Gross (ID 48192) v. Dunn et al

Filing 9

ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until April 30, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint (Docs. 1 , 4 ) should not be dismissed or stayed. Plaintiff's Motion to Appoint Counsel 8 is denied without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 04/11/18. Mailed to pro se party William David Gross by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM DAVID GROSS,
Plaintiff,
v.

CASE NO. 18-3018-SAC

LAURIE DUNN, et al.,
Defendants.

ORDER TO SHOW CAUSE
Plaintiff William David Gross is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed
or stayed for the reasons set forth below. This matter is before the Court on a civil rights
complaint filed under 42 U.S.C. § 1983 by a prisoner. Plaintiff proceeds pro se and in forma
pauperis.
Plaintiff seeks compensation for, or the return of, his property that is being held by the
Defendants—the Osage County Sheriff and the Osage County Sheriff’s Office. Plaintiff alleges
that property was seized pursuant to his underlying criminal proceeding, and that Defendants
have failed to return the property at the conclusion of those proceedings and despite a release by
the United States Attorney’s Office.
Plaintiff is seeking the same relief in his criminal case. See United States v. Gross,
No. 15-cr-40012-CM (D. Kan.). The Court in that case entered a Memorandum and Order on
March 9, 2018 (Doc. 111), ruling on multiple motions filed by Plaintiff for the return of his

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property under Fed. R. Crim. P. 41(g). The Court denied the motions without prejudice, stating
that:
It appears from defendant’s most recent filing that defendant has
been in contact with the Osage County Sheriff’s Department,
which suggests to this court that his request may be moot at this
point. If defendant still has not received his property and believes
the federal government has actual or constructive possession of the
property as required by Rule 41(g), he may file a new motion, and
the court expects the government to respond to any such motion
with an update on the status of any efforts to assist with the return
of defendant’s property from state authorities.
Doc. 111, at 2.

Plaintiff responded to the Court’s Memorandum and Order on April 3, 2018

(Doc. 112), stating that although the U.S. Attorney’s Office provided Plaintiff with a copy of its
release of the subject property, “it appears the U.S. attorney at the Sheriff’s request failed to
provide any certification to supplement or provide release and return of the property which the
Court makes note of and so states.” (Doc. 112, at 1–2.) Plaintiff suggests that Doc. 112 is
intended to serve as his new motion for return of property under R. 41(g). See id. at 2 (“this new
motion is filed in conjunction with previous filings as a supplemental addendum”).
Plaintiff is seeking the same relief in his criminal case, which will involve participants
who are already familiar with the underlying criminal action and the issues surrounding the
property. In the interest of judicial economy, this matter should be dismissed or stayed pending a
ruling on Plaintiff’s motion in his criminal case. See Garcia v. Trubey, No. 12-3095-SAC, 2012
WL 2019187, at *5 (D. Kan. 2012) (finding that the order of the federal district court in
plaintiff’s criminal case denying his 41(g) motion for return of seized property precludes him
from relitigating his claims before this federal district court).
Plaintiff has also filed a Motion for Appointment of Counsel (Doc. 8), arguing that the
case is complex and he is not skilled in the practice of law. The Court has considered Plaintiff’s

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request 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. 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
request without prejudice to refiling a motion if Plaintiff’s case proceeds.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
April 30, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why Plaintiff’s Complaint (Docs. 1, 4) should not be dismissed or stayed
for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel (Doc. 8) is
denied without prejudice.

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IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 11th day of April, 2018.

s/ Sam A. Crow
SAM A. CROW
Senior U. S. District Judge

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