Davis v. Schmidt et al

Filing 43

MEMORANDUM AND ORDER denying 41 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 3/20/20. Mailed to pro se party Robert Davis by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT DAVIS,

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Plaintiff,
vs.
DEREK SCHMIDT, et al.,
Defendants.

Case No. 18-3107-EFM-KGG

MEMORANDUM & ORDER ON
THIRD MOTION TO APPOINT COUNSEL
Plaintiff Robert Davis, representing himself pro se, has filed his third
Motion to Appoint Counsel. (Doc. 41.) The two prior motions were denied by the
Honorable Senior District Judge Samuel A. Crow, without prejudice. After review
of Plaintiff’s motion, as well as his Complaint and other filings herein, the Court
DENIES Plaintiff’s request for counsel (Doc. 41).
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
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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
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.
Based on the information provided, the Court is satisfied that the financial
situation of Plaintiff, who is incarcerated, would make it impossible for him to
afford counsel. The second factor is Plaintiff’s diligence in searching for counsel.
Based on the information contained in Plaintiff’s first motion requesting counsel,

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the Court is satisfied that Plaintiff has been diligent, but unsuccessful, in
attempting to secure legal representation. (Doc. 3.)
The next factor is the viability of Plaintiff’s claims in federal court. See
McCarthy, 753 F.2d at 838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421.
Plaintiff brings two (2) counts. He alleges that being
housed in a correctional facility while waiting trial under
the KSVPA, rather than a civilian hospital where he
could receive appropriate treatment and be treated as a
civilian, violates his Eighth Amendment right to be free
from cruel and unusual punishment and his Fourteenth
Amendment due process rights. Plaintiff seeks
declaratory relief finding the KSVPA unconstitutional,
or, in the alternative, ordering that all persons awaiting
possible adjudication as sexually violent predators be
housed in a civilian facility and receive appropriate
treatment.
(Doc. 11, at 2.) The Court notes that the prior District Judge assigned to this case,
in ruling on Plaintiff’s two prior requests for counsel, did not make a finding that
his claims were unviable. (Id.; see also Doc. 37.) Further, while one Defendant
has successfully moved for dismissal of Plaintiff’s claims, Plaintiff’s claims remain
pending as to two Defendants.
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
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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 individuals, many of whom are incarcerated, who represent themselves
pro se on various types of claims in Courts throughout the United States on any
given day. Plaintiff argues that “[c]ounsel will be better able to prepare and argue
the Plaintiff's case on appeal.” (Doc. 41, at 1.) 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 it applies to virtually all
individuals representing themselves pro se. See Steffey v. Orman, 461 F.3d 1218,
1223 (10th Cir. 2006) (citation omitted).
Plaintiff also argues that he “is entitled to the appointment of counsel as
shown in recent habeas proceedings and appeals of court decisions.” (Doc. 41, at 2
(citation omitted).) As stated by the prior District Judge assigned to this case, “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.” (Doc. 37, at 2 (citing Durre v. Dempsey,
869 F.2d 543, 547 (10th Cir. 1989) and Carper v. Deland, 54 F.3d 613, 616 (10th
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Cir. 1995)). As such, the Motion to Appoint Counsel (Doc. 41, sealed) is
DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of
Counsel (Doc. 41) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 20th day of March, 2020.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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