Hughes (ID 96576) v. Heimgartner

Filing 19

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion to Appoint Counsel 14 is granted. The Court will appoint counsel in a subsequent order. Plaintiff's Supplement to Complaint 15 is construed as a Motion to Amend and is granted. The deadline to file an Amended Complaint will be set in the subsequent order appointing counsel. Signed by Magistrate Judge David J. Waxse on 06/06/17. Mailed to pro se party Charley Hughes by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLEY HUGHES,
Plaintiff,
v.

Case No. 16-3147-JAR-DJW

JAMES HEIMGARTNER,
Defendant.

MEMORANDUM & ORDER
The matter before the Court is on Plaintiff’s Motion to Appoint Counsel (Doc. 14).
Defendant filed a Motion to Dismiss or Motion for Summary Judgment (Doc. 9) on January 13,
2017. Plaintiff never responded. On February 14, 2017, the Court ordered Plaintiff to show
good cause as to why Defendant’s motion should not be granted as unopposed and to file any
response to Defendant’s motion by February 27, 2017. On February 17, Plaintiff filed a onepage response (Doc. 13), and on February 21, he filed a one-page Supplement to his Complaint
(Doc. 15). For the reasons below, the Court grants Plaintiff’s motion for appointment of counsel.
Section 1915(e)(1) provides that the “court may request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). In addition to determining the
financial need of the movant, if the court determines the movant has a colorable claim, then it
“should consider the nature of the factual issues raised in the claim and the ability of the plaintiff
to investigate the crucial facts.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)
(citing McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (citing Maclin v. Freake, 650
F.2d 885, 887 (7th Cir. 1981)). The Tenth Circuit has adopted several factors for determining
whether appointment of counsel is appropriate, including: “the merits of 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.” Id. (citing Williams v. Messe, 926 F.2d 994,
996 (10th Cir. 1991) (citing Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981)).
After reviewing the factors used in determining whether to appoint counsel, the Court
concludes that the factors weigh in favor of appointing counsel in this case. Because the Court is
appointing counsel, it construes Plaintiff’s Supplement to Complaint (Doc. 15) as a motion to
amend his complaint, which the Court grants. Thus, Plaintiff’s appointed counsel will file
Plaintiff’s Amended Complaint. The deadline to file the Amended Complaint will be set in the
Court’s order appointing counsel.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Appoint
Counsel (Doc. 14) is granted. The Court will appoint counsel in a subsequent order.
IT IS FURTHER ORDERED that Plaintiff’s Supplement to Complaint (Doc. 15) is
construed as a Motion to Amend and is granted. The deadline to file an Amended Complaint
will be set in the subsequent order appointing counsel.
IT IS SO ORDERED.
Dated June 6, 2017, at Kansas City, Kansas.

David J. Waxse
United States Magistrate Judge

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