Davis v. Schmidt et al

Filing 37

ORDER ENTERED: Plaintiff's Motion and Declaration for Leave to Appeal In Forma Pauperis 34 is denied. Plaintiff's Motion to Appoint Counsel 35 is denied without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 08/13/19. Mailed to pro se party Robert Davis by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT DAVIS,
Plaintiff,
v.

CASE NO. 18-3107-SAC

DEREK SCHMIDT, et al.,
Defendants.

ORDER

This matter is before the Court on two motions filed by Plaintiff: 1) a Motion and
Declaration for Leave to Appeal In Forma Pauperis (ECF No. 34) and 2) a Motion to Appoint
Counsel (ECF No. 35).
Motion and Declaration for Leave to Appeal In Forma Pauperis (ECF No. 34)
Plaintiff asks the Court for leave to pursue an interlocutory appeal without prepaying the
filing fee. Before filing this motion, the Court issued an order denying certification of Plaintiff’s
interlocutory appeal because it did not involve a controlling question of law as to which there is
substantial ground for difference of opinion, nor did the Court find that an immediate appeal might
materially advance the ultimate resolution of this matter. See ECF No. 33. Because the Court
denied certification, Plaintiff’s motion to proceed in forma pauperis on appeal is also denied.
Moreover, Plaintiff’s motion is moot because the Tenth Circuit Court of Appeals dismissed
Plaintiff’s appeal for lack of prosecution on August 8, 2019. See ECF No. 36.
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Motion to Appoint Counsel (ECF No. 35)
In his motion, Plaintiff requests appointment of counsel to assist with his appeal. He refers
to authority for the proposition that persons subject to civil commitment are entitled to counsel for
habeas proceedings.
However, as noted above, Plaintiff’s interlocutory appeal has been dismissed. In addition,
this action is not a habeas corpus proceeding. Plaintiff filed a complaint for violation of his civil
rights under 42 U.S.C. § 1983. There is no constitutional right to the 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 within 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, the district court should
consider “the merits of the 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.” 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 there is
sufficient merit to Plaintiff’s claim to warrant appointment of counsel. Therefore, the Court denies
Plaintiff’s Motion to Appoint Counsel at this time. However, this denial is made without prejudice.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion and Declaration for Leave to
Appeal In Forma Pauperis (ECF No. 34) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel (ECF No. 35)
is denied without prejudice.

IT IS SO ORDERED.
DATED: This 13th day of August, 2019, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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