Waterman v. Cherokee County Jail et al

Filing 47

MEMORANDUM AND ORDER denying 44 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 12/13/18. Mailed to pro se party Brian Michael Waterman by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,

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Plaintiff,
vs.
DAVID GROVES, et al.,
Defendants.

Case No. 18-3092-CM-KGG

MEMORANDUM & ORDER ON
MOTION TO APPOINT COUNSEL
Now before the Court is the second Motion to Appoint Counsel (Doc. 44)
filed by Plaintiff Brian Michael Jones. Plaintiff is in custody in the Cherokee
County, Kansas, jail awaiting trial for first degree murder, aggravated kidnapping,
aggravated battery, and aggravated burglary. He brings the present lawsuit against
Defendants, who consist of various jail and/or county officials, alleging denial of
due process, denial of a medically necessary diet, retaliation for threatening to file
grievances, and denial of the right to practice religion.

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Plaintiff filed a previous motion to appoint counsel in this case. (Doc. 32.)
That motion was denied, without prejudice, by District Judge Sam Crow, who held
that
[t]his case is near the end of the screening stage and to
this point plaintiff has done a capable job of representing
himself. For the remaining time that this case is assigned
to the undersigned judge, the court believes appointment
of counsel is unnecessary. This case may be reassigned
to another judge in the near future. The court does not
wish to tie the hands of another judge as to this question.
Therefore, the motion is denied without prejudice.
(Doc. 34, at 1-2.) Within this context, the Court will address Plaintiff’s current
motion to appoint counsel (Doc. 44).
As an initial matter, the Court notes that there is no constitutional right to
have counsel appointed in civil cases such as this one. Beaudry v. Corr. Corp. of
Am., 331 F.3d 1164, 1169 (10th Cir. 2003). “[A] district court has discretion to
request counsel to represent an indigent party in a civil case” pursuant to 28 U.S.C.
§ 1915(e)(1). Commodity Futures Trading Comm’n v. Brockbank, 316 F. App’x
707, 712 (10th Cir. 2008). The decision whether to appoint counsel “is left to the
sound discretion of the district court.” Lyons v. Kyner, 367 F. App’x 878, n.9
(10th Cir. 2010) (citation omitted).
The Tenth Circuit has identified four factors to be considered when a court is
deciding whether to appoint counsel for an individual: (1) plaintiff’s ability to
afford counsel, (2) plaintiff’s diligence in searching for counsel, (3) the merits of
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plaintiff’s case, and (4) plaintiff’s capacity to prepare and present the case without
the aid of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985)
(listing factors applicable to applications under the IFP statute); Castner v.
Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing
factors applicable to applications under Title VII). Thoughtful and prudent use of
the appointment power is necessary so that willing counsel may be located without
the need to make coercive appointments. The indiscriminate appointment of
volunteer counsel to undeserving claims will waste a precious resource and may
discourage attorneys from donating their time. Castner, 979 F.2d at 1421.
As stated above, Plaintiff is an inmate awaiting trial for various violent
felonies including kidnapping and murder. His prior Motion to Proceed In Forma
Pauperis (Doc. 2) was granted by District Judge Sam Crow, who assessed a partial
filing fee (Doc. 7). Given these circumstances, the Court finds Plaintiff’s financial
situation would make it impossible for him to afford counsel. The second factor is
Plaintiff’s diligence in searching for counsel. Given Plaintiff’s incarceration, the
Court finds that it would be very difficult for him to seek counsel to represent him
in this civil lawsuit. As such, this factor will not be determinative.
As for the next factor, the Court has concerns regarding the viability of
Plaintiff’s claims. See McCarthy, 753 F.2d at 838-39 (10th Cir. 1985); Castner,

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979 F.2d at 1421. The Court notes that a Motion to Dismiss Plaintiff’s claims is
currently pending before the District Court. (Doc. 45.)
The Court’s analysis thus turns to the final factor, Plaintiff’s capacity to
prepare and present the case without the aid of counsel. Castner, 979 F.2d at
1420-21. In considering this factor, the Court must look to the complexity of the
legal issues and Plaintiff’s ability to gather and present crucial facts. Id., at 1422.
The Court notes that the factual and legal issues in this case are not unusually
complex. Cf. Kayhill v. Unified Govern. of Wyandotte, 197 F.R.D. 454, 458
(D.Kan. 2000) (finding that the “factual and legal issues” in a case involving a
former employee’s allegations of race, religion, sex, national origin, and disability
discrimination were “not complex”).
The Court sees no basis to distinguish Plaintiff from the many other
untrained and/or incarcerated individuals who represent themselves pro se on
various types of claims in Courts throughout the United States on any given day.
Although Plaintiff is not trained as an attorney, and while an attorney might
present this case more effectively, this fact alone does not warrant appointment of
counsel. As such, the Motion to Appoint Counsel (Doc. 44) is DENIED.1

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The Court notes Plaintiff’s allegations that jail staff are complicating his efforts to
access the law library and seizing his legal materials. (Doc. 44, at 1.) Similar allegations
were contained in Plaintiff’s prior motion (see Doc. 32, at 1), but did not persuade Judge
Crow to appoint counsel. The undersigned Magistrate also does not find these allegations
to be a basis to appoint counsel.
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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of
Counsel (Doc. 44) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 13th day of December, 2018.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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