Sundgren (ID 84212) v. Green et al

Filing 34

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motions to Appoint Counsel 20 & 25 are denied without prejudice. Signed by Magistrate Judge David J. Waxse on 06/16/17. Mailed to pro se party Matthew Sundgren by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MATTHEW SUNDGREN,
Plaintiff,
v.

Case No. 15-3275-DDC-DJW

THOMAS LOOMIS,
Defendants.

MEMORANDUM AND ORDER
Before the Court are Plaintiffs two Motions to Appoint Counsel (Docs. 20 & 25), both of
which are unopposed. Having considered the motions, the Court declines to appoint counsel.
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). 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 burden is on the applicant to
convince the court that there is sufficient merit to his claim to warrant the appointment of
counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006)(citing Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). It is not enough “that having counsel
appointed would have assisted [the prisoner] in presenting his strongest possible case, [as] the
same could be said in any case.” Steffey, 461 F.3d at 1223 (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 to investigate the facts and present his claims.” Rucks, 57 F.3d
at 979; Hill, 393 F.3d at 1115.

Considering the above factors, the Court concludes in this case that (1) it is not clear at
this juncture that Plaintiff has asserted a colorable claim; (2) the issues are not complex; and (3)
Plaintiff appears capable of adequately presenting facts and arguments. At the very least, there is
a question as to whether Plaintiff has exhausted his administrative remedies. Plaintiff is capable
of producing information supporting his exhaustion. Accordingly, the Court denies Plaintiff’s
motions to appoint counsel at this time. However, this denial is without prejudice. If it becomes
apparent that appointed counsel is necessary as this case further progresses, Plaintiff may renew
his motion.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motions to
Appoint Counsel (Docs. 20 & 25) are denied without prejudice.
IT IS SO ORDERED.
Dated June 16, 2017, at Kansas City, Kansas.
s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge

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