE NO. 11-3101-SAC

HARPER COUNTY SHERIFF’S DEPARTMENT, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in federal custody, alleges he was
subjected to excessive force during his arrest by officers of the
Harper County Sheriff’s Department. He names as defendants the
Sheriff’s Department, Undersheriff Tracy Chance, and Deputy Kenneth
Hobson.
The court has examined the pleadings and concludes a response
is necessary to ensure the proper resolution of plaintiff’s claim.
Also before the court are plaintiff’s motions for the return of
property (Doc. 11) and his motion for the appointment of counsel (Doc.
19).
The motion for return of property
Plaintiff brings this motion pursuant to Rule 41(g) of the
Federal Rules of Criminal Procedure. He seeks the return of property,
including a truck, tools, electronics, and money.
Rule 41(g) provides as follows:
Motion to Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of

property may move for the property’s return. The motion must
be filed in the district where the property was seized. The
court must receive evidence on any factual issue necessary
to decide the motion. If it grants the motion, the court
must return the property to the movant, but may impose
reasonable conditions to protect access to the property and
its use in later proceedings.
Plaintiff makes no supporting factual allegations, and it is
unclear whether he believes the property in question was taken by the
county officers who are the named defendants to this action or whether
he believes the property was seized by federal officers.
Plaintiff has not named any federal officer as a defendant, and
if his contention is that federal authorities are in possession of
the property, he must file a motion pursuant to Rule 41(g) in the
federal criminal action. See U.S. v. Christy, 883 F.Supp. 2d 1040,
1052 (D.N.M. 2012)(“Sometimes, it is more efficient to permit a
criminal defendant to seek civil relief in a criminal case, such as
when a prisoner seeks the return of property seized from him under
rule 41 of the Federal Rules of Criminal Procedure.”)
If, however, plaintiff’s contention is that the defendant county
officials seized the property, he must pursue state court remedies.
In United States v. Copeman, 458 F.3d 1070 (10th Cir. 2006), the
Tenth Circuit states:
[T]here are some limited circumstances under which
[Rule 41(g)] can be used as a vehicle to petition for the
return of property seized by state authorities. Those
circumstances include actual federal possession of the
property forfeited by the state, constructive federal
possession where the property was considered evidence in
the federal prosecution, or instances where property was
seized by state officials acting at the direction of federal
authorities in an agency capacity. Copeman, 458 F.3d at

1071.
However, “[w]hen state avenues of relief are open to the movant,
he cannot show an inadequate remedy at law.” Id. at 1073 (internal
quotation and punctuation omitted). It is clear that remedies exist
under state law, including an action for replevin pursuant to K.S.A.
60-1005. This section expressly provides a remedy to recover personal
property that is in the custody of an officer as a result of legal
process. See K.S.A. 60-1005(c)(“If the property the possession of
which is sought is in the custody of an officer under any legal process
it shall nevertheless be subject to replevin under this section….”)
Likewise, plaintiff may have state court remedies under the Kansas
Tort Claims Act or for conversion. In sum, the court finds that
plaintiff has adequate state law remedies and may not proceed against
the defendants in this action under Rule 41(g). Accordingly, the
motion will be denied.
The motion to appoint counsel
A party to a civil action has no constitutional right to the
appointment of counsel. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir.
1989). Under the in forma pauperis statute, a court “may request an
attorney to represent any person unable to afford counsel.” 28 U.S.C.
§ 1915(e). The appointment of counsel is a matter within the discretion
of the court, and the court should consider factors including the
merits of the matter, the complexity of the factual and legal issues
presented, and the movant’s ability to present the claims. Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

The court has considered the record and finds the appointment
of counsel is not warranted at this stage of the matter. The issues
do not appear to be unusually complex, and plaintiff is able to explain
the factual and legal bases for his claims. Accordingly, the court
will deny the motion to appoint counsel but will reconsider this
request if the record develops to a stage in which the appointment
of counsel is required.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
return of property (Doc. 11) is denied.
IT IS FURTHER ORDERED plaintiff’s motion to appoint counsel (Doc.
19) is denied.
IT IS FURTHER ORDERED the clerk of the court shall issue summons
to the defendants pursuant to Rule 4 of the Federal Rules of Civil
Procedure.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 26th day of March, 2013, at Topeka, Kansas.

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