Byers v. Smith
ORDER denying without prejudice 19 Motion to Appoint Counsel. Signed by Magistrate Judge Teresa J. James on 8/19/2020. Mailed to pro se party Jermelle Byers by regular mail. (ts)
Case 5:20-cv-03107-HLT-TJJ Document 21 Filed 08/19/20 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 20-cv-3107-HLT-TJJ
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. 19).1
This is Plaintiff’s second motion for appointment of counsel.2 The Court considered the
first motion, noting there is no constitutional right to appointment of counsel in a civil case3 and
the decision whether to appoint counsel in a civil case is a matter of discretion.4
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.”5 In its ruling on the first motion, the Court
Plaintiff mailed separate letters to District Judge Teeter and Magistrate Judge James, both of
which address his request for appointment of counsel. The Court construes the submission to Judge
Teeter as a motion (ECF No. 19), and the submission to Judge James as suggestions in support of
the motion (ECF No. 20). Judge Teeter referred the motion to Judge James for a ruling.
See ECF No. 5.
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616
(10th Cir. 1995).
Steffey, 461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979).
Case 5:20-cv-03107-HLT-TJJ Document 21 Filed 08/19/20 Page 2 of 2
concluded (1) it is not clear 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 denied the motion without prejudice to refiling at a
later stage of the proceedings.6 At the time, service on Defendant had only recently been
initiated, and the Court did not know whether Defendant would respond to Plaintiff’s Complaint
by filing an answer or a motion to dismiss.
Defendant Logan Smith has now filed a motion to dismiss Plaintiff’s Complaint.7
Because Plaintiff has not yet responded and the motion is not ripe for ruling, it is unclear whether
Plaintiff’s Complaint will survive summary dismissal. Plaintiff may renew this motion if his
Complaint survives summary dismissal. In other words, if District Judge Teeter denies the
pending motion to dismiss in whole or in part, Magistrate Judge James would once again
consider Plaintiff’s request for appointment of counsel.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Appoint Counsel (ECF No.
19) is denied without prejudice.
IT IS SO ORDERED.
Dated this 19th day of August, 2020, in Kansas City, Kansas.
Teresa J. James
U. S. Magistrate Judge
ECF No. 10.
ECF No. 18.
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