Spurlock (ID 114673) v. English et al

Filing 54

MEMORANDUM AND ORDER granting 49 MOTION for Reconsideration re 46 Order on Motion to Appoint Counsel filed by James Allen Spurlock. Signed by Magistrate Judge Kenneth G. Gale on 2/14/2022. Mailed to pro se party James Allen Spurlock by regular mail. (tl)

Case 5:20-cv-03121-JWB-KGG Document 54 Filed 02/14/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES ALLEN SPURLOCK
Plaintiff,
vs.
RICHARD ENGLISH and
SAM CLINE
Defendant.

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Case No. 5:20-cv-3121-JWB-KGG
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MEMORANDUM & ORDER ON
MOTION FOR RECONSIDERATION
Plaintiff James Allen Spurlock has moved for reconsideration (ECF No. 49) of this
Court’s order denying his motion to appoint counsel (ECF. No. 46). A motion for
reconsideration must be based on (1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct clear error or prevent manifest
injustice. D. Kan. Rule 7.3.
The motion to appoint counsel was originally denied because Plaintiff had not
made a sufficient showing to the Court that he should be appointed counsel. His
arguments centered around him being in protective custody with limited access to legal
materials. The central issue in the Court’s underlying Order was whether Plaintiff’s
situation is distinguishable from other pro se litigants who represent themselves on any
given day. However, after conducting a scheduling conference with the parties and

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reviewing the proposed protective order, the Court finds appointment of counsel
necessary.
The Supreme Court originally held that the test in determining whether inmates
have access to the courts is whether the prisoner is provided “a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the
courts.” Bounds v. Smith, 430 U.S. 817 (1977), abrogated by Lewis v. Casey, 518 U.S.
343 (1996). The Supreme Court later held that Bounds did not create a free-standing right
to a law library or legal access, but explained that:
Bounds does not guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims. The tools it requires
to be provided are those that the inmates need in order to attack their
sentences, directly or collaterally, and in order to challenge the conditions
of their confinement. Impairment of any other litigating capacity is simply
one of the incidental (and perfectly constitutional) consequences of
conviction and incarceration.
Lewis v. Casey, 518 U.S. 343, 355 (1996). The right of access can be satisfied by
providing prisoners with adequate law libraries or adequate legal assistance. Cox v.
Denning, No. 12-2571-KHV-DJW, 2012 WL 5877528, at *3 (D. Kan. Nov. 20, 2012). In
other words, inmates are not guaranteed unfettered or total access, but instead are
guaranteed meaningful access. Id.
The District of Nevada granted an inmate appointment of counsel when the prison
had implemented a policy of prohibiting physical access to the prison law library.
Koerschner v. Warden, 508 F. Supp. 2d 849 (D. Nev. 2007). Rather, the prison used a
“paging system” which allowed them to request no more than five legal materials at one

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time. Id. at 850. The District of Kansas has recognized this case; however, distinguished
it on the basis that the defendant did not claim lack of access to the courts. United States
v. McElhiney, No. 98-CR-40083-DDC, 2016 WL 11695065, at *2 (D. Kan. Jan. 19,
2016). In McElhiney, the court recognized that a violation of an inmate’s rights occurs
when he can demonstrate the prison is hindering efforts to pursue a legal claim. Id.
However, the defendant in that case was unable to make that showing. See id.
As previously noted, Plaintiff is in protective custody which allows him only
limited access to legal research materials. Additionally, the COVID-19 pandemic has
injected further complications resulting in staff shortages and reduced help at the law
library. Plaintiff’s situation in protective custody combined with restrictions associated
with the COVID-19 pandemic has limited his ability to communicate efficiently with the
Court and counsel, and his compromised ability to adequately prepare his case. He
requires information that may not be available to inmates because of security issues and
the Defendant has proposed a protective order which restricts access to witnesses and
documents relevant in the case.
While any one of these factors would be insufficient to justify the appointment of
counsel, the presence of all these factors in addition to a potentially restrictive protective
order is enough to warrant the appointment of counsel. Plaintiff’s motion for
reconsideration (ECF No. 49) is GRANTED.
IT IS ORDERED that all deadlines and dates set in the scheduling order be suspended.

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IT IS FURTEHRED ORDERED THAT discovery is stayed for both parties until after
the appointment of counsel. After counsel is appointed, a new scheduling conference will
be conducted.
SO ORDERED.
Dated at Wichita, Kansas, on this 14th day of February 2022.
/S KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge

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