Paige (ID 108422) v. Martell et al

Filing 26

ORDER ENTERED: Plaintiff's Motion for Appointment of Counsel 24 is denied without prejudice. Signed by Magistrate Judge David J. Waxse on 09/15/17. Mailed to pro se party Michael P. Paige by regular mail. (smnd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MICHAEL P. PAIGE, Plaintiff, v. CASE NO.17-3056-SAC-DJW (fnu) MARTELL, et al., Defendants. O R D E R This matter is before the Court on Plaintiff’s Motion for Appointment of Counsel (Doc. #24) filed on September 2, 2107. Having considered the motion, the Court finds it should be appointment of denied at this time. There is no constitutional counsel in a civil case. right to the Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995). The matter lies decision within whether the to appoint discretion of counsel the in a district Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). civil court. “The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of 1 Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. counsel.” 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.” 57 F.3d Steffey, 461 F.3d at 1223, quoting Rucks v. Boergermann, 978, 979 (10th Cir. 1995). In deciding whether to appoint counsel, the district court should consider “the merits of the factual prisoner’s and legal claims, the issues, nature and and the complexity prisoner’s investigate the facts and present his claims.” of ability the to Rucks, 57 F.3d at 979; Hill, 393 F.3d at 1115. Considering these factors, the Court concludes that it is not clear at this point that Plaintiff has asserted a colorable claim. The Court has ordered a Martinez report, which has not yet been filed. The Court has not yet made the determination of whether or not Plaintiff’s claim survives the initial screening required by Plaintiff’s 28 U.S.C. motion § for 1915. Therefore, appointment of the counsel Court at denies this time. However, this denial is made without prejudice. If it becomes apparent as that appointed counsel is necessary further progresses, Plaintiff may renew his motion. 2 this case IT IS THEREFORE ORDERED Plaintiff’s Motion for Appointment of Counsel (Doc. #24) is denied without prejudice. IT IS SO ORDERED. DATED: This 15th day of September, 2017, at Kansas City, Kansas. s/ David J. Waxse DAVID J. WAXSE U.S. Magistrate Judge 3

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