O'Quinn (ID 104815) v. Kelly et al

Filing 54

MEMORANDUM AND ORDER denying 53 Motion to Appoint Counsel. Signed by Magistrate Judge Brooks G. Severson on 8/28/24. Mailed to pro se party Justin Tyler O'Quinn by regular mail. (df)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JUSTIN TYLER O’QUINN,
Plaintiff,
v.

Case No. 23-3117-TC-BGS

JOEL HRABE, Warden, Norton Correctional
Facility, individual and official capacity, et al.,
Defendants.

MEMORANDUM & ORDER DENYING
MOTION FOR APOPINTMENT OF COUNSEL
NOW BEFORE THE COURT is pro se Plaintiff’s second motion requesting the
appointment of counsel. (Doc. 53.) For the reasons set forth herein, that motion is DENIED.
I.

Background.
Plaintiff filed his federal court Complaint on May 4, 2023, alleging violations of his civil

rights pursuant to 42 U.S.C. § 1983. (Doc. 1.) More specifically, as summarized by District Judge
John Lungstrum, Plaintiff’s claim “centers on a sentence computation issue that involves jail credit.
Plaintiff alleges that the failure to properly credit his jail time resulted in him being held beyond his
proper release date. Plaintiff claims his wrongful incarceration violated his constitutional rights and
seeks compensatory damages.” (Doc. 22, at 2-3.) The Complaint named the following Defendants:
Laura Kelly, Governor of the State of Kansas; Derek Schmidt, Attorney General of the State of
Kansas; and Joel Hrabe, Norton Correctional Facility Warden. Plaintiff seeks compensatory
damages. (Doc. 5, at 2.)
In conjunction with his federal court Complaint, Plaintiff filed an Application to Proceed
Without Prepayment of Fees and Affidavit by a Prisoner. (Doc. 2, “in forma pauperis motion.”) He
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also filed a Motion for Appointment of Counsel and Declaration of Good Faith Efforts to Obtain
Counsel. (Doc. 3.) On May 5, 2023, District Judge Lungstrum entered a Memorandum and Order
to Show Cause addressing Plaintiff’s Complaint and his two contemporaneously filed motions.
(Doc. 5.) Judge Lungstrum found that Plaintiff’s Complaint was insufficient and ordered him to
show cause why it should not be dismissed. (Id.)
That same Order granted Plaintiff’s in forma pauperis motion but denied, without prejudice to
refiling, Plaintiff’s Motion for Appointment of Counsel. (See Doc. 5.) In doing so, the District
Court “evaluate[d] the merits of [Plaintiff 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.’” (Id., at 6
(quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citation omitted).)
The Court held 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.” (Id.) The Court denied Plaintiff’s request for counsel
“without prejudice to refiling the motion if [his] Complaint survives screening.” (Id.) Plaintiff was
ultimately given until July 13, 2023, to respond and show cause why his Complaint should not be
dismissed. (Id.; see also Doc. 6.)
Following additional filings by Plaintiff and determinations by the Court, the District Court
held that Plaintiff failed to indicate “any personal participation by the Governor or Attorney
General, and his request for compensatory damages against these defendants is barred by the
Eleventh Amendment. The State of Kansas and its agencies are absolutely immune from suits for
money damages under the Eleventh Amendment.” (Doc. 22, at 2.) The Court thus dismissed
Plaintiff’s claims against Governor Kelly and Attorney General Schmidt. (Id.) The Court found,

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however, that Plaintiff’s claim against Defendant Hrabe “survives the Court’s screening under 28
U.S.C. § 1915A, and requires a responsive pleading.”1 (Id.)
Plaintiff was allowed to amend his Complaint, without objection from Defendant, on June 3,
2024. (Doc. 45, text Order.) The Amended Complaint kept the same cause of action while adding
Defendants Michelle Sullivan, manager of the Kansas Department of Corrections Sentence
Computation Unit, and Mark Keating, member of Kansas Prisoner Review Board. (See generally Doc.
46.) This resulted in Defendants filing a Motion to Dismiss on June 18, 2024, which remains
pending before the District Court.2 (Doc. 48.)
Plaintiff subsequently filed his second Motion for Appointment of Counsel (Doc. 53), which
is the subject of the present Order. Therein, Plaintiff lists four attorneys/legal offices he has
contacted regarding potential representation. (Id.) The motion specifically indicates that Plaintiff
must confer with “at least five attorneys regarding legal representation.” (Id., at 2.) Rather than
deny Plaintiff’s motion on this technical deficiency, the Court will address the motion on its
substantive merits.
II.

Legal Analysis as to Request for Counsel.
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

Defendant Hrabe subsequently filed a Motion to Dismiss/Motion for Summary Judgment requesting that
Plaintiff’s claims be dismissed. (Doc. 32.) District Judge Toby Crouse, to whom the case had been
reassigned, denied this dispositive motion without prejudice. (Doc. 35.)
2 Plaintiff initially failed to respond to this dispositive motion but did so after the District Court entered a
Show Cause Order requiring Plaintiff to establish why the dispositive motion should not be granted as
unopposed. (See Docs. 49, 50, and 52.)  
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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 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). 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, the Court notes that Plaintiff is incarcerated and has been given leave
to proceed in forma pauperis in this case. This weighs in favor of appointing counsel. The second
factor relates to the Plaintiff’s diligence in searching for counsel. Plaintiff must show that he “made
a reasonably diligent effort under the circumstances to obtain an attorney.” Martinez v. Pickering, No.
22-CV-4027-JWB-RES, 2022 WL 1604616, at *2 (D. Kan. May 20, 2022). As mentioned above, the
Court typically requires the movant to confer with at least five attorneys. Williams v. Long, No. 211141-HLT-GEB, 2021 WL 4439445, at *2 (D. Kan. Sept. 28, 2021). Here, Plaintiff’s motion
indicates he has contacted four attorneys. (See Doc. 53.) For purposes of this motion, however, the
Court will not find that this factor weighs for or against Plaintiff.
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 has filed a pro se Amended Complaint
alleging violations of his civil rights. (See generally Doc. 46.) As discussed above, the Amended
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Complaint is currently the subject of Defendants’ pending Motion to Dismiss. (Doc. 48.) Therein,
Defendants argue that Plaintiff’s claims are barred by Eleventh Amendment qualified immunity,
Plaintiff is not entitled to compensatory damages under the Prison Litigation Reform Act because he
has suffered no physical injury, his § 1983 claims are untimely, he has failed to allege the personal
participation of any of the named Defendants as to his § 1983 claims, and his reliance on §§ 28
U.S.C. 1495 and 2513 and K.S.A. § 60-5004 is improper. (See generally, id.) Given that these issues
are pending before the District Court, the undersigned Magistrate Judge will not state an opinion as
whether there are concerns as to the viability of Plaintiff’s claims in federal court. This factor does
not weigh for or against Plaintiff’s request for counsel.
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 understands that Plaintiff feels like he has a meritorious claim and deserves an
attorney to represent him. This, by itself, however, is not a basis for the Court to appoint an
attorney. The Court is also sympathetic to Plaintiff’s apparent concerns regarding defending the
pending dispositive motion. That stated, as the District Court has previously determined, the factual
and legal issues presented in this case are not overly complicated. (See Doc. 5, at 6.) Further,
Plaintiff has already completed his briefing on the dispositive motion and has navigated other
dispositive motions, the Martinez report, and show cause orders from the Court. (See e.g., Docs. 5,
10, 16, 20, 21, 32, 36, 37, 39, 42, 46, 50, 51.)
While the Court does not doubt that a trained attorney would handle the prosecution of this
case 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

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United States on any given day. Although Plaintiff is not trained as an attorney, this alone also does
not warrant appointment of counsel.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of Counsel
(Doc. 53) is DENIED.
IT IS SO ORDERED.
Dated August 28, 2024, at Wichita, Kansas.
/S/BROOKS G. SEVERSON
Brooks G. Severson
United States Magistrate Judge

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