Spurlock (ID 114673) v. English et al

Filing 46

MEMORANDUM AND ORDER denying 45 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 1/19/2022. (tl)

Case 5:20-cv-03121-JWB-KGG Document 46 Filed 01/19/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES ALLEN SPURLOCK
Plaintiff,
vs.
RICHARD ENGLISH, et al.,
Defendant.

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Case No. 5:20-cv-3121-JWB-KGG
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MEMORANDUM & ORDER ON
MOTION FOR APPOINTMENT OF COUNSEL
The Plaintiff, James Allen Spurlock, filed a “Motion to Appoint Counsel” (Doc.
45) for the second time with this Court. The first ruling on Plaintiff’s motion to appoint
counsel was denied without prejudice. (Doc. 6). The Court notes that there is no
constitutional right to have counsel appointed in civil cases such as this one. Beaudry v.
Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003). “[A] district court has
discretion to request counsel to represent an indigent party in a civil case” pursuant to 28
U.S.C. § 1915(e)(1). Commodity Futures Trading Comm’n v. Brockbank, 316 F. App’x
707, 712 (10th Cir. 2008). The decision whether to appoint counsel “is left to the sound
discretion of the district court.” Lyons v. Kyner, 367 F. App’x 878, n.9 (10th Cir. 2010)
(citation omitted).
The Tenth Circuit has identified four factors to be considered when a court is
deciding whether to appoint counsel for an individual: (1) plaintiff’s ability to afford

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counsel, (2) plaintiff’s diligence in searching for counsel, (3) the merits of plaintiff’s
case, and (4) plaintiff’s capacity to prepare and present the case without the aid of
counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985) (listing factors
applicable to applications under the IFP statute); Castner v. Colorado Springs
Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing factors applicable to
applications under Title VII). Thoughtful and prudent use of the appointment power is
necessary so that willing counsel may be located without the need to make coercive
appointments. The indiscriminate appointment of volunteer counsel to undeserving
claims will waste a precious resource and may discourage attorneys from donating their
time. Castner, 979 F.2d at 1421.
Under the first factor, Plaintiff indicates he “is unable to afford counsel.” (Doc. 45,
at 1). The Court has no reason to doubt his assertion and notes that Plaintiff was
previously given leave to proceed in forma pauperis. (Doc. 4). The second factor relates
to the Plaintiff’s diligence in searching for counsel. In his motion, Plaintiff states that he
has made repeated efforts to obtain an attorney to no avail. (Doc. 45, at 2). While the
method of communication was postal mail, the Court understands that Plaintiff is in
protective custody and has limited access to other means of communication. No further
details of the communication attempts were provided.
The next factor is the viability of Plaintiff's claims in federal court. See McCarthy,
753 F.2d at 838-39 (10th Cir. 1985); Castner, 979 F.2d at 1421. Plaintiff brings § 1983
claims alleging he was assaulted due to the deliberate indifference of the prison and its

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employees. The Court has reviewed the complaint and concludes that the Plaintiff may
have a colorable claim. See Farmer v. Brennan, 511 U.S. 825, 828 (1994) (holding that a
prison official’s deliberate indifference to substantial risk of harm implicates the Eight
Amendment).
The final factor is Plaintiff's capacity to prepare and present the case without the
aid of counsel. Castner, 979 F.2d at 1420-21. In considering this factor, the Court must
look to the complexity of the legal issues and Plaintiff's ability to gather and present
crucial facts. Id. at 1422. The Court notes that § 1983 claims are often complex. See, e.g.,
Lee v. City of Topeka, No. 10–4126–CM, 2011 WL 720191, at *2 (D. Kan. Feb. 22,
2011) (noting § 1983 claims are often complex). Plaintiff also notes that the case will
likely involve conflicting testimony and would be in a better position if a lawyer were to
advocate for his position. (Doc. 45, at 1–2). He also mentions that he has limited access
to the law library due to being in protective custody. (Id., at 1).
While the Court does not doubt that a trained attorney would handle the matter
more effectively, the Court sees no basis to distinguish Plaintiff from the many other
untrained individuals who represent themselves pro se on various types of claims in
Courts throughout the United States on any given day. Although Plaintiff is not trained as
an attorney, this fact alone does not warrant appointment of counsel. As such, the Motion
to Appoint Counsel (Doc. 45) is DENIED.
The Court is also in receipt of Plaintiff’s letter attached to the motion. Plaintiff
indicates he has “many questions” regarding the initial order. The Court has set a

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scheduling conference for February 10, 2022, at 10:00 a.m. Arrangements have been
made to ensure Plaintiff can participate in the conference. As such, the Court will address
any questions and concerns Plaintiff has at that time.
SO ORDERED.
Dated at Wichita, Kansas, on this 19th day of January 2022.
/S KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge

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