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)

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