Redick (ID 84933) v. McKiearnan et al
MEMORANDUM AND ORDER ENTERED: Plaintiff's motion to amend the complaint 29 is granted. Plaintiff is directed to submit a complete amended complaint on or before October 18, 2019. Plaintiff's motion to appoint counsel 35 is denied. The motion of the Kansas Department of Corrections for leave to file under seal 32 is granted. Counsel directed to file forthwith requested document(s) with an event from the SEALED DOCUMENTS category. The clerk shall grant access to sealed document(s) to counsel of record. Signed by U.S. Senior District Judge Sam A. Crow on 10/08/19. Mailed to pro se party Andrew Redick by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 19-3101-SAC
STEVE McKIEARNAN and
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff’s motions to
amend the complaint (Doc. 29) and for the appointment of counsel (Doc.
35) and on the motion of the Kansas Department of Corrections for leave
to file an exhibit to the Martinez report under seal (Doc. 32).
Plaintiff’s motion to amend the complaint is granted pursuant
to Rule 15(a). Plaintiff is directed to submit a complete, amended
complaint on or before October 18, 2019.
The motion of the Kansas Department of Corrections to submit
Exhibit 8 to the Martinez report under seal is granted.
Plaintiff moves for the appointment of counsel on the grounds
that he is unable to afford counsel, that his incarceration makes it
more difficult to proceed in this matter, and that a trial in this
matter probably will involve conflicting testimony.
There is no constitutional right to the appointment of counsel
in a civil matter. Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995);
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). Rather, the
decision whether to appoint counsel in a civil action lies in the
discretion of the district court. Williams v. Meese, 926 F.2d 994,
996 (10th Cir. 1991). The party seeking the appointment of counsel has
the burden to convince the court that the claims presented have
sufficient merit to warrant the appointment of counsel. Steffey v.
Orman, 461 F.3d 1218, 1223 (10th Cir. 2016)(citing 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 movant] in
presenting his strongest possible case, [as] the same could be said
in any case.” Steffey, 461 F.3d at 1223 (citing Rucks v. Boergermann,
57 F.3d 978, 979 (10th Cir. 1995)). The 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.
The Court has considered the request and declines to appoint
counsel at this time. Plaintiff appears to be capable of presenting
his claims clearly, and at this point, the claims do not appear to
be unusually complex. If this matter proceeds to a trial, the Court
will reconsider the request at that time.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion to
amend the complaint (Doc. 29) is granted. Plaintiff is directed to
submit a complete amended complaint on or before October 18, 2019.
IT IS FURTHER ORDERED the motion of the Kansas Department of
Corrections for leave to file Exhibit 8 under seal (Doc. 32) is
IT IS FURTHER ORDERED plaintiff’s motion to appoint counsel (Doc.
35) is denied.
IT IS SO ORDERED.
This 8th day of October, 2019, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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