Byers v. Smith

Filing 10

ORDER denying without prejudice 5 Motion to Appoint Counsel. Signed by Magistrate Judge Teresa J. James on 5/27/2020. Mailed to pro se party Jermelle Byers by regular mail. (ts)

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Case 5:20-cv-03107-HLT-TJJ Document 10 Filed 05/27/20 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JERMELLE BYERS, Plaintiff, v. LOGAN SMITH, Defendant. ) ) ) ) ) ) ) ) ) CASE NO. 20-cv-3107-HLT-TJJ ORDER Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. This matter is before the Court on Plaintiff’s Motion for Appointment of Counsel (ECF No. 5). The Court has considered Plaintiff’s motion for appointment of counsel. Plaintiff does not indicate he has attempted to obtain counsel. Instead he asserts counsel would assist him in presenting his case and suggests he has a constitutional right to appointed counsel. Plaintiff is mistaken – 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)). Case 5:20-cv-03107-HLT-TJJ Document 10 Filed 05/27/20 Page 2 of 2 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). 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 at a later stage of the proceedings. IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Appointment of Counsel (ECF No. 5) is denied without prejudice. IT IS SO ORDERED. Dated this 27th day of May, 2020, in Kansas City, Kansas. Teresa J. James U. S. Magistrate Judge 2   

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