Blake (ID 96323) v. JPay et al

Filing 42

ORDER ENTERED: The Unopposed Motion of Plaintiff's Counsel for Leave to Withdraw (Doc. 36 ) is granted. Plaintiff's pro se Motion to Appoint Counsel (Doc. 39 ) is denied without prejudice. Plaintiff's pro se Motion Requesting Doc umentation (Doc. 40 ) is denied. Plaintiff's pro se Motion for Extension of Time (Doc. 41 ) is granted to the extent Plaintiff seeks an extension of time to file a motion for leave to file a second amended complaint. The motion is denied in all other respects. Plaintiff shall have until July 12, 2021, in which to file a motion for leave to file a second amended complaint. If Plaintiff fails to file a motion for leave to file a second amended complaint by this deadline, this case will proceed on Plaintiff's current First Amended Complaint at Doc. 7. Signed by U.S. Senior District Judge Sam A. Crow on 06/03/21. Mailed to pro se party Shaidon Blake by regular mail. (smnd) Modified text on 6/3/2021. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAIDON BLAKE,
Plaintiff,
v.

CASE NO. 18-3146-SAC

JPAY, et al.,
Defendants.
ORDER
Plaintiff brings this prisoner civil rights action under 42 U.S.C. § 1983. This matter is
before the Court on the Unopposed Motion of Plaintiff’s Counsel for Leave to Withdraw
(Doc. 36), Plaintiff’s pro se Motion to Appoint Counsel (Doc. 39), Plaintiff’s pro se Motion
Requesting Documentation (Doc. 40), and Plaintiff’s pro se Motion for Extension of Time
(Doc. 41).
Plaintiff, through his current counsel, has submitted three Status Reports (Docs. 32, 34,
and 37). The first two Status Reports indicated that the parties were engaged in preliminary
discussions about resolving this case without further litigation. Plaintiff indicated that if the
parties could not reach a resolution, Plaintiff intended to file a motion for leave to file a second
amended complaint.
Plaintiff submitted a third Status Report (Doc. 37) on May 19, 2021, indicating that
Plaintiff and Plaintiff’s counsel have had additional conversations about these efforts to resolve
the case, with the expectation that if the parties ultimately were unable to reach a resolution,
Plaintiff would file a motion for leave to file a second amended complaint. The Status Report
indicates that “[d]uring the course of these conversations, Blake and his counsel have reached an
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irreconcilable disagreement on fundamental questions about how to proceed with this litigation.
As such, undersigned counsel has, concurrent with this status report, filed a motion for leave to
withdraw as counsel to Blake.” (Doc. 37, at 1.)
The unopposed motion to withdraw as counsel provides that Plaintiff and counsel
“developed significant strategic difference in how to proceed with this litigation” and “the
differences remain irreconcilable.” (Doc. 36, at 1–2.) The motion also indicates that Plaintiff
“has informed movant that in light of this fundamental disagreement, Blake’s preference is to
proceed pro se.” Id. at 2. The motion complies with the Court’s Local Rules. See D. Kan.
Rule 83.5.5(a) (“Withdrawal of Attorney Whose Client Will be Left Without Counsel.”). The
Court grants the unopposed motion to withdraw.
Plaintiff has filed a pro se motion to appoint counsel (Doc. 39), seeking new counsel due
to his disagreements with his previously-appointed counsel. The Court has considered Plaintiff’s
motion 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
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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
motion without prejudice to refiling the motion if Plaintiff’s complaint survives screening.
Plaintiff filed a pro se motion seeking documentation regarding Defendants’ response to
Plaintiff’s complaint. (Doc. 40, at 1.) Plaintiff alleges that the Court extended the deadline but
the “record does not reflect new deadline or rather defendant JPay ever filed a[n] answer.” Id.
Plaintiff requests a copy of the answers, or if none exist he requests a Court order for
compliance. Id. The Court entered an Order (Doc. 30) on August 7, 2020, ordering that “the
deadline for Defendants to file an answer or otherwise respond shall be extended to thirty days
following the Court’s ruling on the motion for leave to file a second amended complaint.”
(Doc. 30, at 1.) Therefore, the deadline to answer or respond was stayed pending Plaintiff’s
submission of a motion for leave to file a second amended complaint. On May 20, 2021, the
Court entered an Order (Doc. 38) granting Plaintiff until June 11, 2021, in which to file a motion
for leave to file a second amended complaint. The deadline to answer will be extended to thirty
days following the Court’s ruling on a motion for leave to file second amended complaint if such
a motion is filed. If a motion is not filed by the Court’s deadline, the Court will set a deadline
for all Defendants to answer or otherwise respond to Plaintiff’s First Amended Complaint at
Doc. 7. Plaintiff’s motion seeking documentation is denied.
Plaintiff has also filed a pro se motion for extension of time (Doc. 41) seeking an
extension of time to file a motion for leave to file a second amended complaint. Plaintiff alleges
that he did not get notice of the current July 11, 2021 deadline in time to prepare an amended
complaint. The Court will grant Plaintiff a thirty-day extension of time. To the extent Plaintiff
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also requests the appointment of counsel in this motion, the request is denied for the reasons set
forth above. Plaintiff also asks the Court to give him instructions on what is required in the
amended complaint. The Court will not give Plaintiff legal advice. Plaintiff has already filed a
Complaint (Doc. 1) and an Amended Complaint (Doc. 7) pro se, and the Court entered a
Memorandum and Order and Order to Show Cause (Doc. 6) setting forth the Court’s screening
standards. Plaintiff’s request for guidance on filing his second amended complaint is denied.
However, the Court will direct the Clerk to provide Plaintiff with forms and instructions for
filing a § 1983 complaint.
IT IS THEREFORE ORDERED BY THE COURT that the Unopposed Motion of
Plaintiff’s Counsel for Leave to Withdraw (Doc. 36) is granted.
IT IS FURTHER ORDERED that Plaintiff’s pro se Motion to Appoint Counsel
(Doc. 39) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s pro se Motion Requesting Documentation
(Doc. 40) is denied.
IT IS FURTHER ORDERED that Plaintiff’s pro se Motion for Extension of Time
(Doc. 41) is granted to the extent Plaintiff seeks an extension of time to file a motion for leave
to file a second amended complaint. The motion is denied in all other respects.
IT IS FURTHER ORDERED that Plaintiff shall have until July 12, 2021, in which to
file a motion for leave to file a second amended complaint. If Plaintiff fails to file a motion for
leave to file a second amended complaint by this deadline, this case will proceed on Plaintiff’s
current First Amended Complaint at Doc. 7.
The Clerk is directed to provide Plaintiff with forms and instructions for filing a § 1983
complaint.

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IT IS SO ORDERED.
Dated June 3, 2021, in Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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