Jones (ID 48782) v. Parks et al
ORDER denying 35 Plaintiff's third Motion to Appoint Counsel without prejudice. Signed by Magistrate Judge Gwynne E. Birzer on 2/17/2021. Mailed to pro se party Lorenzo M. Jones 48782, EL DORADO Correctional Facility-Central, PO Box 311, El Dorado, KS 67042, by regular mail. (kf)
Case 5:19-cv-03175-HLT-GEB Document 42 Filed 02/17/21 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LORENZO M. JONES
ANDREW PARKS, et al.
Case No. 19-cv-3175-DDC-GEB
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights
complaint pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at the El Dorado
Correctional Facility (“EDCF”), however, the claims giving rise to his Complaint occurred during
his incarceration at the Lansing Correctional Facility in Lansing, Kansas (“LCF”). On November
19, 2019, Senior District Judge, Sam A. Crow entered a Memorandum and Order, Order to Show
Cause, and Order denying Motion to Appoint Counsel without prejudice.1 Additionally, Judge
Crow found the proper processing of Plaintiff’s claims of violation of his right to be free from
cruel and unusual punishment in violation of the Eighth Amendment and his claim of “depraved
indifference gross medical negligence” could not be accomplished without additional information
from appropriate officials at LCF. Accordingly, he ordered the appropriate officials of the LCF to
prepare and file a Martinez Report.
ECF No. 5.
Case 5:19-cv-03175-HLT-GEB Document 42 Filed 02/17/21 Page 2 of 3
Plaintiff filed his second Motion to Appoint Counsel2 before the Martinez Report was filed.
Judge Crow denied Plaintiff’s motion.3 The Martinez Report was filed on July 30, 20204, and
Defendants’ Answer was filed on September 10, 2020.5 Defendants moved for summary on
Plaintiff’s failure to exhaust his administrative remedies as mandated by the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a) on October 2, 2020.6 After Plaintiff failed to respond
to Defendants’ Motion for Summary Judgment, District Judge Holly L. Teeter granted Plaintiff a
brief extension of time, until January 4, 2021, to file his response.7 Plaintiff filed a response on
December 21, 2020.8 At the end of his response Plaintiff adds a one-line request for legal counsel.9
The Court has considered Plaintiff’s Motion to Appoint Counsel. Plaintiff does not set out
in any of his Motions to Appoint Counsel10 his attempts to obtain 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 in presenting
his strongest possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223
ECF No. 9.
ECF No. 11.
ECF No. 18.
ECF No. 24.
ECF No. 29.
ECF No. 34.
ECF No. 35.
ECF Nos. 3, 9, & 35.
Case 5:19-cv-03175-HLT-GEB Document 42 Filed 02/17/21 Page 3 of 3
(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
investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979).
Where Defendants have filed a motion for summary judgment regarding Plaintiff’s failure to
exhaust his administrative remedies, to which Plaintiff has responded, the Court concludes it is not
clear at this juncture that Plaintiff has asserted a colorable claim against Defendants. Judge Crow
concluded, and the Court agrees, the issues are not complex, and Plaintiff appears capable of
adequately presenting facts and arguments. The Court denies the motion without prejudice to
refiling the motion if the case survives summary judgment.
IT IS THEREFORE ORDERED THAT Plaintiff’s third Motion for Appointment of
Counsel (ECF No. 35) is denied without prejudice.
IT IS SO ORDERED.
Dated at Wichita, Kansas February 17, 2021.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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