Anderson (ID 119569) v. Kansas Department of Corrections et al

Filing 9

MEMORANDUM AND ORDER ENTERED: The motion to appoint counsel (Doc. 8 ) is denied without prejudice. Signed by District Judge John W. Lungstrum on 11/15/23. Mailed to pro se party Scott V. Anderson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SCOTT V. ANDERSON,
Plaintiff,
v.

CASE NO. 23-3230-JWL

KANSAS DEPARTMENT OF CORRECTIONS, ET AL.,
Defendants.

MEMORANDUM AND ORDER
This matter is a pro se civil rights action filed by Plaintiff and state prisoner Scott V.
Anderson. Plaintiff filed his amended complaint on October 30, 2023, and on November 2, 2023,
the Court ordered the Kansas Department of Corrections to submit a Martinez Report regarding
the events underlying this complaint. (Docs. 6 and 7.) This matter comes now before the Court on
Plaintiff’s second motion to appoint counsel. (Doc. 8.) Therein, Plaintiff identifies several
unsuccessful efforts he has made to retain counsel and he points out the delay in receiving legal
mail and the restrictions on his ability to call attorneys that are caused by his incarceration. Plaintiff
also asserts that he needs legal representation to advise him on how to proceed, to conduct crossexamination, to obtain and issue subpoenas, and to assist with motion practice in this matter. Id.
As Plaintiff acknowledges in his motion, there is no constitutional right to appointment of
counsel in a civil case. Id. at 1; 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 appointment of counsel. Steffey v. Orman, 461
F.3d 1218, 1223 (10th Cir. 2006) (citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115
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(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 (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
In deciding whether to appoint counsel, the Court has considered “the merits of the
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.” Rucks, 57 F.3d at 979; Hill, 393 F.3d at
1115. This case is in the screening phase of the proceedings, in which the Court determines whether
Plaintiff has asserted a plausible claim against a suable defendant. At this point, there is no need
for Plaintiff to issue subpoenas or conduct cross-examination, nor has Plaintiff identified specific
motions appropriate for filing at this point with which he would need the assistance of counsel.
The Court has ordered the Martinez Report, which will assist in determining the nature and
complexity of the factual and legal issues in this matter. Plaintiff will have the opportunity to
respond to that report and Plaintiff has thus far adequately presented his facts and arguments. Thus,
the Court is not convinced that appointment of counsel is warranted at this time and it will deny
the motion without prejudice to refiling if the material circumstances change.

IT IS THEREFORE ORDERED that the motion to appoint counsel (Doc. 8) is denied
without prejudice.

IT IS SO ORDERED.
DATED: This 15th day of November, 2023, at Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge
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