Shelton v. Harper County Sheriff's Department et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Collection action shall commence as set forth in this order and shall continue until plaintiff satisfies the full $350.00 filing fee. Plaintiff's motion 3 for the appointment of counsel is denied without prejudice. Plaintiff is granted to and including July 15, 2011, to submit an amended complaint. The failure to file a timely response may result in the dismissal of this matter without additional prior notice to the plaintiff. Signed by Senior District Judge Sam A. Crow on 6/15/2011. (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,
CIVIL ACTION
No. 11-3101-SAC

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

Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on a civil rights action
filed pursuant to 42 U.S.C. § 1983.
while

detained

in

Leavenworth, Kansas.

the

Plaintiff filed this action

Leavenworth

Detention

Center

in

He proceeds pro se and seeks leave to

proceed in forma pauperis and the appointment of counsel.
Plaintiff’s motion to proceed in forma pauperis is granted.
Because the information supplied by plaintiff’s custodian shows
that he has no assets, the court does not impose an initial
partial filing fee.

Plaintiff is advised that he will be

required to pay the full filing fee of $350.00 in installments,
pursuant to 28 U.S.C. § 1915(b)(2).1
1

The Finance Office of the facility where plaintiff is
incarcerated will be directed by a copy of this order to

Plaintiff’s request for the appointment of counsel is
denied.

A party in a civil action has no constitutional right

to the assistance of counsel in the prosecution or defense of
such an action.
1969).

Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir.

Rather, the decision whether to appoint counsel in a

civil matter lies in the discretion of the district court.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).

The

court should consider "the litigant's claims, the nature of the
factual issues raised in the claims, the litigant's ability to
present his claims, and the complexity of the legal issues
raised by the claims."
(10th Cir. 1991).

Long v. Shillinger, 927 F.2d 525, 526-27

Because, as set forth below, the complaint

must be amended before additional screening can be done, the
court declines to appoint counsel at this time.

The court will

deny the motion for counsel without prejudice, and plaintiff may
renew his motion.
To state a claim for relief under 42 U.S.C. § 1983, the
plaintiff must allege the violation of a right secured by the

collect from plaintiff’s account and pay to the clerk of the
court twenty percent (20%) of the prior month’s income each
time the amount in plaintiff’s account exceeds ten dollars
($10.00) until the filing fee has been paid in full.
Plaintiff is directed to cooperate fully with his custodian
in authorizing disbursements to satisfy the filing fee,
including providing any written authorization required by
the custodian or any future custodian to disburse funds from
his account.
2

Constitution or laws of the United States.
U.S. 42, 48 (1988).

West v. Atkins, 487

A party proceeding pro se must set forth

specific acts or omissions concerning the claims asserted, and
vague, unsupported, and conclusory allegations are insufficient
to state a claim for relief.

See Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991)(a party proceeding pro se must
allege sufficient facts concerning material events).
“Individual

liability

under

§

1983

must

be

based

on

personal involvement in the alleged constitutional violation.”
Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997) (citing
Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.1996)).
Here, plaintiff alleges he was subjected to excessive force
by

the

serious

Harper

County

personal

Sheriff’s

injury.

Department

However,

the

and

sustained

plaintiff

does

a

not

explain where and when the events occurred, how he was injured,
nor how each of the named defendants participated in the events.
Accordingly, the court will direct the plaintiff to amend the
complaint to provide specific factual support for his claims.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion
for leave to proceed in forma pauperis (Doc. 2) is granted.
Collection action shall commence as set forth in this order and
shall continue until plaintiff satisfies the full $350.00 filing
fee.
3

IT IS FURTHER ORDERED plaintiff’s motion for the appointment of counsel (Doc. 3) is denied without prejudice.
IT IS FURTHER ORDERED plaintiff is granted to and including
July 15, 2011, to submit an amended complaint as directed in
this order.

The failure to file a timely response may result in

the dismissal of this matter without additional prior notice to
the plaintiff.
Copies of this order shall be transmitted to the plaintiff
and

to

the

Finance

Office

of

the

facility

where

he

incarcerated.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 15th day of June, 2011.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge

4

is