Jamerson (ID 74123) v. Heimgartner et al

Filing 33

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion for Appointment of Counsel 30 Is denied without prejudice. The Motion for Extension of Time to File Martinez Report 32 filed by the KDOC is granted. The deadline for filing the Martinez Rep ort is extended to July 1, 2019. Upon the filing of that report, the AG/Defendants shall have an additional sixty (60) days to answer or otherwise respond to the Third Amended Complaint. Signed by U.S. Senior District Judge Sam A. Crow on 04/26/19. Mailed to pro se party James Lee Jamerson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES LEE JAMERSON,
Plaintiff,
v.

CASE NO. 17-3205-SAC

JAMES HEIMGARTNER, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights
complaint pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate at El Dorado Correctional FacilityCentral in El Dorado, Kansas (“EDCF”). On February 1, 2019, the Court entered a Memorandum
and Order (Doc. 28) directing the appropriate officials of EDCF and Lansing Correctional Facility
to prepare and file a Martinez Report. This matter is before the Court on the Motion for Extension
of Time to File Martinez Report (Doc. 32) filed by the Kansas Department of Corrections
(“KDOC”). For good cause shown, the Court will grant the motion. The deadline for filing the
Martinez Report is extended to July 1, 2019. Upon the filing of that report, the AG/Defendants
shall have an additional sixty (60) days to answer or otherwise respond to the Third Amended
Complaint.
Plaintiff has filed a Motion for Appointment of Counsel (Doc. 30). Plaintiff argues that
he is indigent, the case will involve conflicting testimony and credibility issues, and his claims
are complex and will require substantial factual investigation.
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,
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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. 1995)).
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 after Plaintiff has received the Martinez Report and Defendants’
answer or other responsive pleading.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Appointment of Counsel
(Doc. 30) is denied without prejudice.
IT IS FURTHER ORDERED that the Motion for Extension of Time to File Martinez
Report (Doc. 32) filed by the KDOC is granted. The deadline for filing the Martinez Report is
extended to July 1, 2019. Upon the filing of that report, the AG/Defendants shall have an
additional sixty (60) days to answer or otherwise respond to the Third Amended Complaint.

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IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 26th day of April, 2019.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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