Yadon v. Council Grove, City of et al

Filing 9

MEMORANDUM AND ORDER denying 7 Motion for Review. Signed by District Judge Julie A. Robinson on 12/1/2011.Mailed to pro se party Glen D. Yadon, 123 N 10th St, Council Grove, KS 66846 by regular mail (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GLEN D. YADON,
Plaintiff,
vs.
CITY OF COUNCIL GROVE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 11-4164-JAR-JPO

MEMORANDUM AND ORDER
This civil rights suit is before the Court on Plaintiff Glen D. Yadon’s Motion to Review
(Doc. 7) Magistrate Judge O’Hara’s Order denying appointment of counsel.1 Judge O’Hara
explained in his decision that there is no constitutional right to appointed counsel in civil cases
and, after considering the applicable standards, determined that appointment of counsel was not
appropriate in this case.
Fed. R. Civ. P. 72 allows a party to provide specific, written objections to a magistrate
judge’s order. With respect to a magistrate judge’s order relating to nondispositive pretrial
matters, the district court does not conduct a de novo review; rather, the court applies a more
deferential standard by which the moving party must show that the magistrate judge’s order is
“clearly erroneous or contrary to the law.”2 “The clearly erroneous standard applies to factual
findings, and ‘requires that the reviewing court affirm unless it “on the entire evidence is left

1

Doc. 6.

2

First Union Mortgage Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988); 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a)).

with the definite and firm conviction that a mistake has been committed.”’”3
Judge O’Hara found that plaintiff is capable of presenting his case without the aid of
counsel, especially considering the liberal standards governing pro se filings.4 Plaintiff indicates
in the motion for review that he has health problems that may present problems during the trial
process. While the Court acknowledges Plaintiff’s stated health concerns, his potential difficulty
during trial does not convince the Court that Judge O’Hara’s decision was clearly erroneous.
Given his filings thus far, it is apparent that Plaintiff is able to present his claims and arguments
to the Court without the assistance of counsel. A trial date has not yet been set, so any concern
about Plaintiff’s ability to participate in trial is premature.
The Court has reviewed Judge O’Hara’s Order denying appointment of counsel in this
matter and determines that it is not clearly erroneous or contrary to the law. Therefore,
Plaintiff’s Motion for Review must be denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff Glen D. Yadon’s
Motion to Review (Doc. 7) is denied.
Dated: December 1, 2011
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

3

McCormick v. City of Lawrence, No. 02-2135-JWL, 2005 WL 1606595, at *2 (D. Kan. July 8, 2005)
(citing 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE & PROCEDURE § 3069,
at 355 (2d ed. 1997) and quoting Ocelot Oil, 847 F.2d at 1464 (quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948))).
4

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).