Waterman v. Cherokee County Jail et al

Filing 87

MEMORANDUM AND ORDER denying 86 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 5/5/2020. Mailed to pro se party Brian Michael Waterman by regular mail. (df)

Case 5:18-cv-03092-JWB-KGG Document 87 Filed 05/05/20 Page 1 of 4

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 third Motion to Appoint Counsel (Doc. 86) filed
by Plaintiff Brian Michael Jones. Plaintiff, who is a prisoner in the Sedgwick
County Jail, brings this civil rights action pro se against certain Defendants
associated with the Cherokee County Jail, where he was previously incarcerated.
As an initial matter, the Court notes that this case remains stayed, at
Plaintiff’s request, until July 31, 2020. (Docs. 82, 83.) Plaintiff was specifically
reminded by the District Court that “no further motions or briefing should be filed
until July 31, 2020, with the exception of the briefing ordered on Plaintiff’s

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Motion for Relief from Judgment.” (Doc. 85, at 3-4.) Even so, Plaintiff filed the
present motion requesting counsel. In the interests of judicial economy, the Court
will address Plaintiff’s request. Plaintiff is again, however, instructed that no
further filings are permitted in this case until July 31, 2020. (Doc. 78.)
The Court also notes that Plaintiff has filed two previous motions to appoint
counsel in this case. (Doc. 32, 44.) The first 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.) The second motion was denied by the undersigned Magistrate
Judge, holding that there is
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.
(Doc. 47, at 4.) Within this context, the Court will address Plaintiff’s current
motion to appoint counsel (Doc. 86).

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The Court again states 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 Court incorporates the portion of its prior Order discussing the four
factors the Tenth Circuit has identified for a court 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 plaintiff’s case, and (4)
plaintiff’s capacity to prepare and present the case without the aid of counsel.
(Doc. 47, at 2-4 (citing McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir.
1985) and Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th
Cir. 1992).) In the context of this analysis, the Court finds that nothing submitted
in Plaintiff’s present motion changes the Court’s opinion that the request for
counsel should be denied.
Plaintiff has provided additional details and examples as to how Defendants
are allegedly interfering with his ability to prosecute this case, particularly by
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denying him access to his legal materials. (See generally Docs. 86 and 86-1.)
Similar allegations were contained in Plaintiff’s prior two motions requesting
counsel (Doc. 32, at 1, Doc. 44, at 1), but did not persuade Judge Crow or the
undersigned Magistrate Judge to appoint counsel (see Doc. 34, Doc. 47, n.1). The
undersigned Magistrate again does not find these allegations to be a basis to
appoint counsel.
As it held in the Order on the second motion to appoint counsel, the Court
again 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. The fact that an
attorney might present this case more effectively than Plaintiff is able to do
representing himself pro se does not warrant appointment of counsel. As such,
Plaintiff’s third Motion to Appoint Counsel (Doc. 86) is DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of
Counsel (Doc. 86) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 5th day of May, 2020.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge
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