McDiffett (ID 51141) v. Nance et al

Filing 76

ORDER denying 68 plaintiff's Motion to Appoint Counsel. Signed by Magistrate Judge James P. O'Hara on 08/19/2019. Mailed to pro se party Shawn W. McDiffett by regular and certified mail; Certified Tracking Number: 7018 0680 0001 8174 1448. (tvn)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAWN W. McDIFFETT,

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Plaintiff,
v.
CHARLES H. NANCE, et al.,
Defendants.

Case No. 17-3037-JAR

ORDER
Plaintiff, a federal inmate proceeding pro se, brings this action under 42 U.S.C. §
1983 alleging defendants were deliberately indifferent to his medical needs when he was
held in custody by the State of Kansas. This matter is before the court on plaintiff’s motion
to appoint counsel (ECF No. 68).
In civil actions such as this one, there is no constitutional right to appointed counsel.1
The decision whether to appoint counsel in a civil matter lies in the discretion of the district
court.2 In deciding whether to appoint counsel, the court must evaluate “the merits of a
1

Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995); Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989).
2

Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citing
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)); Williams v. Meese, 926 F.2d
994, 996 (10th Cir. 1991).
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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.”3 “The burden is on the
[prisoner] to convince the court that there is sufficient merit to his claim to warrant the
appointment of counsel.”4 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.”5
Plaintiff first asserts counsel should be appointed because the medical allegations in
the case make it “complex, requiring expert and professional testimony, depositions,
locating and subpoena of witnesses, research and the obtaining of evidence, and much
more.”6 These listed circumstances, however, are more or less present in every case. They
do not elevate the complexity of the factual and legal issues presented. Rather, plaintiff’s
allegations of defendants’ deliberate indifference to his medical care are straight forward.
The court has no doubt that the U.S. district judge assigned to this case will be able to
discern the applicable law.
Plaintiff next requests counsel based on his belief that his legal material was
destroyed when he was transferred from state to federal custody in May 2019. As discussed

3

Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979).

4

Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (quoting Hill, 393 F.3d at

5

Id. (modifications in original) (quoting Rucks, 57 F.3d at 979).

1115).
6

ECF No. 68 at 1.
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in the court’s August 1, 2019 order, however, it turns out plaintiff’s legal material was
mailed to his wife.7 Additionally, defendants mailed copies of key documents in this
litigation to plaintiff on July 31, 2019.8 Thus, the asserted inability to access legal material
is not a reason to appoint counsel in this case.
Third, plaintiff states his access to the prison’s law library is limited because he is
currently in the Special Housing Unit (“SHU”). He implies he has access to the library
only on weekends. He complains that he has requested prison guards to take him to the
library, but they have refused. But plaintiff states he “is currently awaiting redesignation
to a facility more equipped to handle plaintiff’s medical care level.”9 This indicates
plaintiff’s alleged limited access to the library may be short-lived and increase when he is
moved out of the SHU or to another facility. All pretrial proceedings in this case, including
discovery, are currently stayed until a ruling is issued on a defendants’ pending motion to
dismiss or for summary judgment.10 Thus, presumably the only research plaintiff would
undertake in the library would be related to his response to the pending motion. But
plaintiff has given the court no information about what he wants to research, nor an estimate
of the amount of time he believes necessary to complete such research. In other words,
plaintiff has not met his burden of demonstrating an inability to present his claims to the

7

See ECF No. 75 at 1.

8

Id.

9

ECF No. 68 at 2.

10

ECF No. 63 (citing ECF No. 58).
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court. However, to ensure plaintiff has had more-than-sufficient time to research and
respond to the dispositive motion that has been pending since February 27, 2019, the court
hereby extends his response deadline to September 9, 2019.11
Finally, plaintiff states he is having difficulty obtaining a writing instrument while
in the SHU. Plaintiff previously raised a similar concern when he was confined in the
Hutchinson Correctional Facility.12 U.S. District Judge Samuel A. Crow denied a request
for appointment of counsel on this basis.13 Judge Crow noted plaintiff appeared capable
of adequately presenting facts and arguments. The same can be said at this stage in the
litigation. Plaintiff was able to obtain a pen to draft the instant motion and the motion
requesting copies of the case file (ECF No. 69).
The court has considered plaintiff’s motion and concludes that this is not a case in
which appointment of counsel is justified, at least at this juncture. First, it is not clear that
plaintiff’s claims have merit; as mentioned above, a motion to dismiss or for summary
judgment is pending. Second, the factual and legal issues in the case are not complex.
Finally, plaintiff appears able to investigate the facts and present his claims. The court
therefore denies plaintiff’s request for counsel. However, if the case survives defendants’

11

This extension is made after consultation with the presiding U.S. District Judge.

12

See ECF No. 13 at 1 n.1.

13

Id.
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pending dispositive motion, plaintiff is given leave to file another motion for appointment
of counsel if it becomes apparent that appointed counsel is justified.
Plaintiff is hereby informed that, within 14 days after he is served with a copy of
this order, he may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file written
objections to this order by filing a motion for review of this order by the presiding U.S.
district judge. Plaintiff must file any objections within the 14-day period if he wants to
have appellate review of this order. If plaintiff does not timely file his objections, no court
will allow appellate review.
IT IS THEREFORE ORDERED that plaintiff’s motion to appoint counsel is denied
without prejudice.
The Clerk is directed to mail a copy of this order to plaintiff via regular and certified
mail.
Dated August 19, 2019, in Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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