Howard v. Rodgers et al

Filing 52

MEMORANDUM AND ORDER denying without prejudice 50 Motion to Appoint Counsel. Signed by District Judge Daniel D. Crabtree on 6/16/17. Mailed to pro se party Bryan Richard Howard by regular mail (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRYAN RICHARD HOWARD,
Plaintiff,
Case No. 17-cv-03019-DDC-DJW
v.
RAY RODGERS, et al.,
Defendants.
MEMORANDUM AND ORDER
On March 10, 2017, plaintiff, acting pro se,1 filed a Motion to Appoint Counsel. Doc. 45.
On April 7, 2017, Judge David J. Waxse denied plaintiff’s motion without prejudice. Doc. 46.
Plaintiff filed a new Motion to Appoint Counsel on May 15, 2017. Doc. 50. For the reasons
explained below, the court again denies plaintiff’s motion without prejudice.
Tile 28, Section 1915(e)(1) of the United States Code authorizes the court to “request an
attorney to represent any person unable to afford counsel.” If the court determines the movant
has a colorable claim, it should consider—in addition to the movant’s financial need—“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) (quoting McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)). 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. (quoting
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Because plaintiff proceeds pro se, the court construes his pleadings liberally and holds them to a less stringent
standard than those drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court does
not assume the role of advocate for plaintiff. Id. Nor does plaintiff’s pro se status excuse him from complying with
the court’s rules or facing the consequences of noncompliance. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994).

Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)). The movant bears the burden of
convincing the court that his claims are sufficiently meritorious to warrant appointed counsel.
Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). Whether to appoint
counsel is a decision assigned to the trial court’s sound discretion. Meese, 926 F.2d at 996.
In his Motion, plaintiff stresses that his allegations are true, but he provides no basis for
the court to find that his claims are sufficiently meritorious to warrant appointing counsel at this
time. Plaintiff’s claims also do not present such complex legal issues that they warrant
appointing counsel. Cf. McCarthy v. Weinberg, 753 F.2d 836, 839–40 (10th Cir. 1985) (holding
that the district court should have granted the plaintiff’s motion to appoint counsel because the
“medical issues involved [were] complex, requiring the presentation of expert opinion . . . [and]
development by a legal professional trained in the arts of advocacy and legal reasoning”). And,
other than plaintiff’s lack of familiarity with the legal process, he provides no reason why he is
incapable of presenting his claims. Plaintiff thus has not met his burden and so the court denies
his Motion to Appoint Counsel.
Plaintiff is free to file a new motion to appoint counsel but, like Judge Waxse explained
in his April 7, 2017 Order, such a renewed motion is best filed if plaintiff’s case survives
summary dismissal. See Doc. 46 at 3 (denying plaintiff’s previous motion to appoint counsel
and explaining that the court would “revisit [his] request for appointment of counsel if his case
survives summary dismissal after [d]efendants have had an opportunity to respond to [p]laintiff’s
claims as set forth in Order at Docs. 10 and 12”).
Finally, the court also briefly responds to plaintiff’s plea for guidance. In his motion,
plaintiff asks the court (1) whether he is supposed to respond to letters from defendants, (2) for
the discovery in the case, and (3) to investigate his allegations. Doc. 50 at 1–2. Although the

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court recognizes that navigating the legal system may be challenging at first for a layperson, it
cannot answer plaintiff’s questions or investigate his allegations. See Hall, 935 F.2d at 1110
(“[I]t is [not] the proper function of the district court to assume the role of advocate for the pro se
litigant.”). However, the court directs plaintiff to the District of Kansas Local Rules and the
Federal Rules of Civil Procedure. These rules govern the legal process in our court. The court
also may not send plaintiff the discovery he seeks. Again, the court refers plaintiff to the District
of Kansas Local Rules2 and the Federal Rules of Civil Procedure3 for a better understanding of
the discovery process.
IT IS THEREFORE ORDERED THAT plaintiff Bryan Howard’s Motion to Appoint
Counsel (Doc. 50) is denied without prejudice.
IT IS SO ORDERED.
Dated this 16th day of June, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

2

http://www.ksd.uscourts.gov/local-rules/ (follow instructions on webpage to view a pdf of the rules).

3

http://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure (click on
blue text to view a pdf of the rules).

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