Matthews v. Rice et al

Filing 33

ORDER ENTERED: Plaintiff's motion 7 for reconsideration in part is denied, plaintiff's motion 11 for status of proceedings is denied as requesting no specific relief, and plaintiff's motion 32 to appoint counsel is denied withou t prejudice. 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. Signed by Senior District Judge Sam A. Crow on 6/19/2012. (Mailed to pro se party Gary L. Matthews by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY L. MATTHEWS,
Plaintiff,
v.

CASE NO.

11-3221-SAC

ELIZABETH RICE, SECRETARY
OF CORRECTIONS DESIGNEE, et al.,
Defendants.

O R D E R
This matter is before the court upon plaintiff’s Motion for
“Reconsideration

in

Part”

(Doc.

7),

Motion

for

Status

of

Proceedings (Doc. 10), and Motion to Appoint Counsel (Doc. 32).
Having considered these motions, the court finds as follows.
D.Kan.

Rule

7.3

pertinently

provides

that

a

motion

for

reconsideration of a non-dispositive order must be based on:
(1) an intervening change in controlling law;
(2) the availability of new evidence, or
(3) the need to correct clear error or prevent manifest
injustice.”
Plaintiff does not allege facts in his motion showing either a
change in law or new evidence.

He merely disagrees with the

court’s dismissal of two defendants.

He does not allege facts

or legal authority showing the need to correct clear error or

prevent manifest injustice.

He also alleges no facts showing

that Graves made the decision either to manage him as a sex
offender based on misinformation

or to deny his request for

relief from sex offender management.

The court repeats that HCF

is a prison facility, and not a person subject to suit under 42
U.S.C. § 1983.
Plaintiff takes issue with the court’s finding that he has
not provided adequate information for service upon the unnamed
defendants,

but

suggests

that

the court is referring to all

defendants except Graves and HCF.

However, the information he

refers to was provided for named defendants, not the unnamed
defendants.

It should be obvious that if he provides neither

the name nor an adequate description of a John Doe or unnamed
defendant, that defendant cannot be served.
Plaintiff

appears

to

seek

to

add

defendants: Libby Keogh and Laura Thorton.

two

persons

as

new

He alleges that he

has discovered the identity of members of “this committee.”

He

does not explain which committee on what date or what decision
is referred to.
requires

that

complaint.

Rule 10 of the Federal Rules of Civil Procedure
all

parties

be

named

in

the

caption

of

the

Fed.R.Civ.P. 15 requires that in order to amend a

complaint, a complete Amended Complaint must be submitted, and
local rule requires that any Amended Complaint be submitted upon
court-approved forms.

Plaintiff has not properly amended his

complaint to add new defendants.

Pro se litigants must follow

the Federal Rules of Civil Procedure.

Accordingly, the court

finds that plaintiff has not properly added any new defendants
by suggesting the same in this motion for part reconsideration.
Plaintiff’s Motion for Status of Proceedings (Doc. 11) is
nothing more than his objection to the Martinez Report.

It is

denied for the reason that it requests no discernible relief.
Plaintiff is aware of the service upon the defendants, and that
defendant’s Answer has been filed.
The court has considered plaintiff’s Motion to Appoint
Counsel

(Doc.

prejudice.

32)

and

finds

it

should

be

denied

without

There is no constitutional right to appointment of

counsel in a civil case.

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

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

Thus, the decision whether to appoint counsel lies in

the court’s discretion.

Williams v. Meese, 926 F.2d 994, 996

(10th

is

Cir.

appointed

1991).
would”

“It
assist

not

the

enough

prisoner

“that
“in

having

counsel

presenting

his

strongest possible case, [as] the same could be said in any
case.”

Steffey

v.

Orman,

461

F.3d

1218,

1223

(10th

Cir.

2006)(citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995)).

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

claims.”

to

Rucks,

57

investigate
F.3d

at

the

979;

facts

Hill,

and

393

present

F.3d

at

his

1115.

Considering the above factors, the Court finds in this case that
the issues are not complex

and plaintiff appears capable of

adequately

and

arguments.

Thus,

for

appointed

counsel

denies

presenting

plaintiff’s

juncture.

facts
motion

However,

this

denial

is

without

the

court

at

this

prejudice,

which

means that plaintiff may renew this motion at a later time.
IT
Motion

IS

THEREFORE

for

BY

THE

Reconsideration

COURT
in

ORDERED

Part

(Doc.

that
7)

plaintiff’s
is

denied,

plaintiff’s Motion for Status of Proceedings (Doc. 11) is denied
as

requesting

no

specific

relief,

and

plaintiff’s

Motion

to

Appoint Counsel (Doc. 32) is denied without prejudice.
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.
IT IS SO ORDERED.
Dated this 19th day of June, 2012, at Topeka, Kansas.

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