McDiffett (ID 51141) v. Fromm et al
ORDER ENTERED: Plaintiff's motion for appointment of counsel 3 is denied without prejudice. The clerk of the court shall enter the KDOC as an interested party on the docket for the limited purpose of preparing the Martinez Report. Signed by Magistrate Judge David J. Waxse on 08/25/17. Mailed to pro se party Shawn W. McDiffett by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAWN W. McDIFFETT,
CASE NO. 17-3053-SAC-DJW
DARRELL FROMM, et al.,
Plaintiff bring this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court
granted Plaintiff leave to proceed in forma pauperis. Although Plaintiff is currently incarcerated
at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”), the events giving rise to
his Complaint took place during his incarceration at the El Dorado Correctional Facility in El
Dorado, Kansas (“EDCF”).
Plaintiff alleges that when he was transferred to EDCF on November 23, 2016, he
notified staff of his various allergies, which included peanut butter. It appeared as though the
nurse processing Plaintiff recorded these allergies.
After Plaintiff was assigned to his cell, he
again advised staff of his peanut allergy and that a special tray and handling precautions were
needed. Despite the use of a special-colored food tray with the allergy noted, Plaintiff still
encountered problems with the handling and delivery of his food tray. Some days there would
be peanut butter on his tray and other days staff would serve him a vegetarian or high-protein
tray. On one occasion Plaintiff’s tray was returned to the kitchen because it contained peanut
butter. When the tray was returned to Plaintiff a hard-boiled egg had been added to the tray, but
the peanut butter was still on the tray. Staff then attempted to scrape off the peanut butter with a
spork and returned the tray to Plaintiff. Plaintiff alleges that on 17 out of 39 days, his meal tray
was incorrectly prepared, handled or delivered to Plaintiff.
On January 8, 2017, Plaintiff
suffered from an allergic reaction while eating his breakfast. Upon inspection of his food tray,
he discovered peanut butter smeared on the inside of the food slot and along the outside edges of
the tray. Plaintiff was assured by the Segregation Review Board and by Defendant Fromm that
the situation had been taken care of. Despite that assurance, on January 23, 2017, Plaintiff was
served a tray containing peanut butter. Plaintiff alleges that all facility departments, including
Corizon, Aramark and EDCF Administrative Staff, were put on notice and demonstrated
deliberate indifference to his serious medical needs in violation of the Eighth Amendment.
Plaintiff names multiple EDCF, Aramark and Corizon staff as defendants. Plaintiff seeks
a declaratory judgment, compensatory damages, nominal damages and punitive damages.
Plaintiff filed a Motion for Appointment of Counsel (Doc. 3). Plaintiff asks the Court to
appoint counsel to represent him because Plaintiff is unable to afford counsel, Plaintiff has
limited access to the law library, Plaintiff has extremely limited knowledge of the law, and
Plaintiff’s supplies are limited.
The Court has considered Plaintiff’s motion for appointment of 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) (quoting 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 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
In deciding whether to appoint counsel, courts must evaluate “the merits of a 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.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at
979). The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has
asserted a colorable claim against a named defendant; (2) the issues are not complex; and (3)
Plaintiff appears capable of adequately presenting facts and arguments. The Court denies the
motion without prejudice to refiling the motion if Plaintiff’s Complaint survives screening.
The Court finds that proper processing of Plaintiff’s claims cannot be achieved without
additional information from appropriate EDCF officials. See Martinez v. Aaron, 570 F.2d 317
(10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).
IT IS THEREFORE ORDERED THAT Plaintiff’s motion for appointment of counsel
(Doc. 3) is denied without prejudice.
IT IS FURTHER ORDERED THAT:
(1) The report required herein shall be filed no later than sixty (60) days from the date of
(2) Officials responsible for the operation of the EDCF are directed to undertake a
review of the subject matter of the Complaint:
to ascertain the facts and circumstances;
to consider whether any action can and should be taken by the institution
to resolve the subject matter of the Complaint;
to determine whether other like complaints, whether pending in this Court
or elsewhere, are related to this Complaint and should be considered
(3) Upon completion of the review, a written report shall be compiled which shall be
filed with the Court. Statements of all witnesses shall be in affidavit form. Copies of pertinent
rules, regulations, official documents and, wherever appropriate, the reports of medical or
psychiatric examinations shall be included in the written report. Any tapes of the incident
underlying Plaintiff’s claims shall also be included.
(4) Authorization is granted to the officials of the EDCF to interview all witnesses
having knowledge of the facts including Plaintiff.
(5) No answer or motion addressed to the Complaint shall be filed until the Martinez
Report requested herein has been prepared and filed.
(6) Discovery by Plaintiff shall not commence until Plaintiff has received and reviewed
Defendants’ answer or response to the Complaint and the report required herein. This action is
exempted from the requirements imposed under Fed. R. Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED that the clerk of court shall enter the KDOC as an
interested party on the docket for the limited purpose of preparing the Martinez Report ordered
herein. Upon the filing of that report, the KDOC may move for termination from this action.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 25th day of August, 2017.
s/ David J. Waxse
David J. Waxse
U. S. Magistrate Judge
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